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Restorative programs in the care and protection setting

Published in: Restorative justice programs in Australia : a report to the Criminology Research Council
Heather Strang
March 2001

Restorative justice in care and protection refers to conferencing-type programs based on the principle that families ought to have the main responsibility for making decisions about care arrangements for family members because, given the resources, information and power, families themselves are in the best position to make the right choices. The goal is an outcome which takes account of the well-being of the family member, the needs of the whole family for support services and the accountability of all parties for the care decisions made. (Swain and Associates 1993). Although the welfare of children is most often the object of the conference, issues around other family members such as the elderly or those with psychiatric or intellectual disability may also be dealt with this way.

Conferencing in care and protection, sometimes known as family group decision-making, was first trialed in Australia in 1992 when it was introduced in Victoria under the auspices of the Mission of St James and St John, an Anglican child welfare agency. It is based on the New Zealand model whereby the conference is attended by both professional services and family and friendship networks and is led by an independent facilitator. The professionals understand that their role is one of information-provision rather than decision-making. It is a three-stage process: first, the group as a whole identifies the issues which need to be addressed and options are outlined by the professionals; second, the family meets in private to discuss the issues and options and decides on a plan; thirdly, the professionals rejoin the family, the resourcing implications of the decision are discussed and the agreement ratified by all present. If the conference is about the safety of a child, the relevant statutory authority must be satisfied that the plan will not put the child at further risk. An evaluation of 19 conferences conducted in Victoria in 1993 (Swain and Associates 1993) found that over 80 percent of family members felt they had greater control and expressed satisfaction with both the process and the outcome, while the professionals involved also expressed strong support for the principles and practice of the conference model.

The program remains on a small scale in Victoria and impediments to wider application relate to resourcing - conferences are seen as slow and time-intensive - and to the reluctance of some professionals to allow what they perceive as dysfunctional families to make decisions for themselves when the safety of family members may be at risk.

Since the establishment of the Victorian pilot project there has been interest in the application of restorative justice for care and protection in several other States. The South Australian model is also based on the New Zealand program. The SA Children's Protection Act 1993 states (Division 1) that a 'family care meeting' must be held before a decision can be made regarding any custody or guardianship issue for a child in need of care and protection. The purpose of the meeting is to provide an opportunity for the child's family, together with the professionals involved 'to make informed decisions as to the arrangement for best securing the care and protection of the child' (S 28(a)). The officer in charge of the program (Donnie Martin, Care and Protection Unit, Department of Family and Youth Services) advises that about 400 care and protection conferences a year are currently being held: this is a doubling since 1997 when a new evidence-based safety and risk assessment process was introduced. No formal evaluation has been conducted but over 80 percent of meetings reach a valid plan which is still in place at the time of the twelve month review (personal communication 10 September 2000).

The Australian Capital Territory has just established conferencing for families, following the passing of the Children and Young People Act 1999. It is very much on the three-part model of the other States and of New Zealand: an information sharing stage where the professionals set out their concerns and the support they can offer, a stage for families to consider the options in private and reach a decision about what they want to happen, and a stage for discussion and agreement by all parties to the plan. The program commenced in May 2000.

In New South Wales, the Department of Community Services (DoCS) has taken a slightly different approach. Its new legislation, the Children and Young Persons (Care and Protection) Act (which was passed in 1998 but has not yet been proclaimed) makes provision for the use of alternative dispute resolution (ADR), to be used 'as a strategy to explore the needs of the child or young person in order to plan how those needs might be met, or to resolve disputes between family members' (NSW Department of Community Services, unpublished draft). DoCS suggests that over 8000 cases of substantiated child abuse may be eligible for ADR meetings each year and it is hoped that there will be substantial savings in time by diverting cases from court. The intention is to establish ADR services across the State when the Act is proclaimed. ADR is intended to allow families to have more control over the structure, timing and content of the meetings at which decisions will be made on care and protection. But New South Wales does not go so far as other jurisdictions have done, with DoCS retaining the final say on who attends the meetings and on 'bottom-line' care and protection requirements and the extent of restorative content of ADR is not clear.

DoCS includes under the rubric of ADR the conferencing pilot program used by Burnside, an agency of the Uniting Church, in conjunction with DoCS. This program follows the three-stage model used in New Zealand and other Australian States and is based on the same principles of family empowerment in the decision-making process. An evaluation was carried out in 1999 (Burnside unpublished) based on the twenty families who participated in the program between mid-1996 and mid-1998, usually to decide on the placement of children or to support their return home after living elsewhere. About two-thirds of family members felt the conference had helped the children; most professionals thought the risk to the children had been reduced because of the families' greater awareness of the reasons for concern about risk, their access to additional support and resources and the change engendered in family relationships by the process. The evaluation report notes that the new Act ought to facilitate the use of conferencing because the principles sit comfortably with those of the legislation. It recommends that the program be expanded but gradually, so as to ensure that facilitators and departmental professionals alike receive appropriate training for the preparation and conduct of the meetings.

Although there may be hopes by government of cost savings through the greater empowerment of families and a reduction in intrusiveness in family problems, both the New Zealand and Australian experience show that families need continuing community supports and professional services if conferencing is to be successful. Hassall and Maxwell in New Zealand warned as far back 1991 that 'the rhetoric of family responsibility can easily lead to the disappearance of the support of the state sector which is essential to the well-being of many families', while Swain & Ban reiterated in 1997 that it was unlikely that properly conducted conferencing in care and protection would reduce costs because of the needs of families for ongoing government-financed resources.

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