Children's Protection (Guardianship) Amendment Bill

Introduction and First Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:41): Obtained leave and introduced a bill for an act to amend the Children's Protection Act 1993. Read a first time.

Second Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:42): I move:

That this bill be now read a second time.

I introduce the Children's Protection (Guardianship) Amendment Bill 2016. This is a bill to amend the Children's Protection Act 1993. Again, this is a bill that we, on this side of the house, say ought to be uncontroversial and ought to be advanced now, not at the end of the year, not whenever the government thinks it might be opportune to announce and not next year. Now.

I suggest that we have wasted years in the child protection arena by not tidying up the accessibility for carers and/or relatives of children to access the guardianship opportunities that come with securing that outside of the guardianship of the minister. This bill is consistent with the Nyland royal commission which reported in recommendations 153 to 157 that we should promote the use of other person guardianship orders by carers who have had a child in their care for a minimum of two years.

This is also available to and applicable to kinship carers. Largely, in this category we are talking about a foster carer or a relative—an aunt, a grandmother—in the kinship environment which is particularly important to our Indigenous children who are in need of guardianship in a circumstance where, for whatever reason, their natural parents, the biological parents, are unable or unwilling to provide that care. It is a process which has been available by a party making an application for guardianship. It can be done under the Family Law Act to the Family Court.

However, it is a process which has been stifled by a couple of things. One is the significant cost to the relative or the foster carer family who is keen to secure that opportunity in going along to a federal jurisdiction to seek that support. The impecunious state of the applicant can be such that it qualifies them to be exempt from filing fees in courts, as they are expensive.

The second and probably the most significant deterrent against people making an application is the fact that they are then met with a parent or parents who take them through the process, ring them through the courts and make it an expensive process, because the applicant foster carer or relative has to go through the arduous task of establishing that the parent or parents are unfit to provide for these children.

If one of those parents or both is in gaol or is clearly diagnosed with having a medical condition of mental incompetence, or is addicted to alcohol or illicit drugs—there can be lots of reasons why parents are unable to care for their children—to put the applicant carer through the process of having to prove that to justify their application, in ordinary circumstances would be reasonable. But what Commissioner Nyland says is that, in the circumstances where a child has been with a foster carer or relative—usually with the support and advice of the welfare agencies, and sometimes while the minister has the guardianship of that child—let that person make an application without having to have the burden of proof as to their position being considered favourably on an application for guardianship.

If the parent or natural parents, who still have to be served with the proceedings, except in exceptional circumstances, want to respond and present to the court an argument as to why that should not occur, then let them have the burden of proof, let them have the onus and the responsibility to explain to the court why that foster carer or relative should not have that. It is a reverse of onus, but it is very significant in the process of the application. It will, first, I suggest, significantly shorten the proceedings and costs for the applicant, and secondly, it will be a less cumbersome process.

On the face of it, the two-year residency with the foster parent or relative, in itself, would be a prima facie case to suggest that it is reasonable for the child to continue in those circumstances. It is not as though they can simply just line up and say, 'This child has been living with me for two years.' Supported by a short statement from an officer of the department, for example, or a medical practitioner, ought to make this process a fairly quick one. Documents can still be served or attempted to be served on the parent or parents, but it will ensure that we have an orderly and efficient process.

The reason that I am particularly keen to advance this is that Commissioner Nyland has not only recommended but also suggested that an independent assessment panel needs to be established to get on with the process of assessing and making the final decision. This is not an adoption process: this is a guardianship process that would be done internally. We should avoid those expensive processes and make it an easier application for the party in question, bearing in mind, as I say, that there has usually been a history of applications to the Youth Court to secure a guardianship in the name of the minister.

The reason why I think there is no explanation for the government delaying on this is that it has already been introduced in Western Australia. On the information I have been given, it has been operating for some three years and we have seen applications for the guardianship of hundreds of children by their foster parents largely, some by relatives, under a similar process. These children now know that they are comfortable, secure, protected and in an environment in which their foster parent or relatives are their legal guardians and that they are not going to be shopped from one foster care placement to another.

If there is one thing that is consistent from Ms Layton, and especially identified by commissioner Mullighan and again by Commissioner Nyland, it is that it is not acceptable for us to have a regime of care for children where there is state intervention that allows for the continued change of children's placement in foster or state care or sometimes in a residential care facility.

Quite obviously, we have a category of children who cannot be placed even with foster carers. Sometimes they have such complex needs that the capacity to even place them with a foster care family, without serious disruption or extra support being required, is just inalienable and therefore we need to deal with those separately. But there are lots of children of the thousands who are under the guardianship of the minister who are currently residing with foster families or with their kin in the form of aunties, uncles, relatives, etc.—

Mr Pederick: Kinship carers.

Ms CHAPMAN: —kinship carers, who have taken on a commitment for these children and they are very happy to continue to work with these children and enable the child to be reassured that they will not be moved, at the behest of an officer of the department, to other accommodation. This is absolutely critical.

When one reads through the somewhat chilling but very sad stories of the children who were the subject of sexual abuse while in institutional care, about which commissioner Mullighan undertook a comprehensive report in 2006, 2007 and 2008, he reports that one of the most disturbing aspects of the children who reported on their term living in institutional care was the constant change of family environments that they were placed in. Sometimes, it was clearly necessary. I am not suggesting that some of these decisions for their transfer should not have been made. Sometimes it was for the child's protection particularly.

This was a very damaging and longstanding problem for the children in these circumstances who had been treated in a vile manner to start with, who had been sexually abused, and then placed in varying foster care and residential arrangements which dislocated them from any chance of having a genuine family upbringing. This, after all, is the whole basis upon which we have a structure of foster families—for children to feel connected, needed and part of a family environment which, for whatever reason, they have been tragically denied as a result of their family of origin not being capable of undertaking that.

It has been recommended by Commissioner Nyland, it can be introduced straightaway, as soon as we have a panel that is operating, and it has been demonstrated to operate in another state, where it has been successful. So, I say to members: do not wait for Attorney-General Rau to think about review, etc., and provide us with a draft at the end of this year or possibly next year. We need to reassure the children, the thousands of children, who are currently in foster care. Of those, I expect hundreds would be willing to be part of, and in fact desperate to be part of, an ongoing family to give them that support until they are 18 or older. The connection between child and family and the connection between child and siblings is absolutely critical, and we need to make sure that we promote this for children straightaway.

One final matter is that Commissioner Nyland, at the commencement of her recommendations, identified other statutory arrangements that needed to be considered; that is, she recommended that there be legal aid available for carers to make applications to the Family Court. I suspect this does actually raise some jurisdictional complications and I would ask the government to have a look at it. At present, we have a Legal Services Commission which is funded, as most people would know, by the federal government and the state government. They each contribute about $30 million a year and they both have separate funding portals to deal with state—mostly criminal matters, but some civil matters—and federal, which are mostly Family Court matters.

If we are to have a position where the state Attorney-General is to get the support of his cabinet to give extra legal aid money for applicants to go to the Family Court, that may cause some complication. We may need to change the Legal Services Commission Act. I have written to the federal Attorney-General indicating my willingness to work cooperatively with the state government to advance some provision to support the recommendation of Commissioner Nyland. However, quite possibly we do need to have some work done around statutory reform to accommodate that, and I am quite happy to work with that. I am awaiting a response from Mr Brandis, the federal Attorney, as to whether we need to move on that.

However, we do not have to advance that part of Commissioner Nyland's report to deal with this aspect. This is discrete, it is critical and it is important to ensure that, between now and six or eight months' time when we might debate the Children's Protection Act, we prevent any children from being forced to change their accommodation arrangements. We should give them a chance to spend Christmas with a family who is genuinely going to be supportive of them and give them that chance in life, which so many eminent people have recommended is critical to their wellbeing to develop into adulthood with a close and loving family.

I will conclude by referring to one other matter. I understand in the Western Australian model that there have been members of family in the kinship caring arrangement or foster carers who have said, 'We don't even ask to have a continuation of money paid to us for care. If we have a guardianship order, we are happy to take on that responsibility.' The Western Australian state government indicated that they were still prepared to give support to these families who took on the guardianship, and I understand that has occurred. There will be a financial cost, if that is the government's initiative, but there are plenty of foster parents out there who are quite prepared to say, 'It's not the money. We're not here for the money. We just want to make sure these children have a good upbringing and a chance in life.'

Debate adjourned on motion of Ms Digance.