Therapeutic treatment reports and orders - advice

This advice provides additional information about responding to children with sexually abusive behaviours. It covers therapeutic treatment reports, therapeutic treatment orders and therapeutic treatment placement orders.

Introduction

See procedure Allegations of sexually abusive behaviour (TTR) and Managing therapeutic treatment orders for tasks that must be undertaken.

The CYFA makes provisions for reports about children aged 10 years or over and less than 15 years who exhibit sexually abusive behaviours and are believed to need therapeutic treatment. A therapeutic treatment report (TTR) can be made by any community member, the Victoria Police or the Criminal Division of the Children’s Court.

TTRs cannot be closed at intake as the CYFA requires child protection to investigate all therapeutic treatment reports to determine the nature and extent of the sexually abusive behaviours and the appropriateness of a therapeutic treatment order.

Where child protection receives a report from Victoria Police, the Criminal Division of the Children’s Court or a report regarding a child subject to current child protection involvement, child protection must refer the matter to the Therapeutic Treatment Board (TTB) for advice.  If child protection is satisfied on reasonable grounds (and after advice has been received from the Board), apply to the Family Division of the Children’s Court for a therapeutic treatment order (TTO). Where a child needs to be placed in out-of-home care to ensure their attendance and participation in an appropriate treatment program, a therapeutic treatment (placement) order (TTPO) can be applied for.

The provisions relating to children in need of therapeutic treatment are additional to the Secretary’s obligations towards children in need of protection.

A child may be the subject of both a protection order and a TTO, or TTO and TTPO, concurrently.  In this situation, requirements in relation to managing the protection order also apply.

Important requirements when responding to a current child protection client:

  • Consult with the divisional principal practitioner or the Office of Professional Practice if the child is currently on a protection order and/or residing in out-of-home care.
  • Assessment must focus on the safety of known and potential victims as well as the young person’s own safety.
  • Undertake an assessment of the victimised child to ascertain their safety, referral for crisis counselling and ongoing therapeutic support.
  • Refer to the Therapeutic Treatment Board.

Practice definition

A child may exhibit sexually abusive behaviours by using their power, authority or status to engage another party in sexual activity that is unwanted or where, due to the nature of the situation, the other party is not capable of giving informed consent (this may include sexual behaviour with a family pet or other animal, or sexual behaviour involving another child who is younger or who has a cognitive impairment).

Physical force or threats may sometimes be involved but this is not a required feature. Sexual activity may include exposure, peeping, fondling, masturbation, oral sex, penetration of a vagina or anus using a penis, finger or object, or exposure to pornography. This list is not exhaustive.

Terms and abbreviations

Criminal responsibility

Children under the age of 10 years cannot commit an offence (section 344 of the CYFA). For children over 10 years but less than 14 years, the prosecution must prove that the child was aware of the serious wrongfulness of their action before they can be found guilty of a criminal offence.

Problem sexual behaviour

The term used to describe concerning sexual behaviour exhibited by children under the age of 10 years.

Sexually abusive behaviour

The term used to describe concerning sexual behaviour exhibited by children aged 10 years or older.

SABTS

Sexual abuse behaviour treatment service.

TTB

Therapeutic Treatment Board.

TTO

Therapeutic treatment order.

TTPO

Therapeutic treatment placement order.

TTR

Therapeutic treatment report.

Intake

Section 185 of the CYFA sets out the grounds for a report about a child in need of therapeutic treatment, that is, a child who has exhibited sexually abusive behaviours.

Any person who believes on reasonable grounds that a child who is 10 years of age or over but less than 15 years of age at the time of the report is in need of therapeutic treatment (as defined in section 244) may report that belief to the Secretary and the reasonable grounds for it.

Section 349(2) provides for the Criminal Division of the Children’s Court to refer a therapeutic treatment matter to the Secretary for investigation.

Classification

Any report about a child (including a current child protection client) who has exhibited sexually abusive behaviours and is within the defined age limits at the time of the report is to be classified as a TTR. All TTRs must be investigated and cannot be closed at intake.

Note that a TTR cannot be accepted where a child is aged less than 10 years, or is 15 years or over, even if the sexually abusive behaviour reported to be exhibited by the child occurred before their 15th birthday.

The source of the TTR determines how the report is managed.

Where a child is subject to current child protection involvement in any phase of intervention other than intake phase, a TTR is recorded in CRIS as a new familial report. If in closure, a TTR will trigger a new protective investigation. If not in closure or intake, the outcome of the investigation will be recorded in CRIS as part of the new allegation.

Aboriginal children

ACSASS must be consulted following the receipt of a TTR for an Aboriginal child unless this has already occurred as part of the intake assessment to determine if a child wellbeing or protective intervention report is also required.

Intake actions

Referrals from the criminal division of the Children’s Court – s. 349(2)

Refer to Therapeutic treatment resources decision trees 1 and 2.

Where the Criminal Division of the Children’s Court determines there is prima facie evidence that a child facing criminal charges is in need of therapeutic treatment for sexually abusive behaviours, the Court can stand a criminal matter down and refer the matter to child protection.

Reports from Victoria Police – s. 185

Refer to Therapeutic treatment resources decision trees 1 and 3.

Reports from Victoria Police about a child who has exhibited sexually abusive behaviours are to be recorded as a TTR. When police make this type of report, child protection can request information outlining the circumstances, together with any relevant material such as the brief of evidence (unauthorised or authorised) or summary of charges to assist in the investigation.

Reports from the community – s. 185

Refer to Therapeutic treatment resources decision trees 1 and 4.

Where a TTR is received from a person in the community, child protection is required to notify the police at the point of intake so they can decide whether to commence a criminal investigation. A joint investigation may be negotiated in these cases. In addition to recording a TTR, child protection may also record either a child wellbeing report or protective intervention report.

Police are required to advise child protection within three working days as to whether or not a criminal investigation will be conducted.

In circumstances where a child and family have previously been referred to a sexual abusive behaviour treatment service (SABTS) in a voluntary capacity and have failed to engage, the SABTS will make a child in need of a therapeutic treatment report to child protection. Child protection must classify this report as a TTR and proceed with an assessment regarding the suitability of a TTO – this is because the family and child have not engaged with the SABTS and a TTO may be necessary to ensure the child’s access to, or attendance in a therapeutic treatment program.

Reports about a child subject to a current Children’s Court protection order

Where child protection receives a report about a child subject to a current protection order, child protection must investigate the report to determine whether a therapeutic treatment order is required.  Victoria Police must be advised of the allegation to enable police to determine a criminal investigation.  Child protection must also ensure the victim of the abuse (particularly if the both reside in out-of-home care) be provided with support and a referral to the Centre Against Sexual Assault.

Where children are residing in out-of-home care and child protection has received a report regarding the child engaging in sexually abusive behaviours, the report must be taken as a child in need of therapeutic treatment. Again, the same principles apply regarding investigations to determine (a) did the sexually abusive behaviours occur, and (b) is a TTO necessary for the child to attend and participate in treatment. Prior to making an application for a TTO, child protection must seek the board’s advice regarding the suitability of a TTO for that child.

Is a wellbeing or protective intervention report required for any child?

When registering a TTR, the child protection practitioner will consider whether the reported behaviours or concerns also warrant a child wellbeing or protective intervention report about the subject child. Either of these reports can be made simultaneously with a TTR.

Consideration should also be given to registering a child wellbeing or protective intervention report in relation to any child victim of the sexually abusive behaviours where reasonable grounds exist.

Intake outcome

All TTRs must be investigated.

It is important that TTRs are moved promptly to investigation so there is no delay in the child accessing treatment and so child protection and the TTB can meet their obligations under the CYFA. These include:

  • s.210 (1) where the Secretary must, as soon as practicable after receiving a report under section 185 that a child is in need of therapeutic treatment, investigate the subject-matter of the report in a way that will best promote the provision of assistance and, where appropriate, therapeutic treatment to the child
  • s.245 (2) if the Secretary receives a report from a member of the police under section 185, the Secretary must refer the matter to the TTB for advice
  • s.245(6) on referral, the board must provide advice as to whether it is appropriate to seek a TTO.

TTRs resulting from a referral from the Criminal Division of the Children’s Court and reports from Victoria Police or in relation to a current child protection client must be investigated and referred to the TTB for advice (s. 245(4)).

When child protection has notified police about a report from the community and the police intend to conduct a criminal investigation, child protection still proceeds with investigating the report. An assessment of the child’s sexually abusive behaviours is required to determine the most appropriate therapeutic treatment, while police investigate whether a criminal offence has occurred.

Investigating therapeutic treatment reports

See procedure Investigation of sexually abusive behaviour for tasks that must be undertaken.

Child protection’s investigation and assessment will focus on the child and parental response to the behaviour, the risk the child poses to other children (especially siblings or other children residing in the same placement as the child) and the nature of the behaviours, that is, the degree to which the behaviours are entrenched and the seriousness of the behaviours (age appropriate, concerning and very concerning sexual behaviours).

These investigations should be conducted by child protection practitioners who have completed ‘Working with children and families affected by sexual abuse’ parts 1 and 2 delivered by the department’s Centre for Learning and Practice Development.

When investigating a TTR, consideration should be given to consulting the divisional principal practitioner or the Office of Professional Practice. This may be particularly useful where:

  • alledgations of client to client sexual abuse
  • it is difficult to ascertain the nature of the sexually abusive behaviours
  • there is family resistance
  • a neuropsychological assessment or cognitive/behavioural assessment may assist
  • considering placing the child in out-of-home
  • the child resides in out-of-home care and assessment about the most appropriate placement is required, taking into account the vulnerabilities of other children in the placement
  • a SABTS is unable to work with the child or family due to the level of complexity or because the child requires different support.

Investigating reports from the Criminal Division of the Children’s Court

When the Criminal Division of the Children’s Court refers a matter to child protection under s 349 (2) of the CYFA, the Court considers that there is prima facie evidence that grounds exist for the making of an application for a TTO. The child protection investigation is therefore concerned with identifying what is the best pathway for treatment to address the behaviours.

These investigations need to be prioritised because:

  • the Court has already formed the view that prima facie evidence exists indicating that the child has exhibited sexually abusive behaviours,
  • the legislation requires child protection to seek advice from the TTB (s. 249(4))
  • the legislation requires child protection to provide a report of the investigation to the Court within 21 days of the referral (s. 350(1)).

The child protection practitioner should contact the police informant as a priority for information about the criminal investigation, and to obtain a copy of the brief of evidence. The brief of evidence and other information from the police will assist in the investigation and assessment and should also be included in the referral report to the board.

During the investigation, consultation with Youth Justice should occur to ascertain their views regarding the appropriateness or otherwise of the child protection assessment and planned actions. This recognises that:

  • the child may be a current or former client of Youth Justice
  • child protection and Youth Justice should not provide contradictory advice to the Court.

TTRs from the Court must be referred to the TTB and a report must be provided to the Criminal Division of the Children’s Court within 21 days of the referral regarding the outcome of child protection’s investigation, including whether a TTO will be sought.

Under s. 350(2) of the CYFA the report must confirm that the Secretary has enquired into the matter referred and advise that:

  1. a protection application has been made by the Secretary; or
  2. an application for a therapeutic treatment order has been made by the Secretary; or
  3. the Secretary is satisfied that no protection application or no application for a therapeutic treatment  order, as the case may be, is required.

See Therapeutic treatment resources for decision trees, tip sheets and report templates.

Investigating reports from Victoria Police

Where a report originates from the police, and they have yet to investigate the matter, a joint investigation should be planned. See advice Joint visits with police.

If a criminal investigation has commenced or will be conducted separately, child protection will continue with their investigation to ensure; the child’s behaviours are assessed; no children remain at risk; timely treatment can be arranged and legislative obligations are met.

During the child protection investigation, child protection can ask for and receive relevant information from police such as witness statements or summary of charges.

Investigating reports from the community

Where the report originated from a member of the community the police will have been informed at intake. A joint investigation may be indicated and child protection should liaise with police about this.

Child protection has the option to refer the matter to the TTB for advice about whether it is appropriate to seek a TTO in respect of the child.

Investigating client to client sexual abuse allegations

Where the report is regarding a current child protection client, child protection must refer the matter to the TTB for advice.

Investigation outcome

See procedure Decision-making after TTR investigation for tasks that must be undertaken.

Following child protection’s investigation (and before the referral to the board where required) a decision regarding the appropriate intervention with the child and family is required.

Possible outcomes of the investigation include:

  • No therapeutic treatment is required either due to the reported sexually abusive behaviours not being confirmed or the child or young person and their family require other supports, but not therapeutic treatment, or
  • A TTO is not appropriate as the family and child have indicated their willingness for the child to attend and participate in treatment voluntarily, or
  • Although the family is ambivalent, with some support and time the family may be able to ensure their child receives any treatment required without the need for a TTO and so it would be appropriate for child protection to work with the family for up to 90 days from the report without applying for a TTO, or
  • An application for a TTO would be appropriate, with the child remaining in their parents’ care, or
  • An application for a TTO is appropriate, along with an application for a TTPO, because placing the child in out-of-home care will be necessary for the treatment of the child or to assure the safety of victims, or
  • A protection application is required to ensure the child’s safety, or
  • The child’s behaviours and criminal charges are so serious and it is child protection’s assessment that the child’s behaviours cannot be managed with a TTO, so that mandated treatment service such as MAPPS overseen by Youth Justice may be more appropriate.

Investigation outcomes regarding children residing in out-of-home-care may be similar to those listed above.  However, decisions regarding the ongoing placement of the child must consider if the placement can provide a therapeutic environment in order to maximise therapeutic treatment for the child.

Sections 251 and 354 (4) of the CYFA also apply to all children attending therapeutic treatment either voluntarily or via a TTO from 3 March 2015. A child who attends treatment for sexually abusive behaviours in a voluntary capacity is afforded the same protections against prosecution as those children who are made subject to a TTO.

Referral to the TTB

Refer to Therapeutic treatment resources decision tree 5.

The TTB includes senior representatives from the Office of Public Prosecutions, Victoria Police, health services and the Department of Health and Human Services.

The function of the board is:

  1. to evaluate and advise the Minister on services available for children in need of therapeutic treatment and
  2. to advise the Secretary on the appropriateness of applying for a TTO and/or a TTPO in specific cases.

When a referral is required

All reports  from the police and the Criminal Division of the Children’s Court , or where the report relates to a current child protection client must be referred to the TTB for advice (whether child protection recommend a TTO or not). ). If the report has come from the community (and does not pertain to a current child protection client), child protection is not required to refer the matter to the board for advice but may do so if that is assessed as appropriate. 

Where child protection has initiated a report to Victoria Police and Victoria Police has conducted (or is still conducting) a criminal investigation, child protection may wish to complete a referral to the TTB for advice regarding the suitability of a TTO.

Preparing a referral

A TTO referral proforma is available at Therapeutic treatment resources. The referral from child protection to the TTB is endorsed by the practitioner’s supervisor or team manager, or above. Referrals are submitted to the board three working days prior to the TTB meeting. Late referrals can be accepted with prior agreement from the board secretariat. All referrals are submitted to the board secretariat by email to ‘ttb@dhhs.vic.gov.au’. See Therapeutic treatment board schedule for a list of board calendar dates.

Child protection needs to be mindful of the victim’s privacy, and only include identifying information in the referral to the board where relevant (for example, the first name, age, sex and family relationship of the child would usually be relevant to the board’s considerations, the family name and date of birth of the child would usually not be). If more than one victim, ensure clarity by using first names.

Where police are involved, the referral must include police documents: unauthorised or authorised brief of evidence (if the referral is from the courts and/or police), or a summary of evidence, police witness statements or summary of charges.

Where the referral is about a child currently subject to a protection order, information must be included about the child’s placement history, support provided to the victims and assessment about future placement options for the child.

Attach information from the outcome of the investigation, child protection’s assessment of the behaviours, the recommended intervention and therapeutic treatment services the child is or has engaged with, and whether a TTO/TTPO is, or is not, appropriate.

A comprehensive referral will minimise delays resulting from the board seeking further information.

Where further information is sought by the TTB, the request will come initially to the author of the report. Wherever possible the request should be responded to quickly to maximise the opportunity for the board to determine its advice during that meeting. Where this is not possible, the TTB will need to consider whether it can formulate its advice without the additional information or whether to defer the advice until an appropriate time.

Advice from the TTB

The TTB recommendation is limited to advising the Secretary on the appropriateness of seeking a therapeutic treatment order. The advice is based on information provided in the referral from child protection.

Response to advice from the TTB

If the TTB agrees with child protection’s recommendation, their advice will be accepted and acted upon.

If the TTB recommends a different course of action, child protection may accept and act upon their advice, and determine a different course of action.

A decision to act contrary to advice from the TTB must be endorsed by the divisional child protection operations manager. The board must be advised of this decision and the reasons for it in writing by email to the board Secretariat at ttb@dhhs.vic.gov.au.

Other parties seeking access to TTB advice

The CYFA is silent on whether the Secretary may disclose the board’s written advice to other parties. Therefore, the Privacy and Data Protection Act 2014 (PDPA) and the Health Records Act 2001 (if relevant) must be considered.

The PDPA allows disclosure of personal information about an individual to the individual (information privacy principle 6). Accordingly, personal information about the child can be provided to the lawyer who is representing the child.

Personal information can also be used and disclosed for the primary purpose for which it was collected or a reasonably related secondary purpose (information privacy principle 2). The primary purpose of collecting information as a result of a TTR is to inform the decision about whether to seek a TTO. Related secondary purposes include considering treatment options and investigating related wellbeing or protective intervention reports.

In the absence of a court order or a subpoena, disclosure of advice from the Therapeutic Treatment Board is discretionary. There may be reasons for not providing the requested advice, for example, providing access to the advice may have an unreasonable impact on the privacy of other individuals. If child protection decides to disclose the advice, the advice should be de-identified in the areas containing personal information (including the person who reported the concerns). Also, information considered to have an unreasonable impact on the privacy of other individuals (such as victims), and information likely to identify the reporters, should be redacted.

Intervention

Therapeutic treatment

The department funds sexually abusive behaviour treatment services (SABTS) across the state to deliver the following programs:

  • a voluntary therapeutic treatment service for children and young people up to 15 years who have engaged in problem sexual behaviour or sexually abusive behaviour
  • a statutory therapeutic treatment service for young people aged 10 – 14 pursuant to a TTO.

Some SABTS also provide therapeutic treatment up to and including children aged 17 years.  A list of current SABTS can be found in Sexual abuse behaviour treatment service (SABTS) contacts.

Anyone who receives a disclosure of abuse by a child receiving therapeutic treatment for sexually abusive behaviours should, if they believe that the disclosure indicates a child is in need of protection, make a report to child protection. Reporters, both mandated and non-mandated, should be reminded that they are protected by s.189 of the CYFA when making a report in good faith.

SABTS agencies are expected to report all disclosures of abuse of another child to child protection to enable investigation in relation to that child and notification of the alleged offence to police. The young person who is alleged to have engaged in the behaviours may be charged with a criminal offence where police are able to obtain sufficient evidence without relying on statements made in the course of treatment as a result of a TTO or participating in treatment voluntarily (see below re: admissibility of statements made during treatment).

Applying for a TTO or TTO and TTPO

See procedure Initial court applications – by notice for tasks that must be undertaken in applying for a TTO or TTO and a TTPO.

A decision to apply for a TTO or both a TTO and TTPO is to be endorsed by a team manager or above.

Child’s attendance at court

Section 246(1) states that if the Secretary is satisfied on reasonable grounds that a child is in need of therapeutic treatment, the Secretary may by notice direct:

(a) the child to appear; and

(b) the child’s parents to produce the child –

before the Court for the hearing of a therapeutic treatment application.

Children subject to such a notice must attend the Court. (Note that the option children have about attending a Children’s Court hearing as a result of most applications does not apply to TTO applications. Section 216A(c) applies to TTO applications).

Report on outcome of application

See procedure Reporting back following TTR from the Criminal Division of the Children’s Court for tasks that must be undertaken.

Child protection must report to the Criminal Division of the Children’s Court if a protection application or an application for a TTO is made by the Secretary, as soon as possible after the Family Division of the Children’s Court has determined that either:

  • a TTO is not appropriate as the Secretary is satisfied that the child and family will attend treatment in a voluntary capacity,
  • that the application was dismissed, or
  • that a protection order or a therapeutic treatment order, as the case may be, was made and state the terms of the order.

See Therapeutic treatment resources for decision trees, tip sheets and report templates.

Managing therapeutic treatment orders

See procedure Managing therapeutic treatment orders for tasks that must be undertaken.

Roles and responsibilities

Child protection is responsible for the management of TTOs and TTPOs. Regular face-to-face contact with the child, family and SABTS provider is required to monitor compliance with and effectiveness of the order. A TTPO is subject to s.168 case planning responsibilities. The SABTS provider should be provided a copy of the order.

Where a child is receiving therapeutic treatment in the context of a TTO, reporting responsibilities, as described above, continue.

Therapeutic treatment orders

Collaboration is the key to maximising the opportunity to address the child’s therapeutic needs during assessment and treatment. SABTS are funded to work with the child, their family and the child’s social support network and to provide regular feedback to child protection about treatment progress.

Regular meetings between the child, their family, the SABTS provider, and the out-of-home care service provider where relevant, will promote a cohesive service response. The SABTS should provide quarterly progress reports to child protection about the child’s treatment. Expectations about meetings and reports should be negotiated at the outset, so the child, their family and service providers are aware of their responsibilities under the TTO. SABTS are expected to alert child protection to any issues. Child protection provides reports to the Criminal Division of the Children’s Court where necessary.

Therapeutic treatment placement orders

When assessment of the TTR leads to the child needing to be placed away from the family home in order to receive treatment, child protection can apply for a TTPO. A placement order can be applied for at the time of applying for the TTO or at any subsequent point during the TTO. A TTPO implies that reunification will occur. If it is likely that reunification will not occur, child protection must consider a protection application and an order that will secure the future safety and development of the child and promote permanency in the child’s care arrangements. A TTPO application can only be made by notice. If the situation warrants immediate removal of a child from their parents’ care, a protection application by placing the child in emergency care will be required.

The Family Division of the Children’s Court may make a TTPO if the Court makes or has made a TTO in respect of the child, and is satisfied that the placement is necessary for the treatment of the child. A TTPO grants parental responsibility for the child to the Secretary but requires the child’s parents to make long-term decisions about the child. It may include any conditions the Court considers to be in the best interests of the child including a condition regarding contact by the parent or other person with the child and in the case of an Aboriginal child, a condition incorporating a cultural plan. A TTPO remains in force for the period (not exceeding the period of the TTO to which it relates) specified in the order.

The case planning requirements in s.168 of the CYFA apply to a TTPO as they do to a protection order. See Case planning for further information.

Because a TTO and therefore a TTPO may be extended by the Court only once to a maximum total period of 24 months, a TTPO is not an appropriate legal basis for development of a long-term or permanent care case plan.

If a child is subject to a care by Secretary order or long term care order, the Secretary has exclusive parental responsibility for the child and as such a TTPO is not required.

Extension of a TTO or TTPO

TTOs and TTPOs can be made for a period of up to 12 months and can be extended once, for a further period of up to 12 months (ss. 255 and 256 of the CYFA). If the child turns 15 during the first 12 months of the TTO, the TTO can still be extended.

The Court can only extend the orders if it is satisfied that the child is still in need of therapeutic treatment and therapeutic treatment is available for the child.

There is no requirement for child protection to seek advice from the board regarding extending a TTO or TTPO.

Variation of a TTO or TTPO

Child protection, the child or the parent of the child can apply to the Family Division of the Children’s Court to vary conditions of a TTO or TTPO (s. 257). The application may seek to vary, add or substitute any condition. In the case of a TTO, the Court must not make a change in the requirement to participate in a therapeutic program or extend the period of the order.

In relation to a TTPO, the variation cannot change parental responsibility of the child or extend the period of the order.

Revocation of a TTO or TTPO

TTOs and TTPOs cannot be breached but can be revoked (s.258 of the CYFA).

Where the criminal proceedings against a child have been adjourned pending the completion by the child of a therapeutic treatment program under a TTO, the Secretary must seek the advice of the TTB before applying to the Court to revoke the TTO (s. 258(2) of the CYFA). However, any decision to seek a revocation is at child protection’s discretion.

Concurrent protection orders

A child may be the subject of both a protection order and a TTO, or TTO and TTPO, concurrently. In this situation, requirements in relation to managing the protection order also apply.

Criminal proceedings

Admissibility of statements made in treatment by a child either voluntarily or whilst subject to a TTO

Any statement made by a child when participating in therapeutic treatment either voluntarily or whilst subject to a TTO is not admissible in any criminal proceedings in relation to charges against the child associated with the sexually abusive behaviour (s.251 of the CYFA). Evidence obtained from other sources may still form a basis for criminal charges.

The s.251 provision does not remove or lessen the responsibility of the SABTS provider, or mandated professional to make a report to the Secretary where they believe a child is in need of protection, pursuant to sections 183 and 184 of the CYFA. The SABTS agency must report all disclosures of abuse of another child to child protection to enable investigation and notification of police. The young person may still be charged with a criminal offence as police have been able to obtain independent evidence to pursue the charges. If this were to occur, and where the child is placed on a TTO, child protection must consider revoking the TTO.

The s.251 provision is only relevant to the Criminal Division of the Children's Court. Any statement made by a child in treatment regarding further harm to children, is admissible in the Family Division of the Children's Court.t.

Report to criminal division of outcome of TTO

The Secretary must provide a report to the Criminal Division of the Children’s Court on the completion or revocation of a TTO (s. 353(1) of the CYFA).

The report must set out details of the child's attendance at and participation in the therapeutic treatment program under the order (s. 353(2)).

The Court may direct the Secretary to provide a copy of the report to the child and the prosecutor (s. 353(3) of the CYFA).

See Therapeutic treatment resources letter and report templates.

The report must ensure there is enough information to satisfy the Court to dismiss the charges.

When the Court is considering dismissing the child’s criminal charges, the Court must have regard to:

  • the child’s attendance record
  • the nature and extent of the child’s participation
  • whether or not the child’s participation was to the satisfaction of the therapeutic treatment provider
  • the opinion of the therapeutic treatment provider as to the effectiveness of the treatment.

This provision also applies to children who have engaged in treatment in a voluntary capacity (s.354A).

Hearing about an adjourned case

Section 354 (and s.354A) of the CYFA sets out what can occur when the Court hears the adjourned criminal proceedings. If the Court is satisfied that the child has attended and participated in the therapeutic treatment program either voluntarily or under a therapeutic treatment order, the Court must discharge the child without any further hearing of the criminal proceedings (s. 354(4)).

Closure

See procedure Closing therapeutic treatment orders and therapeutic treatment placement orders for tasks that must be undertaken.

Practice regarding case closure processes is essentially the same as protective case closures with the exception outlined above regarding informing the Criminal Division of the Children’s Court of the outcome of the order where the child has had criminal charges adjourned for the duration of the TTO.

Before determining if closure is appropriate, child protection must meet with the child, family and treatment provider to determine the progress achieved and respond to issues associated with the withdrawal of services. SABTS often extend an open invitation to the child and family to re-contact the agency in the future should any further questions or concerns arise.

Where the decision is made to close the case after investigation on the basis the family are willing and able to engage in and sustain treatment without a TTO where criminal charges are set aside, child protection must advise the SABTS provider of their obligation to provide a report to the Criminal Division of the Children’s Court, where the child’s criminal charges have been set aside for 12 months.

For those children subject to a TTO, child protection must request a final report from the SABTS provider outlining the nature of treatment. The report should include key risk factors that could increase or heighten the anxiety for a child which may result in raising the risk of the young person re-engaging in sexually abusive behaviours or other delinquent behaviours. This information is to be included in the closure summary. Any SABTS risk assessment is limited to the time of their involvement.

It is important that the case closure summary is clear in stating if the young person’s criminal charges have been dismissed by the Criminal Division of the Children’s Court due the successful completion of treatment. Where the report was received from the Victoria Police and no criminal charges were laid, this information should be clearly documented.

For matters that have been referred to child protection via Victoria Police or the Criminal Division of the Children’s Court, child protection should advise Victoria Police of the outcome of the TTO and ask Victoria Police to note the child’s satisfactory completion of the TTO and discharge of the criminal charges (if the matter was referred under s.349(2)) on their LEAP database once the TTO has formally ended.

Considerations for good practice

Investigation of sexually abusive behaviours

The purpose of investigation of is to:

  • determine the likelihood that sexually abusive behaviour has occurred (except for cases referred from the Criminal Division of the Children’s Court as this has already been established under s.349(2)(b) of the CYFA)
  • determine the response and attitude of the child and their family or carers to the behaviour and their preparedness to engage in treatment to address the behaviour in a voluntary capacity or via a TTO
  • assess the appropriateness of the child remaining in their home while participating in a therapeutic program
  • obtain sufficient information to provide a report to the TTB where the TTR has been made by the police or the Criminal Division of the Children’s Court or in other circumstances where the Secretary decides to seek advice from the TTB.

The following questions should be considered when making an assessment of the behaviours, the family’s responses and therapeutic treatment.

  • Is the behaviour sexualised?
  • Is the behaviour within the normal developmental range for the child?
  • Is the behaviour directed towards self, others or both?
  • Is the behaviour causing problems for the child engaging in them?
  • Is the behaviour causing problems for another party?
  • How frequent has the behaviour occurred?
  • How intrusive and serious is the behaviour?
  • Has the behaviour been overt or covert?
  • Does the behaviour break a rule the child is aware of?
  • Would the other party be capable of giving informed consent? If so did the other party consent and did they have an understanding that the child may have gained sexual gratification from the behaviour?
  • Is any coercion reported to have been used?
  • Are there other sexualised or problem sexual behaviours present?
  • How has the child responded to the reported behaviours or allegations?
  • How have the parents responded to the reported behaviour?
  • What is the family context and environment?
  • Does the child present an ongoing risk to siblings, other children, including children residing in out-of-home care?
  • Do the family have capacity to engage and remain in treatment over the long term? Or is a TTO necessary to ensure the child’s access to a participation in treatment?

Definition of consent

Consent refers to:

  • the understanding that each participant has of the purpose of the behaviour
  • knowledge of the social standards related to the behaviour
  • awareness of the potential consequences
  • mutual respect for agreements or disagreements related to the behaviour
  • voluntary participation in the behaviour; and
  • being mentally competent.

An example of no consent may be in a situation where a younger child does not understand that the older child or adolescent is gaining sexual gratification from the behaviour (Ryan & Lane 1997 as cited in Pratt and Miller, 2010: 9).

Out-of-home care placements

Where an out-of-home care placement is being considered, the following questions should be explored to determine appropriate care:

  • Do the potential out-of-home carers know about the young person’s sexually abusive behaviour problems? Carers cannot provide appropriate care and supervision if they don’t know what potential risks the young person might present to other children. They should be fully informed and understand any triggers and patters around previous sexually abusive behaviours.
  • Is the proposed placement appropriate? Will it place other children at risk? Will it place the young person at risk?
  • Is there adequate supervision for the young person – if the young person is placed in residential care, will staff actively supervise the young person 24 hours a day?
  • What is the mix of other young people in the placement (particularly residential units)? Are there other children or adolescents who are placed due to their sexually abusive behaviours? Are other children or adolescents within the unit victims of sexual abuse? How are these issues managed by unit management and staff? (Do they have a realistic management plan to keep everyone safe)? This requires clear strategies around supervision and structure.

(For a comprehensive consideration regarding out-of-home care placements refer to the specialist practice resource guide for Adolescents with sexually abusive behaviours).

Important considerations for children protection clients

Child protection is able to take a child in need of therapeutic treatment report on an existing client. The report must be investigated as if child protection had taken a new report on a child. Child protection must seek advice from the board regarding the suitability of a TTO for that child.

Where children are residing in out-of-home care and child protection has received a report regarding the child engaging in sexually abusive behaviours, the report must be taken as a child in need of therapeutic treatment. Again, the same principles apply regarding investigations to determine (a) did the sexually abusive behaviours occur, and (b) is a TTO necessary for the child to attend and participate in treatment. Prior to making an application for a TTO, child protection must seek the board’s advice regarding the suitability of a TTO for that child.

Writing the therapeutic treatment referral report

Whist writing the report, pay attention to the use of language when describing the child’s sexually abusive behaviour and avoid labelling the child as a sexual offender as adolescents who sexually abuse are different from adults who sexually offend.

During the assessment and report writing, it is useful to refer to the specialist practice resource Adolescents with sexually abusive behaviours.

Some other key points to remember when report writing:

  • stick to the facts and use the evidence to support your recommendation
  • avoid describing each and every child protection event
  • avoid using child protection jargon
  • do not copy and paste from any previous intake case notes – information can only be included where there has been previous substantiated reports
  • provide a clear narrative, analysis and risk assessment of the child exhibiting the sexual behaviours, the child and family’s response to these in order to form a robust recommendation.

Where and when appropriate, child protection should consider speaking with the children who have been victimised by the child with the sexually abusive behaviours. This is not a disclosure interview, rather an opportunity for the victim to discuss how they have been impacted by the behaviours. Child protection can consider this information in the context of an assessment and analysis of the child’s sexually abusive behaviours. Where the victim of the behaviours has resided in out of home care with the child exhibiting the behaviours, child protection must interview the victim so as to ensure crisis counselling and referral to therapeutic supports are facilitated.

Police LEAP data base

The LEAP data base is not a record of findings of guilt or innocence, nor is it a formal record of a person’s criminal history; this is what a police check is for. Rather, it is an active database for police and is only as relevant as what is entered by various police officers. How police act upon that information is outside the control of the department.

Where a child is coming to the end of their TTO and the matter had been referred to child protection via Victoria Police or the Criminal Division of the Children’s Court, child protection need to advise Victoria Police of the outcome of the TTO including the risk level of the child. Information must include contact details of the relevant child protection division for any future possible contact about that child.

A TTO that has resulted in a criminal matter being adjourned and ultimately discharged is not a ‘finding of guilt’. However, neither is it a ‘finding of innocence’. Instead, the charges have been discharged without the full process of being determined before a court.

Working with children checks (WWCC)

The Department of Justice and Regulation (DOJR) can have regard to a wide range of matters when deciding whether to grant or deny a WWCC. Child protection may receive a request from the DOJR for information about a child who has been subject to a TTO. It is therefore important that when the child protection file is closed, a clear rationale and risk assessment can be found in the case closure summary.

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