Children and Young People in Court

Abstract

Each Australian state and territory have a designated Children’s Court operating under a separate legal framework. This chapter provides an overview of the various jurisdictional approaches to responding to juvenile offending and victimisation in Australian courts, canvassing issues such as age of criminal responsibility, effective representation and approaches to diversion and sentencing. The process of plea bargaining is a key focus. The involvement of children and young people in the criminal hearing process is challenging, with numerous barriers to inclusion. The chapter highlights the numerous changes that have occurred since the 1990s to facilitate the equitable and non-injurious involvement of young people in the adversarial trial process. Attention will be drawn to the Children’s Koori Court in Victoria, the first of its kind involving the Indigenous community in the sentencing of young people.

Appendices

Practitioner Perspective a Participatory Approach to Young Offenders in the Children’s Court

• Laura Chipp 

1. Specialist Children’s Court Prosecutions Unit (SCCPU), VIC, Australia

   Laura Chipp

I have worked for over a decade as a defence lawyer at Victoria Legal Aid and as a Prosecutor for Victoria Police in the Children’s Court, and in 2020 I undertook a Churchill Fellowship studying New Zealand’s youth justice system. There are several changes I would advocate in this context, drawing on an international evidence base of alternate models for reducing recidivism and future victimisation of children and young people.

A Participatory Approach

New Zealand’s youth justice system is held in high esteem for its reductions in recidivism and increases in community and victim safety. The New Zealand model emerges as one of the best practices, and the basis for possible changes and reforms to the Australian youth justice system, including the Children’s Courts. Children’s Courts across Australia could be improved by moving towards New Zealand’s ‘participatory approach’ to justice. This would require in-depth training for each person in the legal process who has contact with a child, including a ‘child specialisation’ which is absent in the Victorian system. All primary and secondary court users would be trained as specialists in the youth jurisdiction and in trauma-informed practice (Gluckman & Lambie, 2018). Importantly, the majority of children would be kept out of court by diversion with only children with the most serious and complex matters would proceed to court. Those who have matters listed in court must experience ‘easy to follow’ court hearings, with clear aids and language used by all parties. The majority of other children’s matters would then be dealt with through the implementation of support services by pre-charge/pre-court cautions or diversions programmes.

These systems utilise a ‘participatory approach’ and problem solving by the court whereby the young person is at the centre of all decisions and actively participates in court processes and decision-making, being genuinely respected and engaged. Having legal representatives available with the time and adequate training to understand the complex issues that characterise these young people’s lives is critical to the model. The New Zealand blueprint provides the foundations to create a similar system in other jurisdictions, including throughout Australia.

Effective Lawyers, Communication and Intermediaries

New Zealand emphasises effective communication processes, which assist the child in their understanding of the court process as well as in understanding court outcomes. All legal decision-makers—lawyers acting for the children and all other parties involved in the court process—must be trained in effective communication with children, understanding the dynamics that may affect the child’s ability to understand and comprehend the complex legal issues before them. Legal representatives must have specific training to work with children and be trained in trauma-informed practice. This emphasises the importance of using clear language, speaking at a pace children can process, saying less and pausing regularly, and clearly explaining complex legal options to the child (Howard et al., 2020a).

It is accepted that the lens of trauma can make even the most basic proceedings unclear and impossible for the young person to understand (Gluckman & Lambie, 2018). This is especially when compounded by factors such as disability, mental health concerns, socio-cultural context and socio-economic disadvantage, all of which add challenges for the child trying to understand court process (Talking Trouble Aotearoa NZ, 2022).

There are benefits to using an intermediary before proceedings commence, as well as during court proceedings for child defendants as well as child witnesses and victims of crime (Antolak & MacPherson, 2019). Intermediaries assist children in court understand what is occurring by using simple words to explain what is being said, using visual aids, asking for the proceedings to slow down, asking for breaks and other such things to make it easier for the young person to understand what is taking place in the court hearing, which is often complex and complicated (especially the language used).

For witnesses or victims who are children, it is preferable to use an intermediary, especially in cross examination (Antolak & MacPherson, 2019). This is particularly important for a child with a background of trauma and/or disability when they are giving evidence. In my experience, intermediaries can be the difference between an accused being found guilty or not before a trial.

Visual Aids for Communication of Orders

Simple visual aids should always be used by lawyers to assist in explaining legal processes and court orders to children. The lawyer plays a crucial role for the child’s future result, especially as to whether they acquire a criminal record. A defence lawyer should always be trained as a specialist youth lawyer, who understands that a child’s cognitive functioning is different from an adult’s; understands the concept of doli incapax; who is trained in trauma-informed practice; and understands that many children (if not, all children) require a lawyer to speak to them very differently.

This would be tailored to their age and cognitive function in order for the child to understand the lawyer and be able to give full and proper instructions (to the best of their ability and functioning). For example, the defence lawyer would have more success in the child understanding their legal advice and thereafter providing full and proper instructions if the lawyer uses visual aids; drawing options the child has as they explain them; using simple open-ended language; saying less and pausing a lot so the child has time to process and respond. Ideally, with the lawyer using the same above techniques, the child can indeed understand the options, and thus the legal outcome and/or conditions of the diversion plan, the court order plan, bail conditions and so on. In New Zealand when defence lawyers and other stakeholders (including the Magistrates) have used this technique, there was a significant increase in compliance of Court Orders. The outcome was that the child was significantly more likely to understand the Court Order and comply with it, when it was explained in a simple and accessible way that was understandable, and reinforced by all parties.

The organisation Talking Trouble Aotearoa NZ provides several resources to improve communication with children, such as an easy-read template to assist children to understand bail decisions and conditions. The resource utilises simple language, pictures, flow charts and diagrams to communicate relevant information about bail to children including where they are required to live, activities they are not permitted to engage in and persons who they are not allowed to communicate with.

These visual aids have been so successful that they have been adopted by the New Zealand Courts to precede final court orders, such as Bail and Sentencing Orders. Judges and New Zealand Police believe these aids have increased children’s compliance with bail conditions; at each hearing the Judge requests the child read the conditions aloud to the court expressing what they are required to do or not do, and this increases compliance (Howard et al., 2020b).

Problem-Solving Approach

New Zealand Children’s Courts see participants sitting in a semi-circle and the young person taking an equal seat at the table. All parties work closely together using a ‘problem-solving approach’ including the involvement of holistic wrap-around services. The Judge can see the progress that the young person has or has not made between court dates and can therefore make a fully informed decision about the outcome. Judges have sufficient time to hear each case, including support service submissions and their plan for that child before making the next order as to what the child is to do. The Judge asks the child questions and includes them in discussion. The child’s family is also included and asked how they can assist the support services to increase the child’s compliance.

This is a very ‘hands on’ approach which differs from what is seen in Australian Children’s Courts where long reports are read in silence primarily by lawyers, and only the Magistrate and youth justice representatives speak. Such conditions result in a very formal, adversarial setting. Unlike my own experience as a Legal Aid duty lawyer representing 20 or more clients per day, the child’s lawyer in the New Zealand system appears for a maximum of two children at court per day, permitting them sufficient time to hold extensive knowledge about each young person. The social supports attending court are those supporting the children on their orders (not court workers) who are therefore able to answer any questions based on first-hand experience of the child.

Time Saving in Court and Pre-charge Diversion

Observable in the New Zealand Youth Court system is the provision of multiple support services as well as cultural mentors at court hearings, each with distinct roles. In Wellington, the Youth Court sits just once per fortnight with a list of between six and 12 young people in the Criminal Division. Comparatively in Melbourne (although the population size is considerably bigger), the Criminal Division of the Children’s Court sits every weekday and can have three courts at a time with overall listings sometimes exceeding 80–100 per day in a single location. An average smaller suburban court in Victoria sitting once per week might have around 60 cases per day. In order to finish the list in a busy Victorian Children’s Court, all cases must be heard quickly owing to the high volume and therefore an armed robbery case may be afforded the same time as a shop theft, which is not ideal and does not provide priority to high harm-high impact offenders who require a higher level of intervention.

During my Churchill Fellowship research in New Zealand, all parties I interviewed advised that they believed that around 80–90% of all young people’s charges were successfully dealt with by way of ‘alternate action’ without any further offending. It is more effective to put in place a pre-charge caution/diversion process undertaken with New Zealand Police solving the issue as a social response rather than as a criminal/court response. However, whilst these numbers may vary around New Zealand, the national average of not reoffending after ‘alternative action’ after a period of 12 months sits at just under 65% (Spier, 2017, p. 1). Thus, the most serious or complex matters are left for the court, and receive a high level of court intervention and attention. Importantly, it offers lower level and more appropriate out-of-court diversion responses for the remaining children, through both an alternate pathway and ‘Family Group Conferencing’ processes and supports.

My wish is to see Australian Children’s Courts adopt the evidence-based New Zealand system and increase their pre-charge early intervention and diversion pathways, which are shown to assist both the accused child to reduce reoffending as well as the victim in their recovery. We do not need to continue to be ‘tough’ on crime. In fact, that mantra is contrary to the available evidence and has been shown to significantly increase the likelihood of a child reoffending. Instead, we need to be ‘smart’ on crime—investing in evidence-based, culturally appropriate and trauma-informed pre-charge and court-based diversion programs. This requires suitable trained intermediaries and speech pathologists available to assist all court users, as well as across-the-board training in trauma-informed practice in the youth sector. Justice reinvestment is the answer, and has been shown to work in New Zealand and many jurisdictions across the world.

References

Gluckman, P. and Lambie, I. (2018). It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand. Ministry of Justice and the Integrated Data Initiative, Second Report. Auckland: Office of the Prime Minister’s Cheif Science Advisor. Retrieved from https://dpmc.govt.nz/sites/default/files/2021-10/pmcsa-Its-never-too-early-Discussion-paper-on-preventing-youth-offending-in-NZ.pdf

Howard, K., McCann, C., & Dudley, M. (2020a). What is communication assistance? Describing a new and emerging profession in the New Zealand youth justice system. Psychology, Psychiatry and the Law, 27(2), 300–314.

Howard, K., McCann, C., & Dudley, M. (2020b). “It was like more easier”: Rangatahi (young people) and their whānau (family) talk about communication assistance in the New Zealand youth justice system. Youth Justice, 21(2), pp. 210–229.

Productivity Commission. (2020). Report on Government Services 2020. Youth Justice Services, Table 17A.21, pp. 1–135. Canberra: Productivity Commission. Retrieved from https://www.pc.gov.au/research/ongoing/report-on-government-services/2020/community-services/youth-justice

Spier, P. (2017). Reoffending patterns for youth undertaking Police Alternative Action. Ministry of Social Development (NZ). Retrieved from https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/research/alternative-action-report/offending-patterns-for-youth-undertaking-police-alternative-action-feb....docx

Talking Trouble Aotearoa NZ. (2022). Links and resources. Retrieved from https://talkingtroublenz.org/links-and-resources/