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CHILDREN, YOUTH AND FAMILIES AMENDMENT BILL 2014

           Children, Youth and Families
               Amendment Bill 2014

                        Introduction Print


              EXPLANATORY MEMORANDUM


                              Clause Notes
Clause 1   states the purpose of the Act. The main purpose of the Act is to
           amend the Children, Youth and Families Act 2005 to provide
           for child safety conferences and child safety agreements in
           respect of children who are in need of protection, and to make
           further provision in relation to the authorisation of a principal
           officer of an Aboriginal agency.

Clause 2   is the commencement provision. It provides that the Act will
           come into operation on a day or days to be proclaimed, or, if not
           proclaimed sooner, on 1 May 2015.

Clause 3   states that the Children, Youth and Families Act 2005 is called
           the Principal Act in this amendment Act.

Clause 4   amends section 206(2)(f) of the Principal Act to expressly enable
           information about a child protection investigation to be disclosed
           to a person present at a child safety conference.

Clause 5   inserts a new Part 4.6 (Child safety conferences and agreements)
           into the Principal Act.
           New section 213A provides that the Secretary may arrange a
           child safety conference in respect of a child in certain
           circumstances, including where a protective intervener has
           completed an investigation under section 205 and reasonably
           believes that the child is in need of protection. The Secretary is
           not obliged to arrange a child safety conference in any
           circumstance. The Secretary must appoint a convenor for a child
           safety conference, and may arrange more than one child safety


571498                               1       BILL LA INTRODUCTION 6/5/2014

 


 

conference in respect of a child. Although not expressly stated, the Secretary is not prevented from arranging a single conference in respect of more than one child, for example a sibling group. New section 231B sets out the purpose of a child safety conference. Child safety conferences are intended to address protective concerns in relation to a child by agreement in a timely, family-led manner, without regard to legal formalities. It is intended that a child safety conference will provide the opportunity for the family to develop stable arrangements to protect the child, without Court intervention where appropriate, in recognition of the crucial role of a child's family in addressing protective concerns. New section 213C sets out who may attend a child safety conference. The parent or parents of the child and the Secretary are to attend the conference. The convenor may also permit certain others to attend a child safety conference, including the child and relatives of the child. This provision is consistent with the list of persons who may attend a conciliation conference under section 222 of the Principal Act. A convenor may permit any person who may make a meaningful contribution to attend, which may include a foster carer, kinship carer or permanent carer of the child. A legal representative of the parent may attend. A legal representative of the child may attend if the child is either mature enough to give instructions, or in exceptional circumstances if it is in the best interests of the child if the child is not mature enough to give instructions. If a parent does not attend, the conference may only proceed if the convenor is satisfied that the parent is not significantly involved in the child's life; cannot be located or does not have the capacity to attend; or that their views can be adequately conveyed by another person in attendance. New section 213D provides that the convenor may exclude a person from attending a child safety conference if, in the convenor's opinion, the person's attendance would not be in the best interests of the child or would present a safety risk. The convenor must record reasons for any decision to exclude a person under this section. New section 213E sets out the outcomes which may result from a child safety conference, which are: an agreement to propose orders; a child safety agreement; an agreement that no further 2

 


 

action is required to be taken; or no agreement being reached in respect of the child. The section also sets out that an agreement to propose orders must be between the Secretary, the parent or parents of the child participating in the conference (which includes a parent who is absent but is participating by having their views conveyed by a person under section 213C(6)(c), or by a legal representative present at the conference); and any participant who is a party to a current child protection proceeding in respect of the child. It further provides that such an agreement must not be entered into if it is opposed by the child or the child's legal representative, in certain circumstances. It is made clear that any protection order in force in respect of a child will continue to have effect until it is varied, extended or revoked by the Court. New section 213F allows the Court to make orders proposed as a result of a child safety conference in chambers without requiring the parties to attend or be represented, if satisfied it is in the best interests of the child to make the orders. This is a discretionary power which does not oblige the Court to make the proposed orders in this way, or at all. New section 213G allows the Court to consider the convenor's written report of the conference in determining whether to make proposed orders; and to request further information from the convenor or the Secretary if required. New section 213H provides that a written report made by a convenor as a result of a child safety conference is admissible in Children's Court proceedings in respect of the child for the purposes of establishing the conclusions reached at the conference. New section 213I allows the Court to dispense with service of a person who may otherwise be required to be served under Part 8.1 of the Principal Act if her or she was a participant of the child safety conference and agrees to the proposed orders, or is a parent of the child and who was absent from the conference for one of the reasons specified in section 213C(6). This enables the Court to make orders proposed by agreement expediently, where appropriate. New section 213J makes it clear that a person does not become a party to proceedings under the Principal Act merely by participating in a child safety conference in respect of the child. 3

 


 

New section 213K clarifies that, despite section 276 of the Principal Act, the Court is not required to receive or consider a disposition report before making an order in chambers under section 213F following a child safety conference. New section 213L sets out the role of a convenor of a child safety conference. The role of a convenor includes to facilitate a family-led conference; encourage and support participants to express their views and to speak on their own behalf; assist the participants to resolve the protective concerns in respect of the child; and to provide written reports of outcomes. New section 213M enables the Secretary to designate as a convenor a person who has been appointed as a convenor for the purposes of this section, or who has been appointed as a conciliation convenor under section 227 of the Principal Act. The Secretary, the head of a public service body, or an approved statutory body or organisation may appoint convenors, in accordance with the guidelines determined by the Secretary. A convenor is not subject to the Public Administration Act 2004 in respect of the office of convenor. New section 213N describes the way in which child safety conferences are intended to be conducted. Child safety conferences are an alternative to Court proceedings, and participants should act in a manner which is informal and collaborative, allows the family to lead the resolution of issues, and encourages the sharing of information, with the best interests of the child as the paramount consideration. Subsection (2) requires a legal representative participating in a conference to inform his or her client that the bests interests of the child is the paramount consideration, and encourage the client to have regard to this consideration. New section 213O allows the Secretary to issue and publish guidelines providing for the conduct of child safety conferences. New section 213P provides that the child safety conferences are to be conducted in accordance with any guidelines issued by the Secretary under new section 213O. New section 213Q provides protection from liability, unprofessional conduct, and breach of professional ethics for persons who share information in good faith in order to arrange or as reasonably required in connection with a child safety conference. 4

 


 

New section 213R is a confidentiality clause which provides that evidence of things said or done or admissions made in preparation for or during a child safety conference is only admissible in court proceedings if the court grants leave, or all of the participants of the conference consent. A court may only grant leave if satisfied it is necessary to do so to ensure the safety and wellbeing of the child or any other person. This is intended to encourage participants to have frank and open discussions during a child safety conference, in the best interests of the child. New section 213S applies an equivalent restriction on publication of child protection proceedings, set out in section 534 of the Principal Act, to identifying material relating to a child safety conference. The penalty for breach of this section is 500 penalty units, in the case of a body corporate, or 100 penalty units or imprisonment for 2 years in any other case, which is equivalent to the penalty for breach of section 534. New section 213T provides immunity to a convenor of a child safety conference and a person representing a participant of a child safety conference. This is consistent with section 225 of the Principal Act, which provides immunity to participants of conciliation conferences. New section 213U describes a child safety agreement, including what will be set out in the agreement. Subsection (2) provides that a child safety agreement is an agreement between the parent or parents of the child participating in the conference (which includes a parent who is absent but is participating by having their views conveyed by a person under section 213C(6)(c), or by a legal representative present at the conference), the Secretary, and all of the participants who will play a significant role in implementing the agreement. The convenor is required to provide a copy of the child safety agreement to specified persons. New section 213V allows a participant of a child safety conference to agree to a child safety agreement without admitting the need for the agreement, or any protective concerns set out in the agreement. This provision is intended to encourage participants to enter in to a child safety agreement by removing any concern that their agreement may constitute an admission. 5

 


 

New section 213W allows a court to consider a child safety agreement and any relevant inferences that can be drawn from it in any proceedings in respect of the child. This provision helps to ensure a court has all relevant material before it when determining a proceeding in respect of a child who is the subject of a child safety agreement. New section 213X requires the Secretary to keep a written record of all child safety agreements. Clause 6 amends section 557(2) of the Principal Act by inserting new subsection (3) which provides that the Secretary is not required to prepare and submit to the Court a disposition report, unless the Court orders otherwise, if the Court only proposes to make an order under section 213F following a child safety conference. Clause 7 inserts a definition of principal officer into section 3(1) of the Principal Act. Clause 8 repeals section 17(1)(e) of the Principal Act. The repeal of section 17(1)(e) allows the Secretary to delegate a function under section 323 without restriction. The applicable function under section 323 is to determine whether a permanent care order placing an Aboriginal child solely with a non-Aboriginal person or persons will accord with the Aboriginal Child Placement Principle. This function is required to be delegated without restriction, to avoid delays which may result from the Secretary, and any principal officer authorised to carry out the function under section 18 of the Principal Act, being required to carry out the function personally. Clause 9 amends section 18 of the Principal Act by inserting two new subsections. New subsection (2A) requires the Secretary, before giving an authorisation, to provide the Aboriginal agency and principal officer with information reasonably necessary for them to make an informed decision whether or not to agree to the authorisation. New subsection (7) requires the principal officer of an Aboriginal agency who is authorised under section 18 in respect of a child to provide the Secretary with all of the records relating to the child on revocation of the authorisation. 6

 


 

Clause 10 inserts 4 new sections after section 18 of the Principal Act. New section 18A allows a person acting as the principal officer of an Aboriginal agency to perform the functions and exercise the powers specified in an authorisation under section 18 as if the person were the principal officer, even if the person acting is not an Aboriginal person. New section 18B provides the principal officer of an Aboriginal agency with the power to delegate the functions and powers he or she has been authorised to perform or exercise, except the power of delegation itself. New section 18C enables the Secretary to share with the principal officer of an Aboriginal agency, for the purposes of section 18, information that would otherwise be prohibited from disclosure, to the extent that the information relates to a child who is the subject of an authorisation under section 18. Disclosure in accordance with new section 18C is subject to any contrary direction by a court. New section 18D prohibits disclosure of information provided by the Secretary to an Aboriginal agency or the principal officer under section 18(2A) for the purpose of deciding whether to or not to agree to an authorisation, except for that purpose. There is a penalty of 10 penalty units for breach of this provision. This restriction does not apply to a principal officer who is authorised under section 18 in respect of the child to whom the information relates. Once a principal officer is authorised, section 18(5) ensures that the existing confidentiality provisions in the Principal Act apply as if the principal officer were the Secretary. Clause 11 inserts a new subsection into section 331 of the Principal Act. New subsection 331(3) provides that section 331, relating to procedures for the review of child protection decisions within the Department, does not apply to decisions of a principal officer of an Aboriginal agency under a section 18 authorisation. Clause 12 inserts a new section 331A into the Principal Act. New section 331A requires the principal officer of an Aboriginal agency who has been authorised under section 18 to prepare and implement procedures for the review of child protection decisions made under the authorisation. The principal officer is 7

 


 

required to give a copy of the procedures to the child and his or her parent, together with a copy of the case plan (if applicable), as soon as practical after the authorisation under section 18 is given. Clause 13 amends section 333 of the Principal Act. New subsection 333(1)(ab) makes it clear that child protection decisions made by a principal officer of an Aboriginal agency under a section 18 authorisation are subject to review by the Victorian Civil and Administrative Tribunal, on the application of a child or parent. There is a consequential amendment to section 333(3). Clause 14 provides for the automatic repeal of this amending Act on 1 May 2016. The repeal of this Act does not affect in any way the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 8

 


 

 


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