The centralised Child Protection Subpoena Unit (the Subpoena Unit) responds to subpoenas for Child Protection documentation served on the department. See procedure Responding to subpoenas for actions that must be undertaken by Child protection practitioners to support the Subpoena Unit with this process.
A subpoena is an order issued by a court that takes the form of a legal document which requires:
- the production of a file
- a person to give evidence in court or
- both.
The word 'subpoena' means 'under penalty' and a failure to comply with a subpoena may result in a penalty being imposed by the Court. A subpoena may also be called a 'witness summons' or 'summons'. All three documents have the same legal effect.
Compliance with a subpoena involves a two-stage process:
- Production of the required documents to the Court (undertaken by the Subpoena Unit) or attendance at the Court to give evidence (responsibility for this is held by the named practitioner). This stage is mandatory.
- The court releasing those documents to a party or requiring information to be given (by way of oral evidence) to a party. This stage is discretionary.
It is open to a person served with a subpoena to seek leave of the Court to object to:
- the documents being provided to a party or
- having to answer questions put by a party, on certain grounds.
Ideally subpoenas for documentation should be served directly on the Subpoena Unit. However, parents and legal representatives will, at times, serve a Child Protection practitioner directly. If the subpoena requires production of child protection records, it must immediately be forwarded to the Subpoena Unit (childprotectionsubpoenaunit@dffh.vic.gov.au) so they can comply ahead of the stipulated production date.
If the subpoena requires a person to attend to give evidence, responsibility falls to the person named on the subpoena.
A subpoena is addressed to a particular person whose name and address is shown on the subpoena. Where documents are being sought, the department asks that the subpoena is addressed to the ‘Proper Officer’ of the Child Protection Subpoena Unit. The documents are specified in the subpoena schedule of documents, so that they can be identified and produced. Sometimes the subpoena may identify only certain documents and other times the subpoena will request all files and documents in the department's possession. The subpoena will require the production of documents and/or attendance to give evidence at a named court and will give the address of the specified court. If evidence is required to be given, the subpoena, requiring attendance at court, must be addressed to the relevant Child Protection practitioner.
The date by which the documents must be produced or on which evidence is to be given is also shown. The registrar of the court must receive the files by the production date. The subpoena must be read carefully for this date as there is some variation between jurisdictions.
The subpoena will normally indicate who the parties to the dispute are and the name of the law firm that obtained the subpoena (if the subpoena was not sought personally by one of the parties). A covering letter from the law firm often accompanies the subpoena and may explain what is required by the subpoena; however, it is the information in the subpoena that is the authoritative description of what needs to be produced to the court.
As the documents have been subpoenaed by a court, the department is technically obliged to release, to the court, every document listed in the subpoena schedule in its entirety. It is not the role of a departmental employee to decide what information is deemed relevant to the proceedings, as the court has ordered the release of all the information. It is the department's practice to redact protected information from the copy of the file the parties may view. It is then up to the discretion of the court who, if anyone, the documents might be released to.
Issuing parties should be encouraged to serve subpoenas, for the production of Child Protection material, directly on the Subpoena Unit. The department is entitled to reasonable notice to determine whether to object to a subpoena and to locate the documents. Unfortunately, subpoenas are often issued within a matter of days of the date of compliance, and courts tend only to provide a short extension if one is requested. A subpoena is a court order and must be complied with and anyone from the department involved in trying to comply with the subpoena must do their best to provide the documents or give evidence even though very little notice is provided.
If it is impossible to comply, the first step is to contact the court that issued the subpoena to seek an extension and propose an alternative and realistic date. In some circumstances the Court may direct the department to contact the law firm (or other party) that sought the subpoena and explain the situation.
The Subpoena Unit will respond to subpoenas where Child Protection documentation is being sought. Most subpoenas that require production of Child Protection documents relate to files and a bulk print of the CRIS records is required. However, the wording of the subpoena needs to be carefully checked and followed. Where the subpoena indicates 'any records' or 'all records' held by the department, this includes the entirety of the department's records, including hard copy files, printout from CRIS and email records.
In instances where the schedule of the subpoena calls for all documentation, an attempt should be made to contact the issuing party to negotiate limiting the scope of the schedule. In some jurisdictions, producing key documents from CRIS helps the department to meet the production date whilst still providing the parties with ample information. The recommended schedule is as follows:
- Final intake & closure documents
- First visit case notes
- Responsible for harm assessments
- Transfer summaries
- Case plans
- Case planning meeting minutes
- Court reports
- Section 38 consultations
- Any external assessment reports the department has commissioned
When a subpoena calls for files relating to an open Child Protection matter, the allocated Child Protection Practitioner and manager will be contacted by the Subpoena Unit. At this time, Child Protection will be asked to ensure CRIS is up to date and to provide details of any serious safety concerns Child Protection may have. It is important the Child Protection Practitioner contact the Subpoena Unit to provide any updates, such as court adjournments and any requirements for updated documents.
It is possible to object to a subpoena on the basis that production of the requested documents would be contrary to law. Objections of this nature are rare. The question of objection is complex. Grounds for objecting include:
- relevance – the party requesting the documents needs to be able to demonstrate that it is reasonably possible that production of the documents will materially assist them in pursuing their claim or defence
- width – it is difficult or impossible to ascertain with precision what is being requested
- oppression – it would be extremely burdensome (that is, it would require much time and expense) to produce an extraordinary amount of documents. In general any file where the documents required to be sent are more than 2000 pages, the Subpoena Unit will attempt to negotiate the scope of the material sought with the issuing party
- public interest immunity – as the term implies, it would be contrary to the public interest to disclose the documents e.g. where a document discloses the identity of a police informer or undercover police operative
- legal professional privilege – documents that disclose confidential communications between a lawyer and their client in the course of providing legal advice.
Where the view is formed that production of documents might be contrary to law, the Subpoena Unit will consult with Legal Services immediately and may need to brief a barrister to appear on the department’s behalf.
An alternative to formally objecting to the production of documents that would otherwise be prohibited by law is removal (or redaction) of the offending material. See procedure 1225 Responding to Subpoenas for tasks that are undertaken by the Subpoena Unit.
Examples of information that should be dealt with in this manner include:
- details that could identify a reporter where the reporter has not consented to such disclosure (ss. 41 and 191 Children Youth and Families Act 2005 (CYFA))
- documents prepared for the purpose of obtaining or providing legal advice (s. 199 CYFA), including any emails between Child Protection Practitioners and Legal Services (as they attract legal professional privilege)
- confidential court reports prepared for the Children’s Court.These reports are provided to the court, separately, so they can determine who, if anyone, is entitled to view the contents
- conciliation conference evidence (s. 226 CYFA)
- Children’s Court Clinic Reports (ss. 552 and 562(4)(5) CYFA). These reports are provided to the court, separately, so they can determine who, if anyone, is entitled to view the contents
- Judicial Resolution Conference material (s. 527(A) CYFA). These reports are provided to the court, separately, so they can determine who, if anyone, is entitled to view the contents
- a third party (i.e. Psychiatrist) has prepared an assessment report and has included a clear disclaimer that their report should not be disseminated without the author’s consent. These reports are removed as a departmental policy decision only. These reports are provided to the court, separately, so they can determine who, if anyone, is entitled to view the contents
- information which needs to be protected for serious safety reasons (for example, the new address of a victim of domestic violence). This information is removed as a departmental policy decision
- In criminal proceedings only, any communications between a victim of sexual abuse and any Doctor or Counsellor must be removed under s.32C Evidence (Miscellaneous Provisions) Act 1958 (unless the court has granted leave for this information to be released).
Sometimes subpoenas may be received relating to other areas within the department, for example where disability, housing or employee records are being sought. If a practitioner receives a subpoena calling for documents other than Child Protection files, please contact the Subpoena Unit immediately and they can provide up-to-date advice on where the subpoena needs to be forwarded.
- Keeping CRIS records up to date is vitally important as there is a reputational risk if incomplete files are produced to court.
- While an opportunity to update the material is provided by the Subpoena Unit, tight court deadlines and the complexities of file assessment often mean less than a day can be provided for this.
- Always forward a subpoena for Child Protection documents to the Subpoena Unit as soon as you receive it. If insufficient time is provided to comply, the onus may fall on a practitioner to assess and produce the material.
- Always alert the Subpoena Unit about any changes with court dates and advise, as soon as it is known, that updated documents will be required for a future date.
- Request a copy of the final redacted file from the Subpoena Unit if required.