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Coleman, Cassandra --- "Towards Detokenisation: The Role of the Direct Instructions Model in Victorian Child Protection Proceedings" [2024] UNSWLawJlStuS 16; (2024) UNSWLJ Student Series No 24-16

TOWARDS DETOKENISATION: THE ROLE OF THE DIRECT INSTRUCTIONS MODEL IN VICTORIAN CHILD PROTECTION PROCEEDINGS

CASSANDRA COLEMAN

I INTRODUCTION

Child protection proceedings are the statutory vehicle for steering the tightrope between parental autonomy and upholding the full spectrum of children’s rights. Across almost every Australian jurisdiction, this spectrum exists on the continuum of what is in the ‘best interests of the child’ (‘best interests’) subject of proceedings.^[1] More than a primary consideration,^[2] the ‘best interests’ principle takes paramountcy in six out of eight statutory regimes in Australia,^[3] including Victoria. While widely accepted, forming one of four general principles of the Convention on the Rights of the Child (‘the Convention’),^[4] the ‘best interests’ principle is not without criticism, considered by some to be subjective in both substance^[5] and application^[6] and an exercise in paternalism.^[7] Notwithstanding, ‘best interests’ remains the cornerstone of the Victorian child protection regime and the Children, Youth and Families Act 2005 (Vic) (‘the Act’)^[8] that governs it. In contrast, the right to be heard^[9] is but one of 17 mandatory considerations comprising the ‘best interests’ principle in the Act.^[10] While elucidated somewhat in the Act’s decision-making principles,^[11] participation in Victorian child protection proceedings therefore remains statutorily subsidiary to the ‘best interests’ principle, falling short of the ‘complementary role’^[12] envisaged for the two principles. Concerningly, legal representation is only mandated for children aged 10 and older (subject to capacity),^[13] raising significant issues with respect to arbitrary age limits, evolving capacities, and parity of sibling views, thereby risking statutory tokenism.

Notwithstanding, this essay will argue that short of an exercise in ‘tokenism’, direct instructions models of representation offer a mechanism through which children may be heard in decision-making from which they might otherwise remain conspicuously (and ironically) precluded. Importantly, it will be argued that the extent to which this mechanism affords meaningful participation largely turns on the choices made by practitioners and decision-makers alike. Scholarship largely identifies trust and relational advocacy,^[14] clear information and feedback,^[15] and child/ren being physically present during proceedings^[16] as factors that significantly impact a child’s assessment of participation. Through consideration of child protection regimes in comparable jurisdictions, and alternatives offered in scholarship, this essay will conclude that, with appropriate reforms and, crucially, conduct that centres children’s rights in decision-making, the direct instructions model within the Victorian child protection regime can supersede tokenism to provide a vehicle for meaningful participation.

II RELEVANT PRINCIPLES IN VICTORIA

A ‘Best Interests’ and ‘Participation’

The ‘best interests of the child’ is one of four general principles of the Convention and is articulated at art 3: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’^[17] The concept of ‘best interests’ is ‘threefold’,^[18] understood as a right, a principle, and a rule of procedure.^[19] For the purposes of this essay, while Victoria’s child protection regime recognises ‘best interests’ as a substantive right in its articulation of the same as the ‘paramount’ consideration of the Act,^[20] the focus herein will be on ‘best interests’ as a rule of procedure.^[21]

The Committee on the Convention on the Rights of the Child (‘the Committee’) has made clear that any assessment of ‘best interests’ must include respect for the right to be heard, as articulated at art 12(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.’^[22] Article 12(2) then specifically elaborates the child’s right to be provided the opportunity to be heard in any judicial proceedings affecting the child, either directly or through a representative or appropriate body.^[23] According to the Committee, art 12 highlights the child as an ‘active participant in the promotion, protection and monitoring of his or her own rights’^[24] and ‘leaves no leeway’^[25] for State discretion. The Committee also comments that the right to be heard is widely implemented by way of ‘participation’ (although this term does not appear in the text of art 12 per se) and can be described as ‘ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes.’^[26]

It is this interpretation of ‘participation’ that is adopted throughout this essay. Like ‘best interests’, the right to be heard (or ‘participation’) is a general principle of the Convention and one of its ‘fundamental values’,^[27] such that both rights should be ‘considered in the interpretation and implementation of all other rights’.^[28] The Committee has explicitly recognised not only the ‘inextricable links’^[29] between the two rights but also their ‘complementary role’,^[30] confirming ‘one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing either the child or the children.’^[31] The Committee concludes that there can be ‘no correct application’^[32] of ‘best interests’ if the components of the right to be heard are not respected.^[33] The Committee also recommends that children be directly heard in proceedings ‘wherever possible’.^[34] In a discussion of child protection proceedings, it is also prudent to consider the concepts of parental guidance and evolving capacities of the child (particularly the latter), enshrined at art 5.^[35] Importantly, the Committee has reiterated that all children have rights ‘irrespective of their age’^[36] and are entitled to incremental ‘responsibility, agency, and autonomy’^[37] to exercise the same.

B Direct Instructions Model

In the Victorian child protection regime, the mechanism for preserving the right to be heard is a direct instructions model of representation, subject to the child’s maturity.^[38] This model is reserved for a child aged 10 years or more,^[39] subject to maturity,^[40] with provision for representation where a child is aged under 10 or has been judged insufficiently mature to give instructions in exceptional circumstances.^[41] In the latter scenario, the legal practitioner is required to act on a ‘best interests’ basis.^[42]

Relevantly, this age-based distinction was only introduced in the last decade. Prior to December 2013, legal representation in Victoria was required for any child ‘mature enough to give instructions’.^[43] On advice from the Children’s Court Clinic, the Court historically took the view that a child aged 7 years or more could be sufficiently mature,^[44] although this did not preclude the availability of ‘best interests’ representation in exceptional circumstances.^[45] In the Statement of Capability, one reason proffered for introducing an age limit was that contesting the ‘undefined’ distinction of ‘maturity’ prolonged resolution of child protection proceedings.^[46] The Minister concluded that: ‘A distinction for separate representation based on an age of 10 or more is more consistent with the timely and effective protection of children in their best interests than a rule based on contested evaluations of maturity.’^[47] Ironically, this Statement’s move away from case-by-case ‘evaluations of maturity’ remains directly out of step with the Committee’s elaboration of the right to be heard.^[48] This will be considered further below.

III THE CASE FOR TOKENISM

Notwithstanding, it is argued that the directs instructions model can be understood as the natural intersection of ‘best interests’ and ‘participation’. Yet the statutory limitations of Victoria’s child representation model, particularly the significant reforms outlined, bolster a case for what this essay labels ‘statutory tokenism’: that is, a tokenistic approach embedded into the legislation. This essay will now turn to the case for tokenism and posit that although tokenistic in statutory substance, the direct instructions model has the potential to enable meaningful participation in its application.

In evaluating the case for tokenism, this essay adopts the definition of ‘tokenistic’ proffered by the Committee: that is, approaches ‘which limit children’s expression of views, or which allow children to be heard, but fail to give their views due weight’.^[49] As Lundy summarises, key scholarship attributes ‘tokenism’ to experiences where the views of children ‘have been sought by adults but not taken seriously’.^[50] Using this definition, it would appear Victoria’s child protection regime has at least four distinct hallmarks of statutory tokenism.

A Age-Limit (10 years or more)

First, and most significantly, the introduction of an age-limit arbitrarily restricts a child’s expressions of views in matters that affect them, a tokenistic approach per se. As briefly canvassed, parliamentary justification for the age-based distinction was two-fold: the delay to proceedings and abstract decision-making for children below 11 years of age.^[51] It was further argued that art 12 of the Convention is ‘not implemented’^[52] in Victoria’s Human Rights Charter^[53] and that, in any case, it was ‘not clear’^[54] that the former informed any interpretation of the latter. Therefore, children are not required to be separately legally represented.^[55] On this basis, the Victorian Parliament introduced an amendment that significantly altered the status quo with the justification that ‘child protection officers will convey the wishes of the child to the court as well as their assessment of what is in the “best interests” of the child’.^[56]

Short of a direct breach of rights elaborated at art 12, this age limit can be understood as at least tokenism in substance in at least three ways. For one thing, according to the Committee, art12 ‘makes clear’^[57] that the significance of a child’s views cannot be determined by ‘age alone’^[58] and explicitly ‘discourages’^[59] the imposition of such age limits. For another, the Committee is clear in its expectations that a child’s views must be given due weight ‘when a case-by-case analysis indicates that the child is capable of forming her or his own views’,^[60] precisely the type of evaluation Parliament sought to remove. Introducing an age-based distinction to expedite proceedings is also in tension with the Council of Europe’s Child-Friendly Guidelines (‘the Child-Friendly Guidelines’),^[61] which provide that a ‘child-friendly system’ should ‘adjust its pace to children’,^[62] being neither ‘expeditious nor lengthy, but reasonably speedy’.^[63] The Child-Friendly Guidelines also articulate the need for protection from discrimination on any grounds, including age^[64] (which is notably otherwise precluded from the Convention^[65]). More broadly, the ‘evidence’ relied upon by Parliament to dismiss case-by-case evaluations (where capacity is generally accepted to be established from 11 years onwards) appears ambiguous and at odds with ‘evolving capacities’ jurisprudence, typifying ‘how arguments about capacity and generational status can be levied to rationalise denying children participation rights’.^[66]

The age limit also operatively introduces tokenism in application, despite what this essay argues can be potentially ‘detokenising’ conduct of practitioners and decision-makers. As Horsfall observes, upon amendment, children who were yet to turn 10 years old when the age limit was introduced simply ‘lost their existing participation rights’.^[67] These cases of the views of children being sought then later statutorily dismissed by adults typifies the tokenism of views ‘not [being] taken seriously’.^[68] Moreover, the notable converse effect of the age limit is that, where a child turns 10 years old partway through proceedings, they must obtain legal representation.^[69] Operatively, this can create somewhat absurd circumstances where (for example) a child may be deemed sufficiently mature to participate 10 months into proceedings that take 12 months to resolve. Using this hypothetical, the child has been heard ‘far too late’^[70] in judicial proceedings affecting them, such as to have only a ‘limited influence’^[71] on the outcome. This is a hallmark of tokenistic approaches whereby ‘[c]hildren and young people may be consulted but their views have no discernible impact on decisions.’^[72]

B Assessment of ‘Not Mature Enough’

Concerningly, the Act further provides that an assessment of maturity (or, more accurately, assessing if a child is ‘not mature enough’^[73]) may turn on the child’s ability to form and communicate their own views^[74] and their ability to give instructions in relation to the primary issues in dispute.^[75] This immediately raises concerns with respect to the intersection of age and dis/ability, as well as the child’s right to choose not to give instructions or express their view.^[76] It is also tokenistic in both substance (statutorily limiting children’s expression of views)^[77] and application, being at odds with the interpretation of ‘evolving capacities’ proffered only recently by the Committee: ‘The evolving capacities should be seen as a positive and enabling process, not an excuse for authoritarian practices that restrict children’s autonomy and self-expression, and which are often inaccurately justified by pointing to children’s relative immaturity.’^[78]

The provisions are also at odds with the Child-Friendly Guidelines that provide, ‘all other rights of the child, such as the right to dignity, liberty and equal treatment should be respected at all times’.^[79] If children are to enjoy the right to equal treatment at all times, and are recognised as having legal and social status, ^[80] then as Horsfall argues, this status ought to be ‘on par’^[81] with the balance of parties to proceedings. It is argued that anything short thereof fails to take the views of children seriously and is therefore merely ‘for the sake of appearance’.^[82] The implications of these provisions are significant, particularly for certain groups of children who face ‘particular barriers’^[83] to their realisation of their right to be heard. A more comprehensive exploration of the same is regrettably beyond the scope of this essay but provides a neat segue into the concept of parity next explored.

C Views of All Children, including Siblings

In matters relating to more than one child, the arbitrary age limit can undermine the parity of sibling views (where applicable). It is argued that the absence of a discretionary power or obligation to consider the views of siblings (as exists in New South Wales) (‘NSW’)^[84] risks a tokenistic approach where proceedings relate to more than one child. To illustrate, the earlier hypothetical is adapted: three children are the subject of a protection application. At first mention, the children are all aged under 10 (for example, six, seven and nine years of age). The matter remains unresolved after 10 months, and the eldest child turns 10. As noted, this creates a somewhat absurd scenario where a child is deemed sufficiently mature partway through substantive proceedings (despite the statutory restriction on giving instructions hitherto due to age) by which time multiple decisions would have already been made, including on the issue of placement, without the child’s direct participation. The eldest child, unlike their siblings who are ‘effectively silenced’^[85], now enjoys the full realisation of their right to be heard, despite the absence of direct instructions to the court in the wake of the immediate protective concerns that prompted legal intervention.

The operative reality of this statutory tokenism is clearly at odds with the Committee’s interpretation of ‘participation’. As argued, the Committee makes clear that every child, including ‘[b]abies and very young children’,^[86] is assured the right to freely express their views^[87] such as to ‘influence the determination of their best interests’.^[88] The statutory limitation of this right in Victoria is therefore prima facie a tokenistic approach.^[89] In practice, the views of the siblings are incorporated into Departmental reports (as foreseen by Parliament following the 2013 reforms), which ‘presumes’ ^[90] that the Department or parents can account for a child’s ‘best interests’. Yet research indicates that official reports sometimes minimised children’s views or missed them altogether.^[91] For children without separate legal representation, these views are also usually couched in the disclaimer that the child is ‘not at an age to express their views clearly’ (or words to that effect). As Horsfall concludes, the absence of participatory parity ‘ignores the reality that both the Department and parents are constrained by their own interests and resources’.^[92] It also highlights another challenge to the realisation of participation, being the active exclusion of some children who are ‘never reached by participation activities’,^[93] with other children who are consulted ‘often presumed to be speaking on behalf of their peers’.^[94] This is particularly alarming in light of research in comparable jurisdictions such as Sweden, wherein over half of child welfare reports with respect to violence were made by notifiers who had been told directly by the child exposed or their sibling.^[95] If views expressed by children are enough to warrant investigation and potential intervention, a form of participation, it is argued that they should be enough to prompt the full realisation of the right to be heard.

D Proceedings May Resume without Representation

Briefly, where a court has adjourned a matter to enable a child to obtain legal representation, the Act also empowers the court to resume the hearing whether or not the child has obtained legal representation.^[96] Prior to reform, the court could only resume a hearing in those circumstances if satisfied that the child was otherwise represented with leave of the court.^[97] It would appear that this amendment, like others, was sought to expedite proceedings towards resolution and arguably to reduce costs.^[98] In any case, the removal of any requirement to consider alternate representation for the child before resuming proceedings has ‘further weakened’^[99] the obligations of decision-makers. It also raises doubt as to how ‘mandatory’ child representation truly is in Victoria, recalling Hart’s classification of tokenism as non-participation.^[100]

IV THE POTENTIAL FOR MEANINGFUL ENGAGEMENT

It is argued that the case for statutory tokenism is strong, particularly with respect to the statutory age limit restricting the allocation of direct instructions representatives. Yet the balance of tokenistic approaches – assessing a child as ‘not mature enough’, considering the views of siblings, and resuming proceedings without representation – are discretionary powers that a decision-maker can exercise as they see fit (if at all). This essay now turns to the question of tokenism in application and how the same can be addressed ‘by providing meaningful engagement’.^[101] It is argued that child-centred scholarship largely identifies that children’s experiences of participation can be significantly impacted by three key factors: the development of trust with the practitioner,^[102] clear feedback,^[103] and being physically present at the hearing.^[104] Notably, all three factors can be understood as reinforcing Lundy’s models of both participation^[105] and detokenisation,^[106] targeting the attitudes and behaviours of adult practitioners and decision-makers ‘[s]ince tokenism is the act (or omission) of the adult’.^[107] It is argued that the likelihood of establishing these factors predominantly turns on the choices made by both legal practitioners and decision-makers alike, thereby offering the potential for direct instructions to supersede tokenism in practice if not in substance. These factors will now be examined in turn.

A Trust and Relational Advocacy

It is well-established in scholarship that a space of safety for children to express their views is vital for children’s participation.^[108] This is reinforced by recent studies in both Victoria and comparable jurisdictions that also place weight on the establishment of trust with workers, including legal practitioners, for children to feel heard in proceedings.^[109] Strømland, Bahus and Andersen identify trust as the determinative factor of children feeling heard in decision-making processes in Norway: ‘Positive experiences of being heard and experienced opportunities of participation formed a basis for personal well-being and trustful relations, whereas negative experiences were associated with mistrust and discontent.’^[110] Quartles van Ufford observes that a ‘positive, trusting and stable relationship’^[111] with a caseworker is ‘instrumental’^[112] to establishing the safe space needed for participation. Conversely, in reflecting on the ‘masking’^[113] of children’s voices, Plush cites a 2001 report detailing the ‘consensus of criticism’^[114] amongst children in the out-of-home care system about (et alia) the ‘lack of someone they trusted’.^[115]

In considering the NSW care and protection system, Ross likewise concludes that: ‘Children’s access to information is enhanced through a trusting relationship with a lawyer.’^[116] In the Victorian context, Horsfall found there is potential for lawyers to be trustworthy and knowledgeable ‘passage agents’^[117] with children: ‘Such relationships between lawyers and children depend upon trust and confidentiality, which was possible with direct representation.’^[118] Notably, across both studies, the ability to spend time with the child to build the requisite ‘rapport and trust’^[119] required more than one consultation, with most lawyers meeting with children at least three times.^[120] This directly reflects the Committee’s interpretation of art 12 as requiring ‘consistent and ongoing arrangements’^[121] such as to facilitate ‘information-sharing and dialogue between children and adults based on mutual respect’.^[122] According to Lundy, this ‘ongoing conversation’^[123] should not cease upon the determination of an outcome but rather should be ‘followed-up’ through feedback, explored further below.

Other factors proposed to build trust and a relational style of advocacy included referring to children by their first name (a practice mirrored in the Children’s Court along with all parties remaining seated at the bar table rather than standing) and meeting with the child informally, seen to demonstrate respect;^[124] speaking to a child directly rather than through a parent or caregiver;^[125] meeting with the child as early as possible;^[126] paraphrasing instructions to confirm understanding;^[127] and providing an environment that allowed children free expression of their views.^[128] Each of these factors can be understood as comprising a ‘child-friendly’ approach.^[129] The use of these evidence-based strategies (and comparable strategies in decision-making processes in the courtroom) is a choice for the practitioner and decision-maker respectively. As the Committee advises:

...appearing to ‘listen’ to children is relatively unchallenging; giving due weight to their views requires real change. Listening to children should not be seen as an end in itself, but rather as a means by which States make their interactions with children and their actions on behalf of children ever more sensitive to the implementation of children’s rights.^[130]

Taken in sum, recent scholarship supports the position that building trust and relational advocacy with children can impact, enhance, and potentially detokenise their experience of participation. It is argued that with appropriate training (particularly trauma-informed training specific to communicating with and working alongside children), practitioners can make choices in their practice to address otherwise tokenistic approaches embedded in the Act.

B Clear Information and Feedback

Integral to building trust and relational advocacy, clear information and feedback per se is a vital factor for enjoying meaningful participation. Information-sharing is core to participation;^[131] in fact, the Committee holds that it is the provision of ‘all necessary information and advice’^[132] that enables children to make decisions in their best interests. This is reflected in research on children’s experiences of participation. Strømland, Bahus and Andersen cite one case study in which a child’s experience of not being heard was ‘linked to not being sufficiently informed about why the decision was made by the CWS [child welfare service] and how the decision would affect them’.^[133] Ogle and Vincent similarly found that negative experiences of attending child protection conferences was generally ‘compounded by a lack of information and preparation’.^[134] Likewise, Ross observed that complementary to a relationship with trust, children needed their lawyer to ‘explain things clearly and check that they were understood and to keep them informed as the litigation developed’.^[135] Children are also entitled to information about the weight given to their views, with the Committee emphasising that such feedback is the ‘guarantee’^[136] to children that their views are ‘not only heard as a formality, but are taken seriously’.^[137] As Tisdall points out, even if trust is established such as to allow a child to contribute their views, if ‘feedback is missing ... they do not know if their views have influenced decision-making and the rationale thereof’.^[138] Lundy agrees, identifying feedback as a ‘distinct point’^[139] in the process of participation that is ‘crucial for social accountability’.^[140] The choice to provide such feedback is therefore evidently at the discretion of both practitioners and decision-makers, ‘powerful figures in facilitating participation of children’.^[141]

Decision-makers can play a particularly pivotal role in providing feedback judicially, made clear in Horsfall’s research into the extent to which children’s views were considered and given due weight in the ‘rationale’ of a magistrates’ decisions. The findings revealed that, overall, ‘less than one-third of all 64 children and young people in the case file sample with a written judgment were recognised in this procedural way by having a magistrate refer to consideration and weight to their views.’^[142] This is concerning given the Committee’s encouragement to introduce legislative measures that would require decision-makers to ‘explain the extent of the consideration given’^[143] to such views. At present, beyond the requirement to consider the child’s views and wishes and give them appropriate weight,^[144] there is no such provision in Victoria’s Act. Notwithstanding, Horsfall concludes that the potential for decision-makers to recognise children’s participation through feedback is ‘critical to addressing power inequalities experienced by children’^[145] in the pursuit of their ‘best interests’. This could in turn provide a powerful counterbalance to the statutory tokenism discussed herein. As Lundy argues: ‘Being required to tell children why their views are overridden or how and where and when they are being implemented could encourage adults to move a step down the road away from tokenism towards respectful dialogue.’^[146]

C Physical presence during proceedings

Research also indicates that the choice to attend proceedings (identified by Daly as a right of due process^[147]) can have a significant impact on a child’s perception of their participation. Certainly, the Committee recommends that children be given the opportunity to be directly heard in proceedings ‘wherever possible’.^[148] The Committee also provides guidance as to how the environment might influence the effectiveness of a child being heard, directing particular attention to courtroom design, clothing of legal and judicial officers, sight screens, and separate waiting rooms.^[149] This would appear to assume the presence of a child (at least at times) during proceedings. In Victoria, this is reflected by the Act providing that a child is not required to attend court unless they express a wish to attend,^[150] or the court makes an order (or the Act provides) that the child attend.^[151] That is, the child may attend but there remains discretion for them to be excluded (including based on their own wishes).

Interestingly, the discretionary nature of this provision would appear to dilute the right to attend proceedings in comparison to its NSW counterpart. In NSW, the court may direct a child to leave the place where proceedings are being heard but only ‘if it is of the opinion that the prejudicial effect of excluding the child or young person is outweighed by the psychological harm that is likely to be caused to the child’^[152] if they were to remain or be present. The statutory acknowledgement of the ‘prejudicial effect’ of excluding children from proceedings affecting them is much stronger language than in the Victorian Act. Along with the provision to close the court for child protection proceedings^[153] (unlike in Victoria where the court remains open^[154] unless an application to close is granted^[155]), these safeguards strengthen the accessibility and child-appropriate nature of proceedings.^[156] These types of child-friendly safeguards provide mechanisms for meaningful participation as it is envisaged by children, at least in recent scholarship. In their research, Ogle and Vincent found that all children in their study recognised attendance at a child protection conference as an ‘enactment of participatory rights’.^[157] Likewise, in a study on how children’s lawyers in NSW approach their practice, Ross reflects on one lawyer’s consultation with research on this issue, which indicates that:

... children like to eyeball the person who is making the decision ... It can be quite reassuring for a lot of children to just sit and put a face on things ... if the child has a desire to come, keeping them away will probably be more harmful than allowing them to come and just see who everyone is and see what’s going on.^[158]

Importantly, the fact of attendance at court being a discretionary issue in Victoria highlights the role both legal practitioners and judicial decision-makers play in children’s exercise of this right. Indeed, Ross points out that lawyers’ attitudes towards the extent of choice afforded to this child in this regard ‘varied greatly’^[159] and appeared at times to be impacted by the lawyer’s own view of whether such attendance would be ‘damaging’^[160] for the child or even which magistrate would be sitting.^[161] In this way, Ross argues ‘the gloss that lawyers put on children’s attendance at court was potentially very important’.^[162] Comparably, in discussions with lawyers in Victoria, Horsfall found most held the view that children would ideally not be required to attend court ‘given the environment’^[163] (described as ‘adult-centred’^[164] in design) and the way it contributed to children’s anxiety.^[165] This would appear to reflect Quartles van Ufford’s concept of the ‘protection paradox’ where children are protected against participation.^[166] And yet, as Horsfall found in a Victorian study, ‘most children’^[167] believed that all children should be able to attend proceedings, including children who did not attend their own proceedings.^[168] Likewise, studies conducted for the Victorian Law Reform Commission inquiry indicated most children consulted believed that, while coming to court was ‘scary’ the first time, ‘it was their right to attend [court] and have a say in their lives’.^[169] The evidence would therefore appear to support an obligation on the part of legal practitioners (and even magistrates) to give weight to the impact of children’s attendance at proceedings as a core element of their participation therein.

V PROPOSED REFORMS AND ALTERNATIVES

This essay has argued that statutory tokenism is embedded into Victoria’s child protection regime. Regrettably, there is limited scope in this essay for a fulsome discussion of possible reforms and alternatives to address the same beyond reforming in accordance with the comparative examples illustrated above. Briefly, it is proposed that there are both statutory and practical reforms that would significantly impact children’s participation in child protection proceedings. These include eliminating the age limit for direct instructions and reverting to a case-by-case assessment of maturity; introducing representation for all children, with the availability of ‘best interests’ representation for children assessed to be not sufficiently mature (not dissimilar to NSW)^[170]; like NSW, ^[171] introducing a provision that would require decision-makers to consider the views of siblings (particularly where a sibling is not legally represented) and strengthening the language providing for children’s attendance at proceedings.

As an alternative (or perhaps adjunct) to direct instructions models of representation, Daly proposes the introduction of a children’s autonomy principle whereby children can choose how they are involved with ‘best interests’ proceedings.^[172] Further consideration of the autonomy principle is outside this essay’s scope although it is argued that the reforms canvassed herein could be viewed as existing within an ‘autonomous participation framework’.

VI CONCLUSION

Ultimately, this essay has argued that an analysis of Victoria’s child protection regime reveals tokenistic approaches embedded into the statutory framework. Notwithstanding what this essay has labelled ‘statutory tokenism’, it has been argued that the deliberate choices of practitioners and decision-makers alike can advance detokenisation efforts towards meaningful participation in practice. Through these choices and proposed reforms, it is argued that direct instructions models of representation offer a mechanism through which children may be heard in decision-making from which they might otherwise remain conspicuously (and ironically) precluded.

^[1] NSW and SA are the only jurisdictions that do not explicitly use ‘best interests’ language in articulating the paramount consideration of their respective legislation: Children and Young Persons (Care and Protection) Act 1998 (NSW) s 10A (‘CYPCPA’); Children and Young People (Safety) Act 2017 (SA) s 53(1c).

^[2] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3 (‘CRC’).

^[3] Care and Protection of Children Act 2007 (NT) s 10; Children and Community Services Act 2004 (WA) ss 7–8; Children and Young People Act 2008 (ACT) s 8; Child Protection Act 1999 (QLD) s 5A; Children, Young Persons and Their Families Act 1997 (Tas) s 10E; Children, Youth and Families Act 2005 (Vic) s 10 (‘CYFA’).

^[4] CRC (n 2).

^[5] Aoife Daly, Children, Autonomy and the Courts (Brill Nijhoff, 2018) 72.

^[6] Lyndsey Plush, ‘What is Voice? The Implementation of the Best Interests’ Standard in an Australian Child Protection Context’ (2021) 23(1) Advances in Social Work & Welfare Education 121, 123.

^[7] Ursula Kilkelly, ‘The Best Interests of the Child: A Gateway to Children’s Rights?’ in Elaine Sutherland and Lesley-Anne Barnes Macfarlane (eds), Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-Being (Cambridge University Press, 2016) 51, 56; Daly (n 5) 5.

^[8] CYFA (n 3).

^[9] CRC (n 2) art 12.

^[10] CYFA (n 3) s 10(3)(d).

^[11] CYFA (n 3) ss 11(f)-(h).

^[12] Committee on the Rights of the Child, General Comment No. 12: The Right of the Child to Be Heard, 51^st sess, UN Doc CRC/C/GC/12 (20 July 2009) [74] (‘GC12’).

^[13] CYFA (n 3) s 525.

^[14] Monica Strømland, Marianne K. Bahus and Anders JW Andersen, ‘“What’s the Purpose of Having a Say If I Cannot Participate?” A Qualitative Study of Young People’s Experiences of Being Heard and to Participate in Decision-Making Processes in Norwegian Child Welfare Services’ (2023) 31(3) The International Journal of Children’s Rights 729, 729–30.

^[15] Laura Lundy, ‘In Defence of Tokenism? Implementing Children’s Right to Participate in Collective Decision-Making’ (2018) 25(3) Childhood 340.

^[16] Briony Horsfall, ‘Children’s Participation Rights During Child Protection Proceedings: Recognition, Legal Representation, and the Redistribution of Care in Victoria’s Children’s Court’ (PhD Thesis, Swinburne University of Technology, 2016).

^[17] CRC (n 2) art 3.

^[18] GC12 (n 12) [6].

^[19] Committee on the Rights of the Child, General Comment No 14: on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (art 3, para 1), 62nd sess, UN Doc CRC/C/GC/12 (29 May 2013) [6] (‘GC14’).

^[20] CYFA (n 3) s 10(1).

^[21] GC14 (n 19) [6](c).

^[22] CRC (n 2) art 12(1).

^[23] Ibid art 12(2).

^[24] Committee on the Rights of the Child, General Comment No. 5: General measures of implementation of the Convention on the Rights of the Child (arts 4, 42 and 44, para. 6), 34th sess, UN Doc CRC/GC/2003/5 (27 November 2003) 4 (‘GC5’).

^[25] GC12 (n 12) [19].

^[26] Ibid [3].

^[27] Ibid [2].

^[28] Ibid.

^[29] GC14 (n 19) [43].

^[30] GC12 (n 12) [4].

^[31] Ibid [74].

^[32] Ibid.

^[33] Ibid.

^[34] Ibid [35].

^[35] CRC (n 2) art 5.

^[36] Committee on the Rights of the Child, Statement of the Committee on the Rights of the Child on Article 5 of the Convention on the Rights of the Child (11 October 2023) <https://www.ohchr.org/en/treaty-bodies/crc> [5] (‘Statement on Article 5’).

^[37] Ibid [5].

^[38] CYFA (n 3) s 524(10).

^[39] Ibid s 524(1)(a).

^[40] Ibid s 524(1B).

^[41] Ibid s 524(4).

^[42] Ibid s 524(11).

^[43] Ibid s 524(2) as at 27 February 2013.

^[44] Children’s Court of Victoria, Children’s Court Bench Book (Judicial College of Victoria, 2023) <https://www.judicialcollege.vic.edu.au/eManuals/CHCBB/index.htm#61532.htm>.

^[45] CYFA (n 3) ss 524(4), (7), as at 27 February 2013.

^[46] Statement of Compatibility, Justice Legislation Amendment (Cancellation of Parole and Other Matters) Bill 2013 (Vic) 149 (‘Statement of Compatibility’).

^[47] Ibid.

^[48] GC12 (n 12) [21], [29].

^[49] Ibid [132].

^[50] E Kay M Tisdall, ‘Addressing the Challenges of Children and Young People’s Participation: Considering Time and Space’ in Tali Gal and Benedetta Duramy (eds), International Perspectives and Empirical Findings on Child Participation: From Social Exclusion to Child-Inclusive Policies (Oxford University Press, 2015) 381, 382.

^[51] Parliamentary Debates, Legislative Council, 21 February 2013, 446 (Richard Dalla-Riva, Minister for Employment and Industrial Relations, and Minister for Manufacturing, Exports and Trade) (‘Parliamentary Debates’).

^[52] Statement of Compatibility (n 46) 149.

^[53] Charter of Human Rights and Responsibilities Act 2006 (Vic) .

^[54] Statement of Compatibility (n 46) 149.

^[55] Ibid.

^[56] Parliamentary Debates (n 51) [447].

^[57] GC12 (n 12) [29].

^[58] Ibid [29].

^[59] Ibid [21].

^[60] Ibid [44].

^[61] Council of Europe Committee of Ministers, Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice (adopted by the Committee of Ministers on 17 November 2010 at the 198^th meeting of the Ministers’ Deputies) 8 (‘Child-Friendly Guidelines’).

^[62] Ibid.

^[63] Ibid 8.

^[64] Ibid 18.

^[65] CRC (n 2) art 2(1).

^[66] Horsfall (n 16) 300.

^[67] Ibid 299.

^[68] Lundy (n 15) 342.

^[69] CYFA (n 3) ss 524(1)(a), 524(IA).

^[70] E Kay M Tisdall, ‘Conceptualising Children and Young People’s Participation: Examining Vulnerability, Social Accountability and Co-production’ (2017) 21(1) The International Journal of Human Rights 59, 61 (‘Conceptualising Children’).

^[71] Ibid.

^[72] Tisdall (n 50) 382.

^[73] CYFA (n 3) s 524(1B).

^[74] Ibid s 524(1B)(a).

^[75] Ibid s 524(1B)(b).

^[76] GC12 (n 12) [16].

^[77] Ibid [132].

^[78] Statement on Article 5 (n 36) [10].

^[79] Child-Friendly Guidelines (n 61) 18.

^[80] GC12 (n 12) [1].

^[81] Horsfall (n 16) [8].

^[82] Lundy (n 15) 342.

^[83] GC12 (n 12) [4].

^[84] CYPCPA (n 1) s 103.

^[85] Horsfall (n 16) 297.

^[86] GC14 (n 19) [44].

^[87] GC12 (n 12) [1].

^[88] GC14 (n 19) [53].

^[89] GC12 (n 12) [132].

^[90] Horsfall (n 16) 260.

^[91] Ibid.

^[92] Ibid.

^[93] Tisdall (n 50) 382.

^[94] Ibid.

^[95] Sara Quartles van Ufford, ‘The Protection Paradox: A Study of Children’s Rights to Participation and Protection against Violence in Swedish Child Welfare Practice’ (2023) 31(3) The International Journal of Children’s Rights 756, 764.

^[96] CYFA (n 3) s 524(4A).

^[97] CYFA (n 3) s 524(2), (8) as at 27 February 2013.

^[98] Horsfall (n 16) 300.

^[99] Ibid 297.

^[100] Roger Hart, Children’s Participation: From Tokenism to Citizenship (Innocenti Essays No. 4, February 1992) as cited in Lundy (n 15) 342.

^[101] Lundy (n 15) 344.

^[102] Strømland, Bahus and Andersen (n 14) 729-30.

^[103] Lundy (n 15).

^[104] Horsfall (n 16).

^[105] Laura Lundy, ‘‘Voice’ Is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33(6) British Educational Research Journal 927, 932–3.

^[106] Lundy (n 15) 349–50.

^[107] Ibid 344.

^[108] Lundy (n 15) 934.

^[109] Strømland, Bahus and Andersen (n 14); Horsfall (n 16); Plush (n 6); Quartles van Ufford (n 95) 758.

^[110] Strømland, Bahus and Andersen (n 14) 279–30.

^[111] D Kennan, B Brady and C Forkan, ‘Supporting Children’s Participation in Decision Making: A Systematic Literature Review Exploring the Effectiveness of Participatory Processes’ (2018) 48(7) The British Journal of Social Work 1985 as cited in Quartles van Ufford (n 95) 758.

^[112] Ibid.

^[113] Plush (n 6) 130.

^[114] E Munro, ‘Empowering Looked After Children’ (2001) 6(2) Child and Family Social Work 129 as cited in Plush (n 6) 130.

^[115] Ibid.

^[116] Nicola Ross, ‘Different Views: Children’s Lawyers and Children’s Participation in Protective Proceedings in New South Wales, Australia’ (2013) 27(3) International Journal of Law, Policy and the Family 332, 346.

^[117] Horsfall (n 16) 146.

^[118] Ibid.

^[119] Ibid.

^[120] Ibid 347.

^[121] GC5 (n 24) [12].

^[122] GC12 (n 12) [3].

^[123] Lundy (n 15) 350.

^[124] Horsfall (n 16) 118.

^[125] Ibid.

^[126] Ibid.

^[127] Ibid 138.

^[128] Ross (n 116) 346–7.

^[129] GC5 (n 24) [24]; Child-Friendly Guidelines (n 61).

^[130] GC5 (n 24) [12].

^[131] GC12 (n 12) [3].

^[132] Ibid [16].

^[133] Strømland, Bahus and Andersen (n 14) 744.

^[134] Justine Ogle and Sharon Vincent, ‘‘It is Really Important that We Sometimes Remember the Children and Their Views Rather than Just Our Own’: The Presentation and Representation of Children’s Views in the Child Protection Conference’ (2022) 34(4) Practice: Social Work in Action 273, 275.

^[135] Ross (n 116) 337.

^[136] GC12 (n 12) [45].

^[137] Ibid.

^[138] Tisdall, ‘Conceptualising Children’ (n 70) 61.

^[139] Lundy (n 15) 350.

^[140] Ibid.

^[141] Horsfall (n 16) 249.

^[142] Horsfall (n 16) 254.

^[143] GC12 (n 12) [33].

^[144] CYFA (n 3) s 10(3)(d).

^[145] Horsfall (n 16) 254.

^[146] Lundy (n 15) 350.

^[147] Aoife Daly, ‘No Weight for “Due Weight”? A Children’s Autonomy Principle in Best Interest Proceedings’ (2018) 26(1) The International Journal of Children’s Rights 61, 63.

^[148] GC12 (n 12) [35].

^[149] GC12 (n 12) [34].

^[150] CYFA (n 3) s 216A(a).

^[151] Ibid ss 216A(b)-(c).

^[152] CYPCPA (n 1) s 104(3).

^[153] CYPCPA (n 1) s 104B.

^[154] CYFA (n 3) s 523(1).

^[155] CYFA (n 3) s 523(2).

^[156] GC12, UN Doc CRC/C/GC/12 (n 12) [34].

^[157] Ogle and Vincent (n 137) 278.

^[158] Ross (n 116) 345.

^[159] Ibid 346.

^[160] Ibid.

^[161] Ibid.

^[162] Ibid 345.

^[163] Horsfall (n 16) 157.

^[164] Ibid.

^[165] Ibid 156.

^[166] Quartles van Ufford (n 95).

^[167] Horsfall (n 16) 73.

^[168] Ibid.

^[169] CREATE Foundation, Children and Young People in Care Consultation for the Victorian Law Reform Commission (Melbourne 2010) 5 as cited in Horsfall (n 16) 156.

^[170] CYPCPA (n 1) s 99A.

^[171] CYPCPA (n 1) s 103.

^[172] Daly (n 5) 7.