The nation’s children’s court system is damaged, starved of resources and handing out sentences that vary widely depending on where children live.
The first national study of the country’s children’s courts, based on hundreds of interviews with magistrates, other judicial officers and a range of stakeholders, has called for an overhaul of the system.
The groundbreaking review found that the lack of specialist children’s court magistrates in many locations across Australia‘s eight jurisdictions was leading to vastly different sentences for the same crimes. The three-year study found that children in regional and remote communities were getting harsher sentences because of a lack of a specialist children’s magistrate in these areas.
The report makes a number of recommendations, including increasing the age of criminal responsibility from 10 to 12 years as recommended by the UN committee on the rights of the child, and a substantial investment in bail support programs so that children are not remanded in custody unnecessarily.
It also calls for the greater use of indigenous children’s courts and sentencing circles that rely on elders being involved in the sentencing process, after indigenous children were found to be receiving the harshest sentences.
The National Assessment of Australia’s Children’s Courts led by Allan Borowski from the Department of Social Work and Social Policy at La Trobe University, with Rosemary Sheehan from Monash University’s Department of Social Work was funded by an Australian Research Council discovery grant. The findings will be published in the Australian and New Zealand Journal of Criminology later this year.
The study finds the growing and increasingly complex workload confronting the children’s court system requires a major increase in court resources and funding.
It also highlights as a major problem the large number of generalists who preside over magistrates or local courts in regional and remote locations and then convene children’s courts.
“The mix of specialists and generalists was viewed by NSW, South Australian and Queensland study participants as problematic,” the report says.
Professor Borowski told The Australian that in regional, rural and remote locations, magistrates were generalists who spent most of their time dealing with adults.
“They are not specialists as in the major cities,” he said. “As a result, you can get a disparity in sentencing. In other words, there can be a certain harshness in sentencing.
“The same case heard before a specialist magistrate in the city would not result in as severe a sentence.
“Aboriginal kids can often get harsher sentences. And bail is less likely to be made available to them. The issue of disparity in sentencing is geographic; we refer to it as postcode justice.
“Depending on where you live, the same case will have a different outcome.”
The study’s participants judicial officers, lawyers, youth justice workers and child protection workers in every state and territory – reported that relative to a decade ago, the court served a much more challenging clientele.
“What is new is the complexity of their problems and needs and, in Victoria and NSW, the increase in clients from a refugee background,” the report says.
“Alcohol and drug abuse, domestic violence, mental health problems and, indeed, prior involvement with the child protection system are now common among the clientele of the child protection jurisdiction.
“Young offenders manifest similar problems and have increasingly engaged in serious (violent) criminal activity. ACT study participants reported a growth in the number of young female offenders appearing in court.”
The report says there is profound concern about court facilities across all jurisdictions, with the exception of Tasmania.
Buildings were reported as failing to cater to children’s needs and described as “overcrowded, tense, chaotic and often unsafe and without adequate security”.
Interview rooms for lawyers to meet clients were either lacking or inadequate, while audio-visual systems to permit parents to participate in proceedings were either poor or not available. Holding facilities for remandees brought to court and those sentenced to detention were either inappropriate or inadequate, while facilities were seen as much worse in regional and remote locations.
The study says it is necessary to change towards a non-adversarial problem-solving approach, particularly in relation to child protection matters.
“Arguably the most significant theme that emerged was that of under-resourcing, not simply of the courts but also of Australia’s youth justice and child protection systems,” the report says.
The authors say “in the competition among public bureaucracies for resources, these courts and systems have not fared well.
“And while inadequate resources is a common refrain, in some jurisdictions it has placed the children’s court at very considerable risk of becoming meaningless in the absence of the instrumental means of achieving its mandates.
“The failure to invest adequately in this court and the youth justice and child protection systems will have major long-term detrimental consequences for Australia as a whole.”
Over the past five years, the lodgment rate for criminal matters in children’s courts increased markedly in NSW and moderately in the Northern Territory. Nationally, they currently finalise almost 67,000 criminal matters and 21,000 child welfare matters a year.
The report finds that child protection workers in some jurisdictions prepare for cases poorly and are unable to perform as witnesses in often vigorous adversarial court proceedings.
Some study participants suggested that CPWs involved in court work, such as judicial officers, should be required to have a specialist qualification.
The report finds that in Western Australia, the lack of resources outside Perth for children, young people and families, a higher proportion of whom are Aboriginal, is reported as so severe that the court is seen as a “sham” institution incapable of realising its purposes.Source: The Australian “Funding crisis for juvenile justice”
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