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Discussion Paper on the Care and Protection of Children Act

The mission of the Society is to enhance access to justice, improve the law and maintain individual rights. Importantly the Society considers and comments upon proposed changes to the law and encourages law reform to benefit the public. In fulfilling this objective the Society focuses on evidence based interventions and that ensure legal needs are addressed. The Society represents approximately 600 lawyers in the Northern Territory including Government and private lawyers.

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The Society has conducted consultations with its Family Law Committee in developing this response to the discussion paper.

1. COURT ORDERS AND PROCESS

The Society strongly supports the recommended changes to the way the Court Orders for a child in need of protection are structured. In particular the Society supports the need for a better balance between early reunification and the need for longer term stability where reunification is not a realistic possibility. Additionally the Society seeks opportunity for greater participation of families in the long-term decision-making for children in care.

1.1 PRINCIPLES

The Society supports the amendment of the principles in line with inquiry recommendations 89 and 92. The Society supports the paramount consideration in all circumstances being the best interests of the child.

The Society supports the proposed amendment to sections 12 and 10 in relation to the specific principles applicable to Aboriginal children in line with recommendation 89. The Indigenous child placement provisions in section 12 of the Act should be subject to the requirements in section 10 regarding the best interests of a child. The addition of the requirements that the placement be ?practicable? as well as being in the child?s best interests is consistent with the generic provisions regarding reunification in section 8.

The Society supports amendment to the Act to highlight the importance of early reunification when children enter care. The amendment of section 8 of the Act to ?explicitly reflect the importance of early reunification? when children enter care is a good suggestion. Section 8 clearly emphasises that subject to ?practicability? and ?best interests of the child? (see section 10) that reunification of a child with its family is in the best interests of a child.

In the Society?s view this ought to extend to require a proactive early assessment of the prospect of reunification to ascertain whether it is a realistic possibility. The Chief Magistrate has regularly criticised the Department of Children and Families (DCF) for taking a ?wait and see? approach in Child in Need of Protection (CINOP) matters.

The Society also supports giving clearer direction to the Court that the Court must give consideration to the principles (including the best interests of the child) when making orders.

The current test in relation to reunification is whether it is a ?realistic possibility?. It has been suggested that the court is applying a stricter test by requiring:

  • positive evidence that a reunification will be able to be effected,
  • particulars of how reunification will occur
  • confirmation that reunification will (on the available evidence) be able to be effected within two years.

The Society would also seek legislative provision to ensure DCF assists parents to access early supports from external providers to promptly ascertain whether reunification is a ?realistic possibility?.

The amendments and principles regarding reunification are analogous to ?least restrictive? principles found under Acts such as the Mental Health Act (NT) or along the lines of the ?least intrusive? as described in the Care and Protection Act (Qld).

The Society supports the proposed amendment to sections 12 and 10 in relation to the specific principles applicable to Aboriginal children in line with recommendation 89. The Indigenous child placement provisions in section 12 of the Act should be subject to the requirements in section 10 regarding the best interests of a child. The addition of the requirements that the placement be ?practicable? as well as being in the child?s best interests is consistent with the generic provisions regarding reunification in section 8.

1.2 PROVISIONAL PROTECTION

The Society supports the amendment to allow the CEO to take children subject to a protection order into provisional protection when immediate protective action is required in line with recommendation 99. The current prohibition is counter-productive; and the amendment may encourage the use of less interventionist orders, which we consider a positive step.

Importantly the Society considers that provisional protection should be limited to three days after which an application should be made to the court. This would ensure that the issues giving rise to the requirement of provisional protection are addressed.

1.3 SHORT-TERM AND LONG-TERM ORDERS

The Society supports the proposed amendment to change the structure of orders into either short- or long-term and to specify that short-term orders have reunification as the goal in line with recommendation 91. Importantly the Society wishes to ensure that care plans reflect that goal.

1.3.1 SHORT TERM ORDERS

The Society does not support having a maximum duration or number of short-term orders.

Inquiry recommendation 94 recommends limiting the time frame for short-term orders to an initial two years with a maximum period of three years. In the Society?s view placing a restriction of time or number on short-term orders will in effect override the consideration of the best interests of the child. The discretion about the number and length of further short-term orders should always remain at the discretion of the Court, particularly where reunification has not occurred or progressed through no fault of the parents but rather due to the limited resources or inaction of DCF. In the Society?s view this would be in the best interests of the child.

Additionally the Society is concerned that introducing the concept of 'early reunification' without providing infrastructure to support it makes it a hollow amendment. In particular at the base of this concept is the requirement of case/care plans which presently although required under the current Act do not exist in 30% of cases.

1.3.2 Long-term Orders

The Society supports recommendation 95 that long-term orders should be sought when it is identified that reunification is 'not likely or possible'. The process for determining that reunification is 'not likely or possible' ought be transparent and accountable. Additionally if it is proposed to make such a determination and an application for long-term orders is foreshadowed the parents ought be entitled to make submissions to the decision maker, prior to the decision and prior to the application for long-term orders being made to the Court.

In the Society?s view such decisions ought be made by an Independent Review Officer after considering submissions of the parents to allow procedural fairness.

Additionally the Society considers that if, during the course of the long-term order, amendment to the care plan is required that this ought only be possible with judicial oversight. This will ensure that there is oversight of the care.

1.4 PARENTAL RESPONSIBILITY AND DAILY CARE AND CONTROL

The Society strongly supports clarification of parental responsibility and daily care and control as outlined in recommendation 82. The current Act has resulted in significant confusion and lack of clarity. Furthermore, the Society is concerned that under the present Act genuine collaboration and shared decision-making continues to be a problem in many cases.

It is the Society?s submission that parental responsibility ought not be inclusive of daily care and control.

Importantly the Society is concerned that who gets to decide where the child lives should be clear and specific. The decision on where the child lives from time to time has in the past thought to be the domain of who is exercising (in effect) ?daily care and control?.

The Society proposes a provision for parental responsibility to be shared between CEO and parent/s. For instance, if a child has high medical needs, the CEO needs to be able to make urgent, major medical decisions about the child if the CEO can?t contact the parent, but the parent should be involved in major but non-urgent medical decisions.

Regarding the issue of ?splitting? parental responsibility and orders for daily care & control: There are some circumstances where a parent (or other person) will effectively be exercising ?daily care & control? even though the CEO has been ordered to have parental responsibility.

The experience of practitioners in this jurisdiction is that DCF is resistant of sharing ?parental responsibility? with a parent or any other person. There is a CINOP matter currently awaiting decision by Oliver SM in relation to whether the court has the power to make orders for ?joint parental responsibility?.

The Society also has practical concerns about ?splitting? components of parental responsibility and there would need to be precisely defined terms around who is exercising parental responsibility in relation to what. There would need to be clear evidence that the CEO and parent (or other person) were going to be able to collectively exercise ?parental responsibility? with respect to a child and not expose the child to risks of harm before a court could entertain making an order ?splitting? parental responsibility.

With respect to specific questions outlined in the discussion paper the Society has concerns about the three broad options for the Court proposed. In particular ?Re-assign all of the parental responsibilities to a person including the CEO, with some specific responsibilities to remain with the parents or another person.? The Society would strongly recommend against an option which has 'all' and in the same sentence 'some specific responsibilities' to someone else.

Questions on page 6 of 27:

  • When parental responsibilities are specified and separately assigned, should it be framed to emphasise the person?s right to decision making, or the child?s needs?

  • How can this be achieved?

It is the Society?s submission that Section 90(2) of the Act requires the Court to give priority to the child if the rights of the child conflict with the rights of an adult. In the Society?s view this is sufficient protection to ensure that the parent?s (or other persons) right to decision making would be subservient to the needs of the child. With respect to whether ?parental responsibilities? should be framed to emphasise the rights of parents or the needs of the child the Society considers that both should be specified as it is important for the child to have the parents continued to be involved in the child's life.

In Queensland for example 'custody' (equivalent to daily care & control) enables the CEO to determine where the child lives and the contact they have with the parents. 'Guardianship' (equivalent to parental responsibility) can be retained by parents, who the Department needs to consult and obtain consent from for things like medical treatment, education and so forth.

In the Society?s view it is important to clearly articulate "...how those with particular responsibilities should work together...." A legislated requirement for DCF to include parents in making decisions about the children place appropriate emphasis on this continued engagement. This is particularly important for parents in Indigenous remote communities who feel disempowered once removal of the children has occurred. The Society recognises that there are practical challenges and cost implications but ultimately the best interests of the child are paramount. For this reasons encouraging family meetings would be an important event for long term decisions and parental input.

The Society strongly supports the amendment to only exclude parents from parental responsibility as a last resort in line with Recommendation 83.

The Society supports amendment to reflect recommendation 84 that orders for parental responsibility should only be made where the Court has given full consideration to the principles set out in sections 7 and 12 and any other order would be insufficient to meet the child?s needs.

The Society proposes that there be no parental responsibility orders in cases where short-term orders are contemplated. This supports the notion that parent?s during a short-term order may be consulted about important decisions.

1.5 SPECIFIC CONSIDERATIONS WHEN MAKING LONG-TERM ORDERS

It is important to be clear what the re-unification goal should be and when that goal has been exhausted. As discussed above arbitrary limitations on short-term orders may not be in the best interests of the child. When contemplating long-term orders the best interests of the child should be paramount.

Whilst it is accepted that at a point long-term planning may be the best approach the Act should not create an artificial barrier to further short-term orders if there is evidence that reunification remains possible. To be clear the Society is keen to ensure that the Act clarifies what is required ? importantly that it is not proof that re-unification will occur but that it is in the interests of the child to continue with re-unification efforts even though it is some years after the initial order.

Importantly when dividing care and control from parental responsibility as discussed above parents should only be excluded from parental responsibility as a last resort, in other words after consideration of ss7 and 12 and when any other order would be insufficient to meet a child?s needs.

In considering the amendment with respect to protection orders the Society is concerned that what may constitute "standard of care" will need to be defined. It will be difficult in some cases to predict, particularly where long-term orders are made, whether the standard of care the child will receive will be 'significantly higher'. It is hoped that this would promote accountability of the Department (that is currently lacking) and assist reducing unnecessary cases remaining in the system.

The Society also seeks clarification of the term "extreme circumstances". For instance, does it mean 'mental impairment'?

1.6 CARE PLANS (ALSO REFERRED TO AS CASE PLANS)

CARE PLANS/ CASE PLANS

Care plans are already a requirement under the current Act. At the present time the Society understands that 30% of cases do not have case/care plans. Further enshrining the importance of this tool will amount to window-dressing if adequate resources are not committed to meet this requirement. DCF ought to be required to report annually against identified targets. Without checks and balances parents will remain at the mercy of overworked and under-resourced departmental workers with no resources to ensure that early reunification is given the best possible chance. In this circumstance arbitrary limits on the number or length of short-term orders has the potential to adversely impact on parents and children and there is insufficient evidence to suggest that further focusing on this tool will result in increased resource allocation.

In the context of legislative reform the Society recommends the following:

  • Regulations that stipulate the content of care plan and the process for their formulation.
  • Regulating for family group meetings
  • Legislating regular Court reviews. Care plan reviews should be more frequent than every six months for children aged three and under.
  • Legislation that mandates the collection of accurate data about children in care, care plans in existence and the timing of formulation of those plans should be available for public scrutiny.

Care Plans should reflect:

  • very clear expectations,
  • measurable outcomes and a
  • detailed staged contact and reunification plan. This will necessarily mean the parents will need to be involved in the development of the Care/Case/Reunification Plan.

As discussed above the Society supports elevating the status of care plans within the legislative scheme. The Society supports the proposition that the requirement for these reports to be provided to the Court is a key factor in making the system and the decision making accountable and transparent. Importantly the Act should set out what an appropriate care plan contains, who contributes to its development and who has access to it. Additionally there should be transparency of the process and avenues for review of decisions.

The Society supports amendments that will address concerns that remain current despite the findings of the Inquiry:

  • Non-consultation of parents remains a problem in many if not most cases.
  • This continues to be the case when care plans are reviewed.
  • There is no accountability or transparency of the Department.
  • Parents and other parties not being given care plans prepared by the Department because DCF assertion of ownership or that care plans are an internal working document.
  • Parents being given only a dot-point summary, for instance 1-10 dots, which is inadequate.

DEVELOPMENT OF CARE PLANS

In the Society?s view involvement of the child's parents/or significant others, should be embodied in the legislation as for example in Queensland. The plans should be developed with their involvement and contribution. Initial Care Plans should also involve the input of the children's representative and the Aboriginal Child Care Agency (ACCA).

CONTENT OF CARE PLANS

Care plans should set out each and every aspect of the child's needs and how it is proposed they be met, by whom and how this will be assessed. They should also include how the child will maintain contact with their family and connection with their culture and who will be responsible for this in addition to a detailed reunification plan if the order is a short-term one. The Society proposes that these requirements be enshrined in the legislation.

REVIEW OF CARE PLANS

Care Plans being '...an integral part of the court's decision making process' would necessarily require the inclusion of parents in their development and accessible complaints and review mechanism should this not occur or communications break down.

It is suggested that amendments could be along similar lines to the provisions in Part 3A of the Queensland, Child Protection Act, 1999.

ACCESS TO CARE PLANS

Furthermore, the Society proposes that copies of care plans need to be provided to the parents and a copy filed in Court during proceedings.

1.6.1 CULTURAL REPORTS

The Society proposes that the mere extension of the Courts power to request a report is insufficient to meet the requirements of recommendation 96.

The Society proposes that amendments provide for an ACCA to be involved in the case planning, liaisons and provision of cultural advice; additionally the capacity for an ACCA to be involved in the Court proceedings, care planning, family group meetings and mediations. This proposal is a similar model as the 'Recognised Entity' model in Queensland.

In the Society?s view this would achieve greater integration of the cultural needs of Aboriginal children in the care planning for the child. The Society is concerned to ensure that the participation of the ACCA is enshrined in the Act rather than reliant on permission or the vagaries of DCF policies which have been inadequate to date.

1.7 ACCESS ORDERS

The Society supports the adoption of recommendation 88 to make provision for access orders. Whilst section 123(1)(a)(i) is a fairly broad power for the Court to order a person to do or refrain from doing a specified thing directly relates to the protection of the child, this provision is not sufficient to specifically relate to making orders relating to contact between a child in care and its family.

QUESTIONS ON PAGE 8 OF 27:

  • What guidance, if any, should be given in the Act as to the way in which the Court might exercise its discretion in relation to access arrangements? For example, should there be a statement of presumption in favour of access in short term orders?

  • Should the Court always make specific directions as to mode of access, persons present, supervision etc,?

  • Could the Court assign a specific parental responsibility for determining access arrangements to a person?

The Society would recommend the following guidance be contained in the Act:

  • Set provisions for contact orders to be made be they under short-term or long-term orders.
  • Court ought to be able to specify minimum level of contact that the CEO is to facilitate. An order that the CEO facilitate contact is meaningless without specifying a minimum level of contact. The Court may also stipulate a minimum contact arrangement each week for example.
  • Court ought to not always make specific directions as to the mode of access- level of detail should be flexible- discretion of the Court. Flexibility and operational requirements (DCF) will sometimes mean less specific direction is required at times.
  • The Society supports a presumption in favour of access in short-term orders and the ?Care Plan? provided by DCF should not only include contact arrangements but the specific means by which such access will increase to ultimately result in reunification with a parent or parents.
  • The Court need not always make specific directions as to the mode of access, however in many cases this specificity is required.

In the Society?s view it is vital that such provisions are included in the Act and it is a matter for the Court then as to how specific particular contact orders are.

Importantly the legislation ought to be amended to provide for a review of the decisions by DCF to change or restrict contact arrangements. This would align with similar provisions in Queensland (see 'Schedule 2 - Reviewable Decisions and Aggrieved Persons'). The Society is concerned that the existing legislation does not provide for a review process to occur as a result of administrative decisions of DCF. Importantly the Act should require DCF when proposing to change access/contact arrangements to invite submissions from the parents and then only make that decision after considering the submission. Notice of any decision should be in writing, including reasons for the decision to enable the parent to apply for a review of the decision.

1.8 REVIEW OF LONG-TERM ORDERS

The Society strongly supports the regular review of protection orders by the Court.

The reported experience of practitioners is that ?matters? frequently get put into holding patterns with no activity on them until close to a Court date. In the Society?s view the external accountability that the Court provides seems to be the only effective mechanism to ensure case management occurs. By way of example in the Society?s view there is a significant risk that children removed from families will not be reunified with parents in the important early weeks, months and years without the external accountability that the Court provides.

As it presently stands there is intended to be an internal six monthly review of care plans, which is meant to be a safety net. By all accounts this is not working. The reason this is failing is because:

  • In 30 % of cases care plans are not developed.
  • The CEO is not consulting with parents when reviewing the care plan.
  • The CEO is not providing the care plan to the parents either at the review of the plan or at all.

It is imperative that there is accountability when children have been removed from families.

QUESTIONS ON PAGE 9 OF 27:

  • Should there be different considerations for review of short and long term orders?

  • Should the Court regularly review orders? If so, what time frames are appropriate?

  • What limits (if any) should there be on the Court?s power to review a long-term order?

  • What considerations should the Court take into account when deciding the frequency of review for a long-term order?

It is the Society?s submission that there should be different considerations for review of short- and long-term orders and that there ought be no limits to the power of Court to review long-term orders.

In particular reviews of short-term orders should consider how the plan towards reunification is progressing. It is the Society?s submission that short-term orders should be reviewed annually (if for longer than 12 months) and six months prior to the expiration of the order. This is particularly important as there will be an active reunification plan on foot.

Reviews of long-term orders should be directed at assessing whether there has been contact with the birth family, exercise of any parental responsibilities or consultation about parental responsibility issues of the birth family and suitability of placement for the child.

The Court should consider reviewing a long-term order every two years, unless there are reasons (for example ongoing medical needs or a transition into an interstate care arrangement for example) to review the order more frequently at least initially, given that most of the case work will be undertaken immediately following the making of the protection order. If a child is proposed to be placed interstate then DCF should flag this at the time the matter is before the Court as it is a relevant consideration for the Court to make in relation to ?permanency planning? for a child.

In the Society?s view the following are suggested considerations relevant to the frequency of review: age of child (younger children?s? needs may change significantly in shorter time), culture, sib-ship group, attachments to birth family.

2. INTERSTATE MOVEMENT OF CHILDREN UNDER ORDERS

The Society supports that the Act should be amended to require that the CEO consult the parents prior to placing a child interstate but not require the parents? consent necessarily. The Society supports the amendment of the Act to facilitate travel interstate for holidays or medical purposes without parental consent for periods not exceeding six months. It is desirable that parental consent is obtained where it is proposed to move the child interstate. In the view of the Society travel interstate for the purpose of schooling ought not be permitted without parental consent.

The circumstances in which the CEO ought consult with parents and the circumstances in which parental consent ought be obtained will vary depending on the nature of the protection order in place.

QUESTIONS ON PAGE 10 OF 27:

  • Given the Supreme Court?s decision, are there other factors which would make the recommendation for parental consent one which should be adopted in any event?

  • Should the Act be amended to require that the CEO consult the parents prior to placing a child interstate, but not require the parents? consent to an interstate placement?

The Society envisages that problems will arise if parental responsibilities are shared or the parents retain certain aspects of parental responsibility. Additionally ongoing family contact is important particularly if only a short-term order is in place and reunification is still to be explored. If the order or proposed order is a short-term protection order, then reunification has been identified as being a ?realistic possibility? and such a transfer ought not to be made without parental consent or an order of the Court.

The Act requires DCF to consult with parents in relation to decisions about a child in care.

The submitted review should be six months prior to expiry of short-term order. This will operate as a check and balance and give sufficient time for processes to be restored or instigated if arrangements for reunification have fallen by the way-side.

We suggest a Court ordered review conducted either by a Judicial Registrar or Registrar who could possibly list the matter back before the Children's Magistrate for orders.

It would also be an important check and balance mechanism that the child's care arrangements are suitable and appropriate at all times.

'Change of circumstances' should include both for the child and parents.

3. THE UNBORN CHILD

QUESTIONS ON PAGE 11 OF 27:

  • Should mandatory reporting be extended to include unborn children? If so, should it apply a belief that an unborn child would be at risk of harm once born or relate to risk to foetal development also?

  • Should the Act?s Information Sharing Framework be extended to enable information sharing for the safety and wellbeing of unborn children?

  • Are additional amendments to the Act desirable to assist appropriate assessment and support for mothers of unborn children?

  • Given the evidence of about the impact excessive alcohol consumption on the development of a foetus, what action, if any, should be taken in relation to a pregnant woman who is abusing alcohol?

In the Society?s view there is little benefit to be gained and significant unexplored detriment that may occur with extension of mandatory reporting to include unborn children. The Society acknowledges the rationale for creating a mechanism that allows for the immediate care of a new-born in circumstances where it is in the best interests of the child to do so. It is difficult to canvas all the objections and weigh the competing interests and the Society would strongly discourage this extension without full public consultation. Any infringement on the legal rights of pregnant women ought to be thoroughly considered. Some of the issues are identified below:

A major issue is the rights of the pregnant woman against the rights of the unborn; in particular the protection of the confidentiality of doctor patient communication and the freedom of the mother to engage in otherwise lawful activity, a freedom enjoyed by the remainder of the community. Additionally other service providers that may be providing assistance to the mother (such as social workers) could also be mandated to override any duty of confidentiality to their client.

Establishing that legal behaviour posed harm or risk of harm to the unborn is a complex issue. There are many activities, particularly lawful activities that pregnant women engage in that are well established to pose serious known health risks to the unborn child, in particular overheating due to physical exertion or the decision to have a water-birth or home birth or the election to refuse health treatment. Additionally it continues to be legal to consume tobacco. Whilst it is easy for lines to be drawn where the behaviour is illegal that is not the case being proposed.

Equally the Society is concerned that there is no agreement amongst the medical community nor the broader health sector as to what behaviour ought give rise to a notification and who is best placed to decide the risks to the unborn and when to sacrifice the woman?s rights. Extending the facilitative model of information sharing to care providers of pregnant women opens up this uncharted territory.

The risk of stigmatising mothers and discouraging their obtaining medical or other assistance during the course of a pregnancy is great.

If there is evidence regarding excessive alcohol consumption (as the stated example) threatening harm to the development of a foetus, there are other legislative provisions in other Acts that could restrict or remove the right to drink alcohol.

The Society is also mindful of the scope of the Act and its ability to facilitate ongoing assistance to the mother.

4.1 AND 5. TWO MONTHLY VISITS FOR CHILDREN IN CARE/COMMUNITY VISITOR

4. 1 - TWO MONTHLY VISITS FOR CHILDREN IN CARE

The Society welcomes and supports legislative amendment to require that a child in care be visited by a person authorised by the CEO at least every two months. The Society would like to raise the question what happens if a concern is identified for the child. Essential support and accountability is highly desirable as children remain a class of people who are within the most vulnerable in our society.

The Society is concerned that care must be taken to ensure the CEO authorised visitor can advocate effectively on behalf of a child e.g. to whom are they advocating and what steps can they take if their advocacy falls on deaf ears?

The Society would wish to ensure that any community visitor not be placed in a position where they forensically interview a child. In the Society?s view there are few if any circumstances in which this would be appropriate or desirable.

4.3 LEGISLATIVE REQUIREMENT THAT A CARE PLAN REFER TO BASIS STANDARDS OF CARE IN THE REGULATIONS

The Society supports this amendment and notes the discussion of care plans above ? that the content and formulation of care plans be legislated as well as the requirement that DCF report regarding care plans in place and number of children in care each year in the annual report.

4.5 REQUIREMENT THAT A PERSON WITH WHOM AN ABORIGINAL CHILD IS PLACED MUST MEET BASIC STANDARDS OF CARE

The Society supports the amendment proposed and notes the discussion of care plans above that ACCAs should be included in the care/case planning.

4.7 TWO YEARLY REVIEW BY CHILDREN?S COMMISSIONER

The Society is concerned that the two yearly review start within 12 months of the amendment and two yearly after that.

4.8 CUMULATIVE HARM

To assert that legal proceedings tending to '...focus upon specific instances of harm' is incorrect and misleading. In the Society?s view it is the evidence of the alleged harm which is properly scrutinised during legal proceedings rather than a nebulous total sum of 'parental acts or omissions' which are difficult to identify at times and proved.

There is clear evidence that harm can occur to a child over a period of time. Despite this it is the Society?s submission that DCF must still produce evidence to the Court of any such acts or omissions constituting in the opinion of DCF the cumulative harm alleged. There are of course ?assessment' provisions under the Act that may assist DCF to adduce such evidence prior to a protection order being made.

The Society is concerned that it is unclear what 'cumulative harm' means. Particularly the Society is concerned, how cumulative harm is assessed, who is responsible for making that assessment it and what if, for example, the child has had different carers throughout the period of the harm cumulating. Attributing the 'cumulative harm' to the last care giver would be inequitable and deny the child the possibility of remaining with the person who has 'harmed' the child the least.

It also provides for the potential for children to be removed even though the parent's mental health or other impediments to their parental capacity may have improved.

5. COMMUNITY VISITOR SCHEME

The Society supports the community visitor and submits it should extend to beyond the sampling role.

The Society requests clarification that the visits would be in addition to the two monthly visits proposed in 4.1.

The Society also questions what the Children?s Commissioner will be able to do in the event that the ?higher standard of care? is not met. There would necessarily need to be a formal complaints process to feed back into the Children?s Commissioner and then DCF.

Importantly for those involved in the care of children information needs to be accessed and importantly as discussed above this should include the most recent Care Plan for the child.

It is submitted by the Society that if ?establishing mechanisms for regularly listening to the voices of children and young people regarding their experiences in the care system, determining their needs, and for implementing improvements to the standard of care and support that is provided? is a goal of DCF then a clearly articulated strategic plan would go some way to cementing this commitment.

6. ABORIGINAL CHILD CARE AGENCIES (ACCAs)

It is submitted that the role of ACCAs could be included in the legislative regime. Importantly the Society submits that they ought have the capacity to be involved many aspects of the regime. The Society suggest thought be given to the following examples of the role for ACCAs:

  • Involvement in initial investigations and assessment of who the parents are for a child, whether a child is in need of care and protection and the ability to provide advice about possible supports and early intervention.
  • Sourcing and advising on culturally appropriate placement for aboriginal children in out of home care.
  • Appearing, advising and assisting the Court in respect of parenting and cultural issues.
  • Providing referrals and assistance to parents or significant others to address issues impacting on their capacity to care for and protect their children.

6.1 CULTURAL REPORTS

As discussed above the Society would support broader legislative recognition of the role of ACCAs. If any organisation (other than DCF) is to perform a reporting function such as the preparation of cultural reports in relation to Aboriginal children, then the legislation ought mandate that the organisation must consult with the child/ren?s broader family.

If the broader role envisaged by the Society for the ACCAs is endorsed and they are adequately funded to fulfil this role there would in the Society?s view be little need for cultural reports as ACCAs would provide ongoing cultural feedback and support to the parties and the Court. Importantly as discussed above ACCAs should also be involved in the case/care planning not merely the authors of a ?cultural report? outside of the case planning process.

QUESTION ON PAGE 15 OF 27:

  • What matters should be accounted for in cultural reports?

It is submitted by the Society that cultural reports and submissions by an ACCA should address:

  • Confirmation as to the ?parents? of the child, under the broad definition in the Act
  • Consideration of the viability of family way placement over court orders being made
  • Evidence of contact with family and recommendations how that ought be maintained
  • Consideration of reunification and how it could be achieved
  • Advice with respect to maintaining connections
  • Advice and recommendations with respect to visits to community for cultural and religious events, initiations and acquiring/inheriting country.

7. COMPLAINTS AND APPEALS

The Society supports the amendments proposed but is concerned that the complaints process and the appeals/ review process ought not be confused. Importantly there is a need to clarify decisions that need to be reviewed and or appealed as opposed to processes and procedures that need changing. Challengingly ?complaints? will frequently confuse these issues. A complaint about a decision that the complainant is unhappy with may disclose an ?opportunity for improvement? that can be addressed.

With respect to reviews, the Society strongly supports a mechanism that allows for internal even informal review of decisions, by simply referring the matter to a more senior officer.

The Society submits that the Queensland model be adopted with respect to complaints (internal) and reviews (QCAT). The Act would be explicitly amended to provide for this; particularly the need for reasons for decisions to be provided to facilitate appeals and reviews.

Importantly reporting on the number of complaints and appeals and time for their resolution should be made in the annual report.

7.1 FAMILY GROUP CONFERENCES

The Society supports enabling regulations for Court appointed mediation conferences as soon as possible.

The Society would embrace the introduction of the ?mediation? provisions of the Act as soon as possible. Reports to the Society are that there have been some informal mediations conducted in matters, however it would be most beneficial to formalise this process under the existing provisions under the Act. Mediation ought to be confidential or ?without prejudice? particularly if solicitors are not involved in the mediation process. Mandatory reporting provisions would override any ?without prejudice? conference discussions if there is/are disclosure(s) made.

The parties need a forum to discuss things on a without prejudice basis including an exploration of the issues, early intervention and settlement discussions. Often parents are confronted with allegations and have little opportunity to respond, consider and assess whether the intervention was appropriate. It is submitted that all parties should be provided with a forum at the earliest possible opportunity to have open, frank and constructive discussions about options and how the children might be returned to their families. ACCAs should be included. In particular lawyers should be included in such conferences as they assist parents in understanding the process, the concerns and the evidence to support those concerns. Lawyers are generally very adept in reality testing their clients as well as Departmental workers. Accordingly, parents would be assisted in contribution to the process rather than being railroaded by DCF.

QUESTIONS ON PAGE 16 OF 27:

  • Should family group conferences be made without prejudice?

  • What role should lawyers have in Family Group Conferencing?

In the Society?s submission family group conferences (FGC) should be made without prejudice.

It is submitted by the Society that legal practitioners should have an active role in FGCs as they assist parents in understanding the process, the concerns and the evidence to support those concerns. Additionally in the Society?s view this addresses the power imbalance of departmental workers extensive experience as against the parents experience with the process. It is the Society?s submission that legal practitioners can assist their clients to understand the issues and limitations of their case and also dispel the myths in addition to advocating for their clients and testing the assertions of DCF workers. In the view of the Society it is in the best interest of all parties that parents understand are assisted, and advocated for enabling them to participate and contribute to the process rather than at the mercy of more experienced and seasoned employees of DCF.

Similarly in the Society?s view it would also be essential for Children's Lawyers to be involved in FGCs.

9. WORKING WITH CHILDREN CLEARANCES

In the Society?s view it is essential that the authority dealing with criminal history remain independent of government.

10. MANDATORY REPORTING OF SEXUAL OFFENCES

The Society does not support mandatory reporting to the child?s protection service. Whilst it might in the first instance appear attractive for reports of child offences to be made to the child?s protection service and not to Police, in a practical sense Police may be better placed to act immediately and to assess the ?urgency? of a situation prior to referring the matter to child protection.

Cultural considerations should also be included as factors other than the age difference between two young people informing the need to report.

Importantly the Society advocates strongly for reporting on the number of such reports and the response.

11. INDEPENDENT REVIEW OF DCF INVESTIGATIONS OF ALLEGATIONS OF ABUSE IN CARE

The Society supports independent review of DCF investigations for accountability, transparency and as an additional safeguard.

In relation to recommendation 72 and the expansion of the powers of the Children?s Commissioner, these powers ought to be akin to that of the Ombudsman under the Ombudsman Act (NT).

We agree the process of review should be included in the Act setting out clearly the Children?s Commissioner?s powers in relation to the investigation and review.

Questions on page 20 of 27:

  • What aspects should be taken into account in developing a framework for the Children?s Commissioner to carry out the function of review of investigations of allegations of abuse in care?

  • What powers should the Commissioner have?

The Commissioner should have full powers including compelling witnesses to attend and give evidence and referral to the DPP in the event a crime has been committed. Compulsory implementation of the Children?s Commissioner?s recommendations by DCF following the investigation should also be included in the Act.

13. STRENGTHENING PRIVACY PROTECTIONS FOR CHILDREN IN CARE

The Society does not support strengthening privacy provisions. In our view the privacy provisions are adequately strong.

We support clarifying the privacy provisions to prohibit publishing material that identifies a person who is in the CEO?s care, rather than prohibiting identification of a person who is in the CEO?s care.

However there ought to be a restriction upon those who are entitled to publish information about a child under other laws of the Northern Territory, to make publication strictly subject to s301 of the Act.

14. EXPANSION OF FAMILY RESPONSIBILITY PROGRAM (FRP)

In the Society?s submission there ought to be a ?responsibility based scheme? for parents in relation to taking steps to address issues related to the well-being of vulnerable children and this should be embraced as part of the early intervention referred to in relation to reunification. We do not agree that penalties should apply for breaching any agreement between DCF and the family and this may be counter-productive to the clear objective of this early intervention and referral to other service providers of a parent.

While the statutory child protection model is interventionist, one of the guiding principles underlying the Act are for children to be cared for by their family with removal occurring only if there is no other reasonable way to safeguard their wellbeing. Accordingly, it is submitted that a punitive approach to caring for children as envisaged by the FRP has no place under care and protection principles. A vast number of children and their respective families appear in this jurisdiction because of their socio-economic backgrounds. Parents? capacities to adequately care and protect their children should be enhanced through support, referrals and in particular, education rather than the carrot and stick approach.

15. FAMILY WAY PLACEMENTS

The Society agrees with the recommendations regarding ?family way? placements.

While accountability and transparency are important considerations particularly in circumstances where decisions made are not adequately recorded, ?family way? arrangements provide families an opportunity to care for children without ongoing intervention by DCF. It is submitted, the child?s family should be making the decisions about care and protection of the child, unless there are circumstances why this cannot occur. Family way placements can be sanctioned by the Family Law Courts under the Commonwealth Family Law Act 1975 where parenting orders can be made in favour of those significant in the child?s care, welfare and development. A parenting order would then also enable the family member to make important decisions concerning the child but also obtain financial support (Centrelink/Child Support Agency).

There is an important role for DCF to play in terms of sourcing appropriate kinship carers or family members who can care for the child.

It may also be appropriate to amend the Act to enable DCF to source and place children with approved kinship carers pursuant to a child protection order enabling kinship carers to receive financial support to care for the children from DCF, similar to the Queensland model.

Office Location

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Darwin NT 0800

Mailing Address

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Darwin NT 0801

Contact

Telephone: (08) 8981 5104
Fax: (08) 8941 1623
Email: lawsoc@lawsocietynt.asn.au
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