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© Law Institute of Victoria (LIV).

No part of this submission may be reproduced for any purpose without the prior permission of the LIV.

The LIV makes most of its submissions available on its website at www.liv.asn.au

Justice Legislation Amendments

(Cancellation of Parole and Other

Matters) Bill 2013

To: The Scrutiny of Regulations Committee

15 February 2013

This submission was prepared by Katrina Koniuszko. Queries regarding this submission should be directed to:

Contact person: Katrina Koniuszko Lawyer, Family Law Section, Legal Policy and Practice Department Phone: (03) 9607 9389 Email: [email protected]

Table of Contents

Introduction

Who We Are …………………………………………………………………………………………..

What We Do…………………………………………………………………………………………...

Executive Summary …………………………………………………………………………………

Background

Protecting Victoria’s Vulnerable Children Inquiry ……………………………………………………..

Report on Protecting Victoria’s Vulnerable Children Inquiry ………………………………………….

The Department of Human Services Victoria’s Vulnerable Children – Our Shared Responsibility Directions Paper ………………………………………………………………………………………

Justice Legislation Amendments (Children and Families) Bill 2013 ……………………………………………

Justice Legislation Amendments (Cancellation of Parole and Other Matters) Bill 2013

Part 3 – Amendments Relating to the Legal Representation of Children ………………………………

United Nations Convention on the Rights of the Child 1989 ………………………………………….

Children, Youth and Families Act 2005 (Vic) ………………………………………………………..…….

Common Law Position ………………………………………………….…………………………….

Psychological Research…….…………………………………..………………………………..……..

Conclusion……………………………………………………………………………………………

Appendix

Previous Submissions

Draft Children’s Bill 2005 (Vic) ……………………………………………………………………….....

Review of Victoria’s Child Protection Legislative Arrangements……………………………………......

Commissioner for Children and Young People Bill 2010 (Cth) ………………………………………………..

Code of Conduct for Practitioners Issuing and Appearing in the Children’s Court of Victoria ………...

Draft Notice to Litigants and Practitioners concerning Court’s Proposed Relocation List …………......

Improving the Interface between the Child Protection Systems and the Family Law Systems ……….....

Third Protocol on the Convention on the Rights of the Child…………………………………………

Australian Human Rights Commission Amendment (National Children’s Commissioner) Bill 2012 (Cth) …….......

Children and Young People’s Commission……………………………………………………...............

Handling of Child Abuse by Religious Organisations…………………………………………………..

Victoria Legal Aid Changes to Financial Assistance Provided in Interim Accommodation Orders in the Family Division of the Children’s Court of Victoria …………………………………………………...

Children’s Court of Victoria Clinic ………………………………………………………………….....

Introduction

Who We Are

The Law Institute of Victoria (LIV) is the peak body for the Victorian legal profession. The

LIV represents over 15,000 members. Through its Family Law Section, the LIV currently

represents 2,269 members. The Family Law Section is overseen by an Executive

Committee, three Sub Committees consisting of the Courts Practice Committee, Children

and Youth Issues Committee, Maintenance and Property Committee, two Working Groups

consisting of the Junior Family Lawyers Working Group and Education Working Group

and two Portfolios consisting of the Child Support Portfolio and Family Violence Portfolio.

Many of the above members provide legal services to children, young people and their

families in both the Criminal and Family Divisions of the Children’s Court and the Family

Law Courts.

What We Do

The LIV actively seeks to advocate justice for all and influence the development and

implementation of policy and legislative reform through various submissions to State and

Federal Government Ministers and Shadow Ministers, State and Federal Government

Parliamentarians, Commonwealth Public Servants, regulatory bodies, statutory bodies,

policy advisors and State and Federal agencies.

The LIV has a proactive commitment to promoting the rights of children and young people

in Victoria. We welcome the opportunity to comment on the Justice Legislation

Amendments (Cancellation of Parole and Other Matters) Bill 2013 (‘Justice Bill’). This

submission is based on the experiences of the above members following consultation with

the above committees, sub committees, working groups, portfolios and individual private

practitioners who practice in the Children’s Court and other interested stakeholders.

Executive Summary

All children have a right to be heard and due weight and consideration needs to be placed

on any views, wishes or opinions they express. That right is enshrined in the United

Nations Convention on the Rights of the Child 1989. A child with sufficient maturity should

be entitled to have his or her views heard. In order for this to be the case, legal

representation is critical. We have included details of our previous submissions on these

issues in the Appendix. Please note that this submission only addresses Part 3 of the

Justice Bill. The parole changes are being considered by the LIV’s Criminal Law Section.

Background

Protecting Victoria’s Vulnerable Children Inquiry

The Government announced the Protecting Victoria’s Vulnerable Children Inquiry on 31

January 2011 (‘the Inquiry’). The Inquiry was tasked with investigating systemic problems

in Victoria’s child protection system and making recommendations to strengthen and

improve the protection and support of vulnerable young Victorians. The terms of reference

were to inquire into and develop recommendations to reduce the incidence and negative

impact of child abuse and neglect in Victoria, with specific reference to:

1. The factors that increase the risk of abuse or neglect occurring, and effective

prevention strategies;

2. Strategies to enhance early identification of, and intervention targeted at, children

and families at risk including the role of adult, universal and primary services. This

should include consideration of ways to strengthen the capability of those

organisations involved;

3. The quality, structure, role and functioning of:

Family services;

Statutory child protection services, including reporting, assessment,

investigation procedures and responses; and

Out of home care, including permanency planning and transitions; and

what improvements may be made to better protect the best interests of

children and support better outcomes for children and families.

4. The interaction of departments and agencies, the courts and service providers and

how they can better work together to support at-risk families and children;

5. The appropriate roles and responsibilities of government and non-government

organisations in relation to Victoria's child protection policy and systems;

6. Possible changes to the processes of the courts referencing the recent work of

and options put forward by the Victorian Law Reform Commission;

7. Measures to enhance the government's ability to:

Plan for future demand for family services, statutory child protection

services and out-of-home care; and

Ensure a workforce that delivers services of a high quality to children and

families.

8. The oversight and transparency of the child protection, care and support system

and whether changes are necessary in oversight, transparency, and/or regulation

to achieve an increase in public confidence and improved outcomes for children1.

The Inquiry received 200 written submissions and 80 supplementary submissions. The

panel conducted 18 public sittings throughout Victoria (including regional areas), involving

more than 130 presentations, 200 speakers and more than 900 pages of transcript,

multiple consultations with Victoria’s child protection workforce and community service

organisations, children and young people and Aboriginal and other culturally and

linguistically diverse organisations, three workshops with the Inquiry Reference Group and

about 100 other meetings and visits, involving the Children’s Court, public sector

agencies, independent experts and non-government service providers2. The Inquiry held

its first Public Sitting in Melbourne on 28 February 2011. On 29 April 2011, the LIV

provided comments to the Inquiry.

Report on Protecting Victoria’s Vulnerable Children Inquiry

The Inquiry Panel, comprised of the Honourable Philip Cummins, Professor Emeritus

Dorothy Scott OAM and Mr Bill Scales AO presented its Report to the Minister for

Community Services on 27 January 2012. The Inquiry acknowledged the contributions of

the many individuals and organisations that provided information and assistance,

including the LIV. The Minister for Community Services, the Hon Mary Wooldridge tabled

the Report of the Inquiry in Parliament on 28 February 2012. The Cummins report

comprised three volumes and more than 800 pages. It made 90 recommendations, 20

findings and 14 matters for attention.

The Department of Human Services Victoria’s Vulnerable Children – Our

Shared Responsibility Directions Paper

In May 2012, the Department of Human Services released the Victoria's Vulnerable

Children - Our Shared Responsibility Directions Paper (‘Directions Paper’). The Directions

Paper outlines the Victorian Government’s first-year initiatives, longer-term commitments

and areas requiring further consideration as a result of the Protecting Victoria’s Vulnerable

1 State Government of Victoria, Protecting Victoria’s Vulnerable Children Inquiry (2011)

<http://www.childprotectioninquiry.vic.gov.au/terms-of-reference.html> 2 Department of Human Services, Victoria’s Vulnerable Children: Our Shared Responsibility Directions Paper

(May 2012) <http://www.dhs.vic.gov.au/__data/assets/pdf_file/0005/709439/Directions_paper_May_2012.pdf>

Children Inquiry’s recommendations3. The Directions Paper is not a comprehensive

summary of all existing government activity targeting vulnerable children – rather, it is a

summary of new actions, programs, trials and reforms4. The reforms are structured

around five key action areas:

1. Building effective and connected services;

2. Enhancing education and building capacity;

3. Making a child-friendly legal system;

4. Providing safe, stable and supportive out-of-home care; and

5. Introducing accountability and transparency.

Justice Legislation Amendments (Children and Families) Bill 2013

On 2 October 2012, the LIV were invited by the Department of Justice and the

Department of Human Services (‘the Departments’) to participate in consultations in the

development of the Justice Legislation Amendments (Children and Families) Bill 2013

(‘the Bill”). We welcomed the opportunity to comment on the Bill. Shortly thereafter, a

working group was convened consisting of the following:

1. Caroline Counsel, LIV Immediate Past President, Accredited Family Law Specialist

and Principal of Caroline Counsel Family Lawyers;

2. Andrew McGregor, Chair of the LIV Children and Youth Issues Sub Committee,

Accredited Children’s Law Specialist and Partner of Jones Dowling McGregor;

3. Joe Gorman, Member of the LIV Children and Youth Issues Sub Committee,

Accredited Children’s Law Specialist and Partner of Gorman and Hannan;

4. Robyn Hamilton, Member of the LIV Children and Youth Issues Sub Committee,

Lawyer at Victoria Legal Aid;

5. Katrina Koniuszko, Secretary of LIV Children and Youth Issues Sub Committee

and Policy Lawyer, Family Law, Collaborative Practice, International Law and

Workplace Relations Sections at the LIV; and

6. Kate Wild, Paralegal, Family Law and Property and Environmental Law Sections at

the LIV.

3 Department of Human Services, ‘Victoria’s Vulnerable Children – Our Shared Responsibility’ (9 October

2012) http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications/victorias-vulnerable-children-our-shared-responsibility. 4 Department of Human Services, ‘Directions Paper May 2012 Victoria’s Vulnerable Children Our Shared

Responsibility’ (May 2012).

The Departments proposed to make the following legislative amendments to the Children,

Youth and Families Act 2005 (Vic) (‘CYFA’):

1. Introduce ‘Less Adversarial Trial’ principles modelled on those in the Family Court

of Australia into the Children, Youth and Families Act 2005 (Vic) (‘CYFA’);

2. Correct the language of certain protective orders and processes under the CYFA

where they are inappropriately associated with criminal processes (for example,

‘warrants’ and ‘safe custody’);

3. Amend the CYFA to state that a child need not attend child protection proceedings

unless they choose to and Recommendation 7 – Insert into the CYFA a rebuttable

presumption that a child is mature enough to give legal instructions in child

protection matters from the age of 10 years;

4. Clarify the standard of proof in relation to allegations of past conduct and future

risk of harm;

5. Clarify that ‘additional reports’ under section 560 of the CYFA should not include

disposition recommendations;

6. Expand the jurisdiction of the Children’s Court under the Family Violence

Protection Act 2008 (FVPA) as recommended by the Protecting Victoria’s

Vulnerable Children Inquiry, and make mirror amendments in relation to the

Personal Safety Intervention Orders Act 2010;

7. Insert into the CYFA a rebuttable presumption that a child is mature enough to

give legal instructions in child protection matters from the age of 10 years;

8. Empower the Children’s Court and the Magistrates Court to enforce costs orders

made under the FVPA and PSIOA;

9. Expand the category of persons who may perform certain administrative actions

under the FVPA and PSIOA;

10. Clarify the calculation of time in section 420(2) of the CYFA, similar to

amendments made in the Courts and Sentencing Legislation Amendment 2012;

11. Allow a Magistrate other than a sentencing Magistrate to hear breaches of certain

criminal orders in circumstances where the Magistrate is unavailable.

In our submission dated 5 December 2012, the LIV advocated against the insertion into

the CYFA of a rebuttable presumption that a child is mature enough to give legal

instructions in child protection matters from the age of 10 years.

Justice Legislation Amendments (Cancellation of

Parole and Other Matters) Bill 2013

Part 3 - Amendments Relating to the Legal Representation of Children

Part 3 of the Justice Legislation Amendments (Cancellation of Parole and Other Matters)

Bill 2013 (‘Justice Bill’) provides as follows:

Legal representation

(1) In section 524(1)(a) of the Children, Youth and Families Act 2005, after "child"

insert "aged 10 years or more".

(2) After section 524(1) of the Children, Youth and Families Act 2005 insert—

"(1A) If a child aged 10 years or more is not, subject to section 216, separately legally

represented in a proceeding referred to in section 525(1), the Court must adjourn the

hearing of the proceeding to enable the child to obtain legal representation unless the

Court makes a determination under subsection (1B).

(1B) The Court may determine that a child aged 10 years or more is not mature enough to

give instructions to a legal practitioner, considering—

(a) the child's ability to form and communicate the child's own views; and

(b) the child's ability to give instructions in relation to the primary issues in dispute; and

(c) any other matter the Court considers relevant.".

(3) In section 524(2) of the Children, Youth and Families Act 2005 omit "a child who, in the

opinion of the Court, is mature enough to give instructions is not, subject to section 216,

separately legally represented in a proceeding referred to in section 525(1) or".

(4) In section 524(3) of the Children, Youth and Families Act 2005 omit "or, in the case

of a proceeding in the Family Division, that the child is otherwise represented pursuant to

leave granted under subsection (8)".

(5) In section 524(4) of the Children, Youth and Families Act 2005—

(a) for "who, in the opinion of the Court" substitute "aged under 10 years or a child aged

10 years or more whom the Court determines under subsection (1B)";

(b) for "must" substitute "may".

(6) After section 524(4) of the Children, Youth and Families Act 2005 insert—

"(4A) If the Court has adjourned the hearing of a proceeding in the Family Division to

enable a child to obtain legal representation, the Court may resume the hearing whether

or not the child has obtained legal representation."

(7) In section 524(11) of the Children, Youth and Families Act 2005 for "A legal

practitioner representing, in the Family Division, a child who" substitute "Despite

subsection (10), a legal practitioner representing, in the Family Division, a child aged

under 10 years or a child aged 10 years or more whom the Court determines under

subsection (1B)".

Proceedings in which a child is required to be legally represented

In section 525(1) of the Children, Youth and Families Act 2005, for "child must be"

substitute "child aged 10 years or more must be".

The Explanatory Memoranda for the Bill provides that:

“Clause 10 amends section 524 of the Children, Youth and Families Act

2005 in relation to legal representation for children in the Family Division of

the Children's Court of Victoria. The amendments provide that, in Family

Division proceedings under the Children, Youth and Families Act 2005, a

child who is aged 10 years or more generally may be separately legally

represented on a "direct instructions" basis. If a child aged 10 years or

more lacks sufficient maturity to instruct a legal representative, in

exceptional circumstances the Court may adjourn so that arrangements

can be made for legal representation on a "best interests" basis. New

section 524(1B) sets out factors the Court must consider to determine that

a child aged 10 years or more is not mature enough to instruct a legal

representative. Subclause (5) provides that children under 10 years of age

may be separately represented if the Court determines that exceptional

circumstances exist such that representation is required. In those

exceptional circumstances, representation will be on a "best interests"

basis. Clause 10(1) amends section 524(1)(a) to provide that the Court has

a general adjournment power for Family Division proceedings for children

aged 10 or more years to seek legal representation. New section 524(1A)

obliges the Court to adjourn certain child protection proceedings listed in

section 525(1) to enable children aged 10 years or more to seek legal

representation. New section 524(4A) empowers the Court to resume

hearings whether or not legal representation has been obtained. Clause 11

amends section 525(1) of the Children, Youth and Families Act 2005 to

apply only to proceedings related to children aged 10 years or more”.

United Nations Convention on the Rights of the Child 1989

Internationally accepted principles of a best practice child protection system are enshrined

in the United Nations Convention on the Rights of the Child 1989 (‘the Convention’) which

Australia ratified in 1991. Australia’s ratification of the Convention signified Australia's

commitment to rights for children and young people. The principles enshrined in the

Convention have broad international acceptance. Australia’s ratification not only indicates

Australia's commitment to its principles, it also places a positive legal obligation upon

Australian governments at all levels to implement adequate provisions to ensure

adherence to these rights and principles within domestic laws, policies and practices. The

Convention articulates many rights and protections for children and young people. Those

rights enshrined in the Convention relevant to this submission include the following:

Where a child / young person is capable of forming his/ her own views, that they

can be expressed freely and be given due weight, especially in judicial/

administrative proceedings affecting the child / young person5;

Specific child protection provisions which relate to a child’s removal from his / her

parents and the right of all interested parties to participate in the legal

proceedings6;

5 United Nations Convention on the Rights of the Child, Article 12(1) “…assure to the child who is capable of

forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child…” and Article 12(2) particularly in “any judicial and administrative proceedings affecting the child…” 6 United Nations Convention on the Rights of the Child, Article 9 (1) and (2). The full text is: 9(1) “States

Parties shall ensure that a child shall not be separated from his or her parents against their will, except when

The rights of children and young people to maintain contact with their parents7;

Ability to maintain own identity and culture8;

Access to a standard of living adequate for the child’s physical, mental, spiritual,

moral and social development9; and

The right of a child / young person to reunification with his / her parents10.

The LIV is a strong supporter of the need for a child to have their opinion heard and due

weight and consideration to be placed on that opinion. The LIV has consistently

recommended that children should be present in decision making meetings about their

care and to attend court proceedings if they choose to. This Convention encourages

adults to listen to the opinions of children and involve them in decision-making. Article 12

however does not interfere with parents' right and responsibility to express their views on

matters affecting their children. Moreover, the Convention recognizes that the level of a

child’s participation in decisions must be appropriate to the child's level of maturity11. The

LIV believes that the effect of this provision in the Convention is to empower the child to

express their opinion as to what is in their best interests. The experience of practitioners

working with children is that children are far more likely to be accepting of an outcome if

they feel that their views have been advocated for in a meaningful way as part of the court

process12.

competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. (2) In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” 7 United Nations Convention on the Rights of the Child, Article 9 (3) and 9(4). The full text is: “States Parties

shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. (4) Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.” 8 United Nations Convention on the Rights of the Child, Article 8. The full text of Article 8(1) is: “States Parties

undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. (2) Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.” 9 United Nations Convention on the Rights of the Child, Article 27(1).

10 United Nations Convention on the Rights of the Child, Article 7(1). The full text is: “The child shall be

registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.” 11

United Nations Convention on the Rights of the Child (1989) UN General Assembly Document Article 12. 12

Law Institute of Victoria, Submission: Protecting Children: Ten Priorities for Children’s Wellbeing and Safety in Victoria: Technical Options Paper (29 October 2004) < http://www.liv.asn.au/getattachment/c8d04df4-1d02-

4846-8273-d7733a919333/Protecting-children--Ten-priorities-for-childrens.aspx >

Children, Youth and Families Act 2005 (Vic)

Section 525(1) of the CYFA currently provides that children must be legally represented in

the following proceedings in the Family Division:

a) Application for an interim accommodation order;

b) Protection application;

c) Irreconcilable differences application;

d) Application for a temporary assessment order (unless the Court grants leave for

the application to proceed without notice to the other parties);

e) An application for a therapeutic treatment order or therapeutic treatment

(placement) order;

f) An application for a permanent care order;

g) Application for the variation of an interim accommodation order;

h) Application for the variation or revocation of a temporary assessment order, a

therapeutic treatment order, a therapeutic treatment (placement) order, a

supervision order, a custody to third party order, a supervised custody order, a

custody to Secretary order, a permanent care order application in respect of a

failure to comply with an interim accommodation order or an interim protection

order or a supervision order or a supervised custody order;

i) Application for the extension of a supervision order, a supervised custody order, a

custody to Secretary order or a guardianship to Secretary order;

j) Application for the revocation of a guardianship to Secretary order or a long-term

guardianship to Secretary order;

k) Application for an order regarding the exercise of any right, power or duty vested in

a person as joint custodian or guardian of a child;

l) Application for an order transferring a child protection order within the meaning of

Schedule 1 to a participating State within the meaning of that Schedule;

m) Application for an order transferring a child protection proceeding within the

meaning of Schedule 1 to the Children's Court in a participating State within the

meaning of that Schedule;

n) Application for the revocation of the registration of a document filed under clause

19 of Schedule 1.

Recommendation 53 of the Cummins Report provides that the CYFA be amended to

enable children who are not capable of providing instructions to be represented by an

independent lawyer on a ‘best interests’ basis. Indeed, section 524(1) and (2) of the CYFA

provides that the proceedings must be adjourned if a child is not legally represented.

As noted above, the LIV is a strong supporter of the need for a child to have their opinion

heard and due weight and consideration to be placed on that opinion. The LIV was

previously concerned in our submission regarding the Justice Legislation Amendments

(Children and Families) Bill 2013 that the creation of an irrebuttable presumption that

children under the age of ten years are not mature enough to provide legal instructions in

child protection matters is contrary to the common law position articulated in the Gillick

and Marion cases as well as to an abundance of psychological research.

Common Law Position

‘Gillick competence, test or standard’ is a term originating in England used to decide

whether a child (16 years or younger) is able to consent to his or her own medical

treatment, without the need for parental permission or knowledge. The Gillick

competence, test or standard is based on a decision of the House of Lords in the

case Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).

The case is binding in England and Wales, and has been approved in Australia, Canada

and New Zealand. The issue before the House of Lords was whether the minor involved

could give consent. Lord Scarman required that a child could consent if he or she fully

understood the medical treatment that is proposed, "As a matter of Law the parental right

to determine whether or not their minor child below the age of sixteen will have medical

treatment terminates if and when the child achieves sufficient understanding and

intelligence to understand fully what is proposed". The Australian High Court gave specific

and strong approval for the Gillick decision in Secretary, Department of Health and

Community Services (NT) v JWB and SMB (Marion’s Case) (1992) 175 CLR 218. The

ruling holds particularly significant implications for the legal rights of minor children in that

it is broader in scope than merely medical consent. It lays down that the authority of

parents to make decisions for their minor children is not absolute, but diminishes with the

child's evolving maturity. Except in situations that are regulated otherwise by statute, the

right to make a decision on any particular matter concerning the child shifts from the

parent to the child when the child reaches sufficient maturity to be capable of making up

his or her own mind on the matter requiring decision. The LIV appreciates that the nature

of the Gillick competence, test or standard remains uncertain. It is not clear from

the Gillick case what level of understanding is expected of a young person in order to be

legally competent. Lord Scarman in Gillick required that a young person

understand fully what is proposed, which is a question of fact. The LIV respectfully

suggests that competency or maturity to provide legal instructions from children should be

assessed on a case by case basis by either the Court, the child’s lawyer or expert

evidence, depending on the issues in dispute. The LIV acknowledges that the Court is

bound by the decision in A & B v Children’s Court of Victoria & Ors (2012) VSC 589 (5

December 2012) that the issue of maturity is to be based not on age but on the child’s

development.

Psychological Research

Psychological research has indicated that age-related assumptions about levels of

decision-making competence are often incorrect, and that the rigid application of laws

prescribing ages at which certain rights come into play do not reflect the reality of

decisions and levels of responsibility of which children are capable13. In deciding whether

a child’s wishes are soundly based, Collings14 argues that there are six factors which

ought to be taken into account. These factors include the age of the child, the cognitive

development of the child, the emotional developmental level of the child, the child’s

current mental and emotional states as well as the child’s general character traits.

Research also suggests that gender, class, culture, disability, ethnicity and age are

relevant in determining whether a child has the requisite capacity for self-determination15.

Article 12(1) of the Convention relevantly states that “where a child / young person is

capable of forming his/ her own views, that they can be expressed freely and be given due

weight, especially in judicial/ administrative proceedings affecting the child / young

person” must be honoured and preserved, irrespective of the chronological age of the

child.

Conclusion

The LIV remains of the view that, consistent with the Convention, a child with sufficient

maturity should be entitled to have his or her views heard and that in order for this to be

the case, legal representation (preferably on a direct instruction basis) is critical. That

said, the LIV welcomes the fact that the amendments proposed in Part 3 of the Justice Bill

will substantially resolve the funding issues brought about by recent changes to Victoria

Legal Aid’s guidelines. The LIV is grateful for the opportunity to provide comment and we

would appreciate the opportunity for further input as required.

13

Lansdown, G (2005), Innocenti Insight: The Evolving Capacities of the Child, UNICEF, Save the Children 14

Dr N Collings “Hearing the Voice of the Child in Custody and Access Disputes”, unpublished paper given at the Australian Family Court Conference, Sydney, 1994. 15

Settersten R. & Mayer K, (1997),The Measurement of Age, Age Structuring, and the Life Course, in Annual Review of Sociology 1997, 23:233-61

Appendix

Previous Submissions

Draft Children’s Bill 2005 (Vic)

In September 2005, the LIV provided comments to the Department of Human Services

(‘DHS’) on the Draft Children’s Bill 2005 (Vic). In that submission, the LIV strongly

supported the provision that created an obligation on the State (the Secretary) to assist

young people who have left the care of the State (Secretary) in making the transition to

independent living and supported the principle of early intervention and prevention

services for children and families. In particular, we welcomed the fact that the draft Bill

recognized that the welfare and interests of the child are paramount.

Review of Victoria’s Child Protection Legislative Arrangements

On 1 April 2010, the LIV provided comments to the Victorian Law Reform Commission on

the Review of Victoria’s Child Protection Legislative Arrangements. In that submission, the

LIV strongly advocated for new processes that may assist the resolution of child protection

matters by agreement rather than by adjudication and supported the creation of an

independent statutory commissioner who would have some of the functions currently

performed by the DHS. Moreover, the submission advocated changing the nature of the

body which decides whether there should be State intervention in the care of a child so

that it includes non-judicial as well as judicial matters. The LIV also urged the Commission

to have regards to the Charter of Human Rights and Responsibilities (Vic) and the

Convention on the Right of the Child in providing its recommendations.

Commissioner for Children and Young People’s Bill 2010 (Cth)

In December 2010, the LIV welcomed the review of the Commissioner for Children and

Young Peoples Bill 2010 (Cth). In this submission, the LIV raised concerns with particular

aspects of the Bill, namely that the Commissioner may intervene in legal cases involving

the rights of children and young person and asked how this would operate in practice.

Overall, the LIV believed that the Bill and the appointment of a Commonwealth

Commissioner would be a welcome addition in promoting the welfare and rights of

vulnerable children and young persons at risk.

Code of Conduct for Practitioners Issuing and Appearing before the

Children’s Court of Victoria

On 15 December 2011, the LIV provided comments to Victoria Legal Aid regarding the

proposed Code of Conduct for practitioners issuing and appearing before the Children’s

Court of Victoria.

Draft Notice to Litigants and Practitioners Concerning the Court’s

Proposed Relocation List

On 23 February 2012, the LIV provided comments to the Federal Magistrates Court

regarding proposed draft Notice to Litigants and Practitioner’s concerning the Court’s

proposed relocation list for parenting applications for relocation of children interstate and

overseas.

Improving the Interface Between the Child Protection Systems and the

Family Law Systems

On 28 March 2012, the LIV provided comments to the Law Council of Australia regarding

the paper, ‘Improving the Interface between the Child Protection Systems and the Family

Law Systems’.

Third Protocol on the Convention on the Rights of the Child

On 21 June 2012, the LIV provided comments to the Law Council of Australia regarding

the Third Protocol on the Convention on the Rights of the Child.

Australian Human Rights Commission Amendment (National Children’s

Commissioner) Bill 2012 (Cth)

On 22 June 2012, the Family Law and Administrative and Human Rights Sections of the

LIV provided comments regarding the Australian Human Rights Commission Amendment

(National Children’s Commissioner) Bill 2012 (Cth).

Children and Young People’s Commission

On 9 July 2012, the Children and Young People’s Commission Coalition consisting of the

LIV, Defence for Children International – Australia, Youthlaw, Victorian Council of Social

Service and the Centre for Excellence in Child and Family Welfare provided a submission

to the Victorian Premier advocating for a Children and Young People’s Commission,

including the role of an Aboriginal Commissioner.

Handling of Child Abuse by Religious Organisations

On 21 September 2012, the Administrative and Human Rights, Criminal Law, Litigation

Lawyers and Family Law Sections provided a submission to the inquiry into the handling

of child abuse by religious organizations.

Victoria Legal Aid Changes to Financial Assistance Provided in Interim

Accommodation Orders in the Family Division of the Children’s Court of

Victoria

At the date of this submission, the LIV are preparing a submission to the Victorian

Attorney General regarding a policy implemented by Victoria Legal Aid regarding changes

to financial assistance provided in interim accommodation orders in the Family Division of

the Children’s Court of Victoria. The policy was implemented in response to the Report on

Protecting Victoria’s Vulnerable Children Inquiry.

Children’s Court of Victoria Clinic

At the date of this submission, the LIV are preparing a submission to the Victorian

Government advocating for the retention of the Children’s Court of Victoria Clinic within

the Department of Justice.

The key messages from these previous LIV submissions center on the need to prioritize

the best interests of the child.

justice legislation amendments (cancellation of parole and ... · code of conduct for practitioners...

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