Child Protection and Family Law Joining the Dots

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1 Child Protection and Family Law Joining the Dots Daryl Higgins & Rae Kaspiew Australian Institute of Family Studies AIJA Conference, Brisbane, 5-7 May 2011

2 Overview Policy and practice context Overview of the Australian systems: Child protection Family law Intersections and Gaps Magellan a case study Recent research and reports addressing the issues Concluding thoughts Disclaimer: The views are the authors and do not necessarily represent the views of the Institute or the Australian Government. 2

3 Key issues Prevalence of concerns about child safety in postseparation parenting disputes Concerns about lack of effectiveness of current responses Increasingly complex families presenting to both child protection and family law agencies/systems Family violence; mental illness and substance addiction key concerns 3

4 Family Law Council (2002) There is no greater problem today than the problems of adequately addressing child protection concerns under the Family Law Act (p. 15) 4

5 Context of Child Protection Concerns In the family law context, child protection concerns arise in two key ways: 1. where the child is alleged to be currently at risk from spending time in either parent s household (through exposure to child abuse, neglect, or family violence); and/or 2. where concerns have arisen about the treatment of child child by either/both parents prior to separation and this history is argued to be relevant to post-separation parenting concerns. 5

6 Allegations of family violence and child abuse in family law disputes AIFS Research Report No 15: Allegations of child abuse in: 23% of FCoA sample (general litigants) (n=109) 27.6% of FMC sample (general litigants) (n=116) 50% FCoA judicial determination sample (n=28) 18% FMC judicial determination sample (n=27) Allegations of child abuse also common in Family Dispute Resolution (FDR) sector (Bickerdike, 2007) 6

7 Prevalence of family violence AIFS Evaluation of 2006 Family Law Reforms showed Mothers self-reports: 26% physically hurt 39% emotional abuse 35% no violence Fathers self-reports: 17% physically hurt 36% emotional abuse 47% no violence Kaspiew et al. 2009, Table 2.2 7

8 Child safety concerns AIFS Evaluation of 2006 Family Law Reforms showed re: concerns about other parent: Mothers self-reports: 3.6% - concerns for self 9.1% - concerns for child 8.4% - both themselves and their child Fathers self-reports: 1.6% - concerns for self 12.3% - concerns for child 2.6% - both themselves and their child Kaspiew et al. 2009, Table 2.4 8

9 Policy and practice context: Aim: protecting children from harm in family law children cases Concerns: 1. Federal family law system used as a default child protection mechanism 2. State child protection departments used as default mechanisms for assessing harm in the family law context 9

10 Constitutional context States have responsibility for child protection (public law issues i.e. state intervention in family life) Commonwealth government has responsibility for family law issues (private disputes involving children in separated families) 10

11 Child Protection: practice context Highly proceduralised risk assessment processes; Perceived as risk averse because of high level of public scrutiny; Increasing burden on services and limited budgets result in need to prioritise resources to seen to be most at risk 11

12 Child Protection Policy in Australia Investigating and responding to allegations of harm to children: responsibility of each of the 8 states/territories massive increases in the workload of departments over the past decade (notifications have more than tripled) has been largely focused on risk-assessments, and forensically driven emerging trends towards differential approaches to family support 12

13 Child abuse and neglect data No prevalence data in Australia A UK study surveyed a national random probability sample of 2,869 young people aged years and found that, of this sample of the population: 21% had experienced physical abuse; 11% had experienced sexual abuse (prior to the age of 16 years); 6% had experienced neglect; and 6% had experienced emotional abuse. AIHW,

14 Headline statutory child protection activity for to Holzer (2008), based on AIHW (2008) NB: Data for NSW missing for

15 National child protection data snapshot Large increase in the number of concerns notified to child protection departments in the past decade. Child Protection Service Activity data (AIHW, 2010) show: : 107,134 reports : 339,454 reports : 286,437 report 54,621 reports were subsequently found to involve children in need of protection in (i.e., 19% of notifications substantiated ) relates to 31,295 different children These numbers have increased, whether considered in absolute terms, or in rates per 1000 Due to workload demands, cases are prioritised, and not all notifications are investigated (e.g., : only 56% of notifications had finalised investigations). AIHW,

16 Key stages of child protection system Four key stages: Notification Mandatory reports Intake and initial assessment Investigation Are there grounds for intervention? Protocols for joint police investigations Decision - case determination Action family support and/or court interventions AIHW,

17 Family law legislative context Parenting orders should: Be in child best interests (FLA s65ca) Maximise meaningful involvement of both parents (FLA s60b(1)(a)) Protect from harm from being subjected/exposed to abuse, neglect or family violence (FLA s60b(1)(b)) 17

18 Family law practice context Most parenting disputes handled in the family dispute resolution sector Minority proceed to court In current court system, most family law disputes are heard in the FMC (i.e., 79% of applications excluding divorces and consent orders: Semple Report) FCoA has special case management system to deal with serious cases of sexual and physical abuse: Magellan 18

19 Key concern The bulk of the work at the apex of the family law system in Australia those cases that come to family courts for judicial determination contain allegations of family violence and/or child abuse. (Higgins & Kaspiew, 2011, p. 8) 19

20 Overlapping legal frameworks and statutory responsibilities Understanding the intersection between child protection and family law Key agencies/systems: Child protection departments Juvenile courts Police & Director of Public Prosecutions Criminal courts & other courts of summary jurisdiction Family Court / Federal Magistrates Court Legal aid commissions see Higgins (2007) Table 3.1 (on p. 35) 20

21 Agency/ system Jurisdiction Responsible Focus Basis of decision-making / Burden of proof Police State/territories Law enforcement Responsible for investigating alleged crimes and making the case to the DPP to lay charges if there is sufficient evidence to mean a conviction is likely Criminal courts Child Protection Departments Juvenile Courts Family law system (FCoA and FMC) State/territories Criminal justice Criminal Standard of proof (beyond reasonable doubt) State/territories Protection of children Risk assessment to determine whether there is a significant risk of harm (based on a mix of professional judgment and actuarial decision-making frameworks) State/territories Protection of children Care and protection matters are determined on the civil standard of proof (balance of probabilities) Commonwealth Determination of private law disputes between two parties according to the best-interests of the child Civil standard of proof (balance of probabilities) 21

22 What is the question being asked? Statutory child protection departments Are you a protective parent? Is the child currently safe? Does the situation meet the threshold for intervention? Children s Courts Are you an adequate parent? What actions to take to improve parent capacity? Family Courts What pattern of time spent is in children s best interests? Are they protected? Are you a friendly parent? Police Is there sufficient evidence to press charges? Criminal Courts Has alleged crime been proven? 22

23 What is not directly asked? Did abuse occur? Is it likely to recur? Family courts need answers to the following questions, yet they aren t central to any of these investigations: Is the child at risk of harm in the household of either parent (or other caregiver)? Would the child be safe if he/she were to spend time unsupervised with the parent against whom allegations of abuse have been raised? 23

24 The legal and investigatory gap in family law / child protection issues 24

25 Bridging the gap: Magellan Co-ordinated approaches to bringing together information from each of these agencies to ensure private family law disputes have; Appropriate evidence Timely handling Processes to reduce trauma for children Ensure safety 25

26 What is Magellan? The Family Court s Magellan case-management model is a world-first initiative for improving outcomes for vulnerable children and families in the family law system. It is an inter-agency, collaborative, judge-led approach to case-management approach for responding to allegations of sexual or serious physical abuse. A consortium of agencies in Victoria developed and implemented the new approach in a pilot project of 100 cases, which commenced in The pilot was evaluated in 2001 before the casemanagement approach was progressively rolled out. 26

27 What is Magellan? / 2 The Magellan case-management pathway consists of a team of Judges, Registrars and Mediators ( Family Consultants ) who handle the case from start to finish. Independent Children s Lawyers (ICLs) represent the interests of children. Significant resources (i.e., uncapped legal aid; focused report from CP Department; family report; other expert reports) are directed to the case in the early stages with an aim of resolving the case within six months. 27

28 Magellan Evaluation The aim of the evaluation was to examine: the effectiveness of Magellan in responding to allegations of sexual abuse or serious physical abuse in parenting matters in the FCoA; how Magellan is being implemented; and perceptions of key stakeholders regarding its effectiveness, successful features, and any barriers to its successful implementation / improvements. 28

29 Total case duration From date of application to date of case outcome: Magellan-like cases: 471 days (15.4 months) Magellan cases: 332 days (10.9 months) Difference = 133 days quicker (4.6 months) **Magellan cases (excl. Brisbane): 304 days (10.0 months) Difference = 167 days quicker (5.5 months) 29

30 Distribution of case duration 30

31 Key elements of the Magellan model cooperation between all the agencies involved with families; timeliness and prioritisation by the Court; receipt a report from the statutory child protection department as early as possible; good individual case-management by a dedicated team of a Judge, Registrar and Client Services Officer; provision of un-capped Legal Aid funding for parties; independent representation of children; and a focus on children s best interests. 31

32 Relationship with Child Protection Departments Cooperation of the statutory child protection Department was essential Through the Magellan stakeholder meetings; the protocols outlining the role of the department; provision of the short, focused Magellan Report Understanding separate roles: Dept: investigating allegations; ensuring safety (i.e., is there a protective, good enough parent?) Court: children s best interests Importance of the Magellan Report 32

33 Magellan Report Identify history and current concerns Importance of clear guidelines: Early on, there were difficulties in getting the Department to meet timelines. When we asked for a report, they thought we wanted a big, fancy document. But I just said, Forward the existing report you have. Once they realised this, it was easy. (Judge) 33

34 Key Messages from Magellan Magellan matters were believed to be shorter, often resolving without judicial determination Magellan seen to deliver better outcomes for children and families. Tight case-management procedures are critical to this, particularly the role of Magellan Judges and Registrars. The importance placed on Magellan matters by the Court is reflected in the role that Judges play, and this was seen as one of the ways that the process gives parties a sense of procedural fairness. Cooperation with the statutory child protection department was seen as critical to the success of Magellan. 34

35 Key Messages from Magellan Fewer court events, fewer judicial officers, more frequent early settlement Although participants emphasised the success of Magellan, opportunities for improvements were identified, including: streamlining procedures for cases referred from FMC; greater uniformity across registries; improving some isolated cases of poor communication; and ensuring adequate resources. Participants suggested consideration be given to: listing practices the best ways of meeting the therapeutic needs of children clarifying practice directions 35

36 New research and emerging policy AIFS Evaluation of 2006 Family Law Reforms (Kaspiew et al. 2009) Australian Law Reform Commission and NSW Law Reform Commission, 2010 report: Family Violence A National Legal Response Reports by Professor Richard Chilsolm (2009) and Family Law Council (2009) National Framework for Protecting Australia s Children Family Law Legislation Amendment (Family Violence and Other Measures Bill (2011) 36

37 New research and emerging policy Common themes: Provisions of the Family Law Act widely misunderstood (shared parental responsibility equal time, and that family violence and child abuse are exceptions Fears re: orders for costs if knowingly making false statements Better education and training for professionals Better cooperation between family law and child protection system professionals 37

38 Joining up the dots? Federal family law agencies and state/territory child protection departments operate with: Different legislative imperatives Different practice questions Different outcomes 38

39 Conclusion Recent reports have highlighted the poor fit between child protection systems and the federal family law system. Magellan has improved effectiveness of Court procedures, but is limited in its availability Empirical evidence that: Allegations of child abuse is common in post-separation parenting disputes in the FCoA, the FMC, and the family dispute resolution sector Dispute resolution mechanisms are relying on overworked state/territory child protection systems, which are not intended to assess risk in the federal family law context Developments in policy create new opportunities to holistically and systematically address the gaps. 39

40 Final Report Report released by Family Court 16 October 2007 Available at: institute/pubs/ magellan/index.html 40

41 Presentation based on: Higgins, D. J., & Kaspiew, R. (2011). Child protection and family law Joining the dots. NCPC Issues 34. Melbourne: National Child Protection Clearinghouse, Australian Institute of Family Studies. 41

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