International perspectives on children's participation in child protection court cases - The Children's Court in Australia

Objectives Children’s Courts in Australia are important parts of the systems which protect children and young people. They are institutions which play a critical role in making decisions about the best interests of... [ view full abstract ]

Objectives
Children’s Courts in Australia are important parts of the systems which protect children and young people. They are institutions which play a critical role in making decisions about the best interests of vulnerable children and young people. Similar to other countries, child protection legislation across Australia recognises the right of children and young people to participate in decisions that affects them. The aim of this paper is to describe how Children’s Courts work in Australia and how children participate in decision making processes. It reports on specific findings about children’s representation in child protection matters in the Children’s Court in Australian Capital Territory (ACT).
Method
The research reported in this presentation is part of a national study, funded by the Australian Research Council, which systematically examined the Children’s Courts in Australia. The paper draws on interviews with a diverse group of forty-six key stakeholder which included Children Court Magistrates and Registrars; legal aid practitioners; representatives from the Director of Public Prosecutions and ACT Government Solicitor; private legal practitioners; Advocates from the Public Advocate; ACT Children’s Commissioner; out-of-home care providers, the Director-General and child protection practitioners and policy makers; parent’s advocates and policy staff associated with the Aboriginal Circle Sentencing Court. With the agreement of participants, all interviews were recorded and professionally transcribed. Interviews were imported into NVivo and initially analysed thematically according to the research questions asked.
Results
The study found that most stakeholders were adamant that for all parties to receive as fair a hearing as possible, they needed representation. However they identified a range of barriers to this occurring including; access, quality and conflicts about what represents ‘best interests’ of children. There was also ambivalence about the desirability of best interests being decided in an adversarial court system, where parties and their representatives (if they have them) are pitted against each other. Most people considered that the case conferencing for care and protection matters, run by the Court Registrars, was a positive aspect of the Court. The main reasons given were that it was less formal and parents had a chance to be heard: however children do not attend these meetings. The majority of matters were settled at conference. Due to the adversarial nature of Australian courts children’s participation in decision making is not a direct process but rather, depending on the age of the child, filtered through adult participants. Although children have representation in the ACT Children’s Court a tension exists between children’s views and wishes being represented or adults deciding what is in the child’s ‘best interests’.
Conclusions
Welfare and legal systems come together in child protection court proceedings, and the issue of children’s involvement brings out the overlaps and the tensions between them. Furthermore, differences between countries in the underlying philosophy of child welfare services, and in their court systems and approaches mean that even where they share ostensibly similar values, there may be considerable differences in practice. This creates challenges but also stimulating potential for cross-national learning. Paradoxically, looking abroad can both question and reinforce preconceived ideas and routine ways of serving families and protecting children.