Dr Serge Loode
Serge has worked for more than 20 years in community mediation and restorative practice, including significant experience with First Nations Peoples, and also with people from a diverse range of cultural backgrounds. He has an undergraduate law degree and practicing certificate from his home country of Germany, a Masters Degree in Dispute Management Law and a Phd in Social Sciences. Serge is a trained facilitator and mediator, a casual academic at the University of Queensland and a mediator and trainer at the Queensland Department of Justice and Attorney-General. He regularly convenes court-ordered child protection conferences involving legal professionals.
Disclaimer: The author is employed as a mediator by theQueensland Department of Justice and Attorney-General. In this blog post he is commenting in a strictly personal capacity, and the article does not represent Queensland Government policy. The article contains no identifying information about any participants, and no comment should be taken as a reflection on any particular case.
Restorative family conferencing in the child protection context: harnessing the wisdom of crowds to solve wicked problems*
In his book The Wisdom of Crowds (2004) James Surowiecki argues that decision-making by diverse groups of people often leads to better plans and decisions than decision-making by small elite groups. The process he describes includes having a diversity of opinion and access to different kinds of information in the group. Individuals in the group need to be able to make decisions independently from each other without being dominated by other members of the group. People are able to specialise and draw on their own localised knowledge. Decision-making needs to be decentralised without a top-down hierarchy. Finally, there needs to be a mechanism to turn private judgments into collective decisions. The Queensland Department of Justice and Attorney-General’s (DJAG) Child Protection Conferencing Unit (CPCU) has established a family group conferencing process that harnesses these dynamics to create restorative and dialogical spaces to ensure optimal decisions in highly complex and difficult cases.
I have been a mediator working with CPCU for nearly two years. In this time, I have facilitated over 240 court-ordered child protection conference sessions.2 The conference process CPCU provides is held very late in the proceedings before the Magistrates Court. The purpose of a court-ordered conference is to discuss the application the Director of Child Protection Litigation (DCPL), the independent unit that files applications and runs the court process and contested hearings, has filed before the court. DCPL is independent from the Department of Child Safety (DOCS) but takes instructions from them and overseas all legal work. If an agreement can be found on the application, this information is then provided to the court and the Magistrate may make a final order in accordance with the agreement – child protection is not a consent jurisdiction and the Magistrate can also make a different order. From a governance perspective the purpose of the conference is to keep matters from proceeding to a contested hearing, to save resources for the government and to support improvements in relationship and care for the children.
Participants in the conference include the DCPL Applicant Lawyer, the Child Safety Officer (CSO), the responsible Child Safety Team Leader, the parents of the children with their legal representatives (if appointed), potentially the children and Direct Representatives (lawyers appointed to take instructions from the children) and also Separate Representatives (lawyers appointed by the court to represent the best interests of the children without taking instructions from them). In some cases, parents are accompanied by support workers or other family members and for Aboriginal and Torres Strait Islander families Entities can be appointed to provide support and advise on cultural needs. Because of frequent history of domestic violence between parents, conferences are often split to provide safety. If possible, conferences are held in person, but if geographical distance or ability to attend are an issue then a conference can also be held partly or fully via phone. The conferences are normally held in the courthouse that has jurisdiction over the application. The court makes available a conference room for the mediator to conduct the procedure. Conferences can also be held outside courthouses in venues with appropriate safety provisions.
I hope it is clear from this description that these types of conferences are for complex matters. They involve a fairly large group of professionals and family with often vastly different views, occur in the shadow of the law with all its traumatic connotations for parents, and are fairly time and resource limited. Despite these challenges child protection conferences often produce remarkable outcomes and participants quite often change firmly entrenched views on the application after listening to each other carefully and through the process of group dialogue. I have often been told by participants, in particular parents, that the conference was the first time they felt heard and understood. I would like to offer some insights on why the conferencing process works despite its difficult context and what its unique dynamics and advantages are. They are strongly related to Surowieki’s views on the wisdom of crowds summarised above.
The standard case in court-ordered conferences is that DOCS has removed children because of significant concerns about their safety. The children are either with relatives, foster carers or in residential facilities. Often these placements are fraught with difficulty and parents often argue that they expose children to further harm. The parents are normally opposed to the application and want to do everything to get their children back, even if they are themselves facing difficult life situations. The relationship with DOCS is often very difficult, communication is tense and defensive, and either side perceives the other one as unresponsive and careless. Parents feel they are with their backs against the wall and have to fight a monolithic state department whose procedures they do not understand and who makes decisions about their lives. Most CSOs and team leaders care deeply about the families they are working with and put in many hours in a profession with high turnover and strong potential for vicarious trauma. Yet relationships between parents and DOCS suffer from the narrow framing of issues during the legal process and the way in which affidavits and court documents are written, which often is highly confronting to parents. The fight to get their children back can then turn into a battle over who is telling the truth. None of this is constructive or useful to the difficult task of finding solutions in the best interests of the children.
Because of these power dynamics and lack of opportunity to feel heard by the parents, I start every conference with the parents having the first opportunity to speak. I check in with them (and all other participants) before we start, explain the procedure in a quick overview, check on how they are feeling and inform them that I am not working for DOCS or DCPL but am an independent mediator. I think this puts people at ease and makes them more receptive. I also provide an Acknowledgment of Country at the start of every conference. This provides an important acknowledgment of culture and relationship that frames the way we want to be together, caring for Country and the people within it. I also clearly tell the parents they will have an opportunity to share their views, ask questions of DOCS and DCPL, that they do not have to agree to the application, and that I will ensure that no one forces them to do so. I acknowledge that context and personal circumstance often put enormous pressure on participants, in particular parents and that it is easier said than done to disagree and proceed to an intimidating court hearing many months away.
I then ask the parents to start talking about the children and to “paint a picture” of who they are, what they like, and what it is like to be together. This often puts a smile on a parent’s faces, and we all listen attentively to stories of love, relationship, and deep care.
The conference uses three questions to guide the process:
- What is currently working well? (with the children and the parents)
- What are the current concerns? (again, with children and parents; all sides get to raise concerns and ask for feedback)
- What steps need to be taken to address the concerns? (practical problem-solving)
It is my role to provide summaries and round ups and to ask other participants to respond to what they hear. Here the restorative nature of the process manifests itself. Hearing from a parent about the struggle that they went through to remove negative influences and behaviours from their lives, rebuild their lives and to gain an appropriate support network provides an opportunity for acknowledgment and insight into their personal journey. It also opens up avenues for creative problem-solving. The professionals in the room start to pool their knowledge to fill the gaps in a support plan or to find services that a parent is struggling to access. They utilise the wisdom of crowds, bounce ideas of each other, negotiate potential solutions and adapt the way that DOCS and the parents work with each other.
I have seen similar dynamics in restorative conferences I have facilitated, where all members of a community involved in an incident of harm take responsibility to repair the damage caused and to ensure that outcomes are adhered to. I often check in with the parents on whether the ideas sound reasonable to them and to remind the professionals that sometimes their language and expertise is difficult to understand for lay people.
In this process the lawyers act very differently from normal court room behaviour. There is often problem-solving instead of debate and genuine engagement with each other’s points of view, even if they argue different legal perspectives. Professionals draw on their local wisdom to identify services that may be relevant to the case and share this information with parents and each other. Parents (and sometimes the children themselves) are provided with an opportunity to tell their stories and to identify the progress that they have made without being constrained by narrow legal categories of what is relevant and what is not. Often these stories provide the professionals with the important information to judge on whether a parent is currently capable of safely looking after the child and what support needs they have.
What is important here from a mediator’s perspective is to be flexible and not constrained by linear steps. Often the participants take over the conversation and I can sit back and listen. Sometimes I remind them that there are participants who have not spoken yet, or if the discussion is very technical or legal I bring it back to the parents to ensure they can ask questions and that they can follow the ideas proposed.
None of this dialogue is recorded. At the end of the conference I produce what is called a Form 20, in which I am required to report the outcome of the conference back to the court. In many cases this is only one sentence, whether agreement was reached or not. At this stage we are firmly back in the realm of legal procedure, tight timeframes, and concise legal categories and appropriate labels for orders or procedural agreements. The rest of the conference is confidential to allow participants to think outside the box and to find the best solutions for the current situation. The lawyers in the room assist with the right wording and the conference concludes.
Court-ordered child protection conferencing in Queensland is an important opportunity to engage all participants in collaborative problem-solving and often produces surprising and beneficial outcomes within the shadow of the law. What I have learned is that flexibility of process and responding to the needs of all participants is paramount to create the safe space for this collaborative problem-solving to occur. While there exists a clear conference structure, it is important for a mediator not to be wedded to it too much and to discuss with the participants on how best they can utilise the time together. My experience with the conferencing process has also led me to challenge simplistic notions of neutrality and or impartiality in mediation. Parents involved in the process face such an imbalance in power and are often so traumatised that I find it of the highest importance to create as much opportunity for them to have a voice in the process. This also means allowing them to share their views uninterrupted for significant amounts of time, whether the views directly relate to the application or not. What this does is, it creates conditions for constructive conversations and often leads to parents engaging much better in the problem-solving process with the professionals. I have received feedback from DOCS participants that they truly value the constructive atmosphere of the conference. The final takeaway for me is that the conference process is co-constructed with all participants and that as a mediator I also need to trust in participants from the DCPL, DOCS, Separate Representatives and other professionals. The more I provide opportunities for them to share their expertise and also meaningfully influence the conference process the better the wisdom of crowds can shine through.
*In this blog post I would like to honour Gabriele Kuhnert, Manager of the Child Protection Conferencing Unit, who passed away in 2023. Gabriele worked tirelessly to establish the CPCU program and to develop the current model for conferencing. She made a difference in the lives of so many families. The team will never forget you.
2 This includes conferences that did not proceed because of participants not turning up and also split conferences where the sessions for mother and father were split due to concerns of domestic violence or other issues. The actual case number is therefore lower.
