This proposal comes in the context of legislative changes that will reduce the Children’s Court’s oversight of certain orders and Department of Health and Human Services actions under some orders.
It was proposed that a new guideline would provide legal aid funding for internal administrative review of a Department of Health and Human Services case plan decision. In doing so, it sought to substitute the work currently done at court by providing families with an important mechanism for reviewing a child’s circumstances and/or department compliance with a court’s final order and advocating for supports and referrals to facilitate reunification at the earliest opportunity.
Eligibility would be confined to situations where the Department of Health and Human Services is not complying with the court order and this will adversely impact on the prospects of a child reunifying with their birth parents within the available timeframe.
The proposal also provided for a subsequent external Victorian Civil and Administrative Tribunal review in certain circumstances.
Most stakeholders welcomed this proposal.
There was a view, though, that it would be helpful if the guideline could provide more guidance on the scenarios in which funding would be available for legal assistance with a case plan review.
The noted that this work is likely to be limited by a reliance on clients identifying an issue and proactively seeking legal advice, rather than automatic review of some orders at the 12 month mark. In the consultations this was identified as a significant barrier to clients who would benefit from legal assistance.
Proposals were suggested about how to shift the onus from the client to the system including a ‘check-in’ reminder on files or a protocol with the Department of Health and Human Services whereby the lawyer would be notified of an upcoming 12 month case plan review in the case of two-year orders.
We agree that this is an issue but it is beyond the scope of this process. It is an issue that will be considered further by Victoria Legal Aid’s upcoming Child Protection Review.
Stakeholders also noted the preparation required for Victorian Civil and Administrative Tribunal reviews and encouraged us to ensure that the fee schedule reflects the level of preparation required.
Further, it was recommended that we consider providing training to lawyers in running tribunal review matters given that it is a forum in which some lawyers may have limited experience at present.
Action – new review of case planning decision guideline
The wide range of scenarios that could be funded under this proposal is acknowledged. However, the intent of the proposal was to provide accountability where there is a court order with the objective of reunification but the case plan is not adequately supporting this reunification objective.
Thus we plan to proceed on this basis. This captures a number of scenarios including:
- the provision of services in accordance with section 276 of the Children, Youth and Families Act 2005
- frequency of contact
- placement of the child to better support reunification (for example, placement with the grandmother if it would facilitate greater contact to assist with reunification).
The guideline does not limit eligibility to clients at the 12 month mark of a final order. As such, assistance under this proposal is available where compliance issues arise prior to the 12 month mark.
We are not planning on tightening eligibility given the decision not to proceed with funding for attendance at case plan meetings and the legislative changes that only permit an extension of a family reunification order beyond twelve months where there is compelling evidence that reunification will occur in the life of the extended order.
This will ensure legal assistance is available for review of a case plan decision where it becomes evident early in the life of an order that time in out-of-home care is accumulating and the case plan does not include the appropriate supports to give a family the best chance of reunification, as required by the court order. This provides a contained and practical response until the work of the Child Protection Review and a possible pilot are completed.
Read about the other proposals:
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
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Reviewed 18 March 2022