Parents in the care jurisdiction of the Children’s Court: What can non-adversarial approaches offer?

Nicola M Ross1,

1 Newcastle Law School, University of Newcastle, University Drive, Callaghan 2308 Nicola.Ross@Newcastle.edu.au

Principles from therapeutic jurisprudence address the need to create a respectful and supportive court environment where participants are actively engaged in decision-making and make behavioural changes through choice rather than coercion. Procedural justice approaches emphasise having a voice, neutrality, respectful treatment and trustworthiness. This paper explores how these approaches might be used to improve the experience of parents who are involved in child protection proceedings in New South Wales. It presents qualitative research that investigated the perceptions and experiences of parents who have had children removed from their care in the Hunter Valley in the past five years. The research found that parents experienced high levels of exclusion and powerlessness in legal proceedings in the Children’s Court, in child protection processes and in their dealings with out of home care services. They experienced significant trauma, grief and loss when children were removed and in care. Although parents are key actors in processes designed to ensure children’s safety, welfare and well-being, processes in children’s courts and relationships with professionals in the child protection system can further reinforce their trauma and undermine their efforts to have their children restored. Despite parents having the benefit of legal representation and legislation directing that proceedings are not to be conducted in an adversarial manner, the parties are often not on a level playing field. Parents in this group are highly stigmatised and vulnerable due to socio-economic disadvantage and complex issues including family violence, substance abuse and mental health. Courts can be blunt instruments for determining outcomes in complex social situations. Legal processes can have an unintended but damaging impact on parents, extended family, children and family relationships. The paper considers parents’ narratives both of situations where they were undermined by legal and child protection processes, and where they were treated with respect and consideration.

Biography:

Dr Nicola Ross is a Senior Lecturer at Newcastle Law School. She lectures in Family, Child and Criminal Law.  Nicola’s socio-legal research analyses how the law impacts on children and families, particularly in family, child protection and criminal law. She is Chief Investigator of a research team who has interviewed parents who have had a child removed from their care and placed in Out of Home Care (OOHC), to identify parents’ experiences and their understanding of legal and social services during their child’s removal and placement.

 

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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