A society that does not adequately protect its own children is failing in something very basic.
Apart from other suggestions “circuit breaking” the absolute power of case workers would be a safeguard.
Before setting out a suggested template for such a circuit breaker I make some comments:
The Children’s Protection Act reads well. Like many regulatory provisions it requires adequate resources, complete integrity and competence of the compliance officers – case workers.
The interaction between the Federal Family Court and the State Youth Court has been addressed in the report: Family Violence - A National Legal Response (ALRC Report 114) 11 November 2010
Two Jurisdictional born matters often arise, reluctance by the State Minister to join in and succumb to the Federal Court and the Inability of Federal Court to interfere in Guardianship of the Minister – State jurisdiction protection matters.
A stark difference in outcomes between the two jurisdictions is that the Family Court will strive to ensure some parenting contact regime, whereas, in near similar circumstances, once the Minister has guardianship in the State Youth Court the child is frequently cut off forever from parents and family.
Underlying these issues is the apparent desire to maintain virtually absolute power by the State Department, usually wielded by a case worker or manager who forms the view that a child is, or is not, at risk.
Leaving aside the important jurisdictional discussions raised in the ALRC 114. Which I am confident will be raised by others and putting to one side the radical political aspects of Jeremy Sammut 1(below) , regarding the re-privatisation of child welfare.
I suggest that there is merit in “circuit breaking” the absolute power of the case worker/department.
The need to “circuit break” absolute power of case workers.
By repute State Department case workers are reluctant to accept Family Court invitations to participate because it usurps their absolute power. Their views may be flimsy and based on hearsay upon hearsay and not stand up.
Many, if not most, of their reports produced in the Youth Court start off with a preliminary report, which a parent may deny entirely or give a modified account off. The report is not subject to independent test or scrutiny but finds itself repeated until it becomes a self evident piece of background and relied on for “experts” to provide their opinion on.
Once the case workers mind is set on guardianship the inexorable process commences. Powers to investigate the child’s circumstances, to obtain reports and so on, are almost never exercised with the child left in situ. The child is almost always seized while the expert reports are commissioned.
It is difficult to imagine that parents, if left with the child, would not be on their best parenting behaviour while subject to a Court ordered set of investigations. But, the child is seized, and then the Court Orders are sought.
There is no adequate response that a parent can give. If they become emotional and angry because their child is being taken from them, then it is reported that they are aggressive and unco-operative with the case worker. If they manage to keep calm in the circumstances it is reported that they displayed no emotion at their child’s removal and this displays a lack of attachment or concern.
The Parents then finds themselves in the Youth Court. The report has been prepared and, if served it is at the last moment and they are often without legal advice, or the lawyer has had absolutely no chance to become informed and obtain some independent “family report” . The parent is not permitted to give evidence and no evidence is taken from the case worker or anyone else about the circumstances.
The Court is given no option but to act on the information provided to it. Without even being questioned by the parent or counsel the case worker has set the status quo. Parent without child, no opportunity for observed interaction by anyone independent, and a parent who is usually upset and often angry. The case workers prophecy easily becomes self-fulfilling.
The same is true, in reverse, when the case worker determines no action is needed. The child is not at risk. I refer to The Coroners reported responses in the recent case “How can it be in the report when it is wrong.”
The facts seem too frequently, even in the face of multiple risk reports, to fit the report closure recommendation. In the case of inaction quite possibly the workers, perhaps unwittingly, fit the case load activations to the budget and resources
I acknowledge many of the following words and thoughts are drawn from Jeremy Sammut.1
Greater intervention may be needed than currently occurs to prevent future generations from lifelong dependency. Drug addled parenting is not a legitimate lifestyle choice. It is wrong and dangerous, abusive and neglectful. Face to face checking is an obvious need. There is an inadequate or lack of response to known children. Keeping families united may not be better than the pain of separation. Abused neglected and dead children is worse. Multiple opportunities to intervene are being missed.
Recent Coroners comments support the view that child welfare reports can be just plain wrong.
The best way to keep children safe may not be to build a system around dysfunctional abusive parents who will stay damaged and damage their children. Early, speedy and permanent removal can bring better outcomes than re-cycling a child back into abusive dysfunction.
Future governments may have to apologize for not removing at risk children
AN OPTION TO CIRCUIT BREAK Departmental failure.
The Youth Court Act provides a model for Youth Justice Co-ordinators and Family Conferences.
I don’t suggest the model be used as a potential to extract an idea.
I would call it a “Care & Urgent Safety Conference”.
A system of Community Care Co-ordinators could be set up around the State and suburbs. Authorised by the Youth Court Judge.
The Co-ordinators should have no connection whatsoever and certainly not be people who are internal or external providers to the Department. They simply need to be of good character, and , need to be parents so that they understand that raising children is not always about perfect family life.
The Co-ordinators function would be to bring together a group of three. (themselves and two others) One should be a local police officer. This brings the power to act urgently under the Children’s Protection Act outside of Departmental processes. One should, or could, be a local school teacher, or some one used to dealing with children.
The idea is that any person who felt that the Department was not acting to take care on their report or another’s report could contact the co-ordinator. The Coordinator would bring together the Conference and the concerned party could present themselves and their story.
With such a group of independent “lay” people with community, parenting, and child skills taking a look at a complaint of someone expressing concerns at the lack of action of the Department there is a real chance that ordinary human intuition of whether there is a “real risk” can properly be assessed.
There are a number of potential options for them. They could report to the Court, by telephone in an emergency, they could ask the department for an urgent immediate home visit on the child. The Police officer could exercise urgency powers under the Act.
The mere existence of such a “lay person” community conference group could well be a motivator for the Department to double think a decision not to act.
When the State Department persistently refuses to respond to the requests of experienced Family Court Judges’ to become a party in the interests of the safety of a child The Minister is saying that while she has the power to care for the child she does not have the duty to so act.. That seems to be an error in approach.
Experienced in general practice including family law matters and Youth Court (care) Matters, both for the Department and for other parties.
The power and the responsibility : child protection in the postwelfare
ISBN: 9781864321739 (pbk.)
Series: CIS Occasional Papers; 117
Abused children--Services for--Australia.