Children’s Court of NSW Resource Handbook — Articles and other resources

The Children’s Court of NSW is one of the oldest children’s courts in the world. It has a specially created stand-alone jurisdiction which has origins tracing back to 1850.

Prior to 1850, the criminal law did not distinguish between children and adults, and children were subjected to the same laws and punishments as adults and were liable to be dealt with in adult courts.

There were a number of children under 18 transported as convicts in the First Fleet of 1788. The precise number of convicts transported is unclear, but among the 750–780 convicts, there were 34 children under 14 years of age and some 72 young persons aged 15–19.^[5]

The first special provision recognising the need to treat children differently was the Juvenile Offenders Act 1850.^[6]

This legislation was enacted to provide speedier trials and address the “evils of long imprisonment of children”.

Then, in 1866, further reforms were introduced, including the Reformatory Schools Act 1866.^[7]

This Act provided for the establishment of reformatory schools as an alternative to prison, and the Destitute Children Act 1866,^[8] under which public and private “industrial schools” were established, to which vagrant and destitute children could be sent.^[9]

Since those early beginnings in 1850, there has been a steady progression of reform that has increasingly recognised and addressed the need for children to be treated differently and separately from adults in the criminal justice and child welfare systems.

The Children’s Court Act 1987 imposes upon the President both judicial and extra-judicial functions: s 16. My extra-judicial obligations include a requirement to confer regularly with community groups and social agencies on matters involving children and the court: s 16(1)(d). I am also required to chair an Advisory Committee that has a responsibility to provide advice to the Attorney General and the Minister for Family and Community Services on matters involving the court and its function within the juvenile justice system in NSW: s 15A.

Therefore, as President of the Children’s Court, I have had the opportunity to preside over a wide range of cases, to observe many children involved in the youth justice system and the care and protection system, to visit the juvenile detention centres, to read widely, to attend conferences and seminars, and to speak to a lot of experts and others involved, or interested, in matters concerning children and young people.

I continue to be astounded by the complexity of the issues that arise in this area. The social disadvantage facing the children and young people and their families who have their lives characterised by decisions made by this court, is a profound reminder of the need for continuing education and resolute and meaningful collaboration. The evidence arising from the public hearings of the Royal Commission into Institutional Responses to Child Sexual Abuse, and more recently, the Royal Commission into the protection and detention of children in the Northern Territory, exemplify the systemic failures that can arise when silos are maintained and networks are broken.

In particular, the need for ongoing collaboration between the scientific and legal community is absolutely crucial, as the ability of judicial officers to understand and make decisions in the best interests of children relies heavily on our ability to understand the social, emotional and psychological development of children, and to be able to identify areas for prevention, early intervention, diversion and rehabilitation.

Examining and challenging the social disadvantage and disempowerment that have defined the lives of generations of families who come before the Children’s Court is critical to my role as President of the Children’s Court, and the roles of my colleagues, the specialist Children’s Court magistrates.

It is implicit in the role of judicial officers that we comply with our responsibility to perform our roles consistent with the administration of justice. However, this is a particularly special jurisdiction that is imbued with the practice of therapeutic jurisprudence and restorative justice.

Additionally, there is value in having a consistency of approach and of outcomes across the whole State, in the way evidence is presented, in the practices and procedures applied, and in the decisions made in cases that come before the court.

I am an advocate, therefore, for the expansion of the specialist nature of the jurisdiction across as much of the State as might be achieved over time.

Children’s Court magistrates now hear something like 90% of care cases in the State.

The coverage for criminal matters remains, however, at about 60%. The balance of cases is heard by Local Court magistrates exercising Children’s Court jurisdiction, predominantly in remote parts of NSW.

The Children’s Court has jurisdiction over care and protection matters and matters involving juvenile crime. The court also has jurisdiction to hear children’s parole matters, apprehended violence orders and compulsory schooling matters under s 22D of the Education Act 1990 (NSW).

Proceedings in relation to the care and protection of children and young persons in NSW are public law proceedings, governed, both substantially and procedurally, by the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act).

Care proceedings involve discrete, distinct and specialised principles, practices and procedures which have regard to their fundamental purpose, namely the safety, welfare and well-being of children in need of care and protection.^[10]

In the criminal jurisdiction of the court, the applicable legislation includes the Crimes Act 1900, the Bail Act 2013, the Children (Criminal Proceedings) Act 1987 (CCPA) and the Young Offenders Act 1997 (YOA). Section 6 of the CCPA provides that children and young people are unique, reflecting an understanding of the cognitive and neurobiological differences between young people and adults.

Specifically, it states that the following principles are to be applied with regard to the administration of the Act:^[11]

The YOA is a statutory embodiment of early intervention and diversion, providing the option of warnings, cautions and Youth Justice Conferences (YJCs). A YJC brings young offenders, their families and supporters face-to-face with victims, their supporters and police to discuss the crime and how people have been affected. Together, they agree on a suitable outcome that can include an apology, reasonable reparation to victims, and steps to reconnect the young person with their community to help them desist from further offending.

YJCs are beneficial for the young person’s experience of the criminal justice system, as all involved in the conference are not placed in an adversarial situation. Further, YJCs facilitate co-operation between the young person and police and foster collaboration and input from the individual offender, victims, families and communities. I am particularly supportive of the use of YJCs. In my view, they produce fruitful results for both the individual offender and the community.

There are also safeguards within the Care Act and corresponding provisions in the CCPA and YOA that prevent the publication of any material that identifies or is likely to identify the young person.^[12]

The Children’s Court safeguards the needs of the vulnerable people who appear before it and has developed discrete, distinct and specialised procedures over time.

In criminal matters, courts are designed to be smaller, less intimidating environments and legal practitioners stay seated when addressing the court. Participants are encouraged to tailor their language to the age and stage of the young person’s development. Additionally, police do not wear their uniforms or carry their appointments in court.

In care proceedings, the rules of evidence do not apply, the proceedings are non-adversarial, and are required to be conducted with as little formality and legal technicality and form as the circumstances permit.

The need to tailor the environment and communication to the child, young person or vulnerable witness is highlighted in the English case of R v Lubemba:^[13]

In addition, the Children’s Court has the benefit of assistance from the Children’s Court Clinic.

The Children’s Court Clinic (which I will refer to in short form as the “Clinic”) is established under the Children’s Court Act 1987 and is given various functions designed to provide the court with independent, expert, objective and specialised advice and guidance.

Upon the making of an assessment order by the court, the Clinic may provide a psychological or psychiatric assessment of a child,^[14] or an assessment of a person’s capacity to carry out parental responsibility.^[15]

I will canvas the use of expert evidence, including the giving of expert evidence by clinicians shortly.

As an advocate for the specialist nature of the Children’s Court, I view forums such as these as an important means by which the Children’s Court can further inform itself.

Organisations such as ANZAPPL have the benefit of many decades of wisdom and knowledge in the areas of psychology and psychiatry. Any discourse that facilitates collaboration, capacity building and information exchange is a discourse that is worth supporting. Accordingly, I see this as an opportunity to share our respective wisdom and expertise.

It is important to distinguish the role of the clinician from the role of the court.

As I have set out above, the court only intervenes where there is a need for care and protection. This is a “critical first step” that reflects the UN Convention on the Rights of the Child (CROC) in acting as a safeguard, protecting families from unnecessary state intervention into their lives.^[16]

Thus, for example, the court cannot order restoration. It can only decide to accept or reject the assessment of the Secretary. The court cannot direct the permanent placement. It can only approve or not approve the Secretary’s permanency plan.

The court is, however, required to make findings. The role of the clinician, in simple terms, is to assist the court in making those findings. It is absolutely critical, therefore, that the clinician be, and be seen to be, completely impartial and independent of the parties, whether it be the department, or family members, or any of the lawyers and caseworkers involved.

Perhaps one way of looking at it is to say, in accordance with the paramountcy principle; their role is to assist the court to make decisions that best promote the safety, welfare and well-being of the child.

The clinician’s role, to impartially assist the court, has several practical consequences.

Assist means not attempting to guide or shape the outcome, or to pre-empt a finding, or to attempt to inappropriately influence the judicial officer. Clinicians must not try to be the lawyer and purport to interpret the Care Act or the CROC in forming their opinion. Their assessment should focus on clinical matters, consistent with their expertise, not the legal principles.

Clinicians must not say what they think the parties want to hear. They must be aware of the audience, but where necessary, be firm, and frank, about deficiencies in the parents or others. It is for the court to apply the law to the facts as it finds them, with the clinician’s assistance as to what those facts are.

The first way in which clinicians assist the court is by the provision of an expert opinion.

That opinion must derive first from a body of specialised knowledge, obtained by clinicians by reason of their training, experience and study. Thus, clinicians should clearly identify and be able to demonstrate what that specialised knowledge is, and how they obtained it. Clinicians must not, therefore, stray outside their area of expertise.

For example, a general practitioner should not express a view on a matter of psychiatry, or at least should make clear that the view is based on a limited level of general medical knowledge derived from study or general practice.

Secondly, the opinion must derive from facts, that is, it must be based on matters that the clinician has observed, or assumed to be accepted facts, or which are assumed to be subsequently proved or disproved. The facts or assumed facts upon which a clinician or expert relies should be set out and differentiated, in the sense that they are matters which have been personally observed, read or been informed about, or which have been assumed or hypothesised (usually in cross-examination).

Thirdly, clinicians should articulate the reasoning process they have used to come to any opinion or conclusion, and be in a position to defend it.

In addition to providing the court the benefit of their expertise, clinicians in the Children’s Court have another very important facet to the way they assist the court. They provide information, not necessarily in the form of an opinion, but a hybrid factual form of evidence, which can greatly assist the judicial officer. Because they observe the protagonists over a period of time, interview parents, children and others in detail and on different occasions, in neutral or non-threatening environments, away from courts and lawyers, untrammelled by court formalities and processes, they can provide the court with insights and nuances that might not otherwise come to its attention. They can provide impartial, independent, objective information not contained in other documents, give context and detail to issues that others may not have picked up on, and which the court, trammelled by the adversarial process and the “snapshot” nature of a court hearing, the benefit of which it would not otherwise have.

Importantly, clinicians must not approach issues in the same way as a treating medical practitioner, who will accept and rely on a history of given symptoms described or signs recorded, generally at face value, to diagnose and treat a patient. In contrast, clinicians should question histories, particularly if at odds with other material they have read or heard, or observed. They should objectively assess and test the facts they rely on, consistent with their duty of impartiality and independence. Clinicians cannot take things at face value, as they otherwise risk misleading or confusing the court.

Clinicians should also be prepared to change their view, or have their view rejected by the court, where the facts upon which their opinion was based are found not to have been established, or where a different set of facts about which the expert was not aware emerges, or the significance of which was not fully appreciated by the expert. As Mark Allerton has said on a previous occasion:^[17]

I set out now something I wrote about a clinician, as it seems to encapsulate some of the points I have been making:

There is no substitute for common sense.

Given the audience before me today, it would be beneficial for me to reinforce some of the requirements for expert evidence in the Children’s Court, which applies to clinicians as well as all other appointed experts, as outlined in the Code and the relevant Practice Notes.^[18]

An expert’s assessment report should clearly set out the name and address of the expert, an acknowledgement by the expert that they have read the Code and agree to be bound by it, as well as their qualifications in preparing the report.^[19] Additionally, the expert must clearly set out any written material which has been considered or relied upon, and also any examinations, tests or investigations which have been relied upon.

To the extent to which any opinion expressed by the expert involves the acceptance of another person’s opinion, the identification of that person and the opinion expressed by that person, including any literature should be provided.^[20]

By way of example, I recently presided over a matter where two psychologists broke almost every rule in relation to the giving of expert evidence.

They failed to describe their expertise, qualifications and experience in the report, and there was no formal scope for their retainer, or letter of instructions. They were unaware of the Code and the Children’s Court Practice Note, and were therefore unable to comply with either. Most importantly, they also failed to list the documents they considered as part of their investigation. I was asked to reject their report in its entirety, and if I had been in any other jurisdiction than the Children’s Court, I would have done so.

Expert evidence plays a crucial role in care proceedings at the Children’s Court, whether it be provided by a clinician or an external expert retained by a party. It is absolutely crucial, therefore, that experts be aware of the Code and the Practice Note, and comply accordingly so as to present valuable evidence which will assist the court in determining the best interests of the child with regard to safety, welfare and wellbeing. To do so otherwise is to risk wasting the court’s time and resources.

It is important to distinguish between criminal trials and civil trials, where the burden of proof is significantly lower. In criminal matters the Crown is generally required to prove a fact beyond reasonable doubt, hence it is common to see a defence run along the lines of causing confusion, or “muddying the waters”, to create a reasonable doubt.

In care cases, however, the facts need only be established on the balance of probabilities: s 93(4) of the Care Act. In applying that standard, the court will have regard to the gravity and importance of the matters to be determined in accordance with the principles in Briginshaw v Briginshaw;^[21] Director General of Department of Community Services; Re “Sophie”.^[22] Thus, the court will not lightly make any findings in respect of the serious allegations: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.^[23]

The point might be demonstrated by a case study, in a case involving the so-called shaken baby syndrome, decided in the District Court on appeal in 2010: SS v Department of Human Services.^[24]

The Secretary’s case was that the baby in question had suffered a non-accidental abusive head injury causing severe brain damage, and that the perpetrator(s), although not identified, were, on the balance of probabilities the mother and/or the father.

Reliance was placed principally on the hospital records and the evidence of the Staff Specialist Paediatrician of the Child Protection Unit at the Children’s Hospital at Westmead, a specialist paediatric ophthalmologist who had worked in the area for 21 years, and Professor David Isaacs, a senior staff specialist in General Paediatrics and Paediatric Infectious Diseases at Westmead Children’s Hospital.

The parents contended that, upon analysis, the medical conclusion of a “shaken baby” was based on less than unassailable foundations.

They submitted that the existence of alternative hypotheses, together with the “circular reasoning” of the “science” of shaken baby syndrome, led to the position where the court could not be comfortably satisfied that the Secretary had proved the case against the parents.

The so-called alternative hypotheses as to the possible cause of the baby’s brain damage, including for example meningitis, or a congenital condition, were advanced by two doctors from the United States, qualified on behalf of the parents and brought to Australia to give evidence. The reality was that these two American doctors were professional expert witnesses who were nothing more than “hired guns”, whose evidence was not directed at discovering the true cause, rather it was designed to create doubt as to the Secretary’s hypothesis of shaken baby syndrome.

The court said of the American doctors:^[25]

The point was that creating a doubt may have been enough for a criminal jury to have a reasonable doubt as to the guilt of the parents, but in a Care case, where the paramount concern is the safety, welfare and well-being of the children, the court looks at the probabilities. Hence, the judge concluded:^[26]

Where the court is asked to accept an opinion of an expert, it will look to the substance of the opinion expressed.

Accordingly, the cogency of the reasoning process plays an important role: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [92]. A reasoned explanation or conclusion must be presented.

This requires the expert to explain the methodology employed to reach the conclusion expressed, that is, to identify the chain of reasoning leading to the conclusion.

It is also important to be aware that the judicial officer is required to express a view about an expert’s evidence, especially where it conflicts with someone else giving evidence about the same issue. This means experts should be measured in any criticism they make of other witnesses, objective but not pejorative. Conversely, experts should not take criticism of their views personally. It is in the nature of litigation that criticism will be made. If everything was straightforward and clear cut, there would be no need for court cases.

Finally, I want to make a few observations about future directions in expert evidence.

The Clinic has already made some forays into joint opinion writing. There are difficulties with that, as it gives rise to practical issues such as who expressed what opinion, who has what expertise, and who should be cross-examined about what.

On the other hand, there is great value in having the experts get together in advance of a hearing, or even during the hearing, to confer and identify what they agree about, and what they differ on and why. I, for my part, will be utilising these techniques in the Children’s Court in the future.

In the recent case, referred to above involving the joint report, I put the two authors into the witness box together to be cross-examined together. I doubt a judge would get away with this “technique” in any other court.