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Recommendations

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

The recommendations which follow are those of the Co-principal Investigators. They fall into the following broad areas:

We have not restated below, recommendations which emerged from young people in focus groups or workers from our survey sample. We urge the recommendations to be seen as the main directions suggested by the data.

We also stress that these these recommendations are a starting point for further development. while this remain a final report for the Criminology Research Council, on-going consultations with the steering committee and other interested parties are envisaged.

1. Legislative and administrative changes

i). H & CS should prepare and issue administrative guidelines placing a positive expectation upon notifiers and protective interveners to act in accordance with the wishes of young people aged 14 years and above.

This recommendation should not be seen to advocate a requirement of active participation in decision-making by young people regardless of whether they want to. To shift such responsibility would smack of systems abuse. We are recommending the provision of adequate resources to enliven the capacity of young people to have information on which to voice choices if they wish, and for systems that treat adolescents as actively participating in achieving the goal of their "safety and well being" (section 66 Children and Young Person's Act). It is a matter of allowing and enabling shared responsibility in decision-making about an adolescent's protection, not demanding that the adolescent shoulder it.

Recognising a continuum of participation

In considering how to conceptualise appropriate recognition of adolescents, we think it is useful to look to other aspects of the law.

In respect of Victoria, we note that a child is deemed capable of committing a crime at the age of 10 years old (s.129 Children and Young Persons Act 1989) and can be sentenced to the most severe sanction available in our criminal justice system - loss of liberty under a Youth Residential Order (between the ages of 10 and 14) or a sentence of Youth Training Centre Detention (14 years and over).

We are also conscious that under the common law which remains applicable in all jurisdictions unless it has been specifically countered by legislation, there is a doctrine known as doli incapax. The presumption to be rebutted is that:

"Between 10 and 14 years a child presumed not to know the difference between right and wrong and therefore to be incapable of committing a crime because of lack of mens rea [the necessary mental element]...Wrong means gravely wrong, seriously wrong...evil or morally wrong." (C v DPP [1995] All ER 43 at 45 HL per Lord Lowry citing Archibold's Criminal Pleading, Evidence and Practice 1993)

A further relevant feature of the law is the statutory direction in sections 20(8) and (9) of the Children and Young Persons Act which directs legal and lay advocates to represent the child

"in accordance with any instructions given or wishes expressed by the child so far as it is practicable to do so having regard to the maturity of the child.". (see also Pagliarella and Pagliarella (1993) FLC 92-400 for an illustration of instructions based representation in proceedings under the Family Law Act where this direction does not apply).

The final legal distinction we observe is that the Victorian Parliament has provided for children of 14 years and above to be complainants in their own right with leave of the Court under the Crimes (Family Violence) Act 1987 (section 7(1)(c)(iv) introduced by the 1990 amending Act).

Viewed against these other benchmarks, the legally "equal" legislative treatment of children from pre-verbal infants up to the age of 17 years old for the purposes of mandatory reporting seems out of step with other legal appreciations of a continuum of developmental growths and legal consequences. Our focus group data indicate that young people see this in the mandatory reporting scheme.

Law reform

We do not recommend legislative change to remove a certain age band from the provisions of mandatory reporting in Victoria at this time. We note that during the lifetime of this study, there has been discussion of the establishment of a national legislative scheme for child and adolescent protection from abuse (Rayner 1995, Nicholson 1994). We recognise that this raises the sensitivities of State and Territory Governments and our data do not invite us to form a view save for a comment; that any developments towards Commonwealth legislation covering this field should not replicate what we consider to be a position of homogeneity out of step with other differentiations in the law among those under the age of majority.

Administrative reform

We do, however, recommend that administrative guidelines issued and promulgated by H & CS should draw a distinction with respect to adolescents aged 14 years and above. In this respect, it is pertinent to acknowldge that H & Cs quite properly have policy material focussed on adolescents, training material on adolescent risk assessment, adolescent protective teams, and a central program unit, with a specific focus on adolescent protective issues (H & CS undated looseleaf). We consider our recommendation an extension of the organisation's existing administrative recognition of the special circumstances of adolescents.

The further recognition we recommend is a presumption, but not a binding obligation, for notifiers and protective interveners to act in accordance with the wishes of those aged 14 and above.

With respect to notification, we recommend that:

We are of the view that, in terms of notification, legally, the open definition concerning the phrase "as soon as practicable" affords Ministerial or Departmental discretion in how the term applies to a subset of the wide developmental range covered by mandatory reporting.

Following notification, we recommend that:

As far as a presumption in favour of acting in accordance with the wishes of the child for H & CS investigative staff is concerned, we similarly consider that this recommendation is a matter of policy to inform the direction in section 66 of the Act which requires interveners to "investigate, or cause to investigate, the subject matter of a notification in a way that will best ensure the safety and well-being of the child"

We emphasise again that we are speaking of a presumption of action in favour of young people's wishes not determination by them. We have shifted the onus in favour of young people's wishes.

This is nonetheless a stronger stance than that of the Australian Capital Territory Law Reform Committee (1993) . We urge a position which does more than invite a form of welfare practice; Our proposal requires that any decision to displace the wishes of a notified young person must be an active one, made only after active consideration of those wishes has been overridden by other factors such as urgency or risk to siblings.

On balance and in all the circumstances, we propose that this gives the best effect to adolescents as "apprentice adults" rather than "large children" and we think this is consistent with:

We have maintained the residual discretion to intervene against wishes in the interests of a young person's welfare. That was a discretion that the young people in our sample recognised was necessary in some circumstances and is a flexibility required having regard to the current legal priority accorded to the welfare, safety and best interests of those below the age majority.

It is important before leaving this topic to acknowledge that an age based criterion is crude in terms of developmental theory. We also acknowledge the increasing attention to the concept of a test of "capacity" that has flowed from the significant decision of the House of Lords in Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112 which established the principle of increasing respect for the capacity of adolescents to make decisions with long term consequences. These observations have been made by Robert Ludbrook, Director of the National Children's and Youth Law Centre (1995) who points out, that the doli incapax doctrine was upheld but attacked in C v DPP (cited above). He also rightly observes that the corollary of our recommendation is a presumption of lack of capacity among those aged 10 to 13 years of age.

We do not theoretically disagree with him and welcome his suggestion for a finer assessment tool than age for those below the benchmarks set by the law in other regards. Our recommendation begins from a position that is, perhaps pragmatically, utilitarian in its clarity and ease for policy-makers. A developmental competence test a la Gillick contains implications of time, money and effort that we consider might be a later development.

ii) That the government not proceed at this stage to gazette youth workers.

It is our interpretation of the data that young people assume that the converse of mandatory reporting is a guarantee of confidentiality when this is not the case.

A recommendation with respect to the future of youth sector workers as mandatory reporters is complicated on the basis of our data. The youth sector survey data suggested a distinct difference, like that of young people, between the conceptual value of mandatory reporting and the importance the workers attatched to individual worker discretion in individual client cases. For young people, the mandating or not of youth workers per se seemed secondary in comparison with the stronger concern among young people for a more determinative role in the process of their protection generally.

If our previously referred to proposal [Legislative and Administrative Change i)]is accepted, then the status of youth sector workers is largely subsumed. If the proposal is not accepted, we are left to evaluate the desirability of distinguishing youth workers as a group who ought not be required, but of course still able, to report.

In such circumstances, having weighed the considerations, we see merit in maintaining the status quo where by youth workers are not gazetted. This enables young people to choose between professional groups with whom they have no negotiation capacity , and youth workers with whom they do. Our reasons are as follow:

  1. Providing that youth sector workers must be "up front" about the residual limits to their non-mandatory latitude (i.e. a capacity to notify as a concerned citizen), as compared with mandated professional or occupational groups, young people retain the choice of whether they disclose to a worker who is non-mandated or one that they are informed has mandatory responsibilities. On the basis of our data, we value the provision of such a choice for those who we conceptualise as "approaching adulthood" rather than "large children".
  2. The fact that secondary school teachers and other professionals listed in section 64(1C) who work with the same age group are mandated, reinforces rather than detracts, from our recommendation of providing choice to young people. We see in our data a call for exactly such choice and our recommendation would enable young people to stream themseleves accordingly. Failing acceptance of an age based assumption or developmental assessment which quarantines young people's right to choose a path that does not lead towards notification, we consider that the data suggest more harm than benefit is achieved by effectively starving young people of a professional sounding board.
  3. Youth workers appear to have been acting responsibly in managing the delicate balance between maintaining relationships while watchful for young people's safety. The reasons for both voluntary notification and non-reporting elicited in the survey indicate a responsible approach to disclosure management. Although concerns with respect to systems abuse was a reason cited by 13% of our sample for not reporting, this contrasts favourably with the finding by Ridoutt and Filis (1993) in their small New South Wales sample that 54% of youth workers did not report due to "no confidence" in the equivalent department.

We acknowledge that our data is limited to self-report and have included a recommendation in relation to this limitation in our proposal Research ii). We also note that half of our youth sector worker sample approved of a legal obligation to report rather than leaving it to individual discretion, 17% were in favour of maintaining the discretion and 32% were undecided.

In legal terms, to achieve this result for youth worker graduates would require a somewhat clumsy legal mechanism.We can see that there are practical difficulties in defining which workers should not be compelled to report given that:

It will be recalled that section 64(1C)(g) defines a category in the following way:

"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".

We leave this matter for attention after decision-making with repect to the two direction for change listed above in this section.

2. Training

i) That specific training be provided to youth sector workers irrespective of their status in relation to the legislative requirements of the Victorian mandatory reporting legislation. It is also recommended that the content areas for this training be identified from this research.

Youth sector workers have indicted that they perceive within themselves significant skill and knowledge areas in which they lack relevant competencies. These areas of perceived high significance/low competence included:

Many of these perceptions have been verified and identified by the survey. Areas where less than half of youth sector workers gave the correct answer included:

More importantly than their ability to recognise compentencies or the survey's capacity to deliniate their knowledge and skill levels is the motivation by youth sector workers to improve their skill levels. In comparison to other options of a less personally demanding nature, training was `head and shoulders' the preferred option recommended by youth sector workers. In light of other research which indicates the strong influence that training has on reporting behaviour (Ridoutt and Filis 1993: 127) this goodwill should be capitalised upon.

Despite the importance of training, recent provision associated child abuse prevention strategies have been characterised as minimal (Ridoutt and Filis 1993: 127, YACVic 1995) and diffuse in aim. As pointed out by Ridoutt and Filis, lack of training can act to reduce the rate of reporting because:

This leads to the recommendation that this training be provided on a system-wide basis. The most appropriate body for the provision for this training is the Victorian department of H & CS as it already has in place a training unit who provide training to the professional groups who have been mandated. Alternatively any body with state-wide training capacity and demonstrated experience in the training of youth sector workers may be considered, this might allow for a more field-based orientation. If this approach is considered then standards-setting and monitoring would have to be the responsiblity of H & CS.

In conjunction with this training we recommend there is follow up with an assessment of how the training has been applied. This assessment of child protection competencies against standards could be tied to industry level standards whereby mastery of a competency guarantees progress toward an appropriate award.

We note here also that any decision made with respect to our recommendation concerning the greater determinative force of young people's wishes or youth sector workers maintaining a non-mandated role will have training implications which must be addressed for both community sector workers and H & CS workers.

3. Information

i) There should be a range of age appropriate materials explaining the meaning and consequences of mandatory reporting to young people and their rights when protective investigation is to be triggered or has been triggered. The process of preparing such material should also serve as a mechanism for making clear the applicability of those rights.

Sets of information materials

The content of information material must at least target two differing circumstances.

A first set would inform young people of the basic features of the scheme and the nature of mandatory reporting.

In effect, this is information to which young people are entitled as a segment of the community subject to new state powers. On the basis of our focus group data such information would need to include at least:

A second of set of information materials would inform young people's of their rights or legitimate expectations as actual consumers of protective intervention.

Clarifying and articulating young people's rights prior to and after disclosure is a priority for developing this information. The presumption in favour of acting in accordance with adolescents' wishes was described in the recommendation section Legislative and Administrative Reforms and should be incorporated.

We see two particularly valuable sources for such a statement; first, the contents of the Children and Young Persons Act and secondly, statements of the rights of victims of crime. We describe how these are relevant below. Having regard to our interpretation of these legislative provisions, we recommend that these effectively form the foundation of a statement of how young people can expect to have decisions made in the notification and investigation stage. Accordingly, such information should form an information source to young people embarking upon disclosure and/or subject to notification.

Rights in the legislation

The legislation provides few obvious rights for the young person concerned in relation to the notification and investigation process. There are, however, some rights in the legislation which we think have been given little attention. It is appropriate to set these out briefly here.

As noted in the introduction of this report, the key direction is set out in section 66(1) of the Children and Young Person's Act :

"A protective intervener must, as soon as practicable after receiving a notification under section 64 (1) or (1A), investigate or cause another protective intervener to investigate, the subject matter of the notification in a way that will best ensure the safety and well being of the child."(emphasis added)

Section 66(2) requires the protective intervener to inform the child and her/his parents that any information they give may be used for the purposes of a protection application and prohibits disclosure of information arising from the investigation without the Secretary of the Department's authorisation unless it is to: the child, his her parents, the Director-General or the Chief Commissioner of Police or their delegates, or specified officials connected with the maintenance of records.

On our reading of the legislation there is also a range of further rights whichflow from the definition of "case planning process". To our knowledge the literature has not considered these.

The phrase "case planning process" is defined in section 3 as,

"the process of decision-making by the Director-General concerning a child, beginning when a protective intervener receives a notification about the child" is defined as a "case planning process" (Section 3, emphasis added).

This covers a much wider ambit than the term "case plan" which, as defined in section 3, only concerns a "statement of any decision concerning a child made by the Director-General after the making of an order by the Family Division [of the Court] in respect of the child."(emphasis added).

In terms of the above reading, sections 119 and 122 become relevant.

Section 119 sets out a number of principles which must be taken into account in "[d]ecisions made by the Director-General as part of the case planning process"(emphasis added), i.e. from the time of receiving a notification. It is necessary to set the provision out in full.

"119. Principles of case planning

  1. Decisions made by the Director-General as part of the case planning process must, as far as possible, be made according to the following principles:
    1. The welfare and interests of the child must be given paramount importance;
    2. If the child is not living with his or her family, a primary goal is to reunite the child with his or her family if that is for the welfare and in the interests of the child;
    3. When considering the welfare and interests of the child, due consideration must be given to immediate long-term effects of decisions on the welfare and interests of the child and on the maintenance of the family relationships of the child;
    4. Any decisions made to protect the safety and well-being of the child must not be more than sufficient to achieve this;
    5. The child (except if his or her participation would be detrimental to the safety or well-being of the child) must be encouraged and (through consultation and discussion) given adequate opportunity to participate fully in the case planning process and must be given a copy of any proposed case plan and sufficient notice of any meeting proposed to be held;
    6. The child and the family of the child must be provided with the opportunity and assistance to involve other persons to assist them to participate fully in the case planning process in accordance with paragraph (e)
    7. The case planning process must be conducted in such a way that the persons involved are able to understand it;
    8. The case planning process must take into account the views of all persons who are directly involved;
    9. Decisions are to be reached by collaboration and consensus;
    10. Decisions are to be made with as much speed as proper consideration of the case permits;
    11. If a person attending meetings occurring as part of the case planning process has difficulty in communicating in the English language, an interpreter must be present;
    12. If meetings are held as part of the case planning process and the child comes from an ethnic background, a member of the appropriate ethnic community who is chosen or agreed to by the child or by his or her parent may attend;
    13. In the case of an Aboriginal child -
      1. (i) decision making should involve relevant members of the Aboriginal community to which the child belongs; and
      2. in recognition of the principle of Aboriginal self-management and self-determination, arrangements concerning the child and his or her care, supervision, custody or guardianship, or access to the child, must be made in accordance with the principles listed in sub-section (2).
  2. For the purpose of sub-section (1) (m) (ii) the principles are:
    1. Persons involved in the arrangements mentioned in sub-section (1)(m)(ii) must be, or at least one of them must be, a member of the Aboriginal community to which the child belongs; or
    2. If a person or persons of the class mentioned in paragraph (a) is or are not reasonably available for that purpose, the persons involved in those arrangements must be members of, or at least one of them must be a member of, an Aboriginal community; or
    3. If a person or persons of the classes mentioned in paragraphs (a) and (b) is or are not reasonably available for that purpose, the persons involved in those arrangements must be persons approved by the Director-General and by an Aboriginal agency as suitable persons for that purpose."

Section 122(1) provides for the Administrative Appeals Tribunal (Victoria) to have jurisdiction with respect to "any decision made by the Director General concerning the child, including a decision not to make a decision" and "a decision relating to the recording of information in the central register". The Tribunal is intended as a last resort after internal review mechanisms have been exhausted.

Statements of victims' rights

We also consider there is value in conceptualising the needs and status of children and young people approaching, or within, the protective services system, as being parallel with the position of other victims of crime.

Young people notified as persons who are suspected of abuse under the Children and Young Persons Act 1989 are brought to the attention of the state because they are believed to be victims (within the oft-used offender/victim dichotomy). Regardless of whether the state's attention arises from the young person's disclosure or assessment by a concerned professional, the young person notified is an active or, if deferring a decision-making input, an interactive player in the process of securing protection from violence and abuse.

The victim rights movement in Australia has, amongst other initiatives, secured from some governments, a statement of victim/survivor rights. These are principally procedural rights in the context of criminal investigation/prosecution (see for example the Victoria Police Code of Practice for Sexual Assault Cases, Force Circular Memo 92-5; South Australian Declaration of Victims' Rights 1985; Australian Capital Territory Community Law Reform 1991).

Young people subject to notification of abuse are within a civil rather than a criminal process and such rights do not automatically apply. It appears to us anomalous that "victim rights" which are expected to be accorded in a criminal proceeding, have not been articulated for young people the subject of notification merely because the event has been investigated as a case of abuse rather than as a case of a crime.

The framework of rights and expectations accorded to those who are complainants in criminal matters forms an additional basis for a statement applicable to children and young people at the front end of the protective services system. Some features would be similar (e.g. the right to be kept regularly informed about the progress of the investigation) while other aspects would be more particular to the type of situation addressed (e.g. active consideration with respect to the use of an intervention order instead of protective proceedings).

Acceptance of this recommendation carries with it the need to ensure that the rights can be effectively exercised. This has implications not only for H & CS, but also for those who advocate on young people's behalf. We have addressed a particular aspect of this in Program Initiative i)

ii) Printed material in relation to recommendation 1 should be available in schools, hospitals, doctors' and dentists' surgeries, department of social security, commonwealth employment services, train stations.

These were sites suggested by participants.

We would add that young people in local communities will have expert knowledge of the best places to put information. In small non-metropolitan communities particularly, special care must be taken to ensure that concerns about confidentiality and "being seen" are addressed. We also note the success of information dissemination through comic book form seen in the Streetwize series.

Electronic media information is a site of growing importance. Subscription to the Internet is growing at a rapid pace and children and young people will soon have access in schools. We are aware of a submission to the Law Foundation of New South Wales by the National Children's and Youth Law Centre to create electronic access to rights information (the Children's Legal Information Project). This or an equivalent service would also be an appropriate information site providing a further avenue to address the needs of young people in remote and rural areas.

iii) Creative audio-visual approaches to enhancing young people's knowledge and understanding should be canvassed.

In thinking about the mixed remarks from participants about the use of television, we tentatively suggest that the producers of prime children's viewing drama consider storylines which deal with mandatory reporting. Such an approach has been used with respect to other social issues such as alzheimers, racism, and H.I.V./A.I.D.S in serials and dramas targeted to older children and adolescents or those programmed for adults which have a sizeable teenage viewing audience.

4. Program initiatives

i) The establishment of a statewide advisory line for young people and those who want to provide support to them

Although there are a range of support models to choose from, we consider that the key differentiation is whether the support person is drawn from specially trained ranks or is selected by the young person her or himself and then provided with the resources to capitalise on the pre-existing relationship.

Our data did not test the strength of these choices but do suggest that young people would prefer to be self-selecting of those who support them.

We see distinct advantages in supporting a model which builds on young people's self-selected supports by providing as a telephone advisory service that provides secondary consultation to support persons or direct advice to the young person concerned.

We do not develop the model further in this recommendation but note that this type of advisory service has been evident in the work carried out by telephone legal advice lines such as the Alphaline which was run by Fitzroy Legal Service in Victoria and by The Streetwork Project of H & CS and, even more on point, by the South Australian Children's Interests Bureau.

ii) The development of a targeted peer education program.

Peer education was suggested in one focus group and endorsed when proposed to another group. The Victorian Department of Health and Community Services did, in fact, fund a peer education project on family violence for three years and one of the present investigators was Convenor of that project (see Sandor, 1992). It is possible that some participants in this study had taken part in project workshops - we simply do not know.

Recently, the Standing Committee on Social Issues of the Legislative Council, Parliament of New South Wales issued its Report Into Youth Violence in New South Wales and made the following positive comments:

"In Victoria, four specially trained young people were employed [on a part time basis] through funding from the Department of Community Services from 1991 to 1994 to educate other teenagers about how to stop family violence. The peer education project was run by the organisation Young People In Need and was the first of its kind in Australia. Over 2,000 young people from schools, refuges and youth clubs took part in the workshops which were designed with the help of the Domestic Violence and Incest Resource Centre, the Community Council Against Violence, the Victorian Youth Advocacy Network and Victoria Police. Of 170 workshops participants completing evaluations in April 1994, 156 young people indicated that they felt it was better having young people give information than adults. The Committee recognises that education on family violence may be an important violence prevention strategy, and believes the Juvenile Crime Prevention Unit in the Attorney-General's Department should review such peer education projects in the area of family violence. ...

RECOMMENDATION 7

That the Attorney-General direct the Juvenile Crime Prevention Unit to review peer education projects that address family violence such as the Victorian Young People In Need project, and consider supporting the development of a New South Wales equivalent."(p. 104)

It is worth noting that the end of the project was not caused by withdrawal of funding and that the timing of its demise occurred shortly after mandatory reporting commenced in Victoria. Latter workshops did include material about mandatory reporting and we consider that it is both feasible and desirable to re-institute the approach in Victoria with a focus on mandatory reporting, subject to considering the review that is expected to be conducted by the New South Wales Juvenile Crime Prevention Unit.

5. Research

In addition to the references to research issues identified elsewhere in these recommendations:

i). The focus group method used in this project should be replicated with specific attention to the experience of indigenous and non-English speaking background young people.

As explained in the methodology section of this report, we are acutely aware of the limited comapss of our focus group sample. We do not assert that the issues raised by the participants we have spoken with reflect the concerns of other cultures and heritages. We are conscious that in other States, the population size and system representation level of children from other backgrounds is greater than in Victoria and we recommend that targeted consultations of this sort would be appropriate to meet the pressing issues in other jurisdictions.

ii). There should be an assessment of actual youth sector worker practice in the management of adolescent abuse disclosures.

One of the acknowledged limitations of our data from youth sector workers was its self-report quality. It was a premise of recommendation Legislative and Administrative Change ii) that our sample had been managing the young people's disclosures in a responsible way. This is an assumption that requires testing in a manner that tracks outcomes for adolescents. Such research should also address the behaviour of workers in circumstances where they form an assessment without young person's disclosure. In this regard, the present study has been principally concerned with treatment of disclosure material

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