Podcast: Child Protection: How DHHS and the Courts are responding to the COVID-19 crisis

Andrea Bun:

Welcome everyone to the Nichols Family Lawyers podcast. My name is Andrea Bun, and I’m a lawyer at Nichols Family Lawyers. I’m joined today by my colleague Alastair Noakes, who is also a lawyer at Nichols Family Lawyers. Welcome Alastair, great to have you on the podcast.

Alastair Noakes:

Thank you very much.

Andrea:

So in addition to Alastair being an amazing family lawyer, he has a wealth of experience in child protection matters, which will be the topic of today’s podcast, as we will be speaking about child protection matters. Some of the discussions that we have today may involve discussion of allegations of child abuse necessitating the involvement of the Department of Health and Human Services. We understand that the content of this podcast may be troubling for some listeners. We would wish to talk about child protection today in the context of the current covid-19 pandemic. As everyone is well aware, the pandemic has thrown the entire world for a loop. We’re being encouraged to stay home, practice social distancing, and businesses and schools are being closed. Before our courts and Child Protection Services stopping operation all together is not an option.

Family violence experts and frontline service providers are advising that during these stressful times, we are unfortunately likely to see a spike in family violence and the incidents of child abuse. This is largely due to the greater socialization and financial pressures exacerbating the underlying causes of family violence, but in also placing additional barriers for victims to access help as they find themselves quarantined with their abusers. It’s important at it that the community is well aware of how the courts and Child Protection Services maybe adapting and modifying their services to meet this new challenge, while also hearing to the government social distancing directives. So I have Alastair today to talk to us about how the courts and Child Protection Services are doing just that, and perhaps how the public, although public should know when trying to navigate the child protection system. So Alastair, if you could take us first to how the courts have adapted their services and meeting this challenge.

Alastair:

Certainly. Well, all courts at the Children’s Court, Magistrates’ Court, the Federal Circle Court, or the Family Court, originally looked to put in place a bit of a staged process as to how they were going to mitigate the risk of the spread of covid-19. Unfortunately, that is gone somewhat out the window and we’re now seeing much stricter measures in place throughout all of the courts. For example, in the Children’s Court, clients directed not to attend the court under any circumstances and entry is actually restricted to those who are parties to the proceedings. They require immediate face-to-face services of the registry or legal representatives. In cases where people who are not entitled to do attend the court, they may be directed to leave by a security personnel. Now, that’s going to be particularly relevant for those who have traveled overseas in the past 14 days. We’ve been in contact with the person who was confirmed case of the coronavirus or if people are presenting with flu-like symptoms, including fever, coughing, sore throat, or shortness of breath. If individuals are allowed inside the court, they do have to maintain the 1.5 recommended social distancing. Therefore people should be avoiding their attendance at court wherever possible. If you do need to get advice on how to proceed with your matter, it is important to reach out by phone or by email to lawyers or other services to try to get on top of hearings and get all the information that you might need.

One huge step that we’ve seen, the Children’s Court of Victoria take, is actually to not conduct any hearings at the Moorabbin or Broadmeadows Children’s Court. These matters have now all been listed at the Melbourne Children’s Court. The registries of those courts are still opened and people are encouraged to contact the court and confirm exactly what is happening with that matter. The problem that we are saying is that because the situation is evolving so rapidly and there are so many different avenues of information, whether it be lawyers, child protection practitioners or support workers. It’s very important for everyone to be on the same page. So, they’re able to receive and also provide a clear and consistent message. People are strongly reminded that if they are currently in the midst of legal proceedings, they are encouraged to talk to their lawyers by phone or email. As mentioned, they are not required to attend the court, the lawyer can address the court remotely, and if they are required to do so, a lawyer can attend in person and provide instructions on behalf of their clients. If anything new comes to light during the course of the hearing, the court can stand in matter down while the lawyer obtains instructions from their client. What we are unfortunately seeing is a huge delay in the listing of matters. There is a policy that’s put in place now, where if a child is placed in parental care subject to a children’s court order, these proceedings are going to be adjourned for period of 20 weeks. There’s a little bit of uncertainty about this as people are not being provided an exact adjournment date. However, that’s likely to be provided in the future.

Conversely, if a child is subject to an order place in them out of parental care, these proceedings are being adjourned for a period of 3 months or 12 weeks, given that they’re somewhat more urgent because the focus is returning a child to the parental care. It is really important for everyone to remember that while this is the courts preference, if you’re not on agreement with the proposed adjournment, you are able to oppose this in which case your matter will remain listed for the original date to address any interim issue. After which, it is likely to be subject to the 3 or 5 month adjournment period. The nature of children’s court proceedings is that urgent hearings are very common, whether it be a protection application by emergency care, or the breach of an existing order, or applications for new orders, or to very existing orders. These are classified as urgent hearings, wherein the first instance there will be a hearing to address the urgent matter, following which they will be subject to the aforementioned to adjournment periods. The one type of court hearing that is going ahead as scheduled is a conciliation conference. In these situations, all parties will be required to attend the conference by telephone and no one is to be in attendance in person.

Andrea:

All right. So That’s how the courts are responding to the current government directives. If you could take us now to have the Department of Health and Human Services might be monitoring its procedures and policies in response to the current crisis. What’s happening there?

Alastair:

Well, obviously the Department of Health and Human Services is a Victorian Government Department, and is therefore subject to all the government directives in terms of isolation quarantine and social distancing. Where we’re seeing this really come into play is the fact that in 99% of cases where order places a child outside of the parental care, there’s a condition on that order where the department is required to facilitate contact between the child and their parents. However, the department is now minimizing the attendance of any child outside their placement, and is obviously looking to avoid any unnecessary exposure of their own staff members. As a result, we are now seeing a movement away from physical contact to contact occurring by Skype or by telephone. The unfortunate reality is that children who are very young do struggle to understand this new evolution, and it can be distressing for a child to see their parent on a screen and not be able to be with them, to be held by them, or to interact with them in any meaningful manner.

This is really uncharted territory that were in. When a child is too young for Skype or phone contact or can’t interact in any meaningful way, the department has requested that carers provide weekly exchange packages, which might include letters from the child, drawings, cards, videos, photos, anything that can really keep a parent up to date with what’s happening in that child’s life. There are likely to be further practices in future, but for the moment, we are limited by the technology, which is currently available. It is important to remember that in circumstances where time is supervised or facilitated by a family member, the parents and children may continue to have these visits in person as long as social distancing guidelines are other rights respected, neither party has traveled overseas in the past 14 days and no one has been in contact with a person who has a confirmed case of coronavirus. The other massive step taken by the department and the court relates to the filing and service of the departmental court reports, is a now no longer distributed or served in person and a now all served electronically. Therefore people are strongly encouraged to ensure that their allocated worker has an email address to enable them to be provided with that court report.

Andrea:

Given the new developments from the courts and the department in response to the developing up in crisis, do you have any recommendations for people trying to navigate the system and the current situation?

Alastair:

Absolutely. The first thing that anyone should be looking to do, is to ask as many questions as they need to really clarify their obligations, their rights, and their responsibilities, and whether that be to reach out to their lawyers, to reach out to their allocated workers, or to explore their entire support network to see who might be able to assist them. People should keep in close contact with their lawyers who should have an understanding of each court practice and each court directive is these are provided, and who will be able to provide them with up-to-date information, what will possibly be the next step taken. To professionals who may not be directly linked with court services such as teachers or healthcare professionals, we are seeing an evolution of the way they manage their role as a mandatory reporter. These can involved allied health care professionals, school teachers, police, etc. The role of the police is changing very little, but in situations where they’re now virtual classrooms. It’s very interesting to see how the role of a mandatory reporter is developing. Typically, a child’s school is a safe environment for them where they can speak to teachers with whom they have a good relationship, let them know what is happening at home or otherwise seek assistance if they need it.

There are now great difficulties with this, however, for example, trying to reach out to a teacher in a virtual classroom or learning environment given the fact that the alleged perpetrator of the abuse or the person responsible for that harm might be in the home environment or in the same room. Teachers also might overhear family violence, or abuse, or see something on camera which would otherwise not be broadcast. It is important to remember that their role as a mandatory reporter does not change. They are still required by law to pass on relevant information to the Department of Health and Human Services or police, if they suspect a child is at risk of harm or abuse in parental care. This is very similar again for allied health professionals, who choose to conduct their services going forward using video conferences. They are not often in a role if the perpetrator is in the home to be able to reach out and explicitly tell their client how they may or may not handle the situation as they don’t want to compromise their own position or place the individual in further risk of harm. Therefore, they’ll need to find new and novel ways of relating that information.

Obviously, the first point of call will always be the department or police, in accordance with their mandatory reporting obligations. The final piece of advice is for those who are facing a quarantine period with a person who might be the perpetrator of family violence or for whom they are concerned about being in the presence of a child who is also subject to that quarantine. It’s important to remember that while services are changing the way they handle face-to-face contact, the Department of Health and Human Services, the children’s court, police, none of these are closing. They are all essential services as classified by the Victorian Government and will continue to operate. Therefore, if anyone does need help, they should reach out to these services and explain the situation. This is really the time to step up and support each other. It’s also important to stay up-to-date with the possible relaxing of these obligations.

Andrea:

I think, that’s a very pertinent point to end on the Alastair. I think, while these trying times are definitely changing the world we live in, it is also a perfect opportunity for us to all be vigilant. Look out for one another and definitely reach out, because there are services and people here to help and listeners can find links to various relevant services at the bottom on the podcast page. Thank you for your time, Alastair.

Alastair:

My pleasure.

Useful Links:

Kids Helpline: A free, private and confidential telephone counselling service – 1800 55 1800 or kidshelpline.com.au/

Parent line: A state-wide counselling and support service for all Victorian parents – 13 22 89 or 1300 272 736

Safe Steps: A domestic violence hotline service for women and children – 1800 015 188

WIRE Helpline: A free support, referral, and information for all Victorian women (non-binary and gender diverse inclusive) – 1300 134 130

Relationship Space: An online program to help parents manage divorce – www.relationshipspace.com.au

Online Family Violence Intervention Order Application – fvio.mcv.vic.gov.au/

Relationships Australia: www.relationships.org.au/

Disclaimer: Nicholes Family Lawyers intends the information provided in this podcast as general information only, please contact Nicholes Family lawyers if you require specific information and advise in relation to any family law matter.