Child Protection Legislation Amendment Bill

Child Protection Legislation Amendment Bill 2013, Legislative Council Hansard, 26 March 2014

The Hon. JAN BARHAM [6.28 p.m.]: On behalf of The Greens to speak on the Child Protection Legislation Amendment Bill. I indicate at the outset that The Greens hold serious concerns about the approach taken by some of the key reforms proposed in this bill. I believe it must be amended to ensure it will address the best interests of children and young people in this State. It is beyond doubt that there is a desperate need to do more to look after the wellbeing and safety of children in New South Wales. The statistics from our child protection system are nothing short of alarming. There are more than 18,000 children in out-of-home care in New South Wales, making up almost half of the total number of children in care across Australia and giving us the second-highest rate of out-of-home care placement behind the Northern Territory. Aboriginal and Torres Strait Islander children are severely over-represented in child protection. More than one-third of the children and young people in out-of-home care in New South Wales were identified as Aboriginal or Torres Strait Islander, and the rate of out-of-home-care placement, at 83.7 children per 1,000, is nearly 12 times higher than the rate for non-Aboriginal children and young people.

The high rate of children placed in out-of-home care in this State is not a new problem, but it continues to worsen. Figures from the Australian Institute of Health and Welfare show that at 30 June 2002, New South Wales had 8,084 children in out-of-home care, a rate of five per thousand. By 2008, that had risen to 13,566 and a rate of 8.4 per thousand. At 30 June 2012, the figures were 17,192 and 10.5 per thousand. The rate of children and young people in out-of-home care more than doubled in that decade. I take this opportunity to read from the executive summary of the report of the Special Commission of Inquiry into Child Protection Services in New South Wales 2008. It said:

The key principles which underpin the Inquiry’s reforms are as follows. Child protection is the collective responsibility of the whole of government and of the community. Primary responsibility for rearing and supporting children and young people should rest with families and communities, and with government providing support where it is needed, either directly or through the funded non-government sector.

It went on to say:

The child protection system should comprise integrated universal, secondary and tertiary services, with universal services comprising the greater proportion. They should be delivered by a mixture of the non-government sector and state agencies, with DoCS being a provider of last resort.

Many of the failures of our child protection system were highlighted by the Wood special commission of inquiry, which reported in late 2008. Since those findings, both the Labor and Coalition governments have introduced a range of policy reforms and new programs in an effort to address the challenge of improving child protection and preventing abuse and neglect. The Keep Them Safe action plan is now approaching the end of its five-year term. The National Framework for Protecting Australia’s Children commenced at the same time, in 2009, and is into the second of its three-year action plans. The commitment of State and Federal governments of all persuasions to attempt to improve safety for children is not in doubt, but clearly we need to do more, and we need to understand how to do it right.

The national framework, along with the comments of many experts and those working in the sector, make clear that we need a much greater focus on investing in prevention. From a public health perspective, putting far greater emphasis on primary and secondary services is crucial to reduce the numbers in the child protection system and deliver improved outcomes. These services include the universal supports, to assist all families, and the targeted supports, to prevent those who are in disadvantaged and at-risk groups from reaching crisis point. Unfortunately, these investments, which would help to break intergenerational problems and improve wellbeing, are the sorts of long-term strategies that are too often swept aside by governments dealing with the pressures of a three-year budget cycle and media pressure over current failings at the tertiary end of the system. They are also, to a large extent, beyond the statutory part of the child protection system and cannot be addressed within the bill before us today. However, I note that the interests of this State’s children and young people, and the future demands on many of our community, justice and health services, rely on governments making the commitment to take that long-term focus and begin doing much more to deliver prevention and early support services across our cities and regions.

The Child Protection Legislation Amendment Bill seeks to introduce some additional steps to prevent the placement of children in out-of-home care through the introduction of new parent capacity orders and reforms to the current provisions for parent responsibility contracts, which have rarely been used because of the legal risks they expose parents to. Any efforts to create possibilities that head off the move toward child removal and placement in out-of-home care deserve consideration. If we can deliver appropriate, targeted support services to help parents to address risk factors and become able to provide a safe home for their children then we should absolutely do so.

Unfortunately, at present the provisions in the bill create the orders and contracts and provide that they place obligations on the parents to undertake treatment, drug testing or other interventions, but they do not give enough certainty that the supports and services these parents need will be delivered. In introducing the bill the Minister announced that some additional funding—$35 million—would be provided to support the rollout of these reforms, including the provision of more early intervention services. This is a small, positive step, but the allocation of overall funding does not guarantee that parents will get the specific support they require to improve the safety and wellbeing of their family. The bill does not provide for their situation to be prioritised.

We know that there can often be waiting times to access services. In regional areas there may be difficulties with the availability and location of services. The services also need to be suited and appropriate to the needs of the parent. If we are unable to ensure adequate and appropriate service delivery then any contracts or orders will be setting parents up to fail. When they do not meet the requirements placed on them—no matter what the reasons might be—they risk being placed in a situation of seeing their children removed. I recently sat on the General Purpose Standing Committee No. 2 inquiry into drug and alcohol treatment, which heard about the delays and lack of services. There are not enough services available and it appears that there is a lack of recognition of the time it may take for someone to recover from substance abuse. The UnitingCare submission to that inquiry, dated 21 March 2013, said:

Research undertaken by UnitingCare CYPF in 2012 indicated a significant shortage of beds available to women with children who require residential drug and alcohol treatment in NSW. In November 2012, fewer than 100 beds were available to women with children who required such a service, and all of the services reported long wait-lists. Many of the services will not allow teenage boys to stay with their mothers, and very few residential drug and alcohol services existed for single men with children. Availability of appropriate crisis services such as these is essential for tackling underlying causes of neglect.

Submissions on the Child Protection Legislative Reforms Discussion Paper, which the Government released in late 2012 and which provided the basis for the bill before us, highlighted the concerns about service delivery. The Greens will move amendments to improve the bill’s framework, to assure service delivery. I acknowledge that the Hon. Penny Sharpe has also foreshadowed that the Opposition will be moving amendments. The Greens amendments will require that any contracts or orders must provide clarity and detail about the services that the parent is expected to engage with, the time frames and other details involved and, importantly, any assistance that will be provided by Community Services or by non-government agencies to help to ensure that the parent has every possible opportunity to address the issues affecting the safety of their family. We regard these as crucial to ensuring that the efforts to prevent removal by delivering earlier forms of intervention will be effective.

Although the focus on delivering services aimed at preventing the need for out-of-home care placement is welcome—and we believe that it can be made effective through our proposed amendments—the bill’s proposals to modify the framework for permanency planning are more troubling. In particular, in her comments in the Parliament and in the media, the Minister has emphasised her plan to increase the rates of adoption of children from out-of-home care, an approach that has led the Premier to label these reforms as “radical”. This increase in adoption is to be achieved by creating a hierarchy of options to be considered when deciding on which permanent placement choice to pursue for each child in out-of-home care. It begins with family restoration and proceeds to family or kinship guardianship, after which adoption becomes the preferred option.

The Greens do not support the pursuit of adoption as a solution to the challenges facing the child protection system and consider it an inappropriate and ineffective way to ensure the wellbeing of children who have been placed in out-of-home care. The inclusion of adoption as part of a standard decision-making framework, to be applied in all cases where it has been decided that restoration of a child to their parent is not realistic, risks permanently removing the legal relationship and connection between parent and child in a way that may be unnecessary and against the best interests of the child. Many submissions to the Government’s Child Protection Legislative Reform Discussion Paper, which proposed not only this move to promote adoption but also included proposals to allow greater capacity to dispense with consent and even to remove a parent’s right to be informed of a proposed adoption from out-of-home care, highlighted that adoption may be appropriate in some cases but that this must be decided based on the individual circumstances and with careful consideration.

There are a number of reasons that promoting adoption as a general principle is inappropriate within child protection. The evidence does not clearly establish that adoption itself produces better outcomes. The quality and stability of placements are important. These need to be addressed in the foster care system, through improved management and resourcing, and could be addressed via options such as well-supported guardianship. Associate Professor Judy Cashmore stated in her paper entitled “What can we learn from the US experience on permanency planning?”:

As Lahti found, the well-being of children in adoptive homes, in foster care or returned home was related to their sense of permanence in the placement, not to their legal status.

I heard in a number of speeches in this place and the other place reference to evidence about adoption being better than stable, secure and permanent placement. That just is not true. The evidence is not there. The submission by the Council of Social Service of New South Wales [NCOSS] on the child protection legislative reform discussion paper emphasised the importance of stability as a principal consideration that is not as simple as preferring one form of placement to another. The submission states:

NCOSS notes that data shows that children under the care of the Minister are more likely to have multiple placements and therefore poorer wellbeing outcomes than their peers. NCOSS does not support the argument that this is an inherent feature of such care and would argue that efforts can, and should, be made to improve stability in placement in such care arrangements. In other words, NCOSS advocates that across all forms of care, steps must be taken to improve stability of placements. NCOSS is therefore not convinced that the proposed hierarchy of placement is necessary and that decision should be made based on the best interests of the child or young person in their particular circumstances and context.

We must also recognise that adoption placements, particularly with children affected by a history of abuse or neglect, can break down in the same way as other placements. Associate Professor Judy Cashmore also noted:

“[Adoption] needs to be carefully considered because, as noted earlier, adoptions can also break down, and at rates that are not markedly different from long-term foster care when the age at which children are placed is taken into account.”

Other submissions on the Government’s discussion paper raised concerns about a range of risks and potential legal complications that arise when adoption is part of a standard permanency planning process. These include that children may be cleared for adoption, but without adoptive parents being available. The UnitingCare submission noted:

One such consequence is the possible creation of a pool of “adoption orphans” – children who have adoption orders but do not have any prospective adoptive parents. A review of research from the US by Judy Cashmore … describes the likely negative psychological impact of being an “adoption orphan”:

Being ‘freed ‘for adoption but ‘not chosen’ is perhaps one of the worst possible outcomes for children; it leaves them in limbo without a legal parent and is more likely to undermine rather than increase any sense of permanence or security for these children.

Others, including Legal Aid NSW, warned that the elevated prospect of adoption could increase contested legal matters, which would undermine the efforts in other parts of the bill to promote alternative dispute resolution and constructive engagement to address risk factors. Ongoing support of adopted families and the impact of increased involvement in adoption evaluations for the child welfare sector also were raised in submissions. I note with concern that this Government previously reduced funding that is provided to support families who adopt from out-of-home care. Given that, as I already have noted above, the issues of stability in placement breakdown are not as distinct from other forms of care placement as the reforms seem to presume. The funding and support issues are further reasons for concern about negative impacts for the promotion of adoption in this bill. This submission from the Benevolent Society states:

In relation to long-term guardianship orders and adoption, it is essential that ongoing financial and practical supports are available so that children and young people have access to opportunities that promotes their social and emotional development as well as services to address the often complex needs.

If the proposed hierarchy is adopted, the elevation of adoption means that non-government out-of-home care service providers will increasingly play a role in adoption. To do so they must be trained and resourced accordingly, including being able to access legal advice.

In short, adoption must be considered with extreme caution based on the circumstances of each individual case. Implementing a legislative requirement that the director general consider adoption whenever restoration has been deemed unrealistic, along with including it in a standardised hierarchy for decision-making, undermines the capacity to give adoption this necessary case-by-case consideration. When we are talking about such a permanent and irrevocable step as adoption, this is unacceptable. Referring to question 12 in the discussion paper, the UnitingCare submission states:

The Adoption Act 2010 (NSW) is underpinned by the principles of open adoption and capacity for contact with birth families in an attempt to prevent the tragic impacts of adoptions policies that led to the Stolen Generation and the forced adoptions. Because of the profound effects of poor public policy in adoption, UnitingCare CYPF advises caution in relation to objectives to “fast-track” and/or “relax” requirements of adoption legislation and policy.

Internationally, the move to fast-track adoptions has in some cases created hurried, poorly-matched placements resulting in poorer outcomes and adoption breakdowns.

I certainly hope that in 10 years time whoever is in this Parliament is not having a sad debate about how this could have happened and making yet another apology. There is no argument that timely decision-making about permanency planning and care arrangements are an important aim. It is a crucial part of managing out-of-home care casework to pursue and ensure stability in the care arrangements of a child while, whenever possible, seeking to address risk factors and promote permanency. However, there also needs to be flexibility to recognise that change can take time, progress may not always go without interruption or setbacks, and that a crucial part of case management is recognising that sometimes a quick decision may not turn out to be the right decision.

Although the bill offers the court some discretion to extend this time frame, The Greens maintain—as did a number of submissions to the child protection legislative reform discussion paper—that determining the time frame for permanency planning decisions, particularly for considering the possibility of deciding that restoration is no longer a realistic possibility, is a matter for policy and casework rather than something that should be fixed in legislation. The existing Community Services policy aims to meet the time frames this legislation would introduce to the Act. This is where they should remain. The bill includes a range of other provisions that will change the way our child protection system operates. Some, such as the increased focus on alternative dispute resolution processes like family group conferencing, offer promise for a system that engages parents in a constructive effort to head off risk and develop a path towards a better parenting capacity, safer families and improved wellbeing. The effectiveness of these approaches will depend on the Government delivering the framework, the resources and the funding to genuinely support at-risk families.

In launching this bill the Government labelled it as aiming to provide children with “a safe, stable home for life”. Presented in isolation and repeated as a slogan, it seems hard to fault this as a principle. But as is often the case, when we discuss what is in the best interests of children and young people we find that equally valid principles can come into conflict with one another. Children should have the opportunity to build and maintain a connection with their family to the extent to which they are able. Moving to rapidly sever relationships through adoption—albeit a process of “open adoption” that allows some contact—undermines this opportunity. I read with interest that in 2001, at the time when adoption was being proposed by the current Opposition and then Government, Mr Hazzard, the member for Wakehurst, raised the idea that the best interest of the child should not exclude the very important issue and essential principle of children’s interests being part of a continuum. He referred to a report and stated:

… all reasonable efforts should be made to preserve and unify families but where this isn’t appropriate all reasonable efforts should be made to place the child in permanent care.

Children should not be subjected to neglect and abuse. Too often that is a product of an intergenerational cycle in which disadvantage and lack of capacity pass on the most terrible harms and the worst lessons to the parents of the future. Sadly, we see all governments doing too little about this important and obvious issue.