The concept of the children's court in Tasmania

EXTRACT The object of this thesis is to study the operation of welfare-orientated legislation in the juvenile delinquency and child neglect jurisdiction. Most of the statutes are in similar terms, so the study the been conducted with reference to the Child Welfare Act 1960 (Tas.). However, the concepts, as distinct from details of procedure, will often apply more widely and will be appropriate to other jurisdictions having similar legislation. Generally, the approach has been to examine the actual operation of the statute, from the inception of tho legal process to the completion of any order that may be made by the Children's Court. This includes not only the judicial role of the Court, but also the execution of the order by an executive agency. Essentially the child welfare legislation aims to remove children from the processes of the ordinary criminal law. A child is to be treated as misguided and in need assistance. The Children's Court must look to his future welfare as the primary consideration in sentencing. Conceptually it is similar to the parene patriae doctrine of the ancient Chancery jurisdiction over children, but with the important distinction that the modern Children's Court is a creature of statue and has only the power conferred by statute. If the Court is to fulfill the aim of this concept it must dispense personal- ized justice. In each case the order mat met the individual circumstances of the child defendant. For the achievement of this goal, the statute provides for simple discharge without the recording of a conviction, the imposition of supervision orders, which may be conditional and finally for declaration of the child as a ward of the State. If the Court is uncertain as to the course it should adopt and requires further information, the child may be remanded in care for up to three month for further assessment. This thesis examines the operation of each of these orders in regard to both dilinquent and neglected children. It follows that if the order is to be peculiar to the needs of each defendant the court must have enough background information about the defendant to make the appropriate assessment. Social backqround investigation and reports are therefore an integral part of the juvenile justice. system. The nature of these reports is considered together with their legal status. Of special interest in this context is considered, together they should be revealed to the parties concerned. · This problem is also examined. The thesis then proceeds to a study of the manner in which the order, once made, is put into effect by the executive agency, namely, the Department of Social Welfare. This includes both residential and non-residential care and the legal status and rights of the child parents during the operation o£ the programme.. It may be thought that the personality and rights of both child and parents are subrogated to the unfettered control and discretion of the public service department. This aspect or the system has also been studied. Since the report of the Kilbrandon committee in 1964, the idea of the juvenile panel has received extensive consideration and has actually been introduced in South Australia. This system is examined and compared with the traditional judicial system. Another innovation is the family court concept. This has also been studied and compared with the system created by the Child Welfare act. Chapter 7 sets out the conclusions of the study, that whilst the Children's court system is not free from defects, it is the most preferable of the alternatives yet available