Family Conference YoungOffendersAct

ELECTRONIC VERSION
FAMILY CONFERENCING: A COMMUNITY APPROACH TO JUVENILE JUSTICE
RESEARCH BULLETIN NO 6/96
ROBERT TROEDSON
QUEENSLAND PARLIAMENTARY LIBRARY Publications and Resources Section BRISBANE July 1996 ISSN 1324-860X ISBN 0 7242 7300 X
Queensland Parliamentary Library, 1996 Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Parliamentary Librarian, Queensland Parliamentary Library. Inquiries should be addressed to: Director, Publications & Resources, Queensland Parliamentary Library, Parliament House, George Street, Brisbane. Director: Ms Mary Seefried.
ABSTRACT
The treatment of juvenile offenders generates community concern, professional debate and a variety of public administration approaches to what is a genuinely complex and sensitive issue. Family conferencing is an innovative procedure which has added to the available response options in a number of jurisdictions, after initial success in New Zealand. Its objective is to involve the offenders family and others in their support network, victim(s) and their supporters, and relevant professionals including police, in resolving, in an informal setting, how best to redress the effects of an offence. If successful, the conference avoids a court hearing and most if not all of its negative consequences. This Research Bulletin outlines the development of the concept in New Zealand and its adoption in a range of jurisdictions, particularly in Australia. An outline of the strengths and limitations that have been identified is also provided.
CONTENTS
CONTENTS ................................................................................................................................ 4 1. INTRODUCTION................................................................................................................... 1 2. MODELS OF JUVENILE JUSTICE ..................................................................................... 2 3. RECENT HISTORY OF FAMILY CONFERENCING........................................................ 5 3.1 NEW ZEALAND - DEVELOPMENT OF THE MODEL ........................................................................ 5 3.2 WAGGA WAGGA - A POLICE-BASED APPROACH........................................................................13 3.3 AUSTRALIAN CAPITAL TERRITORY - POLICE MODEL II..............................................................17 3.4 SOUTH AUSTRALIA - A LEGISLATED ADAPTATION ....................................................................17 3.5 WESTERN AUSTRALIA - JUVENILE JUSTICE TEAMS ....................................................................21 3.6 NEW SOUTH WALES - TRIALS IN PROGRESS...............................................................................22 3.7 QUEENSLAND ..........................................................................................................................23 3.8 INTERNATIONAL ......................................................................................................................23 4. FAMILY CONFERENCES IN RELATION TO CHILD WELFARE.................................25 5. PROBLEMS AND CRITICISMS..........................................................................................27 6. CONCLUSION.......................................................................................................................31 BIBLIOGRAPHY......................................................................................................................33 APPENDIX A .............................................................................................................................37
Family Conferencing: A Community Approach to Juvenile Justice
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1. INTRODUCTION
Juvenile justice issues generate widespread community interest in Australian society1. Public awareness of juvenile crime is high due to extensive media reporting. According to Judge McGuire, President of the Childrens Court of Queensland, juveniles are committing increasingly serious offences, and offenders are getting younger.2 Public political debate occurs regularly, involving both issues of policy and circumstances of specific cases. Governments are often pressured to respond rapidly to specific issues. Yet changes to legislation and to court and policing procedures in virtually all states and territories in recent years are evidence that governments are comprehensively involved in ongoing policy formation and implementation.3 Within the community there is ambivalence about levels and types of punishment.4 On the one hand there is a degree of determination that sanctions which are seen to deter criminal behaviour should be imposed on those convicted of offences. On the other hand there is an awareness of the need to avoid the entrenching of criminal behaviour in young people, which may result from exposure to correctional institutions. Family conferencing is a recent innovation in juvenile justice that reflects an attempt to reconcile those conflicting aspirations. Put simply, a family conference is a meeting convened in response to the commission of an offence by a young person, to attempt to resolve the situation and avoid a formal court appearance. The meeting is attended by the offender and his or her family, the victim, and various support persons, and is convened by a facilitator which may be a police officer or other professional person. Family conferencing is based on a New Zealand initiative which began in 1989. The Queensland Government has announced plans to include a form of family conferencing in revisions to its juvenile justice program.5 This Research Bulletin
Fay Gale, Introduction, in Juvenile Justice: Debating the Issues, eds Fay Gale, Ngaire Naffine & Joy Wundersitz, Allen & Unwin, St Leonards NSW, 1993, pp xv-xx (p xv). Judge Fred McGuire, Juvenile justice, in Symposium 1994: Juvenile Justice Act, CLE 94/7, Queensland Law Society, Brisbane, March 1994, pp 1-34 (p 2). Gale, p xv. Gale, p xv. Juvenile Justice, Press Release by Hon D Beanland MLA, Attorney-General and Minister for Justice, 29 May 1996, Media Information Summary, 25-31 May 1996, p 20.
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describes the philosophy and practice of family conferences as they were originally developed in New Zealand and as they have been adapted in various Australian and overseas jurisdictions. Advantages and disadvantages of the approach are also considered. Other terms used to describe the same or similar concepts include family group conference, community youth conference and the more generic community accountability conference.6
2. MODELS OF JUVENILE JUSTICE

Welfare and Justice Trends in the approaches to juvenile justice in Australia have been described in terms of two contrasting models: the justice model and the welfare model. The emphases of the welfare model are that children offend because elements of their environment are dysfunctional, and so the appropriate response is to seek to protect them from those elements. By contrast the justice model emphasises the accountability of individuals for their actions, due process of law, and appropriate punishment for wrongdoing.7 In practice, juvenile justice programs always contain elements of both models but one is often predominant.8 Most Australian jurisdictions moved from a system dominated by justice concerns to one dominated by welfare concerns in the latter part of last century. Separate childrens courts were established with more rapid and flexible processes than their adult equivalents. Children were often not formally charged and, in lieu of sentencing, were placed under the guardianship of a welfare department. Because the concept was that children were being helped rather than punished, the remedy was related to the perceived need rather than the offence. Thus the justice system tended to intrude into childrens lives to a much greater extent than it did in the case of adults charged with comparable offences.9
John Braithwaite, Thinking Harder About Democratising Social Control, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 199-216 (p 199). Christine Alder & Joy Wundersitz, New directions in juvenile justice reform in Australia, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, pp 112 (p 3). Alder & Wundersitz, p 4. Ngaire Naffine, Philosophies of Juvenile Justice, in Juvenile Justice: Debating the Issues, eds Fay Gale, Ngaire Naffine & Joy Wundersitz, Allen & Unwin, St Leonards, NSW, 1993, pp 2-17 (p 6).
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This realisation was one impetus for a swing back to the justice model which began in the 1970s and has since spread to all Australian jurisdictions. It was accompanied by greater procedural protection in the court process and an emphasis that young people were responsible for their behaviour and could be punished accordingly. Nevertheless welfare elements remained in that young offenders were still to be treated in ways that took into account their particular needs and future well-being.10 In particular, methods of diversion were and are used to avoid actual court appearances by young offenders, especially in cases of first and minor offences. Family conferencing combines elements of both welfare and justice models. Its key justice element is that it requires accountability and appropriate consequences for offences. Conference participants are also encouraged to consider the welfare of the offender including possible ongoing assistance. However the empowerment of families and other members of the community as key decision-makers is a significant change from established welfare processes in which considerable authority has resided with state welfare agencies. Such differences with previous interpretations of the justice/welfare models are reflected in the use of alternative models to support certain aspects of family conferences. Two of those are restoration and reintegration. Restoration According to McElrea, the objectives of punishment and sentencing traditionally come under three broad headings:

retribution, or meting out just deserts; deterrence of others from similar offending; and reformation of the offender.11
McElrea described a fourth objective, reconciliation and restoration, which is directly relevant to the concept of family conferences. Drawing on the work of DW Van Ness, McElrea described the three key principles of restorative justice as:
1) Crime results in injuries to victims, communities and offenders; therefore the criminal justice process must repair those injuries. 2) Not only the State, but also victims, offenders and communities should be actively involved in the criminal justice system at the earliest point and to the greatest possible extent.
10
Alder & Wundersitz, p 4. Judge FWM McElrea, Restorative justice - The New Zealand Youth Court: A model for development in other courts?, Journal of Judicial Administration, 4, 1994, pp 33-54 (p 33).
11
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3) In promoting justice, the State is responsible for preserving order, and the community is responsible for establishing peace.12
In the restorative model, the role of the victim includes having the opportunity to express their feelings, to receive and accept an apology, and to participate in determining appropriate outcomes. The role of the offender includes having the opportunity to apologise and atone, and to take responsibility in restoring their relationship with the community.13 Reintegrative shaming The concept of reintegrative shaming was enunciated by Professor John Braithwaite of the Australian National University in 1989.14 Briefly, Braithwaites position is that shame is an important regulator of social behaviour.15 Most people obey the law because of their own conscience or because of the fear of disgrace. Either way, shame is being avoided: internally (discretion shame, the shame of offending the conscience) or externally (the shame of public disgrace). Shame produces good citizenship by choice rather than coercion. When the law is broken and an offender is brought before the traditional criminal justice system, what the offender endures is termed a ceremony of degradation. Shaming is used to isolate and stigmatise the offender, often leaving the offender no other source of identity than with a criminal subculture. The preferred alternative is a ceremony of reintegration. This ceremony distinguishes between the unacceptable behaviour and the person responsible for it. Shame is still essential but it is directed towards the behaviour, which should produce remorse. Then the goal of the ceremony is to reintegrate the person. This pattern occurs repeatedly in home, work and leisure settings. Braithwaites argument is that reintegration rather than degradation ceremonies should also be the goal of formal criminal justice processes.
12
McElrea, p 41. McElrea, p 41. John Braithwaite, Crime, Shame and Reintegration, Cambridge University Press, 1989. DB Moore & JM McDonald, Achieving the good community: A local police initiative and its wider ramifications, in Perceptions of Justice: Issues in Indigenous and Community Empowerment, ed Kayleen Hazlehurst, Avebury Press, Aldershot UK, 1995, pp 143-173 (p 157).
13
14
15
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3. RECENT HISTORY OF FAMILY CONFERENCING
3.1
NEW ZEALAND - DEVELOPMENT OF THE MODEL
Discussion and decision making in an informal or semi-formal extended family context is a feature of many cultures, especially in their traditional expression. However the recent history of the family conference as a formal procedure within a juvenile justice program began in New Zealand in the late 1980s.16 Because the New Zealand program has been a model for those developed subsequently in Australia, it is described in some detail in this section. The section summarises the principles on which the legislation is based and provides an overview of the operation of family conferences. Later sections on the application of the model in other jurisdictions will highlight the similarities and differences between the New Zealand and alternative models. The New Zealand juvenile justice legislation was reviewed between 1986 and 1989, and replaced in 1989 by the Children, Young Persons and Their Families Act. The Act, among other things, provides for the holding of family conferences in two contexts: care of children in circumstances of possible separation from their immediate family, and dealing with offences committed by young offenders as a possible means of avoiding a court appearance. The following discussion is confined to the latter context only, although many of the principles and procedures apply to both. The use of family conferences for child welfare purposes is described in Section 4. In introducing the Bill, the Minister for Social Welfare, Hon Dr M Cullen, emphasised that the role of the family group conference was:
to ensure that families have a real chance to decide the way family problems should be resolved. Families will have the first opportunity to resolve the problem and to negotiate with authorities the solution they propose.17
16
Michael JA Brown, Juvenile Justice in New Zealand, in National Conference on Juvenile Justice, eds Lynn Atkinson and Sally-Anne Gerull, Australian Institute of Criminology Conference Proceedings No. 22, AIC, Canberra, 1993, pp 97-112. Hon Dr M Cullen MP, Children and Young Persons Bill, Second Reading speech, Parliamentary Debates (New Zealand), vol 497, 27 April 1989, pp 10245-9 (p 10247). [NB the words and their Families were added to the title of the Act before the Bill was passed]
17
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The holding of a family group conference reflects the role of the family group in traditional Maori culture. In particular, four key features of traditional community problem-solving were:

reaching consensus and involving the whole community; reconciliation and a settlement acceptable to all parties rather than the isolation and punishment of the offender; examining the wider reasons for the wrong rather than apportioning blame; and restoring harmony rather than analysing whether or not a breach of the law has occurred.18
The cultural input into the New Zealand Act is reinforced by specific mention in several places. One of the objects of the legislation is to ensure that community services and facilities for young people are Appropriate having regard to the needs, values and beliefs of particular cultural and ethnic groups.19 The Act also specifically mentions the three Maori family relationship terms which could be included in the meaning of family group depending on the circumstances. These are:
Whanau, (literally to give birth), which describes the immediate family including the generation of the person concerned, the two preceding generations and the two succeeding generations; Hapu, (literally pregnancy), the extended family incorporating related whanau; and Iwi, (literally bone), all hapu descended from common ancestors.20
According to Morris and Maxwell, the nearest literal translation of the three words is extended family, clan, and tribe, respectively.21
18
Allison Morris & Gabrielle Maxwell, Juvenile justice in New Zealand: A new paradigm, Australian and New Zealand Journal of Criminology, 26 March 1993, pp 72-90 (p 73). Children, Young Persons and Their Families Act 1989 (NZ), s 4(a)(i). Brown, pp 98-99. Morris and Maxwell, p 89.
19
20
21
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Principles of the Family Conference approach The principles on which the New Zealand legislation is based were summarised by Maxwell and Morris under the following headings:
An emphasis on the justice model. That is, offenders should be held accountable for offences committed, but punishment should be appropriate and proportional, and due process should be observed. Diversion, decarceration and destigmatisation. As much as possible, young offenders should be diverted from the court system and from confinement in institutions. Supporting young people and strengthening families. Elements of the welfare model are included, but with the goal of avoiding wherever possible the separation of families. Victim involvement, mediation, reparation and reconciliation. During the Family Group Conference (FGC), victims have the opportunity to describe the impact that the offence had on them, and to participate in discussions of possible punishment and reparation. Their presence is intended to foster reconciliation. Following amendments to the Act in 199422, victims must be consulted beforehand about the conduct of an FGC, and are entitled to be accompanied by a reasonable number of persons to provide support. Family participation and consensus decision-making. The outcomes of the process should be more effective and more likely to be honoured if young people, families and victims have participated in their determination. Cultural appropriateness. Procedures and decisions should be appropriate to the culture of the families. The family conference concept is based in part on the traditional Maori approach to problem-solving.23
What is a Family Group Conference? An FGC is a meeting held in relation to an offence committed by a child or a young person. The meeting is attended by a variety of people who have an interest in the matter (see below), including the offenders family. The purpose of the meeting is to determine or recommend appropriate outcomes, thus avoiding if possible a formal court appearance.
22
Children, Young Persons and Their Families Amendment Act 1994 (NZ) (No 121 of 1994). Gabrielle Maxwell & Allison Morris, The New Zealand Model of Family Group Conferences, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism?, pp 15-43 (pp 15-17).
23
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The NZ Act defines a child as a person under 14 years of age, and a young person as someone of or over 14 years but under 17 years of age. Family Group Conferences are primarily held in relation to young people, but may be held for an offence by a child over 10 years where the child has committed an offence or offences the number, nature or magnitude of which is such as to give serious concern for the well-being of the child (s 14(1)(e)). The judgement of serious concern is to be made by an enforcement officer (usually a police officer) in consultation with a Youth Justice Coordinator (s 18(3)). There are three main circumstances under which an FGC is held (ss 245-247):
when a young person is alleged to have committed an offence that would require a hearing before the Youth Court, and the young person does not deny the allegation; and when a young person is arrested for an offence (other than murder or manslaughter or a traffic offence not punishable by imprisonment), appears before the Youth Court and does not deny the charge; and when a young person is found guilty of an offence by the Youth Court, and the Court directs that an FGC be held. In this case the FGC is convened to consider and recommend punishment options, if an earlier FGC has not already done so.
Who attends an FGC? The FGC is attended by the young person, his or her family (immediate and/or extended), other appropriate persons invited by the family, an advocate for the young person if one has been appointed, the victim(s) and/or their representatives, a police officer (usually the one who has investigated the offence), and a social worker if one has been involved with the family. The other persons invited by the family would be people who had a particular relationship with the young person and who could offer ongoing support, such as a teacher, youth group leader or sports coach. An FGC is convened by a Youth Justice Coordinator (YJC), who is an employee of the Department of Social Welfare. Morris and Maxwell have summarised the duties of the YJC in relation to FGCs as follows:

to ensure that everyone present is adequately informed about what happened and that the young person does not deny the information in the summary of facts; to ensure that information on the impact of the offence on any victims is given to the FGC; to provide families, whanau, hapu, iwi and family groups with the information they need for the FGC; to hand over decision-making power to the family; to support the family decisions made in the FGC; and
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to facilitate access to any resources that the family may need to carry out the decisions.24
The purpose of the meeting is to discuss appropriate consequences which may include punishment of the offender and/or reparation to the victim. A key goal of an FGC is to avoid the necessity of a court appearance. Procedure of an FGC The Act (s.249) stipulates that an FGC should be arranged by a YJC within 21 days of receiving a referral, except in the case of an FGC ordered by a court, which should be held within 7-14 days of the order, depending on the circumstances. The location is flexible, and FGCs have been held in Government offices, homes and community buildings. Maxwell and Morris have pointed out that the Act allows families to determine procedures to suit the particular circumstances of each FGC. However a common or typical procedure has evolved which they summarised as follows:
The most usual beginning for FGCs is for everyone to introduce themselves, although in some areas this may be preceded by prayers or a karakia (a blessing) and a welcome in Maori. The coordinator then explains the procedure to be followed, invites the Youth Aid officer to read the summary of facts and then asks the young person whether or not these are accurate. If the information is incorrect, it may be possible to correct it there and then. If the young person denies his or her responsibility for the offence, however, the FGC then stops and the matter is referred back to the police. If the police still think that the young person committed the offence, the matter will go to the Youth Court by way of a summons. If the young person admits the offence, the FGC can proceed and the coordinator then asks any attending victim to speak. If a victim is not present, someone else, usually either a victims representative or the youth aid officer, reports on behalf of the victim Following a general discussion amongst all the participants about possible outcomes, families should be given the opportunity to discuss in private how best they feel they can respond to their childs offending. Whether or not the professionals have withdrawn, it is the familys task to come up with a plan at this stage. There may be some further discussion after this with the non-family members. Details are arranged regarding who will supervise and check on whether or not the plans are carried out. The YJC then seeks agreement from the police and from any victim who is present. The agreed plan is recorded and the meeting closes, sometimes with a prayer.25
24
Morris & Maxwell, p 82. Maxwell & Morris, pp 27-28.
25
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Outcomes of FGCs An FGC is required to recommend whatever further action it considers is appropriate in relation to the offence. Such action may include discontinuation of the proceedings, a formal caution, or a requirement that the offender perform community service or other punishment, or make some form of reparation to the victim. The recommendations of an FGC are recorded by the YJC, who must seek the agreement of relevant people such as police and persons who would be involved in the implementation of the recommendations, if they were not present at the FGC. If their agreement is not secured, the YJC may reconvene the FGC to reconsider the recommendations. If agreement on the recommendations cannot ultimately be reached, the YJC must report the situation to the original referring agency. Usually the matter would then be dealt with by action in the Youth Court. In developing its recommendations, a conference must take into account eight principles, which are set out in section 208 of the Act. In summary form, these are as follows:

criminal proceedings should not be instituted against a young person if there is an alternative, unless the public interest requires otherwise; criminal proceedings should not be instituted against a young person solely as a means of providing assistance or services in order to advance the welfare of the young person or their family; any measures for dealing with offending should be designed to strengthen families and to foster their ability to develop their own means of dealing with offending by their young persons; a young person who commits an offence should be kept in the community as far as possible, considering the need to ensure public safety; a young persons age is a mitigating factor in determining whether or not to impose sanctions, and the nature of any sanctions; any sanctions imposed should be those most likely to maintain and promote the young persons development within their family, and should be the least restrictive form appropriate; measures for dealing with offending should consider the interests of any victims; and the vulnerability of young persons entitles them to special consideration during any investigation in relation to an offence.26
26
These principles apply to children also.
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Evaluation Maxwell and Morris reported the outcomes of a project conducted during 1990 and 1991 to evaluate family conferences. The study sample included all young people (almost 700) who came to the attention of the police in five areas of New Zealand over a three-month period. FGCs were arranged for over 200 of those young people including 70 who appeared in the Youth Court.27 Attendance Most FGCs were attended by between five and ten people and the average attendance was nine. The young person involved and at least one of their parents or carers attended almost all (96-98%) FGCs. Extended family members were present at 39% of conferences, siblings at 21% and a family supporter at 19%. By contrast, just over half (54%) of the FGCs did not include the victim or the victims representative. In a large majority of these cases, the reason for the victims absence was that the time nominated was not suitable or they were not given enough warning. As noted above, the Act has since been amended to require consultation with victims about the timing and location of the conference. Fewer than 4% of the victims indicated that they did not come because they did not want to meet the offender. Outcomes Agreement was reached in 95% of the FGCs in the sample. The two most common outcomes were apologies and community work (70% and 58% of cases respectively). Some form of active penalty (community work, monetary penalties, donations or restrictions on liberty) was imposed in 83% of non-court referred FGCs and 89% of court referred FGCs. Action to assist the young offender, in relation to work, education or skills, was recommended in around 25% of cases. Satisfaction The young offenders, their parents, the police and the YJCs all reported a high level of satisfaction with the outcome of the FGC: 84, 85, 86 and 91 percent respectively. The level of satisfaction among victims was lower: just over half (53%) of those who attended conferences were satisfied with the outcome, and around one third were dissatisfied. The main causes of dissatisfaction were a perception that the penalties were too lenient or a subsequent failure on the part of the offender to carry out an agreed undertaking. Maxwell and Morris commented that some victims
27
Maxwell & Morris, pp 20-38.
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view of an appropriate penalty was unrealistically high, but this could be overcome by a more adequate briefing of victims prior to the FGC. The later changes to the Act to ensure greater consultation with victims prior to the FGC may also help to raise their satisfaction with the process. Maxwell and Morris also commented that many of the cases where the victims expressed satisfaction seemed to have involved genuine reconciliation. Limitations Limitations identified by Maxwell and Morris include the following:
The timing and location of FGCs sometimes were chosen to suit the professionals, and as a result some family members and victims were unable to attend. Notice of the proposed FGC, preparation time and briefings were inadequate in some cases. Some families felt pressured to agree to recommendations proposed by the professional staff, and some professional staff were reluctant to agree to outcomes other than their preferred option.28
All the above are operational or attitudinal problems which could be overcome by attention to their respective causes. Some more fundamental issues were also identified which reflect potential conflicts between varying objectives. They could be a source of problems depending on the specific circumstances of each case and the personalities involved:
The potential conflict between the requirement for accountability and the welfare needs of offenders. Some FGCs took both into account but in other cases welfare needs were not addressed. The potential conflict between the needs of victims and offenders. The involvement of both has advantages for both, but there may be some needs, especially of victims, that have to be met by separate services. The potential conflict between victims concepts of a desired outcome and the need for any punishment to be equitable and proportional in comparison across the justice system. The Youth Justice Coordinator has a key role in preparation of the participants before the FGC and in ensuring that all recommendations are reasonable given the circumstances of the case. The final potential conflict identified was that the FGC philosophy was attempting to shift the balance between a system of state control over families and young people, and one of promoting participation and empowerment. The outcome of this conflict depends on the commitment of
28
Maxwell & Morris, pp 38-39.
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those involved and the preparation of the less experienced participants, ie the offenders, the victims and their families.29 Overview The consistent view of commentators is that family conferencing in New Zealand has been highly successful.30 One measurable outcome is that since the Act came into force the number of young people appearing before the Youth Court has decreased from 13,000 to 1,800 per year.31 The following two excerpts from Maxwell and Morris conclusion summarise the general view:
FGCs are clearly working far more effectively than was expected Almost all the parents or care givers take an active part in the conference and, when offences are serious or persistent, extended family members are prepared to come and provide additional support and help. Victims are willing to attend and most of them play a constructive and helpful part. Agreements are reached in most FGCs about the appropriate outcome and, at the same time, young people are held accountable for their offences and remain, for the most part, with their family and in the community, with support to make a fresh start.32
However,
Enthusiasm is tempered by a recognition that it is impossible to expect the production of a magical event given the unrehearsed cast, a host of different directors and an unexplored script at every performance.33
3.2
WAGGA WAGGA - A POLICE-BASED APPROACH
Police in Wagga Wagga NSW began trialing family group conferences in August 1991, as a variation of the cautioning process for juvenile offenders. Several influences led to the initiation of the FGC trial there. Dissatisfaction within the Wagga Wagga police and community over juvenile justice processes had led to the formation of a Community Consultative Committee and an examination of options
29
Maxwell & Morris, pp 41-42. eg, Judge Michael Brown (1993); Marie Dyhrberg (1995); Maxwell & Morris (1994); Judge FWM McElrea (1994). Marie Dyhrberg, Sentencing of children in New Zealand: a new direction, Criminal Law Journal 19(3), June 1995, pp 133-138. Maxwell & Morris, p 39. Maxwell & Morris, p 42.
30
31
32
33
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for community policing. The chairperson of the Community Consultative Committee together with a senior police officer visited New Zealand to observe and discuss their process at first hand. The Community Consultative Committee was later instrumental in convincing the police hierarchy to allow a trial of family group conferencing to proceed in Wagga Wagga.34 Family group conferences in Wagga were structured similarly to those in New Zealand. The offender, members of his or her family, the victim and other relevant people were brought together to discuss the offence and to decide whatever consequences or action may be appropriate. However several differences with the New Zealand model are apparent. For example: (a) the conferences were organised and coordinated by a police officer and were usually conducted on police premises; (b) the process was not based on legislation but rather on a modification of existing police cautioning procedures.35 An advantage of the non-legislative approach is that the program was not imposed from above, but was able to develop gradually, through consultation, debate and persuasion.36 However a related disadvantage may be the susceptibility of such a program to closure from above. Compared to New Zealand conferences, those in Wagga Wagga were reportedly more spontaneous, due to less preparation of the participants by the coordinator, and focussed on repairing the harm, being centred more on the incident and less on the offender.37 The seven objectives developed for conferences in Wagga (which were in most respects similar to those in New Zealand) were as follows:

to ensure that the young offender understands the seriousness of his/her offence; to minimise the opportunity of the young person re-offending; to provide the young offender with an opportunity to accept responsibility for his/her offence; to ensure that family and significant others are made accountable; to provide the victim(s) with some input into the cautioning process;
34
Moore & McDonald, pp 153-154. Lubica Forsythe, An analysis of juvenile apprehension characteristics and reapprehension rates, In A New Approach to Juvenile Justice: An Evaluation of Family Conferencing in Wagga Wagga, David Moore & Lubica Forsythe, Centre for Rural Social Research, Charles Sturt University, Wagga Wagga, 1995, pp 213-246 (p 213). Moore & McDonald, p 169. Forsythe, p 213.
35
36
37
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to improve the opportunity for victim restitution or compensation; and to provide police with an opportunity to contribute in a significant and satisfying way to the processing of young offenders.38
Emotional responses among participants of conferences have been described as an example of the essential similarity between conferences in New Zealand and Wagga Wagga.39 According to Moore and McDonald, New Zealand-based Judge Michael Brown described the emotional sequence in victims as fury, hurt, loss, understanding and forgiveness, while the matching sequence in offenders is acknowledgment, remorse, shame, reparation, and expiation. Ultimately, victims and offenders alike share healing and social reintegration.40 Two key points were reported from Wagga Wagga: the similarity of the sequences of emotions to those described in New Zealand, and the uniformity with which emotions were experienced by those attending the conferences. Four characteristics of conferences tended to strengthen emotional reciprocity among participants. This occurred when:

similar numbers of people attended as supporters of the victim and the offender; community members who supported neither or both parties participated; siblings (particularly younger) attended; and larger numbers (8-20) attended.41
The review of the family group conference program in Wagga Wagga reported a range of statistics.42 They covered a period of 19 months prior to the introduction of FGCs (January 1990 to July 1991), and 27 months subsequently (August 1991 to October 1993). The monthly average number of juvenile cases dealt with by the Wagga police declined somewhat after the introduction of conferencing, from 25.7 before August 1991 to 21.3 subsequently. Prior to the introduction of FGCs, approximately 50% of first offenders were cautioned and 50% were sent to court. By comparison, during the following two
38
David Moore & Lubica Forsythe, A New Approach to Juvenile Justice: An Evaluation of Family Conferencing in Wagga Wagga, Centre for Rural Social Research, Charles Sturt University, Wagga Wagga, 1995, p 18. Moore & McDonald, p 164. Moore & McDonald, p 164. Moore & McDonald, pp 164-5. Forsythe, p 213.
39
40
41
42
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years the ratio changed to 72% cautions and 28% court appearances.43 The use of cautions relative to court appearances also increased for those apprehended more than once, up to the sixth time of apprehension.44 The racial appearance, as recorded by the police, for the entire sample was 89% white, 9% Aboriginal and 2% other. This distribution was the same before and after the introduction of FGCs.45 The proportion of people who were reapprehended within nine months of a caution was stable at 19.1% before August 1991 and 18.7% subsequently, although as indicated above a substantially greater proportion of cases were dealt with by caution after August 1991. Of those dealt with by a court appearance, the proportion reapprehended within nine months rose slightly in the period after the introduction of FGCs, from 32.5% to 35.6%.46 The review report summarised arguments in favour of the coordination of FGCs by police as follows:

bureaucratic complexity is minimised, which reduces delays and costs; increased willingness of victims and other parties to attend; a transformative effect of the process on police and policing; police are not directly linked to either legal formalism [the justice model] or welfarism, and are well placed to keep the FGC process to its goals of restoration and reintegration.47
Several commentators, however, have criticised the role of the police as FGC conveners. Sandor argued that in general there has been an undesirable increase in police involvement in juvenile justice. More specifically, police should not convene FGCs because of concerns about police violence and lack of attention to procedural rights of subjects, possible pressure on alleged offenders to admit guilt (to avoid a court appearance), lack of mediation skills, and the unlikelihood of attendees being comfortable on police premises.48
43
Forsythe, p 234. Forsythe, p 237. Forsythe, p 230. Forsythe, p 239. Moore & Forsythe, p 251. Danny Sandor, The Thickening Blue Wedge in Juvenile Justice, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, pp 153-166.
44
45
46
47
48
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Polk also expressed concern about the possible pressure to admit guilt, and criticised the police role on the grounds that a true diversionary process should encompass the broad components of social justice including education, politics, recreation, housing, health and other social services, which are not the responsibility of the police.49 Although FGCs in Wagga Wagga were formally convened under provisions for cautioning young offenders, their scope and outcomes have been more comprehensive, in line with the experience in New Zealand. Moore and OConnell expressed their experience in these words:
as we have learned, conferences are not just about young offenders, nor are they simply concerned with redress for victims. They are an effective way of reaching collective agreement that we need to respect the rights of fellow citizens and fulfil our responsibilities to them. These are conferences about community accountability.50
3.3
AUSTRALIAN CAPITAL TERRITORY - POLICE MODEL II
The Australian Federal Police commenced using a version of family conferencing in the ACT in January 1994. The Police Court Diversionary Scheme was introduced with the assistance of police officers from Wagga Wagga and is based on that program. An interesting adaptation is that the scheme is not restricted to juvenile offenders. In 1994/95, 324 conferences were conducted in the ACT, involving 223 juvenile and 201 adult offenders. By June 1995, the AFP had 76 trained facilitators.51 A research team headed by Professor John Braithwaite is currently studying the operation and outcomes of the ACT program. A copy of the AFP brochure outlining the diversionary conference scheme is included as Appendix 1.
3.4
SOUTH AUSTRALIA - A LEGISLATED ADAPTATION
South Australia was the first Australian jurisdiction to base family conferences on legislation, by virtue of the Young Offenders Act 1993. The key policies on which
49
Kenneth Polk, Family Conferencing: Theoretical and Evaluative Concerns, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, pp 123-140 (p 138). DB Moore & TA OConnell, Family Conferencing in Wagga Wagga: A Communitarian Model of Justice, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, pp 45-86 (p 72). Australian Federal Police Annual Report 1994-95, p 27.
50
51
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the Act is based reflect a return to aspects of the justice model, including the philosophy of sentencing for deterrence. Those policies are listed in section 3(2):
a) a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law; b) the sanctions imposed against illegal conduct must be sufficiently severe to provide an appropriate level of deterrence; c) the community, and individual members of it, must be adequately protected against violent or wrongful acts.
However, five additional policies, which are to apply so far as the circumstances of the individual case allow (s 3(3)), reflect both welfare and restitutional influences:
a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths; b) family relationships between a youth, the youths parents and other members of the youths family should be preserved and strengthened; c) a youth should not be withdrawn unnecessarily from the youths family environment; d) there should be no unnecessary interruption of a youths education or employment; e) a youths sense of racial, ethnic or cultural identity should not be impaired.
The South Australian model provides four possible responses to offending behaviour: a police caution, either formal or informal, a family conference, or an appearance before the Youth Court. The decision on which approach to take is made by the police officer concerned, although the Youth Court may direct that a charge referred to it be dealt with by one of the other procedures. Only minor offences may be dealt with by a caution or a family conference, which are defined in section 4 of the Act as those considered minor by the police officer because of:
a) the limited extent of the harm caused through the commission of the offence; and b) the character and antecedents of the alleged offender; and c) the improbability of the youth re-offending; and d) where relevant - the attitude of the youths parents or guardians.
The South Australian Police have developed additional guidelines for offences suitable for referral to a family conference, which include, as described by Wundersitz and Hetzel:

any summary offences not dealt with by way of a caution; any minor indictable offence for which the maximum term of imprisonment allowed by statute does not exceed five years, or if five years is exceeded, where the amount of property loss or damage resulting from the offence is more than $5000 but less than $25,000; and
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any drug related offence classified as a summary or minor indictable offence.52
In deciding whether or not a particular offence should go to a family conference, the police may also take into account the attitude of the young person, their personal circumstances, the extent of inconvenience or harm suffered by the victim, the views of the victim, and the public interest.53 Police cautions are intended to account for around 60 percent of all cases brought to the attention of the police, to avoid overwhelming the family conference system.54 An informal caution is conducted by the police officer but is not recorded and no further action may be taken in relation to the particular offence. A formal caution must, if possible, be made in the presence of the youths guardian (usually a parent) and may require a formal undertaking from the youth to apologise or pay compensation to the victim, to carry out community service (75 hours maximum), or to agree to other appropriate action (s 8). If any further proceedings occur in relation to the offence, the caution becomes evidence that the offence was committed, and this fact must be explained to the youth prior to the caution. Family conferences are administered by, and Youth Justice Coordinators (YJCs) are employed by, the Courts Administration Authority of South Australia. This arrangement clearly aligns family conferences with the justice model, in contrast to administrative arrangements in New Zealand.55 However the conferences themselves are conducted along similar lines to those in New Zealand. They are convened by a YJC and attended by a similar range of people: the young person, their parents and other appropriate members of the family, the victim and a support person, and a police officer. Other relevant persons who have had a close association with the young person may be invited to attend, and a social worker may attend subject to the agreement of the young person. The young person may also may bring a legal practitioner.56
52
Joy Wundersitz and Sue Hetzel, Family Conferencing for Young Offenders: The South Australian Experience, in Family Group Conferences: Perspectives on Policy and Practice, eds J Hudson, A Morris, G Maxwell & B Galaway, Federation Press, Leichhardt, NSW, 1996, pp 111-139 (p 119). Wundersitz & Hetzel, p 119. Joy Wundersitz, Family Conferencing and Juvenile Justice Reform in South Australia, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, pp 87102 (p 91). Wundersitz, p 95. Young Offenders Act 1993 (SA), s 10, and Wundersitz, p 97.
53
54
55
56
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The young person and the police officer must both agree to any outcome of the conference. Unlike the situation in New Zealand and Wagga Wagga, the investigating police officer may not be the one who attends the conference. In Adelaide, one member of specialist team of twelve police youth officers attends the conferences while in other areas that role is carried out by the local officer in charge.57 Wundersitz and Hetzel have provided information on the first 15 months of the operation of family conferencing in South Australia (February 1994 to April 1995). In that period, 1,592 conferences were held.58 The nine YJCs each convened five or six conferences per week. In the first 12 months, approximately 40% of matters that came to the attention of the police were dealt with by formal caution, 14% by family conferences and 40% were referred to the Youth Court.59 The fate of the other 6% was not stated, but they may have been informal cautions. Wundersitz and Hetzel commented that earlier fears that family conference resources would be overwhelmed have not been borne out. The major categories of offences referred to conferences in 1994 were offences against property (64.2%), offences against the person (12.4%), offences against good order (12.1%), and drug offences (10.4%). Of the young people whose aged was recorded, 16% were 10-13 years and 84% were 14-17 years.60 Outcomes of conferences in South Australia, in terms of the range of consequences for the young person, have been similar to those in the other jurisdictions. They have included community service, monetary compensation, apologies, attendance at counselling and participation in training programs.61 The police and the young people have exercised their power of veto over the recommended outcomes only sparingly, and compliance with undertakings has been high. Of undertakings due for completion by 30 April 1995, 86% were complied with, 3.4% were waived because of near compliance, and the remaining 10.6% were referred to the police for further action.62
57
Wundersitz & Hetzel, p 112. Wundersitz & Hetzel, p 116. Wundersitz & Hetzel, p 118. Office of Crime Statistics [SA], Crime and Justice in South Australia 1994, South Australian Attorney-Generals Department, 1995, Tables 6.9 and 6.10. Wundersitz & Hetzel, pp 131-132. Wundersitz & Hetzel, p 133.
58
59
60
61
62
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Wundersitz & Hetzel reported that initial feedback from conferences involving Aboriginal young people has been positive. This is despite some organisational and logistical difficulties, particularly with conferences held in traditional communities. Two of the nine YJCs are of Aboriginal descent, and wherever possible they convene any conferences involving Aboriginal young people.63 Wundersitz & Hetzel concluded as follows:
The South Australian family conference system is now in its second year of operation and preliminary indications are positive. For the first time in this States history, young offenders are being formally confronted by their victims and are being given the opportunity to make direct reparation for the damage caused. For their part, victims now have a direct input into the decision-making process and have the opportunity to express their feelings of anger, frustration and hurt. That victims are supporting the new system is indicated by the high victim participation rate and by the fact that 93 percent of victims contacted during a small pilot study reported that they found participation in the conference helpful.64
3.5
WESTERN AUSTRALIA - JUVENILE JUSTICE TEAMS
The Young Offenders Act 1994 (WA) provides for an approach to juvenile justice that has similarities to those discussed above, but that does not refer specifically to family conferences. The principles of juvenile justice listed in section 7 of the Act include issues such as the protection of the community from illegal behaviour, the need for young offenders to accept responsibility for their conduct, the involvement of victims in the justice process, and the inclusion and support of families. As in South Australia, there are three options for dealing with young offenders and the first and third are a police caution and an appearance before the Childrens Court. Schedules 1 and 2 of the WA Act list offences which must be dealt with by the court. The intermediate option is expressed as a referral to a Juvenile Justice Team. A Juvenile Justice Team consists of a coordinator who is an officer of the Department of Justice, and a police officer. The coordinator may appoint other people relevant to a specific case to the team, such as a representative of the Minister for Education and a representative of an ethnic or other minority group. The Juvenile Justice Team conducts one or more meetings in relation to a specific incident which in many respects take on the form of a family conference. Unless the team considers the young person to be independent, they must involve a responsible
63
Wundersitz & Hetzel, pp 134-137. Wundersitz & Hetzel, p 133. The source of information on the pilot study was an unpublished paper by T Goodes (1995).
64
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adult in proceedings. The responsible adult should be a parent or guardian wherever possible, otherwise another influential person such as a relative or an employer may assume the role. The team must also provide an opportunity for the victim to make a submission or participate in proceedings. Despite the apparent similarities to family conferences, control of the proceedings is much more in the hands of the Juvenile Justice Team than in overt family conference models. The participation of parents or other responsible adults, and of the victim, in proceedings of the team is as the team sees fit (s 30(1)). No opportunity is given during conferences for the family to meet privately and determine their own recommendations. However although outcomes in relation to the young person are to be decided by the team, they can only proceed with the agreement of any parent or victim who is present at the meeting. A recent newspaper report indicated that the Juvenile Justice Team approach had had limited success with Aboriginal young people, in part because of the power structure involved. In response, the Justice Ministry was planning to include more Aboriginal workers on the teams.65
3.6
NEW SOUTH WALES - TRIALS IN PROGRESS
The NSW Government undertook a review of juvenile justice in 1994, including the community conferencing program in Wagga Wagga. The review culminated in the release of a white paper, which recommended an alternative model of community alternative to court processing.66 That model embraced community conferencing, but not under the auspices of the police. Rather, Community Youth Conferences were to be conducted by coordinators responsible to local Community Justice Centres, agencies of the Department of Juvenile Justice. In relation to conferences, the local centres were responsible to a Community Youth Conferencing Council headed by the states Deputy Chief Magistrate.67 A trial of Community Youth Conferences is underway in six locations as at July 1996. Legislative proposals, based on the results of the trials and community consultations, are expected to be publicly available by the end of 1996.68
65
Probe told system fails Aboriginal children, West Australian, 15 May 1996. NSW Department of Juvenile Justice, Breaking the Crime Cycle: New Directions for Juvenile Justice in NSW, White Paper, 1994. Jenny Bargen, A critical view of conferencing, Australian and New Zealand Journal of Criminology, Special Supplementary Issue, 1995, pp 100-103. Telephone conversation with Jenny Bargen, Faculty of Law, University of New South Wales, 4 July 1996.
66
67
68
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3.7
QUEENSLAND
There are no formal family conference programs in Queensland at the time of writing. Limited trial projects have been undertaken by the Queensland Police Service (in Logan, Petrie, Rockhampton and Cairns police districts) and the Department of Education.69 Evaluation reports are expected to be available later in 1996. The Queensland Government has announced proposals to include community youth conferencing in foreshadowed changes to the Juvenile Justice Act 1992.70
3.8
INTERNATIONAL
Brief details of information available on the use of family conferences in other countries is presented in this section. In general, interest in family conferencing has arisen only recently, largely with the spread of information about the New Zealand program. In some cases (eg in South Africa and Canada) information from New Zealand has coincided with or given impetus to the restoration, expansion, and/or adaptation into formal juvenile justice systems of certain comparable practices of traditional peoples. United Kingdom There is no statutory provision per se for family conferencing but the Children Act 1989 includes the principles of supporting families as much as possible and involving them in decisions concerning their children.71 Several trial projects are being conducted by Social Service agencies in relation to child welfare. The trials are being coordinated by the Family Rights group (a community organisation) and evaluated by a review team from the University of Sheffield. The Family Rights Group is planning to initiate other pilot projects in the juvenile justice domain.72
69
David Moore, Police trial community conferencing, Vedette, no 162, April 1996, pp 9-11. Juvenile Justice, Press Release by Hon D Beanland MLA, Attorney-General and Minister for Justice, 29 May 1996, Media Information Summary, 25-31 May 1996, p 20. Peter Marsh & Gillian Crow, Family Group Conferences in Child Welfare Services in England and Wales, in Family Group Conferences: Perspectives on Policy and Practice, pp 152-166. Family Rights Group [UK], Family Group Conferencing [On-line item], Site: http://www.penlex.org.uk/nacrofgc.html, 27 May 1996.
70
71
72
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South Africa Draft legislation has been prepared for a new juvenile justice program, within which family conferences will play a key role. The family conference proposals have been developed from consideration of those operating in New Zealand, and traditional restorative justice practices which are still operating in some rural areas. The legislation has not been passed as at June 1996, but pilot FGC projects have commenced in Pietermaritzburg and Cape Town, and as appropriate formal courts are ratifying decisions made by traditional community courts.73 Canada Family conference programs have commenced in British Columbia, Newfoundland and Labrador in relation to child protection, and in Manitoba in relation to juvenile offending. British Columbia is the only state to have passed specific legislation (Child, Family and Community Service Act 1994).74 USA No legislation has been enacted in the USA although proposals have been developed in some states. Two private foundations are supporting the development of pilot projects in various states and one sent a child welfare practitioner to New Zealand in 1994 to assess the program and report on ways of adapting it to circumstances in the USA.75
73
Family Group Conferencing [On-line item], Site: http://www.uct.ac.za/depts/criminology, 3 June 1996. Russ Immarigeon, Family Group Conferences in Canada and the United States: An Overview, in Family Group Conferences: Perspectives on Policy and Practice, pp 167-179. Immarigeon, pp 172-177.
74
75
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4. FAMILY CONFERENCES IN RELATION TO CHILD WELFARE

This Bulletin has focussed on family conferences within juvenile justice programs but a brief mention will be made of family conferences in relation to child welfare. These occur in relation to cases of suspected or proven child abuse, neglect or abandonment, breakdown of family relationships, child homelessness or unsatisfactory foster care situations. They involve a conference between the young person, family members, other relevant adults, and child care professionals. They are not centred on offending behaviour so there is no victim. According to Paul Ban,
The rapid interest in family group conferences in Australia has occurred at the same time as changes in the child welfare legislation and the growing belief that the state can only protect children from harm if it works in partnership with family networks and community resources. Family group conferences are increasingly seen as an effective and comprehensive tool in achieving this aim.76
The New Zealand legislation discussed earlier (Children, Young Persons and Their Families Act 1989) includes provisions for family conferences in the child welfare domain which correspond in many respects with those for juvenile justice. South Australia has also enacted matching provisions, although in separate legislation (Childrens Protection Act 1993). The key objectives of family conferences in child welfare emphasise the role of the family, as is the case in relation to juvenile justice. As described by Sarah Fraser and Jenni Norton, they are:

to acknowledge that the primary role in caring for and protecting children and young people lies within the family group; and to increase family participation in child protection decision-making.77
Similarly, section 28 of the Childrens Protection Act 1993 (SA) provides that:
The purpose of a family care meeting is to provide a proper opportunity for a childs family, in conjunction with a Care and Protection Co-ordinator a) to make informed decisions as to the arrangements for best securing the care and protection of the child; and b) to review those arrangements from time to time.
76
Paul Ban, Implementing and Evaluating Family Group Conferences with Children and Families in Victoria, Australia, in Family Group Conferences: Perspectives on Policy and Practice, pp 140-151 (p 141). Sarah Fraser & Jenni Norton, Family Group Conferencing in New Zealand Child Protection Work, in Family Group Conferences: Perspectives on Policy and Practice, pp 37-48 (p 37).
77
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In Victoria, family conferencing was trialed in a pilot project initiated by the Mission of St James and St John in 1992.78 The five goals of the project were:

to consider the relevance of family group conferences to the Victorian and Australian context; to keep children who have been or are suspected of being physically, sexually or emotionally abused or neglected within the extended family network, provided this meets with the best interests of the child; to empower families to make decisions about their childrens well being, bearing in mind that they may require adequate resourcing if they are to care for the child; to assist children who are currently in non-relative care to return to their family of origin if that family is able and willing to care for the child; to promote power sharing and responsibility for child welfare decisions between professionals and family groups.79
The project was evaluated by a detailed review of 19 conferences held between March and August 1993.80 Those conferences involved 23 children from 13 families. The conferences were conducted as an alternative to the traditional case planning meetings, where professional staff briefed close family members on decisions made in relation to their children. Very briefly, a large majority of family members, referring staff, case planning staff and project staff reported being satisfied or very satisfied with conference outcomes, although certain problems were identified as requiring improvement. The consultant concluded in part as follows:
Despite the reservations of HCS [Victorian Department of Health and Community Services] and agency staff that some family situations might not be conducive to involvement in a FGC, or conversely that family decision making might be more suited to certain cultural groups, this Project has not to date found either proposition supported. Families with serious protective concerns involving the physical and sexual abuse of children were referred to the Project, and were able to utilise family decision making principles to reach acceptable protective arrangements for children. Families from a variety of Anglo-Australian and other backgrounds were referred, again with no suggestion to date that the principles of family decision making cannot be adapted to the particular cultural needs of any group. The generally reported perception of FGCs was that they did allow family members much greater input into the decisions and plans made for children. Families felt that they had been able to have a real say in the planning for their
78
Ban, p 140. Ban, p 142. Phillip A Swain, Safe In Our Hands: The Evaluation Report of the Family Decision-Making Project, Mission of St James and St John, November 1993.
79
80
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children, that the decisions were essentially theirs, and had not been imposed by statutory or welfare agencies against their wills.81
With the successful outcome of the pilot project, the Department of Health and Community Services provided funding for a further 80 conferences, 40 to be conducted by the Mission of St James and St John and 40 to be conducted by the Department itself. Two other pilot projects have also commenced. One will assess FGCs as a forum for decisions on the placement of young children whose mothers are sentenced to a term of imprisonment. The other will assess sentencing conferences for young offenders, referred from the juvenile court. Evaluations will also be conducted on these projects.82
5. PROBLEMS AND CRITICISMS

Various articles have expressed criticism of the FGC concept while some project evaluations have identified problems in FGC operations. This section briefly summarises those criticisms and problems. Conflicting objectives Milt Carroll has pointed out that FGCs must endeavour to reconcile apparently conflicting objectives. Examples include potential conflicts between:

victim empowerment and support versus offender empowerment and support; meeting the needs of the young person and his/her family versus concern over the accountability and punishment of the offender; mediation and reconciliation versus reparation and compensation; informal and consensus decision making versus equity and proportionality of outcomes; diversion versus reparation and compensation.83
Various authors have pointed out that the role and the skills of the convenor are critical in balancing the contrasts summarised above, both in the prior preparation of
81
Swain, p 78. Ban, pp 144-148. Milt Carroll, Implementational Issues: Considering the Options for Victoria, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, pp 167-180 (p 176).
82
83
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the participants and during the conference itself.84 In some cases the two sides of the apparent conflicts can be resolved in sequence if not concurrently. For example, appropriate management of reparation and compensation issues may open the way for genuine reconciliation. Role of the Police In all FGC models within juvenile justice programs, police play a significant role in deciding whether to deal with an offence through a conference or other means. At the conference, police roles include outlining the offence, confirming the victims input in some cases, and approving any outcomes. There is little criticism of this level of involvement. However in programs managed by police, such as in Wagga Wagga and the ACT, the police are considered to have too many roles. In all, these include apprehension of the alleged offender, deciding whether to proceed via FGC or other means, convening the FGC and endeavouring to act in the interests of everyone present (young person, various family members, victim), guiding the FGC to a resolution and overseeing compliance with any outcome decided.85 In response to this point, Moore and Forsythe believe that once underway an FGC is essentially in the hands of its participants, not the convener, and that the participants (particularly the family members) should also bear primary responsibility to ensure that agreed outcomes are complied with.86 Braithwaite also argued that any coordinator responsible for following up agreements would soon learn that those owned by the participants are much more likely to be complied with than those imposed coercively.87 Another criticism of the role of the police in the Wagga model is that police premises are not a neutral venue that facilitates open discussion for all participants in an FGC. Depending on the circumstances, some victims may feel more comfortable there but the young people and their families may not. By contrast, some conferences have taken place at the offenders home, which is more comfortable for them and their families, but potentially more stressful for the victim.88 In general most conference programs seek a neutral venue where possible.
84
Wundersitz & Hetzel, pp 121-129. Carroll, p 174. Moore & Forsythe, p 252. Braithwaite, Thinking Harder About Democratising Social Control, p 208. Maxwell and Morris, p 22.
85
86
87
88
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Net-Widening Net-widening refers to an increase in the number of people that come under the control of the justice system.89 It is a criticism of the FGC process, based on two assumptions: that some young offenders will attend conferences who would otherwise be cautioned, and that a young person who is cautioned has not come within the net of the justice system but one who has attended a conference has. The review of the Wagga Wagga program rejected that definition of net-widening and concluded that as the numbers of juvenile cases dealt with by the police actually declined somewhat after the introduction of FGCs, no effective net-widening occurred. Moreover, the number of young people appearing in court was reduced substantially.90 Maxwell and Morris reached a similar conclusion due to the transfer of juvenile cases from the Youth Court to FGCs in New Zealand. They also reported that less serious offences were just as likely to result in a caution as they were before the introduction of FGCs. Conferences were used for young people committing relatively serious offences, older offenders, young people with previous offence histories and those committing a large number of offences.91 Pressure on the Young Person In all models, conferences may only occur if the young person admits to the offence. The alternative, if the young person denies committing the offence, is that the matter will go before a court. Thus it is argued that the young person may feel considerable pressure to admit guilt in order to avoid a court appearance.92 However even when appearing before youth courts most young people plead guilty.93 Nevertheless, Warner argued that care must be taken to safeguard various aspects of the rights of the offender, including due process during investigations, challenges to the version of facts presented, and the principles of proportionality,
89
Carroll, p 176. Forsythe, p 217. Gabrielle Maxwell & Allison Morris, Research on Family Group Conferences with Young Offenders in New Zealand, in Family Group Conferences: Perspectives on Policy and Practice, pp 88-110 (p 92). Polk, p 136. Kate Warner, Family Group Conferences and the Rights of the Offender, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, pp 141-152 (p 142).
90
91
92
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frugality and consistency of punishment.94 On the last point, Braithwaite suggested that outcomes cannot be expected to be wholly consistent as they are specific responses to individual circumstances, derived by democratic creativity.95 Moreover, differences in outcomes may sometimes reflect contrasting cultural contexts. It has also been argued that the young person is not likely to have much genuine input into a conference.96 Being the only non-adult (often), and the focus of attention (always), is likely to be overwhelming in itself. Moreover, in some conferences the professional staff or the families may actively exclude the young person from participation in discussion. Again, the role of the coordinator is crucial in preparing the conference attendees and in ensuring that all are able to participate. While the family should in principle attend to offer support to the young person, experience in South Australia has indicated that the presence of a peer seems to provide additional benefits.97 Genuineness of Shared Decision-Making Conferences have varied in the levels of input by the young person, families and victims, and concern has been expressed that professionals may still impose their preferred agendas on outcomes.98 One way to guard against this is to give the family a private time to discuss matters and determine their recommended outcome. However even while attempting to ensure genuine input by all attendees, the convener usually has an obligation to ensure that the outcome accords with standards of reasonable sentencing and is not inconsistent with that which might have been imposed by a court.
94
Warner, p 151. Braithwaite, Thinking Harder About Democratising Social Control, p 203. Carroll, p 175. Wundersitz & Hetzel, p 124. Carroll, p 175.
95
96
97
98
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6. CONCLUSION
Family conferencing is a genuinely innovative approach to juvenile justice. In most circumstances it has created a niche between standard police cautions and appearances in court. The family conferencing approach combines elements of the justice and welfare models, and adds broader concepts such as restoration, reintegration and inclusion of the victim. The offender is required to be accountable for his or her actions and, with the support of his or her family, to arrange restitution, but then is offered support and assistance in order to be reintegrated into the community. Wherever family conferencing is practised, it has been reported to be successful in the majority of instances, particularly as measured by the satisfaction of participants including victims. More generally, the introduction of family conferencing as a diversionary procedure has consistently led to a reduction in the numbers of young people appearing in court. Certain practice difficulties and potential problems have been identified but solutions seem to exist for virtually all of these. Because of its newness, its approaches are still being refined. Many reports stress the need for a flexible approach that permits practitioners to adapt their procedures in the light of experience.99 Morris, Maxwell, Hudson and Galaway commented that early concerns that families would be reluctant to support the process have proven to be unfounded:
A repeated finding is that family group conferences are able to bring together a number of people who have an interest in resolving a crisis which is real and immediate for them and for those about whom they care and who show a willingness to participate in taking and implementing decisions. This casts a new light on families that have been previously dismissed as incapable, disinterested and dysfunctional. The research reviewed fails to identify inadequate family functioning as associated with poor family group conference outcomes100
Although the development of family conferences in New Zealand and elsewhere was influenced by problem-solving practices of traditional communities, the concept has been proven to be applicable across a wide range of cultural situations. In Australia, most family conferences have been conducted with white young people and there is no indication that the approach is any less successful than in cultural groups with varying traditions of family authority and decision-making.
99
Wundersitz & Hetzel, pp 126, 130. Allison Morris, Gabrielle Maxwell, Joe Hudson & Burt Galaway, Concluding Thoughts, in Family Group Conferences: Perspectives on Policy and Practice, pp 221-234 (p 223).
100
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Considerable variation has arisen in the administration of conferences. The three jurisdictions with the greatest experience display three different models: the coordinators come from the welfare bureaucracy in New Zealand, the police service in Wagga Wagga, and the courts administration in South Australia. However reports on the conduct and outcomes of conferences in the three locations are more striking in their similarities than in their differences. This most likely reflects the underlying philosophy of family conferences, which is to empower those most directly involved in a juvenile offence (the young person, their family and the victim) to participate in its solution. If this philosophy is applied, the identity of the coordinator is of secondary importance to their ability to enable the participants to fulfil their role. Braithwaite and Mugford argued that There are no criminal justice utopias to be found, just better and worse directions to head in.101 The information available to date suggests that family conferencing may well be one of the better directions.
101
John Braithwaite & Stephen Mugford, Conditions of successful reintegration ceremonies, British Journal of Criminology 34(2), Spring 1994, pp 139-170 (p 168).
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BIBLIOGRAPHY
Monographs
Alder, C & Wundersitz, J, (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, Australian Institute of Criminology, Canberra, 1994. Australian Federal Police Annual Report 1994-95. Braithwaite, J, Crime, Shame and Reintegration, Cambridge University Press, 1989. Gale, F, Naffine, N & Wundersitz, J (eds), Juvenile Justice: Debating the Issues, Allen & Unwin, St Leonards NSW, 1993. Hudson, J, Morris, A, Maxwell, G & Galaway, B (eds), Family Group Conferences: Perspectives on Policy and Practice, Federation Press, Leichhardt, NSW, 1996. Moore, D & Forsythe, L, A New Approach to Juvenile Justice: An Evaluation of Family Conferencing in Wagga Wagga, Centre for Rural Social Research, Charles Sturt University, Wagga Wagga, 1995. NSW Department of Juvenile Justice, Breaking the Crime Cycle: New Directions for Juvenile Justice in NSW, White Paper, 1994. Office of Crime Statistics [SA], Crime and Justice in South Australia 1994, South Australian Attorney-Generals Department, 1995. Swain, PA, Safe In Our Hands: The Evaluation Report of the Family DecisionMaking Project, Mission of St James and St John, November 1993.
Monograph Chapters
Alder, C & Wundersitz, J, New Directions In Juvenile Justice Reform in Australia, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 1-12. Ban, P, Implementing and Evaluating Family Group Conferences with Children and Families in Victoria, Australia, in Family Group Conferences: Perspectives on Policy and Practice, eds J Hudson, A Morris, G Maxwell & B Galaway, Federation Press, Leichhardt, NSW, 1996, pp 140-151. Braithwaite, J, Thinking Harder About Democratising Social Control, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 199-216.
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Brown, MJA, Juvenile justice in New Zealand, in National Conference on Juvenile Justice, eds Lynn Atkinson and Sally-Anne Gerull, Australian Institute of Criminology Conference Proceedings No. 22, AIC, Canberra, 1993, pp 97112. Carroll, M, Implementational Issues: Considering the Options for Victoria, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 167-180. Forsythe, L, An analysis of juvenile apprehension characteristics and reapprehension rates, In David Moore & Lubica Forsythe, A New Approach to Juvenile Justice: An Evaluation of Family Conferencing in Wagga Wagga, Centre for Rural Social Research, Charles Sturt University, Wagga Wagga, 1995, pp 213-246. Fraser, S & Norton, J, Family Group Conferencing in New Zealand Child Protection Work, in Family Group Conferences: Perspectives on Policy and Practice, eds J Hudson, A Morris, G Maxwell & B Galaway, Federation Press, Leichhardt, NSW, 1996, pp 37-48. Gale, F, Introduction, in Juvenile Justice: Debating the Issues, eds Fay Gale, Ngaire Naffine & Joy Wundersitz, Allen & Unwin, St Leonards NSW, 1993, pp.xv-xx. Immarigeon, R, Family Group Conferences in Canada and the United States: An Overview, in Family Group Conferences: Perspectives on Policy and Practice, eds J Hudson, A Morris, G Maxwell & B Galaway, Federation Press, Leichhardt, NSW, 1996, pp 167-179. Marsh, P & Crow, G, Family Group Conferences in Child Welfare Services in England and Wales, in Family Group Conferences: Perspectives on Policy and Practice, eds J Hudson, A Morris, G Maxwell & B Galaway, Federation Press, Leichhardt, NSW, 1996, pp 152-166. Maxwell, GM & Morris, A, The New Zealand Model of Family Group Conferences, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism?, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 15-43. Maxwell, GM & Morris, A, Research on Family Group Conferences with Young Offenders in New Zealand, in Family Group Conferences: Perspectives on Policy and Practice, eds J Hudson, A Morris, G Maxwell & B Galaway, Federation Press, Leichhardt, NSW, 1996, pp 88-110. McGuire, F, Juvenile justice, in Symposium 1994: Juvenile Justice Act, CLE 94/7, Queensland Law Society, Brisbane, March 1994, pp 1-34. Moore, DB & McDonald, JM, Achieving the good community: A local police initiative and its wider ramifications, in Perceptions of Justice: Issues in Indigenous and Community Empowerment, ed Kayleen Hazlehurst, Avebury Press, Aldershot UK, 1995, pp 143-173.
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Moore, DB & OConnell, TA, Family Conferencing in Wagga Wagga: A Communitarian Model of Justice, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism?, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 45-86. Morris, A, Maxwell, G, Hudson, J & Galaway, B, Concluding Thoughts, in Family Group Conferences: Perspectives on Policy and Practice, eds J Hudson, A Morris, G Maxwell & B Galaway, Federation Press, Leichhardt, NSW, 1996, pp 221-234. Naffine, N, Philosophies of Juvenile Justice, in Juvenile Justice: Debating the Issues, eds Fay Gale, Ngaire Naffine & Joy Wundersitz, Allen & Unwin, St Leonards, NSW, 1993, pp 2-17. Polk, K, Family Conferencing: Theoretical and Evaluative Concerns, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism?, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 123-140. Sandor, D, The Thickening Blue Wedge in Juvenile Justice, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism?, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 153-166. Warner, K, Family Group Conferences and the Rights of the Offender, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 141-152. Wundersitz, J & Hetzel, S, Family Conferencing for Young Offenders: The South Australian Experience, in Family Group Conferences: Perspectives on Policy and Practice, eds J Hudson, A Morris, G Maxwell & B Galaway, Federation Press, Leichhardt, NSW, 1996, pp 111-139. Wundersitz, J, Family Conferencing and Juvenile Justice Reform in South Australia, in Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, eds Christine Alder & Joy Wundersitz, Australian Institute of Criminology, Canberra, 1994, pp 87-102.
Articles

Bargen, J, A critical view of conferencing, Australian and New Zealand Journal of Criminology, Special Supplementary Issue, 1995, pp 100-103. Braithwaite, J & Mugford, S, Conditions of successful reintegration ceremonies, British Journal of Criminology 34(2), Spring 1994, pp 139-170. Dyhrberg, M, Sentencing of children in New Zealand: a new direction, Criminal Law Journal 19(3), June 1995, pp 133-138. McDonald, R, Face to face justice, Good Weekend, 18 May 1996, pp 16-23.
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McElrea, FWM, Restorative justice - The New Zealand Youth Court: A model for development in other courts?, Journal of Judicial Administration, 4, 1994, pp 33-54. Moore, D, Police trial community conferencing, Vedette, no 162, April 1996, pp 9-11. Morris, A & Maxwell, GM, Juvenile justice in New Zealand: A new paradigm, Australian and New Zealand Journal of Criminology, 26 March 1993, pp 7290. Probe told system fails Aboriginal children, West Australian, 15 May 1996.
Internet Items

Family Group Conferencing [On-line item], Site: http://www.uct.ac.za/depts/criminology, 3 June 1996. Family Rights Group [UK], Family Group Conferencing [On-line item], Site: http://www.penlex.org.uk/nacrofgc.html, 27 May 1996.
Legislation

Children, Young Persons and Their Families Act 1989 (NZ) Young Offenders Act 1993 (SA) Childrens Protection Act 1993 (SA) Young Offenders Act 1994 (WA) Juvenile Justice Act 1992 (Qld)
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APPENDIX A
[Electronic Version - Text only] A copy of Diversionary Conferences in the Australian Capital Territory, a brochure published by the Australian Federal Police, follows. Diversionary Conferences A diversionary conference is a meeting between an offender, the victim, their families and other supporters, and the police. It provides a forum for the offender/s to accept responsibility for their behaviour; for those affected by the crime to be able to explore the consequences of the behaviour; and to negotiate how best to repair the harm caused by the offence. Other aims of the diversionary conference are to give the offender/s a chance to make up for their unacceptable behaviour and to make clear the consequences of their actions on other people, themselves and society in general. On average, diversionary conferences last about one hour, but this can vary depending on the circumstances of the offence, the difficulty of the matter and the attitudes of all parties at the conference. Who attends the conference? A conference consists of the following people:

the offenders/s and their supporters eg family and friends The victim/s and their supporters eg family and friends The facilitator (an experienced police officer) The police case officer (where available)
If all participants agree to attend the conference they are advised of the time, date and place. If an offender does not wish to take part in a conference, police may take other action. When an acceptable agreement has been reached all parties at the conference will be asked to sign the agreement. If you have been invited to attend a diversionary conference it is to your advantage to attend whether you are an offender or a victim. Advantages for the Victim The victim/s have the opportunity to say how the crime affected them and play an important part in deciding how the harm is repaired.
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If you are the victim you will be able to tell the offender/s how their behaviour affected you and your family. Victims also have the opportunity to say how the offender/s can make amends for their actions. The family or friends of the victim are also invited to attend and, by participating in the diversionary conference, give support to the victim. Advantages for the offender The obvious advantage of a successful diversionary conference is that the offender/s do not have to attend court. This means that no conviction will be recorded. If the offender/s participate in the diversionary conference and complete the terms of the agreement, the matter will not be taken further by the police. Offender/s are given the opportunity to be made aware of the consequences of their unacceptable behaviour. If you are an offender, it will give you the opportunity to take responsibility for what you have done and to work to repair any harm resulting form the offence. The matter may then be settled without having to go to court. The family or friends of the offender/s are also invited to attend and, by participating in the diversionary conference, give support to the offender. Agreements As a result of a successful conference, agreements are made by the conference as to what the offender/s may be required to do. Agreements, which will be in writing, are determined by the conference participants. Any agreements not completed by the offender/s may result in the offence being referred to court. These agreements may relate to work or tasks being performed by the offender/s within a set time frame. They may also result in compensation being paid to the victim/s. If it is agreed that compensation needs to be paid, the conference will set an acceptable amount and time for payment to be made.
Other advantages The conference is facilitated by an experienced police officer trained in diversionary conferencing. It is his or her function to conduct the conference. A Diversionary Conference gives the victim/s a forum to talk about the crime and reduces the likelihood of a person reoffending.
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The facilitator will follow up agreements to check that they have been complied with and may contact the victim and the offender from time to time to check on their welfare. Please consider the contents of this brochure carefully. A community policing initiative by the Asutralian Federal Police For more information on Diversionary Conferencing contact the Officer in Charge of Australian Federal Police Diversionary Conferencing Unit on 245 7452 Fax 245 7455

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ELECTRONIC VERSION

FAMILY CONFERENCING: A COMMUNITY APPROACH TO JUVENILE JUSTICE

RESEARCH BULLETIN NO 6/96

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

2. MODELS OF JUVENILE JUSTICE

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

3. RECENT HISTORY OF FAMILY CONFERENCING

NEW ZEALAND - DEVELOPMENT OF THE MODEL

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Morris & Maxwell, p 82. Maxwell & Morris, pp 27-28.

Family Conferencing: A Community Approach to Juvenile Justice

These principles apply to children also.

Family Conferencing: A Community Approach to Juvenile Justice

Maxwell & Morris, pp 20-38.

Family Conferencing: A Community Approach to Juvenile Justice

Maxwell & Morris, pp 38-39.

Family Conferencing: A Community Approach to Juvenile Justice

WAGGA WAGGA - A POLICE-BASED APPROACH

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

AUSTRALIAN CAPITAL TERRITORY - POLICE MODEL II

SOUTH AUSTRALIA - A LEGISLATED ADAPTATION

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

any drug related offence classified as a summary or minor indictable offence.52

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

WESTERN AUSTRALIA - JUVENILE JUSTICE TEAMS

Family Conferencing: A Community Approach to Juvenile Justice

NEW SOUTH WALES - TRIALS IN PROGRESS

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

4. FAMILY CONFERENCES IN RELATION TO CHILD WELFARE

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

5. PROBLEMS AND CRITICISMS

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

Family Conferencing: A Community Approach to Juvenile Justice

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