Children's Court

Juvenile Justice & Children’s Court

An important note regarding Barwon Prison and the Grevillea Unit: On 11 May 2017, Justice John Dixon declared, for the third time, that the housing of children at Barwon Prison was unlawful. On 12 May 2017, all children were removed from the Prison and placed back in youth detention. This was an incredibly important decision, both for child justice and also for human rights. If your child or a child that you know has been housed in the Grevillea Unit, you want to ensure that the Human Rights Law Centre is aware and have your details. Whilst there has been no public comment regarding any civil action against the government for the violation of these children’s rights, given the comments made by Justice Dixon it is not unreasonable to expect that the Government may face legal action for the psychological harm inflicted on the children housed at Barwon. 

Due to the privacy afforded to proceedings in the Children’s Court, many people within the community are not aware of criminal proceedings with a child accused occurring in the Courts. Very serious offences allegedly committed by children, such as those involving the death of a person, are tried in the County Court and Supreme Court. However, the vast majority of other offences are heard and determined in the Children’s Court. Children who are sentenced for offences in the Children’s Court are sentenced under the Children Youth and Families Act 2005, which prescribes different sentencing options for child offenders. Children under the age of 10 years cannot commit a criminal offence by law and therefore cannot be prosecuted.

A fundamental difference between the objectives of the Children Youth and Families Act 2005 and the Sentencing Act 1991, which applies to adult offenders, is that the best interests of the child is a paramount consideration. Rehabilitation, education and development are important considerations in the sentencing process and imprisonment in a youth residential centre can only be imposed if there is no other appropriate sentence available.

Pursuant to the Victorian Charter of Rights and Responsibilities 2006, a child who is detained must be segregated from all detained adults, must be brought to trial as quickly as possible and, if convicted of an offence, must be treated in a way that is appropriate for his or her age. Our firm, alongside all criminal defence practitioners, consider the defence of children to be of great importance both to the child and the community at large.

Children who come before the criminal justice system can do so for a number of reasons. These can range between children ‘creating trouble’ and pushing boundaries, to children who have particular difficulties, to children who are significantly disadvantaged and accordingly come to the attention of law enforcement for their behaviour and personal circumstances.

The situation of children accused of committing offences is particularly perilous at this time, when the Victorian Government has decided to focus on ‘youth crime’. The community has seen an increase in youth crime and has also seen the Government respond by incarcerating children in the Grevillea Unit of Barwon Prison. This decision has been met with outcry from the legal profession, including by our office. The Supreme Court has also recently considered the intersection of between the Children Youth and Families Act 2005, the Bail Act 1977 and the Charter of Human Rights and Responsibilities Act 2006. Discussion is contained in the cases of Application for Bail by HL [2010] VSC 750 (number 1 and 2) and DPP v SE [2017] VSC 13. 

Regardless of how they come to the attention of law enforcement, and ultimately into our office, we consider it imperative that the child is engaged in their own matter, that their instructions to us are respected and that we adopt a holistic approach with the child and his/her family to achieve the best result and hopefully put measures in place to encourage the development of the child. This approach, we have found, assists the child personally and also deters the child from committing any further offences, by installing protective measures (if possible) to discourage further offending. This can be achieved through the myriad of different sentencing options imposed by the Courts or through interlinking the child with support services and special assistance.

If you have been contacted by law enforcement in relation to your child or your child has been charged with an offence, please contact our office as soon as possible to speak with a member of our staff. In Children’s Court proceedings, early intervention by a legal practitioner can fundamentally affect the outcome of those proceedings and reduce the trauma to the child and your extended family. Further, with the heightened political climate surrounding youth crime, the toughening of the legislature’s stance in relation to bail and sentencing for such crimes, and the pressure on the judiciary, you need to consult with an experienced lawyer to ensure that your child’s interests are properly represented and addressed in Court.