Children and Young Persons (Care and Protection) Miscellaneous Amendments Bill 2006
Reverend the Hon. Dr GORDON MOYES: I will speak concisely and briefly on the Children and Young Persons (Care and Protection) Miscellaneous Amendments Bill. The principal object of the bill is to amend the Children and Young Persons (Care and Protection) Act 1998 to provide greater protection to children and young persons who are at risk of harm from a parent or carer and to facilitate reciprocal arrangements for the transfer of interstate and New Zealand child protection orders and child protection proceedings. A number of other significant and miscellaneous amendments are made, including an amendment to provide disclosure to parents and certain other persons of information concerning the placement of children in out-of-home care. I will speak about this from a personal point of view in a few moments. I thank the House for its generosity in giving me this time to speak on behalf of the Christian Democratic Party to place our viewpoints on the record and add to the whole debate a number of issues that have not as yet been raised. But I will not do this in anything other than a very succinct manner.
Members will be aware of the excellent work by the Australian Institute of Health and Welfare in collecting data, statistics and other information and presenting this information in an intelligible, clear manner. The report entitled “Child Protection Australia 2004-2005” is one such work. This report portrays a disturbing picture of the level and extent of issues in the realm of child protection in Australia. Over the past six years the number of child protection notifications in Australia more than doubled, from 107,000 in 1999-2000 to 252,000 in 2004-05. The total number of notifications in New South Wales alone was reported at 133,000. A proportion of these notifications are investigated. During investigation, notifications are declared to be either “substantiated” and thus worthy of further action or “not substantiated”. In 2004-2005, 15,000 cases were substantiated where emotional abuse was the most common phenomenon. There were also increases in the rates of child deaths, as we have heard tonight from the Hon. Catherine Cusack, particularly in areas on the South Coast such as Nowra and Bomaderry.
In some cases, although some action may have been taken by the department to address the risk of harm or abuse endured by a child, that action has not been enough and the child concerned has died. Members will be aware that every year the Child Death Review Team hands down an annual report that outlines how many children have died in the past year and the causes for those deaths. Members will be only too well aware that earlier tonight the Hon. Catherine Cusack gave a large number of examples of these deaths and their causes from the previous year’s report. A total of 599 deaths of children and young people were registered in New South Wales. The Hon. Catherine Cusack pointed out that if the children taken over the border into other jurisdictions such as Queensland were also included the number would be greater.
Two thirds of the deaths were infant deaths, children aged below 12 months. Sadly, infant deaths increased from 299 in 2004 to 367 in 2005. Most of these deaths are during the perinatal period, that is, between five months before the child is born and one month after the child is born. It is interesting that the report for this year, 2005-06, has been printed and has been available to some people, although the Hon. Catherine Cusack does not have a copy. That report of the Child Death Review Team was handed around yesterday among some people but has not yet been tabled in the Parliament, and certainly has not been made public. I do not have a copy of it, although I am sure that what I saw was this year’s edition. I am very interested to know when the Government has decided to table the report in Parliament. I do not think it will be in the next week or so. The Minister may care to take up that point when speaking in reply to the debate. I will ask the question very simply so that he can understand it clearly: Has this year’s report of the Child Death Review Team been published and is it in the hands of the Minister?
One principal motive for some of the reforms found in the bill, which the Christian Democratic Party supports, is the endeavour to prevent further child deaths in New South Wales. Not one honourable member would find fault with that motive. All honourable members would agree that everything must done to avoid children dying through negligence and abuse in our State. I preface my comments by saying that although many amendments have been proposed relating to numerous issues, I will for the purposes of this debate make comments only on a couple of salient amendments.
According to the Government, of the 104 child deaths that came within the purview of the Department of Community Services, 16 of the children had been subject to a prenatal report and 18 had previously been in care or had a brother or sister previously in care. Of those 18 children, nine were siblings who had been removed and placed in temporary care and three of those children in care were in care at the time of their death. It is often the case that if one child is the subject of abuse by his or her parents or carers, it is likely that the child’s siblings will also be at risk of abuse, and it is enduring abuse. Child abuse is an indictment on this society and is utterly reprehensible.
Honourable members will be aware that part 2 of the Children and Young Person’s (Care and Protection) Act 1988 deals with mandatory reporting. Included within this context are “prenatal reports” in section 25. At the time I praised the Government strongly for including that in the legislation. As the name suggests, prenatal reports may involve a person reasonably suspecting that before the birth of a child that child may be at risk of harm after his or her birth. Prenatal reports may be made to the director general. However, we know that there are cases in which due to a violent domestic environment between mother and father, frequently in the days just after birth, children are at great risk. Honourable members might recall the grievous case of Kylie Flick, whose unborn child died because the father, Phillip King, punched and stamped on Ms Flick’s abdomen numerous times until the child was dead. In cases where women are in a precarious situation like that, wherever possible the Government must provide a place of refuge and assistance for the woman and her child.
This bill seeks to expand provisions dealing with reporting such situations where it is thought that a child is at risk of harm upon birth, relying upon whether a prenatal report has been made in the past. Amendments are proposed to section 23, which lists the circumstances in which a child or a young person is taken to be at risk of harm. The Christian Democratic Party praises the Government for ensuring that there is the possibility of a person being reported if a child is at risk of harm. It becomes particularly relevant for the purposes of parts 2 and 3 of chapter 3 of the Act. The bill will also introduce additional circumstances where the child was the subject of a prenatal report under section 25 and the birth mother did not engage successfully with support services; namely, those provided by the Department of Community Services or, most frequently, by those providing foster services from the not-for-profit sector. If the mother refuses to engage successfully with the support services available to her, she can be reported.
Further, the proposed amendments will allow for information exchange between DOCS and relevant health or caring organisations. It is extremely important to ensure that those who have the hands-on work of providing foster care are fully aware of the circumstances behind the child being declared at risk. Amendments will draw attention to the reported intention of section 25, which is to provide assistance and support to the expectant mother and to protect the child upon birth from any risk of harm, and that such child may then be provided with support and protection as envisaged under the Act.
I appreciate the Hon. Catherine Cusack’s point that we cannot save the lives of children simply by passing Acts of Parliament. Of course, that is true, and it is true in many other circumstances. However, I congratulate the Government for making this kind of reporting and exchange of information possible. Given the myriad privacy laws, people in foster caring situations and members of organisations sponsoring them have had to delicately tiptoe through the various provisions. As with all requirements in this vein, it is important that appropriate levels of support and funding be provided for services assisting women in this situation, particularly indigenous women and, as was mentioned by a previous speaker, women in remote and rural areas.
Proposed amendments to the Act will allow the Children’s Court in care proceedings to consider and give weight to evidence about a parent’s or caregiver’s history in circumstances where a child has been removed from care. It will also allow that to occur where a parent or caregiver has been identified by the Coroner or police as a person who may have been involved in causing a reviewable death of a child or a young person. That is an important reform, and I realise that some civil libertarians may respond very negatively. However, I congratulate the Government on having the gumption and strength to indicate that this should be regulated. In this context, the onus of proof will be placed on the parent or caregiver rather than on the State. The general rule is that the State is responsible for proving on the balance of possibilities why a child should not remain with a parent or caregiver. Any change to this rule is a fundamental and critical change in the manner in which the legal system has dealt with people for hundreds of years. Of course, opposition has been voiced by a number of organisations, including those involved in civil liberties and others like the Council of Social Service of NSW [NCOSS], which believes that this could be going beyond the Rubicon of our normal rights.
NCOSS, as a peak voice in relation to social issues, has asked whether reversing the onus of proof is the best way forward. I could outline its arguments, but I think we have heard enough on that issue tonight.
NCOSS notes the comments in the Ombudsman’s 2005-06 annual report, which cites the case of a secondary death of a five-week-old child. In that case DOCS had failed to take the family history into account at its risk assessment or to consult with other services working with the mother. The Ombudsman continued to have serious concerns that some children who are at high risk of harm are not being allocated to a child protection caseworker for a full risk assessment. Continued attention should be given to the Ombudsman’s finding to understand the rationale behind the nature and extent of complaints made about care and protection services.
The Christian Democratic Party took the opportunity to make contact with the Commissioner for Children and Young People Gillian Calvert, who said:
There is merit in the proposed amendment so we welcome this bill. However, judgements involving a child’s future are always very difficult to make because they have lifelong consequences. Therefore we need to have a proper evaluation process in place. This will help us to understand if the amendment is meeting its intended goals and will help us to avoid unintended consequences. A thorough and effective evaluation process will also go towards building up our knowledge and understanding of child protection in New South Wales. This knowledge and experience will help the courts and agencies to be more confident about the sensitive decisions they make around children’s lives.
The Christian Democratic Party agrees with that. I am sure that this amendment will be warmly welcomed in the not-for-profit sector.
Concern has been expressed about the disclosure of what is known as “high-level identification information”. That simply means information that could identify, for example, foster carers. That could be the use of the surname of the authorised carer, the street address, the telephone number, details of employment and activities, the name of the school the child or young person is attending or any other information. I believe that this is a wonderful new development. I refer to my experience in overseeing out-of-home care programs at Wesley Mission for 27 years and the risks attached to the disclosure of this kind of information to volatile persons, who can forcefully demand to know where their child is, who has responsibility for the child, where the child goes to school and so on.
I have been responsible for a large number of children in out-of-home care. In the late 1970s I was responsible for 134 children and last year I was responsible for 5,500 such children. All these children were placed in the care of full-time Wesley Mission staff or in the care of many hundreds of foster parents or foster carers. I wish to acknowledge the wonderful work that foster parents and foster carers do in this regard, particularly when the birth parents may be extremely volatile. It is a sensitive task to open one’s home to a child that is fraught with difficulties and to expose one’s own children to that child. One of my concerns is that if foster carers are faced with the risk of high-level identification information being passed on to birth parents, the foster parents and their other children will suffer potential fear and apprehension. This is because the personal details of the child’s care, and thus the foster carer’s details, could become common knowledge to people who may be potentially volatile.
In the past weeks I have received representations from the Foster Carers Association that have reiterated and emphasised several concerns I have with this bill. The association, which is one of the representative bodies for foster carers in New South Wales, has urged the Government not to proceed with the original set of amendments relating to the disclosure of high-level identification information against the will of foster carers. That is most important. I commend the Government for being willing to accede to the association’s request. I believe that these amendments were introduced in the other place yesterday.
It is clear that proposed section 149G, which provides for the making of an application to the Administrative Decisions Tribunal for a review of a decision to disclose such information against a carer’s consent, is intended to act as a safeguard. However, even if it could be said that a birth parent has not acted violently in the past, there is no guarantee that this will not occur in future and against the foster carers themselves. The consent of foster carers should not be violated, because this will compound the pressures they are under and may potentially expose them to violence. Rather than their home becoming a haven for rest and recreation, it could possibly become a place where carers and their children hide from risk of harm.
The prospect of the release of such information may deter current foster carers from continuing to care for children or deter future foster carers from taking children. As part of my research on the bill, I contacted some of the foster carers I know and asked them for their opinion on the matter. Universally they said they did not want their private addresses, names, and so on released. The Government’s latest amendment will largely remove the possibility of an authorised carer being exposed through the disclosure of his or her private information: it provides that the carer’s view on whether this information should be released must be taken into account by the designated agency.
At one point while I was at Wesley Mission, my life and the life of some of my staff were seriously threatened on many occasions because a father demanded information as to where his children were to be taken. The father threatened my life on a daily basis, at five minutes past seven every morning. The father had been in gaol after having come close to murdering his wife by dousing her with petrol and setting her alight, leaving her with horrendous lifelong burns. Upon his release he found out that the court had ruled that his children be placed in the custody of Wesley Mission and that I would place them in the care of a good family in an anonymous location. The father proceeded to threaten my staff and me that we would be killed unless we passed on to him the information of his children’s whereabouts.
On one occasion he came to my home with a double-barrelled shotgun, which was loaded, and made it quite clear that unless I gave him the indication then and there I would be killed. As commonsense would dictate, I urged my staff not to disclose the information. My wife was active on the telephone, having seen the father come up the front path. That went on every single day for months. As a result, several of my staff who faced the father when he went to where they lived and worked, walked off the job. When I was debriefed, police told me that this man was also the main suspect in another murder for which no person has been convicted. This kind of release of information can be extremely threatening to foster carers and those who work with them.
In cases such as this it is clear that, given the father’s history, the department would not rule in favour of giving him high level identification information. However, the father had been released from gaol because the Parole Board had deemed him ready to return to the community and adopt a normal life once more. Clearly, he was not ready, and he did pose a significant risk to the community. There are instances where we can judge people as having the necessary character to be trusted with sensitive information, but we can never be completely sure whether the person will use that information wisely. Frankly, I do not want bureaucrats in any public department making decisions about whether such information about our carers is released.
It must also be said that foster carers should be offered the necessary support to carry out their responsibilities as carers. Given all the benefits and struggles it entails, foster carers should be allowed to create a new family without interference. The work that foster carers do, by and large, is absolutely superb, particularly given that they are entrusted with caring for children who are at risk of harm or neglect in the first place. They are usually not easy children to care for. I believe we must do everything possible to support carers. One way in which we as decision makers can support them is to endorse their ability to decide what type of information about them is released to the blood parent.
The bill also introduces myriad amendments by inserting a new chapter into the Act. I will not take up the time of the House going through these matters because they have been traversed by other speakers. However, under the reforms, New Zealand will now be on an interstate level with other States of Australia. This aspect of the bill is based on model legislation drafted for States and Territories and New Zealand in this area of operation.
Clarifications are made to the definitions of “legal representative” to ensure they reflect the manner in which children and young people are represented. Members of the House may not realise that the bill raises, from 10 to 12 years, the age at which a child is presumed capable of giving proper legal instructions to his or her legal representative. In my view this amendment is commendable, especially in view of studies that most 10 and 11-year-olds are incapable of understanding not only legal instruction but all that legal proceedings entail. As the legislation impacts upon children, I believe it is worthwhile that people of senior years be given the responsibility of guiding children in this respect. Amendments are also made in relation to the types of children’s services that are required to be licensed under the Act. I have raised a number of matters of concern, and I hope the Minister will address them in his reply. The Christian Democratic Party commends the bill to the House.
