Cronin, Kathryn --- "Are They Being Served? National Inquiry into Children and the Legal Process - Public Hearings" [1996] ALRCRefJl 14; (1996) 69 Australian Law Reform Commission Reform Journal 43

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ALRC Reform 69

ARE THEY BEING SERVED?
national inquiry into children and the legal process - public hearings

Over the past months the inquiry into children and the legal process has been 'on the road'. The Australian Law Reform Commission and the Human Rights & Equal Opportunity Commission have held public hearings in Sydney, Adelaide, Canberra, Wagga Wagga, Newcastle, Melbourne, Bendigo and Hobart. They are about to visit Perth, Kalgoorlie, Brisbane, Rockhampton, Darwin and Alice Springs. The inquiry has consulted widely with parents and children, judges, politicians, lawyers, academics, social workers, paediatricians, and community workers.

Commissioner Kathryn Cronin reports on what they have been told so far.

There are significant problems in the way children are dealt with within the legal system.

Almost all of the adults and children who have so far given evidence to the inquiry have indicated that there are significant problems with the way that children are dealt with within the legal system.

The particular problems identified concern the organisation of the courts and litigation procedures for children and young people.

The Commissions have been told that there is insufficient differentiation between juvenile justice and the care and protection courts. Juvenile justice and care and protection hearings can be held in the same court on the same day. In a court atmosphere of criminal offending, children in need of protection can feel they too are before the court because they have done something wrong.

There is also said to be an inappropriate jurisdictional division between the federal, Family Court and state children's or local courts, all of which adjudicate in family matters involving children. In certain states, the Commissions have been told, state welfare bodies concentrate their services on the state care and protection courts and give limited assistance to the Family Court investigating allegations of child abuse made in their cases.

Certain state courts have specialised children's judges or magistrates. Other young people in care and protection or juvenile justice procedures are dealt with in children's courts by judges or magistrates from the adult courts. In New South Wales, submissions given to the inquiry indicate that such generalist magistrates tend to impose harsher penalties on child offenders. Children before some rural courts with generalist magistrates sitting as children's courts are twice as likely to be sentenced to detention than their city counterparts before a specialist children's magistrate.

Jurisdictional problems are further exemplified if children subject to a criminal penalty or to a care order from a state children's court move interstate. They can thereby avoid state welfare or juvenile justice supervision. The position in border areas, particularly between New South Wales, Queensland and Victoria pose particular problems in this regard.

The litigation arrangements for children and young people have also attracted a good deal of criticism during the course of this inquiry. Certain submissions have identified the problem as the adversarial system. Children are said to find adversarial litigation processes mystifying and incomprehensible. They are said to be unable to deal with cross-examination or the language and formalities of the hearing process.

The trial is said to function as a 'discourse of denial' for children. Legal professionals talk about children as if the child litigant wasn't there. 'Children experience this in court all the time'. Such criticisms are particularly directed at criminal cases involving child abuse in which children are involved as witnesses. The adversarial system is said to impede prosecutions in such cases. Psychologists and social workers have told the inquiry that children's evidence is as reliable as that of adults, providing it is appropriately elicited and tested. Even so, prosecutions simply do not proceed where the case is reliant on the evidence of young child witnesses. When the prosecution does proceed, child witnesses face delay, repeated questioning and robust cross-examination which compounds the trauma associated with their abuse. Many of those giving evidence to the Commissions have suggested a more inquisitorial approach in such cases so that judges and magistrates intervene and assume responsibility for what happens in pre-trial investigation and trial questioning.

A further, consistent complaint in this inquiry relates to the funding of children's services. Welfare, legal aid and court resources are said to be over-stretched and under-financed. The Commissions have heard from a number of concerned and committed professionals who repeatedly bemoan the limitations - time, financial and jurisdictional - which prevent them providing effective and appropriate assistance to needy young people and their families. There is certainly no evidence before the inquiry of an effective, co-ordinated, functioning service system.

These are the views of adults in this inquiry. The Commissions have considered carefully how best to ascertain the views of children and young people concerning the legal system. As children rarely make representations to formal inquiries such as this one, the Commissions have had to go out and seek their views. They have adopted a number of different strategies so as to involve, and hear from children on matters relevant to the inquiry.

A group of young people act as an advisory panel to the Commissions, advising them on issues relevant to young people and have assisted in the drafting of reports and papers written particularly for young people. The Commissions' issues paper, Speaking for ourselves, was written for adults and children. The children's version, compiled with the assistance of the advisory panel, was drafted so as to be relevant and intelligible to young people.

The inquiry has also prepared and circulated through schools, community and detention centres some 2,000 surveys which question young people about their understanding of law and their experiences with the legal system. The surveys have been sent to selected state, catholic and independent schools around Australia as well as to juvenile justice detention centres. They have also been given out to young people attending at court and subject to community orders. Approximately 1,000 replies have been returned to the Commissions and continue to arrive.

The inquiry has also been meeting with young people who have particular experience with the legal system, either as witnesses in a family court or care and protection matter, or as accused in a criminal trial. These meetings with young people have been arranged at each of the venues which the Commissions have visited around Australia.

The views of children elicited in survey responses or in group meetings are but one strand in any report on the legal system. Even so, the inquiry provides an important opportunity to ascertain the views of children and get some sense as to whether, and how, they see law and the legal processes as relevant in their lives. Certainly, from surveys and consultations to date, young people recite a seemingly simple wish of the legal system: they want to be taken seriously and listened to as if they mattered. It is a consistent complaint in their surveys that judges, lawyers and police do not listen to them and that police officers and shop owners treat them as suspicious, as would-be criminals.

• 'Police could be a lot more understanding and treat us as people'.
• 'Because of my skin colour, when I walk into a shop they amiditly think I'm going to robb the place'. (The quotations from young people are reproduced as they are written in the survey responses.)

The survey responses of young people will be analysed in detail for the Commission's final report (due in June 1997). The following are impressions taken from random samples of the responses. The young people's responses vary markedly, reflecting their differing backgrounds and levels of education. Their disparate backgrounds are aptly captured in answers to one question asking whether the person had any problems dealing with banks. A seventeen year old Queensland, private school girl observed that:

interest rates are to high for lending, to low for investing and terms and conditions on loans are ridicules and restrictive.

In answering the same question, a youth from a West Australian detention centre responded that:

the bastard ATM is always closed when you want to drink a little more burbon.

Many of the young people focussed on the workings of the juvenile justice system. This, after all, is the legal system most familiar to certain of the young people whom we consulted and surveyed. The responses are interesting. Some of them employ a range of expletives to record their views of, or experiences in the juvenile justice system. Others were resigned to 'do time' for their offences. Several of them were remorseful: 'I wish I hadn't had an experience with the criminal law'. The young people's views of their lawyers are mixed:

• 'He did his best and I'm happy with that'.
• 'She talked to me and told me if anything was gonna change'.
• 'He didn't respect what I want, he did his own thing'.

A significant number of the young people so far analysed, recorded that their lawyers did not tell the court what they wanted to say. A similar number recorded that they generally didn't understand what was happening in court. It was "too formal"; 'I couldn't understand the big words'. Similarly, the young people had mixed views concerning the fairness of the court:

• 'I was too long in the cells and too quick in the court'.
• 'It was fair in the District but not in the Local court'.
• 'One judge was nothing but an unfair old fool'.

The attitudes expressed on police and on detention centres were more uniform. Attitudes to the police, whether from children in detention centres or from within the school system, ranged from sceptical to hostile. Young people in detention centres repeatedly alluded to beatings or harassment at the hands of police. As they perceived it, 'policemen put themselves higher than young people, they often think they can do anything they wish towards young people'. A fuller account of his dealings with police was given by a 16 year old boy in New South Wales:

I have been in the criminal law for years now and have seen nearly everything from police brutality, police corruption and police misuse of the law. At not one time have I seen police offer their hand to help. When I was about 10-11 years old, I use to be stopped by police at night plenty of times. They use to search me and asked me my name and age and address. Then they would kick my bum and tell me to go home, never offering to drive me.

Even amongst those who have no experience of the juvenile justice system, there are claims of police harassment:

I have been searched and questioned and asked to leave places by police many times and I just feel that police are too suspicious of young people. Most young people are not that bad.

They feel that we are always doing something wrong. I've been threatened to be taken to the watch house for sitting on a seat with a skateboard.

The consistent refrain is that 'police could be a lot more understanding and treat us as people'.

The young people in detention centres surveyed so far have been mostly positive about their experiences there. Certain of them complain that 'some things are harsh, like group punishment'; that 'we are in here for punishment, not to be punished' or that the 'no smoking rule sux'. Even so, the majority view to date appears to be that :

• 'They care about you'.
• 'They try and be your parents'.
• 'They give you a chance'.
• 'They are kind to me and always are kind to people who are upset'.

The Commissions have consulted with juvenile justice workers and staff at detention centres, and they confirm that often the young people learn to read and write while in detention and their health improves dramatically. The young people themselves comment that 'detention centres are clean', 'there are exciting and fun things to do' and that 'you can study'. As one juvenile justice worker commented to the Commissions, very few juvenile offenders have functional family relationships. 'A child shouldn't have to offend to get government attention'.

The Children's Inquiry still has many months of listening, researching and writing before recommendations on reforms to the legal processes affecting children are circulated for comment.

In the meantime these are concerns raised to date by the community, professionals and young people about the workings of the legal system. Several young people have scrawled on their survey responses 'Why should I answer this question?' 'Who cares?' 'What difference would it make?' The challenge of the Inquiry is to produce a result to answer to such questions.

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