Children's Protection (Implementation of Coroner's Recommendations) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 30 June 2015.)

The Hon. S.G. WADE (16:12): This bill passed the House of Assembly on 2 June with government amendments. The bill is part of the government's response to the damning report from the State Coroner, Mark Johns, arising out of the death of Chloe Valentine. The bill should be understood in the context of the government's record. The Weatherill Labor government has both a poor record of managing child protection services and a poor record in delivering system improvements.

During the last 13 years, the Labor government has received reports from a range of inquiries, including the Layton review, two inquiries by Justice Mullighan, the 2009 legislative select committee, the Debelle inquiry, as well as numerous reports from the Child Deaths and Serious Injury Review Committee and the Coroner's Court. Many recommendations from these reports have not been implemented, even when the recommendations have been accepted by the government and even when the recommendations are recurring.

The Legislative Council has been so concerned about poor implementation of system improvements in this area that earlier this year it gave an additional reference to the Select Committee on Statutory Child Protection and Care to see the committee overview the implementation of the series of reports, including this Coroner's recommendations from the inquest into Chloe Valentine's death.

What was the government's response? On 17 June, the Hon. Gerry Kandelaars came into the council accusing the opposition of trying to 'take what was a specific and limited terms of reference and make a committee with the power to look into any matter pertaining to child protection in this state'. In fact, contrary to the assertions of the Hon. Gerry Kandelaars, on 7 May 2014, in moving for the establishment of the committee, the Hon. Robert Brokenshire said:

The terms of reference are naturally broad. The intent, as the next motion will discuss, will be for referral of specific issues in addition to the broader work of the committee.

In speaking to the notice of motion on 21 May 2014, I said, and I quote:

The Liberal Party supports the establishment of a broad parliamentary committee on Families SA...The focus of the motion is on foster care…but the motion is broader than foster care. The committee that is proposed is to 'be established to inquire into and report on statutory child protection and care in South Australia' and it goes on to refer to foster care.

Later in my comments I floated a range of possible future references. My comments specifically foreshadowed the referral of a review on implementation, and I quote that section:

Another aspect which I believe would come within the terms of reference and which would be a potential issue that this committee might choose to look at would be, in fact, the review of the progress and the impediments to progress in the implementations of the reviews. I know that there is scholarly consideration in the child protection area as to the impact of reviews and in what circumstances they are positive and in what circumstances they are negative…We need to make sure that efforts towards continuous improvement do not lead to processes and a culture that focuses on compliance, rather than real outcomes—real protection for children and young people.

Accordingly, it should have come as no surprise to anyone that, on behalf of the Liberal team, I moved the reference on monitoring implementation just one year later. Contrary to the comments of the Hon. Gerry Kandelaars, the committee was established as a broad committee and the Liberal team felt there was more work to be done after consideration of the foster care reference. On 7 May, when the committee was being considered, the Hon. Robert Brokenshire said, and I quote:

I hope that the government does not just come out and say it is going to boycott this select committee if it gets up, as they did with the last select committee. I thought that that was very unfortunate because this should be above party politics. The number one thing that any government, any parliament and any decent person should do is ensure the protection, wellbeing and welfare of our children.

Initially, the government did cooperate with the committee. Government members were appointed to the committee and participated in the foster care inquiry. However, when the council referred a second matter to the committee the government members resigned. I would put it to the government that if the government is serious about bipartisanship in child protection, then rejoining the committee would be a tangible expression of that commitment.

Child protection is a whole of community conversation. For the government to appoint reviews and say that the conversation must stop until those reviews are completed is bizarre. That is not what I call a community conversation. It will inevitably delay the progress of reform and delay improvements.

This bill in particular is a response to the tragic death of Chloe. On 20 January 2012, Chloe Valentine, a young four year old child, died. Her case has penetrated the heart of the South Australian community. Photographs of Chloe speak of the essence of childhood: energy, innocence and trust. Her mother and her mother's partner were the only ones who harmed Chloe, but the community as a whole has let her down.

I would pause here and acknowledge Chloe's grandmother, Belinda Valentine. Belinda did not choose to enter public life but, still living with the grief of losing Chloe, she has become a strong voice for children like Chloe. She brings together lived experience and an uncommon wisdom.

On 9 April 2015, the State Coroner, Mark Johns, handed down the findings of the inquest into the death of Chloe Valentine. He found that Chloe's death was caused by a closed head injury, with possible contributing factors of extensive subcutaneous and intramuscular haemorrhage. The Coroner's report was extremely strong in its criticisms of Families SA. The Coroner's findings included 21 recommendations to change the child protection system that currently operates in South Australia. On 13 April the government indicated its support for 19 out these 21 recommendations. This bill seeks to amend the Children's Protection Act 1993 in order to implement three of the 21 recommendations—namely, recommendations 22.2, 22.11 and 22.12.

Recommendation 22.2 of the Coroner's report has been described as Chloe's Law. The bill seeks to amend the Children's Protection Act so that a child born to a person who has a conviction in respect of a child previously born to them for a qualifying offence would be placed from birth under the custody of the minister. Qualifying offences include criminal neglect, endangering life, causing or creating risk of serious harm, manslaughter or murder.

According to these changes, if the chief executive becomes aware that a child is residing with a parent who has been found guilty of one of these qualifying offences, he or she must issue an instrument of guardianship in respect of the child. The guardianship period would be for 60 days; the 60-day guardianship period and restraining notice periods would provide time for an investigation of the family's circumstances to be undertaken. Evidence and information gathered would be presented to the Youth Court as part of the application for a care and protection order which must be applied for under section 37(3).

The government amendments passed in the House of Assembly have clarified that this 60-day period commences from either the service of the instrument of guardianship or its lodgement at court, whichever is earlier. Sadly, in the tragic case of Chloe Valentine, because Ashlee Polkinghorne and Benjamin McPartland had no prior convictions for child abuse and neglect, this new provision would not have benefited Chloe.

The bill has gone one step further than the Coroner's recommendations on this issue in that it provides that if the chief executive becomes aware that a child is residing with a person who is not a parent of the child but who has been found guilty of a qualifying offence, the chief executive must issue a restraining notice to the offender unless it is inappropriate to do so. The restraining notice may impose a variety of conditions on the offender—for example, prohibiting the offender from residing in the same premises as the child or having any unsupervised contact with the child and so on. It will then be up to the parent or the person who has the conviction to demonstrate that they have been rehabilitated, reformed and are able to provide a safe and nurturing environment for the care of the child.

The bill also seeks to amend section 6 of the act to take up recommendation 22.11 and include a definition of cumulative harm which is to be considered as a relevant factor when making decisions about the care of a child. The bill provides that in assessing whether there is a significant risk that a child will suffer serious harm or a child has been abused or neglected, relevant officers will take into account the history of the child's care and the likely cumulative effect of that history. This amendment provides for the proper consideration of the effect of the type of chronic neglect that was so present in the short life of Chloe Valentine.

Recommendation 22.12 is pursued by making it clear that keeping a child safe from harm is a paramount consideration of the act. This attempts to make it clear that the paramount consideration in the administration of the act is to keep children safe from harm and that maintaining a child in his or her family must give way to a child's safety. Certainly, in the Select Committee on Statutory Child Protection and Care in South Australia a number of witnesses and people making submissions have expressed concern that Families SA at times gives too high a priority to the preservation of family units when that would actually be to put children at increased risk of harm.

The bill also originally removed the fundamental principles set out in section 4 of the act. A government amendment passed in the House of Assembly has restored to the act that a decision-maker must have regard to a child's views in making decisions under the act and has also restored the Aboriginal and Torres Strait Islander Child Placement Principle. The Attorney-General indicated in the other place that he would review other aspects of section 4 between the houses. I indicated to the minister that the opposition eagerly awaits advice of the result of that review.

In June, the opposition filed amendments in relation to compliance with section 20(2) of the Child Protection Act, which relates to mandatory drug assessments. Section 20 was amended in this respect in 2005-06 to add subsection (2). Subsection (2) provides that if Families SA suspects on reasonable grounds that a child is at risk as a result of the abuse of an illicit drug by a parent, Families SA must apply to the Youth Court to direct a drug assessment. This section provides one exemption to this provision; that is, if 'the chief executive is satisfied that an appropriate assessment of the parent, guardian or other person has already occurred, or is to occur'.

The findings of the Coroner in relation to the Chloe Valentine case concluded that there had been several occasions when there was ample evidence of methamphetamine abuse by Chloe's mother and multiple instances where there were grounds to suspect it. Despite this, no application was ever made pursuant to this section.

The evidence to the coronial inquest into the death of Chloe Valentine and other evidence given to the Select Committee on Statutory Child Protection and Care led that committee to the view that Families SA consistently tends to understate the risk to children of substance abuse.

On 1 May, following the coronial report, the government distributed a circular within Families SA to remind staff about the requirement. Personally, I regard an administrative memorandum as an inadequate response, particularly when it is being distributed in the context of persistent statutory noncompliance. I believe that the government should have at least provided more guidance to Families SA on what compliance looks like. In any event, the Select Committee on Statutory Child Protection and Care has recommended that section 20(2) be strengthened, and the opposition has filed amendments that seek to do that and therefore try to address the systemic failure by removing the discretion currently placed with the chief executive.

The chief executive would still have to suspect that a child is at risk in order to enliven the section 20 drug assessment; however, we believe, as does the committee, for that matter, that it is appropriate to remove the discretion as we are seeking to ensure that when there are reasonable grounds to suspect harm from drug use, a drug assessment must be undertaken. My understanding is that that was the intention of the parliament in 2005-06. The parliament, through this bill, will have an opportunity to reiterate its intent.

There were other matters that the Attorney-General took on notice, and we look forward to that information being provided either at the summing up stage or at the committee stage. In concluding my remarks, I would like to take the opportunity to quote from the Coroner's report. The Coroner's report quotes from a document called'Do Not Damage and Disturb: On Child Protection Failures and the Pressure on Out-of-Home Care in Australia'. I think it is worthy of further consideration:

An enlightened truth, and the bedrock of sound child protection, is that childhood is fleeting. This time of life must be optimised for children's sake, and for society's good, because bad early experiences have deleterious, life-long consequences. Because today's child is tomorrow's citizen, modern nations place a premium on the care, education and socialisation of children. That adults have a duty to nurture and not damage, disturb and distress children is a universal aspiration shared by all civilised peoples. That Australians allow this social norm to be transgressed in our rich and prosperous country is what's so shocking about the harm done under the rubric of child protection. The wrongs hereby perpetrated are of biblical proportions; doubly wicked are those who protest otherwise but must know, in their hearts, minds and consciences, that what they say is false.

Debate adjourned on motion of Hon. J.S.L. Dawkins.