Keeping kids out of strife
Keeping children out of court and juvenile correctional institutions has become an important aspect of juvenile justice policy over the last few decades. One result of this, says La Trobe University Professor of Social Work and Social Policy, Allan Borowski, is that many children’s courts in Australia now deal with tougher kids.
What challenges does dealing with this group of children present to the court? Professor Borowski, working with child welfare expert Associate Professor Rosemary Sheehan of Monash University, has received an Australian Research Council Discovery grant to answer this and a host of other questions about children’s courts in Australia.
Taking advantage of the ‘natural laboratory’ off ered by our federal system, he says this is the first national study of the institution of the Children’s Court – and one of the few anywhere in the world to canvas the views of the magistracy.
The study will look at the issues facing the courts, perceived problems and solutions, with a view to mapping reforms. Magistrates, police, social workers, advocates, service agencies, members of the Aboriginal and Torres Strait Islander community and researchers will be interviewed. Results will be collated state by state, followed by national reports.
‘We have six states and two territories. All have their own children’s courts created by legislation,’ Professor Borowski explains. ‘All have different cultures and philosophies. We want to paint a picture of the similarities and differences across Australia.’
He says juvenile detention rates vary considerably between states, depending on the degree to which communities tolerate youthful ‘exuberant’ behaviour.
‘If you steal a car in Victoria you could be placed on community supervision. In Western Australia, which has a long history of moral panics around anti-social behaviour, the courts have a very low tolerance for car theft and joy-riding.’
In the 1970s Professor Borowski worked with young offenders in detention and their families. This involved Children’s Court hearings and he has seen the court change drastically since that time.
‘When I started social work I never saw a lawyer in court. The aim was to try and identify the needs of the child. Th at resulted in courts being both highly discretionary and case-specifi c. Kids with similar off ending histories were getting different outcomes. Their needs were different and these, rather than their deeds, were the major focus.’
This raised concerns about fairness and children’s rights. ‘Who was contesting the evidence that the police prosecutor presented? One of the changes was the decision that children were entitled to legal representation. Now there’s rarely a case when the child is not represented.’
Professor Borowski says the Children’s Court is one of society’s major means of holding parents accountable for the care and protection of their children, keeping them free from harm and accountable for their behaviour.
In both its child welfare and criminal jurisdictions, the Court has been a dynamic institution. There is also considerable variability across Australia in both of these jurisdictions.
‘Many of the magistrates who preside over these courts,’ he says, ‘are exceptional people. It’s extraordinary to see them in action – the caring, the compassion, the sensitivity they bring to cases.’
Professor Borowski’s comments apply in particular to the judicial work he has studied in the Children’s Koori Court in Victoria, a sentencing court where Aboriginal Elders or ‘Respected Persons’ contribute to the sentencing decision.
‘Offenders often get a much stronger grilling from the Elders than they would face in a conventional children’s court. It is not a soft option,’ Professor Borowski says.
‘Some people believe this court, given the length, caring and thoroughness of its deliberations, could inform a redesigned mainstream Children’s Court.’