CHILDREN'S PROTECTION (LONG-TERM REMOVAL REVIEW PANEL) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 April 2012.)

The Hon. S.G. WADE (22:58): I rise on behalf of the Liberal Opposition to indicate our support for the second reading of the Hon. Ann Bressington's Child Protection (Long-Term Removal Review Panel) Amendment Bill 2012. At the outset I would indicate that the opposition has requested that the honourable member postpone the committee stage of the consideration of the bill until next year so that the opposition may consider proposing amendments to the bill.

The Hon. Ann Bressington introduced this bill into the Legislative Council on 4 April 2012. The bill proposes to establish a panel to review all applications by the minister for long-term guardianship before the applications are heard by the court. Further, the minister may refer for consideration any matter relating to the long-term guardianship of children to the panel.

The opposition acknowledges that there is always room for improvement of the child protection system and that this bill proposes sensible measures that could be the basis of such improvement. The bill proposes that a five-member panel be established consisting of two child psychologists who have not been employed or engaged by the minister or the department in the preceding two years; a member who has expertise, knowledge or experience in relation to family preservation models; a legal practitioner of at least five years' standing; and a person who is regularly appointed to act as a child's advocate at family care meetings.

The minister would appoint the panel members. The proposed panel would have the powers to compel attendance and production of relevant documents, and appropriate confidentiality provisions would apply. Following consideration of the long-term guardianship application, the panel would either recommend that the application proceed, that a 12-month order be sought instead, or any other recommendation in relation to the child.

The minister is not obliged to accept the panel's recommendation but if they disagree as to what is in the best interests of the child, they must provide a written report of the decision specifying the reasons for that decision. In that case the court is to receive a copy of the panel recommendation and the minister's report. Further, the panel will conduct annual reviews of the circumstances of children.

The bill seeks to improve transparency and the process surrounding the application and granting of long-term orders. Concerns have been raised that when an application is made to the court to remove a child from their family and place them in state care, the court is only able to see a limited amount of the case information held by the department. The bill intends that the panel would be able to review the entire department case file so the decision to grant the order is done with a better understanding of the circumstances of the case.

Certainly in my role as shadow attorney-general I have had concerns expressed to me that in the Youth Court, for example, judicial officers do not have access to the range of material in relation to young people that is available in other courts. Further, under the bill, the panel can provide valuable support for a minister faced with difficult issues relating to long-term care.

Interested parties have suggested to the opposition that consideration of this bill may well spark further reform in the child protection system. Some of the areas that parties suggest need to be looked at are where social workers have applied to have children removed from long-term foster families, and the availability of review processes in these circumstances. Other advocates have highlighted the possibility of the court allowing children to be placed with their grandparents consequential to an application being made.

Other concerns raised have included that, where children are removed from their parents, the parents are usually uninformed of the legal process in which they are engaged and, as a result, they are often not in a position to contest the removal or address the underlying behaviour which led to that removal order being sought. The panel may well give such parents an opportunity for the process to stop and pause and reflect.

The bill proposes to provide a check and a balance before an order for guardianship until age 18 is made to the court. These orders often have a significant impact on a child's future, and it is imperative that they are not made lightly. It is only in recent months that we have reflected on the negative impacts of previous generations of child protection policies. It is incumbent on us to do what we can in our generation to minimise any negative impacts.

The panel may prove to be a better body for the review of circumstances of a child under long-term guardianship of the minister than the current arrangements. Currently the court can engage experts for their input on these matters but, given its composition, the panel may be a very useful ready source of advice and, considering the breadth of the expertise, in a better position to review orders over the longer term.

Having said that, we do have concerns about the composition of the panel perhaps being too prescriptive. Other interested parties have raised concerns that the panel may add to the administrative burden of what is already an administratively-burdened department—Families SA. There are concerns that rather than helping families this may divert resources towards bureaucracy rather than services on the ground and delivering what is in the best interests of a child.

The opposition certainly considers, for all of the reasons that I have just mentioned, that this proposal is well worth further consideration. We would certainly be keen to engage the Hon. Ann Bressington in further consideration of this bill, but would seek the opportunity to undertake further discussion and consider amendments to the bill.

The Hon. K.J. MAHER (23:05): I rise to inform the chamber that the government does not support this bill as it does not advance the care and protection of children in South Australia beyond the existing legislation. The Hon. Ms Bressington has put forward a number of statements she claimed as evidence of the need for the proposed bill. These statements relate to the adequacy of current legislative governance and practice frameworks surrounding the removal of children or young people until the age of 18, and to the conduct, practice and integrity of the work undertaken by Families SA.

The Hon. Ms Bressington's statements are not reflective of the current policies and procedures that exist when long-term orders are sought. Significantly, the Hon. Ms Bressington's bill appears not to recognise the established role of the Youth Court under existing legislation as an independent authority and decision-maker in these matters in testing evidence and, importantly, in providing legal recourse to parents.

The Hon. T.A. FRANKS (23:06): The Greens support the Children's Protection (Long-term Removal Review Panel) Amendment Bill put before this council by the Hon. Ann Bressington. The bill seeks to ensure there are limits on the removal of children from their parents and that only in those cases where there is no realistic prospect of reunification between child and parents do those cases go to the Youth Court for consideration. This bill does not detract from the role of the Youth Court. The Youth Court will in fact remain the ultimate arbiter of whether an order should be granted.

The Hon. S.G. Wade interjecting:

The Hon. T.A. FRANKS: It will ensure, as the Hon. Stephen Wade interjects, that they will have more information when they make those decisions, and quite wisely so. The bill, in order to effect this, establishes a long-term removal review panel, which will be required to review and report to the minister on every application for an 18-year order prior to that application being lodged in the Youth Court.

The panel will be a permanent body comprising five members, each serving three-year terms comprised of one member with expertise in relation to family preservation services, two child psychologists who have not been engaged by the Department for Families and Communities (or the relevant department) within the preceding two years, a legal practitioner of five-years standing and a child advocate from the Youth Court.

The panel would also assume the role of conducting reviews of circumstances of children under long-term guardianship, which are required to be undertaken every year by section 52 of the Children's Protection Act. We think this is a common-sense solution to a problem to which perhaps the government should be turning its attention.

We note that this bill has received support from groups such as grandparents4grandkids and also, as the Hon. Stephen Wade mentioned, other groups who see its application potentially to situations for foster carers and, in particular, the group that used to be known as children in crisis, now known as Foster Care Family Advocacy, which we understand supports this bill.

With those few words we commend the bill and understand that it is not proceeding beyond clause 1 tonight. We hope that those who have issues with the bill and wish to make amendments do so in a constructive way as obviously it is the children who are paramount in this.

The Hon. D.G.E. HOOD (23:08): I rise to speak in support of the Children's Protection (Long-term Removal Review Panel) Amendment Bill introduced by the Hon. Ann Bressington. On behalf of Family First, I advise that we strongly support this bill. This bill establishes a panel, the function of which will be to review proposed applications under section 38(1)(d) of the Children's Protection Act, to have a child placed under the guardianship of the minister until the child reaches the age of 18. As members would be aware, such an application is made when a child is at risk and the child should be taken away from the custody of the parents for the child's care and protection. Obviously this is a very serious matter.

The bill provides that the panel will consist of two child psychologists, one legal practitioner and two other members with relevant experience. Departmental information must be provided to the panel, and its procedures allow it to collect additional information, including confidential information concerning a relevant child about which an application will or may be made.

The panel may recommend that, one, the application proceed or, two, instead the minister seek an order that the guardianship be limited to a period of less than 12 months or, three, make any other relevant recommendations. The panel must give reasons for its recommendations, quite sensibly. If the minister decides not to accept the recommendations of the panel not to proceed with an application, he may still proceed with the application but the Youth Court must be advised of the recommendation and all relevant reasons.

The panel is essentially an oversight panel. I share with the Hon. Ann Bressington concern for children who are the subject of orders to be under long-term guardianship of the minister. There are very real questions about the operations of the department and its management of such cases. Obviously, youth are indeed the next generation in our community, and we cannot afford to make any mistakes in relation to the care that we as a community provide for them. There are many very sad cases where applications for guardianship by the minister are sought. In such cases, it is essential that a careful decision is made so that the best outcome is possible.

Since the report of the panel is to be placed before the court, it may well be that the court will come to value the compiling of information and expert assessment that the panel can provide, such that the length of hearings may be reduced. Importantly, the panel will provide an avenue for parents who contest the application to put their views and concerns without the need to go to court and possibly pay the costs of a lawyer and all the other associated costs. The panel is in a position to assess the concerns of the parents and evaluate them independently of the department. This independent review will provide a valuable check and a very worthwhile step in the right direction.

One of the unfortunate features of applications for guardianship is that as soon as such an application is under consideration there is a situation of conflict between the parents and the department. They will both see themselves as prospective litigants opposing each other. The department will be seeking to prove that the parents are unsatisfactory and not fit to bring up the child; the parents will seek to prove the contrary. In those circumstances, trust is destroyed and a situation of antagonism is developed.

The department is then no longer in a position to give positive guidance to the parents about caring for the child. The parents no longer trust the department and will not provide information that could lead to useful advice because the information may be used against them. They will not admit that they have shortcomings in raising their child and seek advice about overcoming their shortcomings because this will add to the evidence that the parents are not able to provide adequate care.

In litigation, each side wants to win and to have its views confirmed by the court. Whilst there is no complete solution to this problem, the establishment of a panel to independently assess information would open the possibility of the department taking on a more conciliatory role towards the parents, and I believe this should be encouraged.

The care of children is a matter of vital importance. I note that during her parliamentary career the Hon. Ann Bressington has had much experience in dealing with complaints from constituents on these types of issues and has brought them to this chamber on a number of occasions. She is very clear in her vision that there is a need for a long-term removal review panel, and Family First strongly supports her in that view.

Debate adjourned on motion of Hon. J.M.A. Lensink.