Crossover kids in Victoria – problems for the Children’s Court of Victoria in taking an integrated approach to young people with multiple issues
Paper for Australasian Institute of Judicial Administration Conference ‘Doing Justice for Young People – Issues and Challenges for Judicial Administration in Australia and New Zealand’
23 August 2012
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Contents
1.Introduction......
Recognition of issues in Victoria......
What are ‘crossover kids’?......
2. History of children’s courts in Victoria......
Operation of the system before 1992......
Victoria’s historical approach......
Significant positive features of the historic system for crossover kids......
Significant negative features of the historic system for crossover kids......
3. Current provisions relating to crossover kids......
Post-1992 – therapeutic jurisdiction......
Significant positive features of the post-1992 system for crossover kids......
Significant negative features of the post-1992 system for crossover kids......
4. Twenty-first century developments......
Post-2007 – children with sexually abusive behaviours......
Background......
Recognition of abusive behaviour as a developmental issue......
Children with general offending and multiple/protective issues......
Common crossover kid case scenarios......
Case management approach......
Approaches by the Department of Human Services......
5. In the not too distant future…......
Cummins report......
Better integration of services......
Better out-of-home care......
Children’s Court clinical services......
Children’s Court – VLA crossover kids project......
6. Conclusion......
Victoria Legal Aid – Crossover kids in Victoria – 23 August 2012
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1.Introduction
Children’s courts have always had ‘crossover kids’ – children with multiple issues including youth crime and protective concerns. The approach to these children has varied widely over the years – from a broadly criminal law-based system to an emphatically divided system with the criminal cases distinguished from the protective cases.[i] In recent times, with developments in social science (especially about the impact of trauma on the developing brain),[ii] there has been renewed vigour towards taking a more integrated therapeutic approach to these children,[iii] particularly in the Children’s Court of Victoria (‘the Children’s Court’).[iv]
Recognition of issues in Victoria
The Criminal Division of the Children’s Court (‘the Criminal Division’) has always dealt with cases involving crossover kids, but there has been an increasing consciousness of systemic issues in relation to these young people in recent years.[v]
Youth lawyers at Victoria Legal Aid (VLA) and the dedicated private practitioners who work regularly in the Children’s Court have tried hard over the years to promote an integrated approach to young people with both protective and criminal issues with varying degrees of success. In recent years, submissions by defence lawyers in favour of the court taking a case management approach aimed at improved service integration have been met with increasing favour.
In the past year there have been many moves, both within and outside of the Children’s Court, to develop an integrated approach to crossover kids.
This paper will look at:
- how the lack of integration came about,
- case studies demonstrating both problems caused by lack of integration and how the system can work well through collaboration, and
- what has been and is being done to promote an integrated approach.
What are ‘crossover kids’?
‘Crossover kids’ is not a term of art. There are many different types of criminal cases in which the young accused person could be considered to be a crossover kid. In Victoria, these include young people facing criminal charges where they:
- have a contemporaneous protection application in the Family Division of the Children’s Court (‘the Family Division’)
- are on a current protection order[vi] which is supervised by the Department of Human Services (‘the department’)
- have recently been on a protection order that has expired
- have ever been on a protection order that has expired
- have never been on a protection order but their criminal issues can be considered to relate to current protective issues
- have never been on a protection order but their criminal issues can be considered to relate to past protective issues
- have any combination of the above in addition to being the subject of proceedings in the family law courts.
Drawing the line can be more difficult than is immediately apparent, especially given recent research into the development of the young brain.[vii] With reference to material such as Bruce Perry’s The boy who was raised as a dog (2007) and numerous articles about cumulative harm and impact of trauma set out in the reference section below, it is possible that a significant amount of criminal behaviour by young people relates to behavioural issues which may be traceable to abuse or neglect in the formative early years of life.
However, whilst legal and social practitioners need to be aware of this possibility, at the moment this behaviour is not easily definable and recognisable so young people in this category are not included for the purposes of this paper.
Also, because of the obvious constitutional impediments, young people involved in family law proceedings are also not overtly included.
For the purposes of this paper a crossover kid is simply a young person who is a current or former statutory client of the department or whose offending seems quite obviously related to protective issues.
2. History of children’s courts in Victoria
Operation of the system before 1992
Victoria’s historical approach
Prior to the operation of the Children and Young Persons Act 1988 (Vic) (‘C&YPA),[viii] proclaimed in stages with substantial operation in 1992, there was a fused Children’s Court in Victoria that dealt with most matters related to the protection of children and criminal offending by children.[ix]
Protection cases were commenced and dealt with as if they were criminal matters to the extent that they:
- could be issued by the police, with those applications prosecuted by a police prosecutor
- frequently involved adolescents on police protection applications being lodged in the cells at court alongside with those facing criminal charges
- involved young people being remanded in custody to Allambie Reception Centre (0-10 year olds), Baltara (10–14 year old males), Winbirra (10–14 year old females), Turana Youth Training Centre (‘YTC’) (15–16 year old males) and Winlaton YTC (15–16 year old females) if they were not ‘bailed’ to their parents or other carers. These centres did not distinguish between protective and criminal remands and all remanded children were held together.
- frequently involved (before the operation of the mention system reached the Children’s Court),any contested issues being dealt with on the application date with final orders often made then and there
- even appeared on the criminal record of the young person.
Outcomes for children in criminal cases included being sentenced to YTC and/or being made wards of the state[x] (which often initially involved being sent to a YTC whilst the department decided where they should be placed).
It was not uncommon for police to have young people in custody for both charges and a protection application, then agree to withdraw all charges if the child agreed to the protection application being proved.
Until 1992 the threshold for criminal responsibility was only eight years of age[xi] (subject to doli incapax for those aged under 14 at the time of the alleged offending).
In the early 1980s there were concerns about the way this system operated. These concerns led to the Child Welfare Practice and Legislative Review which reported in 1984 (‘the Carney Report’). The Carney Report recommended the separation of criminal and protection cases through the establishment of a Criminal Division and a Family Division.
This led to the passage of the C&YPA (which, in this regard, was substantially re-enacted with some procedural and other reforms in the current CY&FA)[xii] and a strict separation of criminal and protection cases.
Significant positive features of the historic system for crossover kids
The system before 1992 was clearly archaic and needed radical change as it unnecessarily criminalised children who were in need of protection. Although not advocating for anything resembling a return to that system, there were clearly some (almost accidental) positive aspects that flowed from this old system including:
- young people on police protection applications, who were often also charged with associated criminal offences, frequently had their criminal charges withdrawn if they agreed to the proving of a protection application (although there was a time when protection applications could be based on such nebulous grounds as ‘moral endangerment’[xiii])
- wards of the state on criminal charges could be sentenced to ‘return to care’ with no additional sentence (although this involved being lodged in the cells and being taken to their age-appropriate remand unit unless their department worker was at court with appropriate paperwork to lodge immediately to prevent this from occurring)
- wards of the state and young people on supervision orders (which could, and frequently did, include a condition to ‘reside as directed by the department’) usually attended court with their protective workers who frequently provided detailed written reports on their client’s progress, including plans for the future.
Significant negative features of the historic system for crossover kids
There were far too many negative aspects of the old system to list here, but important drawbacks of that system included:
- young people on protection applications often being remanded to the same location as those on criminal charges – there were major cross-contamination issues and a totally inappropriate punitive response to young people in need of protective supports
- young people facing criminal charges and/or protection applications could be immediately taken into custody and made wards of the state. These orders that lasted until age 18 with only administrative review. Most were quickly placed into the community but some were held in detention for weeks or months, even years without any finite sentence having been imposed. State wards were subject only to annual administrative review of the department’s placement case plan.
- even after wards of the state were placed in the community it was still possible for the department to administratively place them back in custody, sometimes for weeks, months or even years.
3. Current provisions relating to crossover kids
Post-1992 – therapeutic jurisdiction
When the bulk of the C&YPA commenced operation in 1992, it brought with it a new philosophy in relation to dealing with criminal and protective matters relating to children. The Court was separated into two divisions – the Family Division for child protection matters and the Criminal Division for criminal matters.
The protection of children was to be prioritised: any cases in the Family Division had to be dealt with before any charges in the Criminal Division could proceed.[xiv] This was because it was recognised that protective issues could have an impact on children’s behaviour so that these issues should be clarified before deciding on the appropriate way to deal with the child’s charges.
It was recognised that children’s charges should also be dealt with in as therapeutic a way as possible, with special sentencing principles for children.[xv] Sentencing a child to a term in a Youth Residential Centre (YRC) or Youth Training Centre (YTC) was available only when no other sentence was appropriate.[xvi]
The objectives of the C&YPA were described in the Second Reading Speech [08/12/1988, p.1150] as follows:[xvii]
- to provide a comprehensive and high-quality child protection service which strengthens the capacity of the community to protect children and young people who have been maltreated or who are at risk of harm and which responds appropriately to the needs of the children and families with which the service is involved;
- to strengthen the role of the Children's Court of Victoria as a specialist court responsible for dealing with matters affecting children and young people;
- to maintain and strengthen the distinction between the Family Division and the Criminal Division of the Children's Court, so as to ensure that their procedures, standards of proof and dispositions reflect the fundamental difference in the nature of child protection and juvenile justice proceedings;
- to provide an adequate and constructive response to children and young people who have been charged with and found guilty of committing offences;
- to enhance the rights of children, young people and their families in their relationships with the court system, Community Services Victoria [now the Department of Human Services], and other service providers, in accordance with justice principles; and
- to provide for an extended and more flexible range of dispositions in each of the divisions of the Court, which seek to enable children to remain at home wherever practicable and appropriate.
Significant positive features of the post-1992 system for crossover kids
Separation of Family Division and Criminal Division
A major positive of the new system was that children on protection applications had their cases heard in a strictly separated Family Division, with a new purpose built court opening in Melbourne in December 1998 to reinforce this.
The separation of the divisions was intended to reduce the stigma of the court process for children and families with protective needs. It coincided with a protocol between the department and Victoria Police, that despite provisions in the C&YPA giving power to both, only the department would commence protection applications from 30 September 1992.[xviii]
Protection Applications were no longer part of a child’s ‘criminal history’.
This ‘single-track’ system had the immediate effect of reducing the number of police personnel in the foyer of the Family Division which was meant to make children and families feel more comfortable in the court environs.
Theoretically it also meant that these children would not come into contact with children on criminal charges to avoid cross-contamination. However, due to the high demand in the Family Division it was not uncommon for cases in the Family Division in Melbourne to be moved to the Criminal Division, and in most rural courts there were no separate facilities at all,[xix] so many children did not receive this benefit.
Further, it was (and still is) not uncommon for older children (especially if residing in out of home care) to have cases in both Divisions. Many other children with Family Division cases have previously appeared in the Criminal Division. This means that cross-contamination continues to be a risk.
Secure welfare
One of the most significant positive features of the new system was that children on protection applications were no longer able to be remanded in custody on those applications.
For several months there were no secure facilities for these children at all, but in 1993 purpose-built facilities became available and the secure welfare provisions of the Act were proclaimed. This meant that in very limited cases, where the child was at extreme risk, they could be placed in a facility for up to three weeks.
For those on protection applications (that is, for those without a final protection order) this is/was only possible with a court order,[xx] and for those of Guardianship or Custody to Secretary Orders it was available administratively but required (and still does require) approval by the department’s regional manager.[xxi]It was (and still is) only possible to extend this placement for a maximum of three additional weeks.
Secure welfare was intended to be a containment environment available in very limited cases to prevent substantial and immediate harm to the child. [xxii] This can include an opportunity to engage or re-engage with therapeutic services designed to continue when the child returns to their usual placement.
Referrals to the department for protective investigation/ Reports
Whilst protective and criminal cases were separated in the post-1992 Children’s Court, it was recognised that there would be children with cases in both divisions. Special provisions for those children included (and continue to include):
- protection of children was to be prioritised with any cases in the Family Division being dealt with before any charges in the Criminal Division could proceed unless the court decided otherwise[xxiii]
- referral of a child for protective investigation if the court has protective concerns about a child[xxiv]
- referral for investigation, (since 2007) if the court has concerns that the child is in need of therapeutic treatment for sexually abusive behaviours [xxv] (these cases will be discussed separately in the next part of this paper).
Whilst not restricted to cases involving protective issues, if the child has an intellectual disability, the court must receive a report before sentencing.[xxvi]
Also, whether or not there are protective issues, the court may order a Children’s Court Clinic report.[xxvii]
Significant negative features of the post-1992 system for crossover kids
Separation of Family Division and Criminal Division
As police no longer played a significant role in the court process in protection applications, they were less inclined to withdraw charges associated with protective issues.