Children's Protection (Guardianship) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 November 2016.)

Ms SANDERSON (Adelaide) (10:57): I rise to speak on the Children's Protection (Guardianship) Amendment Bill 2016 and to support this bill. It will provide a long-awaited legislative mechanism to ensure that foster and kinship carers of South Australian children on long-term guardianship orders can progress the transfer of guardianship from the minister to the carer through the Other Person Guardianship. This bill aligns with recommendations 153, 154 and 155 of the Nyland report. Recommendation 153 is that the South Australian government:

Amend the Children's Protection Act 1993 to enable carers to apply to be appointed an Other Person guardian where children who are subject to long term orders have been in their care for a minimum of a period of two years, or such lesser period as the court in its absolute discretion determines is appropriate in the circumstances.

Recommendation 154 is:

Amend the Children's Protection Act 1993 to provide that biological parents who oppose an application for the appointment of an Other Person Guardian bear the onus of proving to the court on the balance of probabilities why the order should not be made.

Recommendation 155 is to establish an independent assessment panel to consider applications for Other Person Guardianship in accordance with certain procedures. Currently under section 38(1)(d) of the act, the Youth Court can appoint up to two people, other than the Minister for Child Protection, to be the legal guardian or guardians of a child.

An order transferring guardianship under section 38(1)(d) means that foster or kinship carers of a child become their legal guardians or Other Person Guardian. However, whilst provisions for the transfer of guardianship from the minister to foster and kinship carers already exist under the Children's Protection Act, the uptake is minimal in comparison to the numbers of children in state care and also when compared with other Australian jurisdictions.

Guardianship orders being transferred from the minister to foster carers and kinship carers in 2013-14 year in South Australia was less than 5 per cent compared to 10 per cent in Western Australia and the ACT, around 17 per cent in Queensland and Tasmania, and just under 25 per cent in Victoria and New South Wales. That was from the AIHW child protection report 2013-14.

Moreover, whilst the number of South Australian children on long-term guardianship orders (GOM18) continues to escalate, commissioner Nyland found that applications for OPG have declined. This is despite all applications for OPG between 2011 and 2014 being granted. As at 30 September 2016, there were 3,311 South Australian children living in out-of-home care under care and protection orders.

Of these 3,311 children, there were 1,294 in foster care, 1,467 in kinship care, 321 in residential care, 187 in commercial care and 42 were living independently. Of the total number of children in state care at 30 September, 483 were on short-term guardianship orders for 12 months, with 2,587 on long-term orders to the age of 18. We currently have 2,587 children on long-term care and protection orders to the age of 18 that need stability and permanency in their alternative placement.

Whilst some of these children will exit care primarily through ageing out, they will quickly be replaced by many of the 483 children currently on 12-month orders who will not return to their families. There are many reasons put forth as to why the transfer of guardianship from state to Other Person Guardianship is important, not the least of which is providing both the child and the carers with a sense of permanency.

For the child, the permanency principle recognises that children and young people need a sense of identity, belonging, stability, continuity of relationships and emotional attachment. Simply put, emotional attachment develops when the child's needs are met which, unfortunately, for many children in state care they have not been. Three preconditions for attachment are continuity, which involves the carer's constancy and repetition of the parent-child interactions; stability, which requires a safe environment where the parent and child can engage in the bonding process; and mutuality, which refers to the interactions between the parent and child that reinforce their importance to each other.

For the carer, permanency is also critical to their ability to fully commit to a child in their care. Commissioner Nyland noted the challenge of foster carers committing themselves to the care of a child who could be removed by the agency at any point. One carer who provided evidence to the commissioner, who had cared for her now six-year-old foster child since he was three weeks old, described herself as living with the sword of Damocles hanging above her head. The fear that the child can be removed from the foster or kinship carer at any time stops those bonds developing, and sometimes fully developed attachments can be abruptly severed, making foster-parents unable to function.

Through Other Person Guardianship, it is hoped that children will develop a stronger sense of belonging and personal identity by being connected with a family that they can call their own. The transfer of guardianship from the minister to the carer demonstrates the guardian's permanent commitment to the child, recognising the child as part of their family and promoting feelings of safety and security.

Other Person Guardianship therefore addresses the needs of both the child and the caregiver who, through the transfer of guardianship, can get on and build a life together with minimal intrusion by the state. The making of an OPG order acknowledges the contribution the carer has made to the child's life. It grants them greater decision-making capacity and responsibility than that which can be exercised by simply being a foster or kinship carer. It also removes the stigma of a child being labelled as someone in state care.

Perhaps most importantly, however, as commissioner Nyland points out, Other Person Guardianship provides a greater degree of certainty that the child will remain with the foster or kinship carer over the long term, thereby assisting the carer to make a long-term commitment in which they can permit themselves to love and care for the child unreservedly. I commend the bill to the house.

Debate adjourned on motion of Hon T.R. Kenyon.