Magistrates' Decision-Making in Child Protection Cases

Rosemary Sheehan

• Publisher: Taylor & Francis
• Year: 2018
• Print ISBN:
  9781138706682
• Edition: 1
• eBook ISBN:
  9781351782678
• Topic: Law
• Subtopic: Family Law
• Index: Law

This title was first published in 2001. Making decisions about the care and protection of children who appear before the courts is complex. Attention must be paid to the best interests of the child, the child's need for their family, community views on parenting, and concern about welfare intrusion into family life. Magistrates have a unique authority to make, or reject child protection orders - yet the criteria they use to decide a protection order, how they understand the information presented to them in court and the factors that influence their discretion and decision-making have, until now, been little known. Presenting the findings of a study undertaken at Melbourne Children's Court, this book offers a much-needed investigation of how magistrates actually make child protection decisions. Case examples highlight this decision-making and the book thus offers practical assistance to professionals working with children in the legal process.

Chapter One

The Best Interests of the Child

The fate of children is no longer exclusively in the hands of their parents, society feels responsible for children’s welfare and is prepared to intervene in family affairs if that welfare appears to be threatened (Schaffer 1990:3).

The Place of Children

Contemporary child welfare policy debates the balance between parental and community responsibility for children. It also debates what are the exact rights of parents and children, the appropriate roles of the family, and what is the role of state intervention in family life. Parton (1983) emphasises that decisions about children’s best interests remain a compromise between a family’s right to parent their child and a child’s need for protection. Contemporary child protection policy assumes that parents are the best carers of their children and emphasises that, where there are child protection concerns, it is better to support parents in their attempts to care for their children rather than removing them from their families and placing them in care.

Whilst attitudes to children have varied over time, according to their perceived utility to society, children have generally been viewed as of economic and social importance because they ensure the continuance of society. Children are therefore entitled to community support and the state imposes certain obligations on parents about the care of their children. Parents, however, still have the primary responsibility for the care of their children and are expected to behave in a way that protects, and promotes, their children’s health and development:

The duties of parents are to protect children’s health and wellbeing; assist children to develop their physical, emotional and intellectual capacities; nourish their self-esteem and self-confidence; prepare them to take advantage of and responsibly exercise their rights and responsibilities as citizens; and provide them with conditions favourable to grasping the educational, occupational and other opportunities available to them in society (Family and Community Services, South Australia, 1990:4).

Structural changes in Western society, over recent decades, have had an impact on children and their families. Changes include an increase in family breakdown, and in subsequent poverty, in changing gender roles in families, and women’s increased participation in the workforce. These factors, and others such as the impact of economic change on work opportunities, and the social mobility of families, have created narrower family structures; they have also led to debate about parental responsibilities and the extent to which the state is responsible for the care of children (Harrison 1988:23).

Research on the harmful effects of institutionalisation and the separation of children from their families has led to an emphasis on the provision of better support and assistance for families to care for their own children (ASLRC 1981: 207–8 in Carney 1984:284). Family oriented programs are therefore the major focus of child welfare legislation and child welfare services, and it is accepted that:

the state should assist parents and guardians to care for their children so far as consistent with available resources and the child’s welfare. It should do so in a way that does not stigmatise the parents and does not deprive them of parental rights. The model for support is the good neighbour, or the extended family (Institute Criminology Proceedings 49:39).

The Family Court of Australia asserts the need to give the widest possible protection and assistance to the family as the ‘natural and fundamental group unit of society’ (Family Court of Australia 1975:3).

The Ideology of State Intervention

The responsibility of the state to protect the welfare of children arises from the principle of parens patriae; the principle in English law which empowers the State to act as the parent of last resort when parents are unable to fulfil their parenting obligations (Carney 1983). Governments of the day have pursued this role, with varying degrees of vigour, depending on prevailing economic and social values of the times and the degree to which parents’ rights or children’s needs have been the focus of attention.

Social reformers of the nineteenth century, in Australia and in Great Britain, pressed for legislative provision for children who were ill-treated or deprived of the necessities of life as a result of industrialisation. They viewed children as the nation’s salvation, with the need for a healthy, moral and secure home environment, adequate schooling and humane working conditions in order to ensure their survival (Tiffen 1983:7/8). In Australia, government interest in the quality of children’s lives emerged some years after European settlement in 1788. The interest was driven by the need to deal with abandoned and wayward children as much as it was by paternalism and to improve the lot of children in society (Laster 1993). It was firmly believed however that children belonged with their families.

It was children who were isolated from, and out of the control of, their families, who were in need of state control (Laster 1993). Whilst in Victoria, from the nineteenth century, the rescue of neglected children was noted as ‘a sacred and pressing duty (CSV Annual Report 1990/91:34); this interest appears to have been based more on a moral concern about parental behaviour than a sole concern for a child’s needs and care.

The Victorian government introduced the Neglected and Criminal Children’s Act in 1864 to deal with the large number of children who had been abandoned or neglected following the social instability of the gold rushes of the 1850s. The Act dealt also with young people considered to be at ‘the first stages in the development of adolescent troublemakers’ (CSV Annual Report 1990/91:6). In 1887, the Neglected Children’s Department was founded to implement the Act and to care for children whose homes ‘failed to fulfill their proper function’ (Piatt 1977:135). (In 1924 this became the Children’s Welfare Department and in 1960 the Social Welfare Branch of the Chief Secretary’s Department. In 1970 it was finally established as a separate department, known today as the Department of Human Services.)

The Children’s Court of Victoria was introduced into the court system in 1906 as a direct response to the momentum of ‘the child savers movement’, the philanthropic groups which emerged in the USA in the late 19th century to urge the state to censure parents who had failed to protect their children (Carney 1984:284). They also urged that cases of child abuse and neglect should be dealt with separately from those of young offenders, who should also be dealt with in a separate jurisdiction from adults. The development of specialised jurisdictions for children in difficulty also took place in a number of European (France, Belgium, Germany, Poland, Portugal and Switzerland) and Scandinavian (Sweden, Norway), countries as well as Canada and Ireland at the end of the nineteenth and early twentieth centuries (Hallett and Hazel 1998:6).

In the 1950s English welfare reforms suggested a change in focus from a moral concern which emphasised the removal of children from unsuitable families or environments ‘because of the wickedness or incompetence on the part of their parents’ (Jamrozik, Drury and Sweeney 1989:4) and the placement of children in situations or institutions where they could be re-socialised, to concern about the social and psychological development of children. They suggested that problem families and young people ought to be viewed more as inadequate, rather than as immoral, and that skilled services could be provided to address this inadequacy and assist families. In the 1960s there was increasing concern about ill-treated children. Dr Henry Kempe, in the USA, published in 1962 in the Journal of the American Medical Association, a paper on what he entitled the Battered Child Syndrome – research findings about children whose parents had been referred for criminal prosecution for severely beating their children (ten Bessel 1985:1). This paper created widespread public and professional awareness of the problem of the physical abuse of children, and this concern later flowed onto other forms of child abuse such as neglect, emotional and sexual abuse (Hallett and Hazel 1998). A number of states in the USA subsequently passed laws obliging doctors and other health professionals to report children whom they believed were being abused or neglected. At the same time, in Victoria, the Doctors John Birrell and Dora Bialestoc...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of Figure and Tables
• Acknowledgments
• Introduction
• 1 The Best Interests of the Child
• 2 Uncovering the Decision Process
• 3 Deciding Best Interests
• 4 Magistrate Decision-Making
• 5 Alternative Dispute Resolution
• 6 Future Directions
• 7 Conclusion
• Bibliography
• Appendices