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Introduction

published in:
Family violence : young people and youth sector workers, informing government about the implementation of mandatory reporting in Victoria
Danny Sandor and Julian Bondy
ISBN 07311 0575 3
Fitzroy, Vic. : Youth Affairs Council of Victoria, 1995
Criminology Research Council grant ; (15/93-4)
October 1995

1. The Study

The abuse of children and adolescents has been the subject of a particularly great deal of public discussion in Victoria since the early 1980s. One of the key areas for debate concerned whether or not Victoria should introduce a legislated compulsion upon certain professional and occupational groups to report (also called "notify") that a child or adolescent was suffering abuse, i.e. mandatory reporting of abuse (see for example Boss 1985; Law Reform Commission of Victoria 1988; Fogarty and Sargent 1989).

The debate is not merely philosophical (see the arguments for and against contained in The Australian Capital Territory Community Law Reform Committee 1993:51-65). Mandatory reporting is not unequivocally viewed as an efficient way to distribute child and adolescent protective service resources either in Australia (Rayner 1995:64) or in the United States (Krugman cited in The Australian Capital Territory Community Law Reform Committee 1993:65).

Nor has the effectiveness of the measure been established in Australia studies (Webberley 1985; Lamond 1989; Ridoutt and Filis 1993) or overseas jurisdictions (see the review by Bell and Tooman 1994). The New South Wales research by Ridoutt and Filis (1993) found that more important factors influencing reporting rates included agency policies, reporters' relationships with welfare authorities and, importantly for this study, the level of reporters' skills and knowledge.

For many years, Victoria, Western Australia and the Australian Capital Territory were the only States and Territories in which there was no such obligation in force. But in 1993, legislation to introduce mandatory reporting was passed in Victoria. A staged process is now underway in which a range of professions and occupations are coming under the legal duty to report.

A striking feature of the literature is its focus upon children with scant consideration of adolescents, their different developmental characteristics and the special practice issues that arise. Yet they are encompassed by all mandatory reporting schemes.

The Youth Affairs Council of Victoria, the peak body representing young people and the youth affairs sector in this State, recognised that the new duty would have significant special implications for young people and the wide range of people who have a professional role with them. The Council, in conjunction with Royal Melbourne Institute of Technology, applied successfully to the Criminology Research Council for funding to carry out this research project.

The study had two specific aims and associated objectives. The first aim was:

to identify adolescents' understanding of mandatory reporting, their sources of knowledge, their recommendations for its operation, their views on the impact the system would have on disclosure and their suggestions for disseminating information about the new system. The objective was to provide goverment with advice from potential consumers on the implementation of the mandatory system and the special requirements in relation to adolescents.

The second research aim was:

to assess the knowledge and skill levels of workers in the youth affairs field, their training needs, their recommendations for the operation of the system, the impact the system will have on their working relationships with adolescents and their recommendations for implementation. The objective was to design a targeted training package which would be based on core competencies identified by the Youth Worker Core Competencies Project auspiced by the National Youth Sector Training Unit.

Obviously, a great deal of literature is open to be reviewed and it has been necessary to be compact in many areas not essential to the central thread of this report.

2. A Brief Historical Context

"Child [and adolescent] protection in Victoria is very much the creature and captive of its particular history and no understanding of the present situation of child protection is possible without reference to that history." (Fogarty and Sargent 1989:15).

Victoria is notable historically for its strong church based child-saving movement and in the mid nineteenth century, it lobbied for the power to take children away from their parents on grounds other than the well-established reason of abandonment (Jaggs 1986:50). The title as well as the provisions of legislation such as the Neglected and Criminal Children Act 1864 (Vic.) testified to the assumption of an indivisible connection between a minor's neediness and their propensity for criminality. The common outcome was effectively, a sentence to reformative education and training.

Apprehension of neglected children had long been a function of police. After the formation of the Victorian Branch of the Prevention of Cruelty to Children, "child-saving" church groups were also given the legal basis to intervene upon finding neglect. This shared responsibility for apprehension between police and voluntary agencies persisted until the 1980s along with a reliance by the government upon non-government (usually religious) organisations for the care of children and young people after disposition.

The name of the governing legislation changed over the years to incorporate the notion of "welfare". In doing so, the reasons for which a child or young person might warrant intervention expanded (Jaggs 1986:139). This was in keeping with an assumption that state intervention was necessarily beneficial, the rise of social work as a profession and the ascendancy of mental health models, particularly in the explanation of criminal deviance.

Critical attention to the area flourished in the late 1970s. There were complaints that the legislative scheme, found in Victoria and elsewhere, was lagging behind conceptual critisims of the "welfare model". In tandem, there was a growing emphasis upon rights when dealing with children and young people and their families.

The election of a new Labor government in Victoria in 1982 brought with it a platform to overhaul the child welfare system within the context of its social justice framework. It established the Child Welfare Practice and Legislation Review ("the Review") chaired by Dr. Terry Carney and its recommendations formed the basis, if not the detail, of the resulting law, the Children and Young Persons Act 1989 (Vic) (see the Minister's Second Reading Speech).

The breadth of the issues canvassed in the Review are too extensive to detail here. The following two broad points are the most significant:

i. The criteria for protective intervention

These had previously covered abandonment, inadequate parental supervision, becoming orphaned and that:

"The child or young person has been or is likely to be ill-treated, exposed, or neglected or his physical, mental or emotional development is in jeopardy" (Section 31(1)(a) Community Services Act 1970 (Vic).

The wide discretion given in this and similar statutes enabled sexist (Hancock and Chesny-Lind 1985; Girls Action Project 1990), racist (Gale and Wundersitz 1986) and socio-economic (Harris 1989) bias in its application. Such discretion was borne of a view that coercive intervention was desirable and a step of first resort rather than a last resort which followed supportive assistance.

The latitude was especially applied to young women and entailed moral rather than professional judgments about their behaviour, companions and independent lifestyles. Commentators such as Simpson and Simpson (1989) have suggested that intervention on the grounds of being "exposed" or receiving "inadequate parental supervision" were punishment for rebelliousness which was only thinly veiled as "protection"; see also Carrington (1993) with respect to New South Wales legislation.

The Review sought to shift the basis of protective intervention from needs based to a harms based. The general approach involved:

The harms based approach was reflected in legislation which for the first time, expressly recognised sexual abuse as a distinct category. A predictive aspect (i.e. likely to suffer significant harm) was included (cf the English Children Act 1989 which uses a phrase not found in the Victorian legilsation "is suffering significant harm" and the discussion in Re M (a minor) (care order:threshold conditions) [1994] 3 All ER 298 HL).

For the first time, sexual abuse was specified as a distinct category of abuse alongside phsyical, emotional and psychological harm (see section 63 of the Children and Young Persons Act 1989 (Vic.)).

ii. The Responsibility for Protective Intervention

The Review was critical of the responsibility for investigation of abuse resting with the non-government sector and saw this as inconsistent with the gravity of the power exercised. Although the legislation permitted a range of bodies to undertake this role it was, at the time, exercised by the modern version of the Society for the Protection of Cruelty to Children - the Children's Protection Society. They and the police were responsible for entry into the system. The Department of Community Welfare Services had responsibility for overall policy, post-court supervision and funding of non-government agencies. These three limbs were frequently in conflict and failing to co-operate to the point where there was public concern about inaction over reports of maltreatment (Fogarty and Sargent 1989:22-29).

The Review concluded that protective intervention should be carried out directly and only by the state as a matter of principle (The Review 1984:222). The current legislation reflects this stance, with Victoria Police and the Department of Health and Community Services ("H & CS") the only authorised protective interveners (section 64 (2) of the Children and Young Persons Act 1989 (Vic.).

As a matter of policy, H & CS is the primary agency with police undertaking a role which is limited to supporting the Department in its investigations and pursuing associated criminal investigations. This is in keeping with the recommendations of the Fogarty and Sargent (1989) report. Implementation began through administrative arrangements before the commencement of the Children and Young Persons Act 1989 (Vic.) and required the establishment of an after hours protective service within H & CS.

3. The Introduction of Mandatory Reporting in Victoria

The stated intent of mandatory reporting legislation is to,

"...underline the crucial nature of sexual abuse and severe physical abuse...(and that) children have a right to be protected from serious crimes committed against them...". (The Hon. Michael John, Minister for Community Services, Second Reading Speech, Children and Young Persons (Further Amendment) Act 1993 (Vic.)).

The legislation was also a political reaction to a highly publicised child death, which however, may not have been prevented by the new measure (Swain 1993). Neither major political party had been urging for its introduction and the stated position of the State Liberal-National party coalition which took government in October 1992 was one of opposition to mandatory reporting: 'the so-called "back-flip" took place because of a massive media campaign'(Goddard and Liddell, 1993 : 25).

On 10th March 1993, the new Minister for Community Services, the Hon. Michael John M.P. made the following announcement in his Ministerial Statement on Child Protection:

"To assist me in both implementing mandatory reporting in Victoria and setting a clear plan for further improvement in protective services, I have asked Justice Fogarty to conduct a short, tightly focussed inquiry. Mr Justice Fogarty has proved himself to be a wise and fearless critic of shortcomings in existing services and able to provide strategic advice on how they should be improved.

His review will assess the impact of mandatory reporting on existing services and advise on how the services may meet the aditional demands and responsibilities placed upon them."

Justice Fogarty's assessment quite properly took account of the economic context, one of budget cuts to both field staff in H & CS and the non-government sector which he considered had played such a vital role in maintaining a viable system until now. His overarching concern was the depletion of resources in the non-government sector at a time when demand was increasing generally and could be expected to leap as a result of the introduction of mandatory reporting. Similar concerns were voiced by the then Federal Human Rights Commissioner Brian Burdekin (cited in The Australian Capital Territory Community Law Reform Committee 1993:64)

In such a context, Justice Fogarty found himself unable to support the introduction of mandatory reporting, a measure he had strongly advocated for many years.

His concerns and apprehensions about the system in general and mandatory reporting in particular became and remain highly visible in the media. They will not be reiterated here, save for his specific references to the situation of adolescents.

The nub of Justice Fogarty's assessment with respect to young people was that the "pendulum of intervention" had swung too far towards inaction and had led to the "virtual abandonment of adolescents by the state" (1993:22).

In his view, an aggravating factor was the overly narrow approach to the interpretation of the new grounds for protective intervention whereby homelessness was not appreciated as giving rise to the likelihood of significant harm. The connection is well documented (see for example the research by Alder and Sandor 1989; Burdekin 1989; Hirst 1989; Robson 1992; Young Women's Housing Collective 1991 concerning the causal links between prior abuse and homelessness). Abuse within the family is a precipitant of homelessness which gives rise to heightened vulnerability to violence from other sources.

Justice Fogarty said:

"The view was formed that if they were not at risk from their parents and home environment they did not fall within the new protection grounds and thus were not within the child protection service and that this was so even though it was obvious that they had no active guardian and were in danger on the streets" (Fogarty 1993:33-4; see also :94-96).

Justice Fogarty also found that police were initiating criminal proceedings against young people in order to obtain a service response in the absence of protective intervention (1993:37) and was critical of the practice whereby protective clients were actively discharged from Departmental responsibility while the need to provide such a role remained (1993:38; see also Burdekin 1989 and Taylor and Burston 1988).

In a social and political environment which has placed a greater premium on the protection of younger children, the introduction of mandatory reporting holds special implications for those who work with adolescents. Moreover, as Justice Fogarty recognised, young people's transitional status towards adulthood presents particular issues for the implementation of mandatory reporting.

The next sections sketch the new obligations and the subsequent system processes.

4. What the New Mandatory Reporting Laws Require

Any citizen concerned about a child's treatment may notify or not notify the appropriate authorities. Mandatory reporting legislation is designed to remove such discretion for persons in designated groups by introducing a legal responsibility to make such a report (see the discussion of practical difficulties in Edney and Schepis 1994). The laws differ widely across Australia (see Ridoutt and Filis 1993 and Sandor 1994).

In Victoria, the Children and Young Persons Act 1989 (Vic.) is the legislation governing the civil protection of children and young people up to the age of 17 (see also the Crimes Family Violence Act 1987 (Vic.) in relation to the use of intervention orders).

Among other things the Children and Young Persons Act 1989 (Vic.) sets out:

The grounds for protection are set out in section 63 and encompass:

Homelessness per se is not a ground for protection.

Originally, the Act permitted but did not require anyone to make a report. Section 64(1) reads as follows:

"Any person who believes on reasonable grounds that a child is in need of protection may notify a protective intervener of that belief and of the reasonable grounds for it."(emphasis added).

That is still the case, however, a new section 64(1A) was inserted to require the members of certain professional groups (listed in section 64(1C)) to report cases.

The duty did not arise immediately when the legislation was passed. Section 64(1D) provided that the duty arose on "the date fixed for the purposes of that paragraph by an Order made by the Governor in Council and published in the Government Gazette" (Section 64(1D).

Section 64(1A) specifies the trigger for making a report.

"A person referred to in any of the paragraphs of sub-section (1C) to whom this sub-section applies who, in the course of practising his or her profession or carrying out the duties of his or her office, position or employment as described in that paragraph, forms the belief on reasonable grounds that a child is in need of protection on a ground referred to in paragraph (c) or (d) of paragraph 63 must notify the Secretary of that belief and the reasonable grounds for it as soon as practicable-

  1. after forming the belief;
  2. after each occasion on which he or she becomes aware of any further reasonable grounds for the belief."

Section 64(1B) prescribes that:

"Grounds for a belief referred to in sub-section (1) or (1A) are-

  1. matters of which a person has become aware; and
  2. any opinions based on those matters."

Section 64(1C) of the Act provides the basis for legally requiring doctors, nurses, police, teachers, principals, pre-school teachers, child care workers, psychologists, government employed youth and & child care officers, probation and parole officers to report a belief on reasonable grounds of the above types of abuse. Reports are to be made to the Victorian Department of Health and Community Service ("H & CS") and its officers are responsible for investigation of the notification.

The category of profession and work which includes, but not exclusively, Victoria's broadly based youth sector, is a category which reads:

"a person with a post-secondary qualification in youth social or welfare work who works in the health, education or community or welfare services field" (section 64(1C)(g)).

This category was initially due to come under the duty to report in late 1994. The timetable for implementation was subsequently reviewed and the proposed gazettal of workers under this category was put back to 1995. On 8th August 1995, YACVic received advice from the Minister for Community Services that the implementation timetable had been suspended and thus, there is currently now no expected date at which the duty will become legally binding on any professional other than: doctors, nurses, police officers, principals and primary and secondary school principals.

Some key points to appreciate about the scheme are:

5. What Happens After Notification

Notification requires an investigation to occur "as soon as practicable" (section 66(1): Ludbrook 1995 points out that to his knowledge, other Australian jurisdictions do not set a time frame for investigation, but that the New Zealand Children Young Persons and Their Families Act 1989 in section 17 imposes a requirement of investigation "as soon as practicable"). Moreover, section 66(1) requires that the investigation be carried out "in a way that will best ensure the safety and well-being of the child".

The investigating worker must inform the child and her/his parents that any information they give may be used for the purposes of a protection application and there are restrictions on the disclosure of information obtained.

If following an investigation the protective intervener believes on reasonable grounds that the child (legally defined to include an adolescent up to but not including 17 years of age) is in need of protection on one or more of the above grounds, a protection application may be initiated. The Children's Court of Victoria (Family Division) has exclusive jurisdiction in these matters (sections 15 and 17).

Section 68 provides for a protective intervener to proceed by notice requiring the child or young person to attend Court on a specified day (see also section 70) or to take the child into safe custody with or without a warrant. The legislation appears to create an expectation that the notice procedure will be used unless "it is inappropriate" (section 69(1)). Section 68(1A) requires the protective intervener to record information arising from the investigation on a central register.

If the child is taken into safe custody, s/he must, within 24 hours be brought before the Court, or a bail justice to enable an opportunity to apply for an interim accommodation order (section 69(5). An application in respect of a "child of tender years" can take place in the child's absence.

Sections 73 to 75 provide for a court to make an interim accommodation order of up to 21 days duration requiring the child's placement in a range of options including: release on the child's undertaking to appear, release to the care of her/his parents, or placement with suitable persons or in a suitable service. The child can in fact be placed in a locked setting known as a "secure welfare service" "if there is a substantial and immediate risk of harm to the child (section 74(1)(e). There is a wide provision (section 74(5) enabling any conditions considered to be "in the interests of the child". Section 78 provides for applications to extend the duration of the interim accommodation order.

The protection application may be determined in various ways and space does not permit a full discussion. Put briefly, the application may be withdrawn, the parties may between themselves consent to orders, the parties may reach an agreement following a pre-hearing conference, or may proceed to a contest before a Magistrate. In pre-hearing conferences and all Court proceedings, the child is entitled to a separate legal representative and the legislation assumes instructions based representation (see section 20).

The orders which may be made if the Court finds a child in need of protection are set out in Part 3 Division 6 of the Act and are as follows:

The court may also make an "interim protection order" of no more than 3 months duration "to test the appropriateness of a particular course of action" (section 110(1)(b)).

For a fuller account of the scheme and the implications of each order see Gorman and Brown (1990), Draper and Ardley (1991) and Fanning etal (1992).

6. Special Considerations in the Protection of Adolescents

The protection of young people involves a number of differing considerations in comparison with younger children. Some are related to the nature of the developmental stage while others arise from the qualities of the service systems. Overarching

  1. Garbarino and Garbarino (1987:3) distinguish two patterns of adolescent victimisation: abuse that commences in childhood and abuse that commences in adolescence. They suggest a number of differing causes and effects including that, for the latter, "[m]ore self-reports come from victims with no childhood history of abuse".
  2. Adolescence is a period when gender plays a stronger role in governing how young people are treated by families and the community at large. Patterns of adolescent abuse reflect this. For example, Garbarino and Garbarino (1987) indicate that fathers are more likely to be the abusers of adolescents whereas mothers are more often the source of abuse of younger children, Local data on substantiated cases (Angus and Wilkinson 1993 cited in James 1994) show that, overall, young females predominate as survivor/victims in the 10 to 17 years old age group. The importance of gender for an analysis of adolescent abuse can also be seen in criticisms of the greater attempts by protective systems to assume control of young women and the concern that "they often leave care worse off, or no better off, than when they entered the welfare system" (Liddell 1992: 21).
  3. There is continually increasing public attention to abuse and the creation of a climate for disclosure (see Goddard and Liddell 1993; Swain 1993 and Rayner's 1995 discussion of prevention campaigns). Adolescents are acutely aware through their consumption of media and other sources.
  4. Protection of adolescents comes more by disclosures volunteered or elicited than forensic detection, where outward signs are usually the trigger for intervention. This is not to ignore the finding that it is adolescents' behaviour which often brings them to the attention of agencies: (Fisher et al 1980 cited in Community Services Victoria 1991). It is to recognise that effective intervention with young people often hinges upon things they say and this, in turn, depends on the quality, nature and parameters of the relationships they have with trusted adults.
  5. The state has a poor track-record of dealing with abused adolescents and systems abuse issues have loomed large. The deinstitutionalisation movement has redressed a prior reliance on incarceration of teenagers, particularly young women, for their protection, but there are intense concerns about "the virtual abandonment of adolescents by the state" in Victoria and elsewhere (Fogarty 1993: 22). Adolescents suffer systems abuse, abuse by actors in the system and abuse while homeless after escaping family violence. At best, the state's capacity to protect has a major image problem among adolescents and community workers. Young people and those who work with them in the community lack confidence that positive outcomes will result from state intervention and fear the ramifications.(See for example Burdekin1989, 1993 ; Hirst 1989; Alder and Sandor 1989; Liddell 1992; Community Services Victoria 1992; Young People In Need 1992 ; Robson 1992; Community Law Reform Commission of the A.C.T. 1993:75-77; Brown 1993; Green 1993). Their apprehensions are not assisted by the paucity of systemic research as to the outcomes of protective intervention in general and with adolescents particularly.
  6. Their fear is well founded if one examines the level of abuse in out of home care settings. For example, a study by Robson (1992) found an alarming proportion of young people reporting sexual assault by those responsible for providing care, while Alder (1991) describes places of accommodation as sites of violence. Violence is also a disturbingly consistent theme in the plethora of studies which examine police interaction with adolescents (for example Alder 1991, Alder etal 1992, White etal 1991, Biondo and Palmer 1993). Police are protective interveners.
  7. Adolescent responses to abuse such as running away, substance misuse and abuse, criminal offending, school refusal, and high exposure to public space through "hanging around" are prone to be interpreted as rebelliousness and anti-social attitudes (Garbarino and Garbarino 1987:7-9).
  8. Many professionals avoid becoming involved with adolescents. They find adolescents too difficult, uncompliant and challenging of their arenas of control. By default, teenagers readily find their way into contact with the criminal justice system where their prior abuse is often not assessed or addressed (especially young women; see Community Services Victoria 1992).
  9. Adolescents evoke a duality in public sympathy. Their profile is represented as both troubled and troublesome, particularly in "get tough" law and order climates. In a social context which selectively accords autonomy and responsibility, "victim blaming" of adolescent survivors is manifest in intolerant attitudes to young offenders, young people's use of public spaces and mythologies about young people being tempted to leave home by paltry income support allowances. Little children are more "clean cut" objects of public concern (see Rayner 1991:35; Garbarino and Garbarino 1987: 1-2).
  10. Adolescents' peer relationships are potent and operate as a far-reaching grapevine. Information - factual and false - spreads quickly through young people's networks. This includes positive and negative representations of adult workers and information about protection systems (Sandor 1992; Young People in Need 1992). Adolescents in rural areas frequently voice particular concern about the escape of information told in what they considered to be private or confidential contexts (Youth Policy Development Council 1987).
  11. In a Victorian study conducted by Brown (1993) young people expressed concern about workers reporting of abuse against the the young persons's wishes. They feared that such actions would result in alienation from their family, family break-up or worse. Other factors which inhibited disclosure to workers included that

    "...hostile and predatory environment on the streets and in dormitories, squats and cheap hotels...have given some young people firm foundations for mistrusting adults and therefore they do not disclose sexual abuse until they feel assured that their disclosure would be received in confidence and with respect." (Brown 1993:103)

  12. Young people seek to exercise their rights. The increasing role and reference to the United Nations Convention on the Rights of the Child ("the Convention") in Australia encourages young people to assert their rights and demands that the community respond in a way which takes proper account of them. For example, the Victorian Council for Civil Liberties (1994) and the National Children's and Youth Law Centre (1994) have prepared education kits for use in schools which raised the profile of the Convention.

This last point warrants special emphasis. Australia entered into the Convention with the agreement of all States and Territories. In A National Youth Policy : A Statement of Principles and Objectives Endorsed by Commonwealth State and Territory Youth Ministers (Australian and New Zealand Youth Ministers, May 1993:5) it was said that:

"Youth Ministers acknowledge Australia's ratification of the UN Convention on the Rights of the Child and the definition of young people (as contrasted with children), as those between 12 and 25 years of age inclusive."

The guiding principle of the Convention is that the best interests of the child shall be a primary consideration. In relation to the topic of this aspect of the research, two Convention articles are especially relevant.

Article 19 states:

"1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardians(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have care of the child, as well as other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement."

Article 12 states:

"1. States Parties shall 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.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."

Mandatory reporting squarely raises the potential for tension between these principles (see Swain 1993; Brewer and Swain 1993 for a discussion of how other Convention Articles apply). A critical passage in Justice Fogarty's report was his appreciation of the need for special consideration of teenagers in the implementation of mandatory reporting. His Honour's comments warrant reproduction in full:

"Particular problems relating to mandatory reporting involving adolescents have been raised during this review. Adolescents who consult with professionals need to have their own feelings and confidences respected. Although the obligation to report remains, the process by which that occurs and the manner in which it is handled needs to take account of these concerns, especially teenage girls reporting incidents of, for example, sexual abuse. Unless handled sensitively there is a risk that the adolescent will be reluctant to make a disclosure where it is clearly in the interests of that person that he or she does so. Section 66 of the Children and Young Persons Act already makes provision about that as it provides that the protective intervener must investigate the report "in a way which will best ensure the safety and well-being" of the adolescent, but it is important now to re-emphasise this obligation.

There are obvious dangers in allowing a case to be controlled by the adolescent who may not be able to make informed decisions about his/her welfare. But the system has to give a clear message to adolescents that they have a right to be protected, that they are neither to blame for the abuse nor responsible for the outcome of any investigation, and that they are entitled to input into the manner and pace of the investigation."(Fogarty 1993:129).

A complementary but arguably less rights focussed position was taken by The Australian Capital Territory Community Law Reform Committee (1993). A "veto" power at the disclosure stage was advocated to the Committee by some child welfare workers but ultimately rejected (1993:77-9). The Committee instead recommended that:

The wishes of children about what will happen to them after a notification of child abuse is made should be taken into account (with the wishes of older children carrying more weight) as a matter of welfare practice. (p. 79, emphasis added).

7. The Present Research about Young People

It is with such considerations in mind that the present research was conceived. A driving force behind the first objective, i.e. to discover young people's views with respect to mandatory reporting, is the Council's recognition of young people's full range of human rights as set out in the Convention.

This research builds upon the direction of these statements of principle by consulting with potential and past consumers of the protective services system. By hearing what young people have to say about their knowledge of mandatory reporting, how they have heard about it, what they think about it and what impact they think it will have, this study treats them as sources of valuable information.

Like all sample groups adult and pre-adult their information is tempered by experience or lack thereof. The issues in question are human rights issues and as Rayner (1991:34) has put it, they are:

"fully entitled to human rights, rather than being objects of social concern and control; and as having a legal and ethical right to be heard."

From our literature search, this is the first Australian study to give young people a voice with respect to mandatory reporting. It is, therefore, necessarily exploratory but guided by the observations of Justice Fogarty and the above analysis of the particular considerations which attend the achievement of protection from abuse for adolscents as compared with younger children.

8. The Profession of Youth Work

Previous research into child abuse reporting behaviour has not focussed upon youth workers as a professional group. Instead, attention has been directed towards the teaching, health, and general welfare professions (See Webberly 1985, Lamond 1988).

One practical reason might be that youth workers are dwarfed by the sheer numbers of other mandated professionals. A further reason may be the absence of specific attention to adolescents within the discourse attending mandatory reporting.

Another reason may lie in the overt challenge to client confidentiality created by mandatory reporting legislation. The departure from routine practice is more readily apparent in the case of doctors, mental health workers and social workers. In contrast, for youth workers, there are no hard and fast ethical guidelines and it is possible that research in this area has tended to focus on professional groups where such exist.

The ethical challenge brought to youth work is more difficult to quantify than for other professional groups. Traditionally, there has existed a lack of consensus about the professional identity of youth work (Goodwin 1991), despite concerted efforts to foster common destiny and purpose in the sector (See Brown 1991). Representative bodies have experienced difficulty encapsulating the diversity of the youth sector and developing routine professional and ethical protocols around which practice should be based (see Brown 1991; Davey 1991). Authors appear to agree on one thing however - that the youth work field is lacking homogeneity.

The youth sector comprises workers of many disciplines including, but not confined to professionals who have formally trained in youth work. This lack of homogeneity, (whatever its cause, and aside from arguments about the negative and positive aspects of a disparate field) makes it very difficult to address the needs of the sector, particularly in relation to training.

9. The Context of Youth Work

Previous research in the area of sexual and physical abuse and the practice of youth work in Australia has drawn out several themes worth considering. Youth drop-in centres, a traditional workplace for youth workers, have been found to be male dominated areas where anti-sexist, and anti-racist work remains a low priority, and that the majority of service provision is aimed at young men (Omelczuk 1992, Delahunt 1991). Specifically, in relation to sexual abuse it has been found that,

"(m)uch of the emphasis on certain ways of working with young people comes from the workers themselves, their beliefs, attitudes, training, and understanding of the various issues affecting young people." (Omelczuk 1992:149-150).

Youth workers, therefore, respond to physical and sexual abuse in various ways, depending on their understandings of the causes of physical and sexual abuse.

Omelczuk's (1992) study revealed that many workers responded to cases of sexual abuse by listening to the young woman and supporting her, and following her directions regarding involving police or other authorities. Some workers, however suggested that they would take action in the context of working with the family, as a priority over removing the young woman from the abuser. Others indicated that they would intervene immediately to remove the young woman from the abuser, in conjunction with an outside agency.

The general theme of responses, however was that youth workers were aware of having limited options for referral. A lack of appropriate services to provide support was also identified. This complements the findings of a Victorian research project (Robson 1992) which involved consultations and surveys of service providers to young people in North Eastern Melbourne about their experiences of working with survivors of sexual assault.

This study found that a number of workers had a perception that sexual assault was a specialist area in which workers needed training in order to provide support to victims of sexual assault. There was a need for training around intervention orders, legal definitions of sexual abuse, court procedures, the role of The Police, and the implications of the Children and Young Persons Act 1989 some did not understand the legal definition of rape (Robson 1992:51). A dominant perception among workers was that the legal system alienates and traumatises young people.There is also Western Australian research showing that many of the young people using youth services are disadvantaged and victims of violence perpetrated either on the street, or at home (White et al 1991).

It is arguably the function of youth work to directly assist young people to find solutions to problems caused by social disadvantage, violence, and to help accessing legal services. Available evidence however, suggests the existence of a lack of recognition of the legal concerns of young people by youth workers (O' Conner and Sweetapple, 1988; Staden 1987).

10. Youth Work Training

The need for improved training of youth workers has long been recognised and a range of high profile studies have highlighted the issue (Burdekin 1989, Hirst 1989, Royal Commission into Aboriginal Deaths in Custody, 1990). Where agencies are considering working with young people who have been abused, the skills and stability of staff and the service model is paramount (Omelczuk 1992:164).

The Federal government, in line with the redevelopment of training across a range of industries has supported the creation of what are known as core competencies for the youth work sector. Core competencies identify knowledge and skill areas required for people to work effectively in industry. These core competencies form the basis of more specialised areas of skill and knowledge, as required in the various work settings of the youth sector.

Competencies cannot include special values or beliefs required to work effectively with young people. Rather, they define specific learnable task areas. The ability to empathisise, or to have a good sense of humour, for instance cannot be expressed in terms of competencies, however the ability to assess client needs and access relevant services can.

It must be born in mind that the these competency standards do not set out to describe in an explicit way what workers are expected to know, nor what or who training providers should teach. They simply outline the expected outcomes of that learning.

In developing a nationally accredited competency based youth work training system, it is envisaged that the professional status and career pathways of youth workers will be enhanced. The National Youth Sector Training Unit in conjunction with other government and non-government training organisations is developing this system of competencies for youth workers. These competencies will provide a framework for youth work training, and practice. as youth workers and create a template for training curricula development. Some of the already identified units in the national competency standards pertinent to sexual abuse are:

The first two of these points have been identified as core units by the National Community Services and Health Industry Training Body, that is they are units of competency which are essential for workers at all levels and in all types of situations.

Prominent among the set of competency standards of what youth sector workers across Australia are expected to do is the issue of respecting young peoples rights to confidentiality. Indeed core unit 1 - Identifying the needs and rights of young people lists among its performance criteria 'Young people rights to confidentiality is respected'(National Community Services & Health Industry Training Advisory Body with the Australian Federation of Youth Sector Training Councils 1995).

Performance criteria refers to the measures which an assessor would use to judge whether the youth worker is effective in the particular element of competency.

Confidentiality is again listed among the variables which are common to Service Delivery Cluster units ("SD") 2 (Assisting young people in crisis situations), 7 (Responding to young people in crisis situations) and 8 (Managing responses to crisis situations).

It is recognised that in many areas there is a tension between respecting the right of young people to privacy and self-determination and ensuring their protection and safety. This is reflected in many of the 43 units in the national youth standards. It is also the case that many of the competencies referred to will be impacted on by issues arising out of the mandatory reporting legislation. Areas which have been identified as assessable and legitimate competencies will be for many youth workers circumscribed by the legislation. For instance, element SD 7.3, 'Respond to young people who are in crisis due to their experience of violence' - lists among its performance criteria

"In collaboration with the young person referrals to specialist services are considered, weighing up the rights and needs of the young person and the type and quality of services available." (SD 7.3.5)

11. The Present Research about Youth sector worker Training and Recommendations regarding Mandatory Reporting

By fettering a professional's discretion and, therefore, the capacity to negotiate or involve the young person in the process of notification, mandatory reporting risks being a barrier to safety rather than a mechanism for achieving it. Reporting itself cannot be assumed the best pathway to produce safety and can have the opposite effect if young people break their relationship with the reporting worker and/or place themselves in situations of risk through running away (Brown 1993). Moreover, the desire of community professionals to help young people in abusive situations will give rise to dilemmas if confidence is lacking in the authority notified.

The literature review mapped the issues surrounding mandated reporting through legislation. It was found that there exists very little previous research regarding youth workers and the issue of mandatory reporting. Research into perceptions of child abuse and reporting had only peripherally identified youth sector workers as a discrete sample group to measure separately. Other research had shown that youth sector workers encounter sexual or physical abuse in their clients regularly and were under equipped to deal with these problems.

However there has been substantial Australian research relating to mandatory notification and other professional groups (Carter et al 1988; Ridoutt and Filis 1993; Webberley, 1985). This demonstrated that measuring the effect of legislative compulsion on the reporting behaviour of professionals was difficult to quantify and that comparisons between the States was fraught. Some studies (Lamond, 1989) using the 'before and after' method of determining the effect of legislation have shown increases in reporting rates without loss of accuracy. Other research has been unable to substantiate mandating legislation as a major influence on the reporting behaviour of professional groups who encounter disclosures of abuse while also reporting there was a strong belief that such legislation influenced their behaviour (Ridoutt and Filis 1993).

Cognisant of these findings, this research determined to examine youth sector worker' impressions and existing levels of understanding of Victoria's mandatory reporting laws as a way of considering approaches to the identification and intervention of child abuse and the implications for training.

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