Negotiating a settlement - advice

This advice provides information about negotiating a settlement whilst at court.
Document ID number 2222, version 2, 1 March 2016.

Negotiation between legal practitioners for the family and the department outside the courtroom is a significant component of court practice. Many matters before the Court are settled through negotiations the outcome of which is then presented to the Court. This allows for results to be achieved that are acceptable to all parties and limits the exposure of families and children to the sometimes traumatic experience of evidentiary court hearings.

Legal practitioners are skilled negotiators and conduct all negotiations at court, on behalf of child protection. In order for them to achieve successful outcomes they require clear instructions from child protection.

Whilst legal negotiations are undertaken by legal practitioners at court, skills in negotiation are also useful for child protection practitioners in their work with children and families outside the court setting.

How to enhance the chance of negotiating a settlement

Practitioners should consult with their supervisor prior to attending court to clarify the issues open for negotiation and the parameters around these in order to ensure that any negotiated agreement remains achievable and in the best interests of the child.

Child protection practitioners should be clear about their role and the point in any negotiations where further consultation with a supervisor is required. Practitioners should not find themselves agreeing to decisions outside those that the practitioner is actually delegated or has been authorised to make.

Practitioners should seek legal advice as early as possible from the Child Protection Litigation Office (CPLO) or the divisional solicitor or court officer and understand the relevant provisions of the CYFA (particularly the best interests principles) and the orders provided for by the CYFA. See Early legal advice.

Any negotiated outcome must be in the child’s best interests and based on the best available evidence. If there is no evidence to support the recommended disposition, it is not appropriate for that disposition to be pursued, even though it may be the belief of individual practitioners that the disposition is in the child’s best interest.

Child protection practitioners should meet with their legal representative before court and acquaint them with all the available evidence and the basis for the case. It is vital that practitioners should be able to logically and coherently outline the protective issues, and the risk assessment upon which the recommendation is based.

When providing instructions for negotiations about what is in a child’s best interests, child protection practitioners should be realistic about what order is sought and reasons for this. For example, where the child is in out-of-home care and the permanency objective is family reunification, it is unlikely that child protection should consider a family preservation order to be in the child’s best interests, unless there has been sufficient sustained change to reduce the risk to the child to a safe level and the protective concerns have been sufficiently addressed.

It is important practitioners understand that whilst they are at court and are legally represented, their representative will conduct all negotiations on their behalf outside of the courtroom.

Where they are approached directly by legal counsel for the family, practitioners should direct them to the child protection legal representative. Where the practitioner is approached by family members at court, they should reassure the family that they can discuss issues once the court hearing has concluded, but should direct them to discuss the matter with their legal representative.

The child protection practitioner should openly discuss the assessment and recommendations with the family prior to court. Where this would place a child at further risk, a plan to ensure the child’s protection but provide clear information to the family, should be developed in consultation with the team manager.

A well considered court report that has been provided to the family before the nominated court date can enhance a successful negotiation at court.

It is expected that the child protection practitioner will attend court, in relation to matter for which they are responsible, even where the matter proceeds by consent. This is preferable, as they may be required to answer questions of the Court, or in the event that there is a change of plans and the matter may become contested and also a as a potential source of support for the family.

Child protection practitioners need to be adequately prepared when negotiating conditions and assessments or out-of-home care placements. For example, practitioners should not agree for a family to enter a parent and baby unit unless the practitioner has confirmation a placement is actually available and such a referral would be accepted.

Court ordered conciliation conference

From time to time supervisors (and practitioners) will be required to negotiate outcomes directly with legal representatives for the family in a conciliation conference. See Conciliation conferences - advice for additional information.