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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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CHILDREN'S PROTECTION (LONG-TERM REMOVAL REVIEW PANEL) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 November 2012.)

The Hon. J.S. LEE (20:35): I rise today to indicate further support on behalf of the Liberal opposition in relation to the Hon. Ann Bressington's Children's Protection (Long-Term Removal Review Panel) Amendment Bill 2012. The bill seeks to establish a panel that would review all applications by the minister for long-term guardianship before they go to court. My esteemed colleague, the Hon. Stephen Wade, made a very valuable contribution on 28 November 2012 regarding the bill. I thank him and place on the record my special thanks to Mr John Gardner, member for Morialta, for his diligent work as the former shadow minister for families and for the extensive background work and contributions he has made in relation to this bill.

It has always been the opposition's view that the panel created by this bill would not be necessary if the minister and the department were doing their job adequately. The current urgent need for action of this nature exists because a series of Labor ministers have shown a lack of interest and have been incompetent in the task of overseeing the department with responsibility for child protection.

As identified by the Hon. Ann Bressington in her own experience in dealing with child protection issues brought to her attention by constituents over the years, children and young people enter the care system for a variety of reasons. These young people have experienced adverse circumstances, abuse and/or neglect. Many ended up in awful and helpless situations. The feelings these kids experience can be confusing, mixed with grief and loss, particularly if they have also been separated from family members, their siblings and people they are familiar with. Many would have experienced a number of changes in their living arrangements, attended a number of schools and some may still be experiencing significant instability.

We are very concerned about children entering the alternative care system on a long-term basis when in some cases they would do much better living with their birth family. Who would have thought a country like Australia—supposedly a First World country, a country many consider to be the lucky country—would have so many unlucky children? Who would accept that there are so many young people who live their lives in neglect and abuse where the state care system has failed them? This is a system that is supposed to protect them from harm, yet it impacts on these children negatively. I agree with the Hon. Ann Bressington that this is simply not good enough.

The opposition is aware of the deficiencies and dysfunction within the child protection and alternative care system and acknowledges that this bill proposes sensible measures that have the good intention to bring about the improvement of the child protection system. The bill seeks to establish a panel that will review all applications by the minister for long-term guardianship before they go to the court. The minister may also refer any other matter relating to long-term guardianship of children for the consideration of the panel.

As we have heard from the Hon. Ann Bressington, there are many cases where parents have claimed that children have been inappropriately removed from them and put under 18-year orders. These children who have been taken away from their family become isolated and have no sense of belonging. The removal of children from a family can damage these young people long term. Currently, there are not sufficient steps put in place to ensure that such a removal is justified.

Parents, who are often in difficult hardship themselves and who do not have an adequate understanding of the legal processes, have no right of appeal and no ability to get help. They cannot get legal aid and are not in a financial position to engage a lawyer. Often the question of what is in the best interests of the child is not easily determined. Parents, foster parents, service providers, and government agencies are likely to provide different answers. A review mechanism such as the panel proposed by the Hon. Ann Bressington will allow all interested parties to present evidence to substantiate the underlying reasons which led to that removal order being sought.

The bill seeks to establish a clear and proper process of appeal that incorporates natural justice and procedural fairness principles for parents who believe they have been unfairly treated by decisions of government in relation to the care and protection of their children. The bill proposes to provide a check and balance before an order for guardianship until age 18 is made to the court. The wellbeing, the development and the future of these young people will be impacted by this decision for the rest of their lives, and such a panel may well offer the parents and the children that second chance.

We must acknowledge that although there are many good, compassionate, hardworking social workers within Families SA, clearly some do not fulfil this description. There are regular claims by reasonable and informed people that there is some level of dysfunction in this department. This was certainly the finding of the select committee investigating the department in 2009. Hence the panel under this bill could be a valuable resource to a minister who wishes to refer difficult cases relating to long-term care issues. This would be particularly helpful in cases where social workers have removed children from long-term foster families—cases that are currently not reviewable by a court. It should be noted that the bill leaves such referrals to the minister's discretion.

The panel has power to compel attendance and the production of relevant documents, and appropriate confidentiality provisions apply. When making a decision to remove a child from their family and place them in state care, it is desirable to have a body with oversight over the full case file, not just whatever information the department presents to the court.

Members of the opposition have considered a number of papers on this important matter at various stages of the debate, and with the benefit of further consultation and new research findings in this area, we agree to support the bill and propose some amendments with the hope of strengthening the composition of the panel.

During our consultation with various stakeholders, concerns have been raised about the strict criteria suggested by the Hon. Ann Bressington in relation to the composition of the panel. The opposition proposes to move amendments that will relax the criteria, enabling a minister to appoint at least five (rather than strictly just five) members to the panel. The composition of the panel is too prescriptive the way it is now, and if a prescriptive approach to the panel's composition was desirable, then the omission of qualified and experienced social workers from the list would be an oversight.

My proposed amendments provide an opportunity to bring relevant professionals and experts onto the panel, including a social worker who has experience in social work involving children. While the expectation that members of the panel be independent of the department is retained (not having been employed by the department for at least two years), the qualifications would no longer be strictly prescribed, although there is still an expectation that there be at least one child psychologist and one lawyer.

The remaining members of the panel should collectively have the skills proposed by the Hon. Ann Bressington and any other skills nominated by the minister. Rather than just specifying a category of panel members in the bill—for example, a child psychologist appointed to the panel must be a person who has not in the preceding two years been employed or engaged by the minister or the department—the opposition believes a fairer process will have this provision apply to every member of the panel. My amendment will state that a person may only be appointed to the panel if he or she has not in the two-year period preceding the appointment been employed or engaged by the minister or the department.

The opposition indicates its support for the Hon. Ann Bressington in her advocacy for a better child protection system and believes that the panel may prove to be a better body for the review of the circumstances of a child under the long-term guardianship of the minister than the current arrangements. We ask the Hon. Ann Bressington and other honourable members to consider the opposition's amendments to strengthen the composition of the panel, and commend the bill to the council.

The Hon. R.P. WORTLEY (20:44): I rise to give the government's response to the Children's Protection (Long-Term Removal Review Panel) Amendment Bill 2012. The Hon. Ann Bressington introduced the Children's Protection (Long-Term Removal Review Panel) Amendment Bill, for an act to amend the Children's Protection Act 1993, in the Legislative Council on Wednesday 4 April 2012. This bill seeks to establish a long-term removal review panel whose function would be to review all applications to the Youth Court for an order of guardianship until the age of 18, prior to the application being lodged in the Youth Court.

Ms Bressington has put forward a number of statements by way of evidence in support of 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. They also relate to the conduct, practice and integrity of the work undertaken by Families SA with families when a child or young person is removed and placed in long-term care. These statements include:

that Families SA wrongfully removes some children from their families and places them on orders to age 18;

that children's relationships with their families are deliberately broken;

that once placed on a long-term order, children's subsequent care is of a poor standard and exposes them to risk of further abuse in care;

that some Families SA practice in these matters is based on evidence that is fabricated and/or that cannot be substantiated;

that some Families SA workers engage in poor, unethical and illegal practices requiring the oversight of such a panel;

that there is no independent authority willing or able to address these practices; and

that parents currently have no legal recourse and no right of appeal in these matters.

The government does not support the statements made by the Hon. Ann Bressington in support of her bill. The process of applying for and being granted a legal order for the care and protection of a child, and the subsequent management of that child's subsequent care by Families SA, is regulated by legislation, legal processes and procedures, policies and practices, as well as being open to scrutiny by a number of external bodies

The Children's Protection Act establishes the safety, wellbeing and best interests of a child or young person as paramount considerations, and that every child or young person has a right to be safe from harm, a right to be cared for in a safe and stable environment, and access to opportunities that can be reasonably provided to promote development to his or her full potential. The act also recognises the family as a primary means of providing for the nurture, care and protection of children, and places a high priority on supporting and assisting the family to carry out its responsibilities to children.

Fundamental principles underpinning the act establish the desirability of keeping children with their own families, and preserving and strengthening relationships between children and their families as key elements in determining each child's best interests. The Children's Protection Act establishes clear aims and principles that must guide all decisions and actions under the act. Families SA operates within this framework and builds the framework, aims and principles of the act into it is policies, practice guidance and procedures to inform its staff in their work with children, young people and families.

Inevitably, when children or young people are removed from their parents for their own safety and wellbeing, at least some those parents will be aggrieved. It is imperative that we remember that the interests of aggrieved parents must never be put ahead of the safety and best interests of children or young people. This would introduce a fundamental compromise to the primary purposes of the Children's Protection Act.

In all decisions regarding removal of a child or young person through an order under the Children's Protection Act, the Youth Court, as an independent authority, is the decision-maker, not Families SA. In order to remove a child or young person from their parents, Families SA must apply to the court to seek an order that this will occur. In court the child's advocate, the parents, and the parents' representatives have the opportunity for matters to be heard, challenged and addressed to enable the court to reach an independent decision based on the evidence presented.

The Children's Protection Act 1993 provides that any party to the proceedings may make application to the court that a care and protection order be varied or revoked. The act therefore provides parents with clear legal recourse in relation to any previous decision of the court regarding removal of their child.

The act establishes that if Families SA is of the opinion that a child or young person is at risk, and arrangements should be made to secure their care and protection, Families SA should cause a family care meeting to be convened. The purpose of the family care meeting is to provide a proper opportunity for a child or young person's family, in conjunction with a care and protection coordinator, to make informed decisions as to the arrangements to best secure the care and protection of the child or young person and to review those arrangements from time to time. The care and protection coordinator is nominated by the senior judge of the Youth Court. In addition, mechanisms are already in place to ensure integrity in Families SA processes:

random review by the principal social worker of electronic case recording and case management in the electronic Connected Client and Case Management System;

case review and consultation by the principal social worker and, as required, the principal Aboriginal consultant and the principal psychologist;

accountability mechanisms including the Health and Community Services Complaints Commissioner, the Special Investigations Unit, the Adverse Events Committee, the Child Death and Serious Injury Review Committee, the department's risk management and audit review processes, the Ombudsman, and access to ministers by the community;

family care meetings to review family care agreements provide a forum where Families SA actions can be measured against what Families SA has agreed to do; and

monitoring by the Guardian for Children and Young Persons of the circumstances of children under the guardianship or in the custody of the minister.

The Youth Court and the judiciary provide an independent authority to test evidence and make decisions regarding who will have care of a child or young person, where a child or young person will live and contact arrangements with family. At any time a parent with a complaint can seek legal action through the offices of the Ombudsman, the Health and Community Services Complaints Commissioner and the Minister for Education and Child Development.

I would encourage all of those present not to support the proposed bill on the grounds that it is not well conceived, being based on a poor understanding of the existing legislation and its requirements for the practices of Families SA with children, young people and their parents; no demonstrated understanding of the role of the courts as an independent authority in testing evidence and decision-making; little understanding of the avenues of recourse open to parents and existing and well-established accountability mechanisms for the practices of Families SA; and unfounded claims about the practices of Families SA.

Natural justice, right of reply and due process for parents are an essential part of any system for the care and protection of children. These elements are already embedded in the child protection system, and I believe they are not further advanced in any way by this proposed legislation.

The Hon. A. BRESSINGTON (20:52): Well, what can I say? I honestly wish I lived in the Hon. Russell Wortley's world.

Members interjecting:

The Hon. A. BRESSINGTON: Well, absolutely. If we lived in Russell's world, then we would not even need a child protection system really, because it would be just a perfect world.

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): The honourable member should refer to the member by his proper title.

The Hon. A. BRESSINGTON: I know there is at least one member sitting on the other side of this chamber who had a very long battle with social workers from Families SA, and I know that there are other members within the Labor Party who have also had representations made to them by parents whose children have been rashly and wrongly removed and have been damaged in that process.

I would just like to make one point. I spoke on a previous bill about the research that goes into my legislation, and I do not stand up here and just parrot off the paper world policy of the government. I actually do research on this stuff. I also reread the report from the inquiry into Families SA that the Hon. Jing Lee referred to concerning high-ranking professionals; again, Professor Freda Briggs spoke about the fact that she proved that in a number of cases case files had been tampered with, that information had been removed and that false allegations had been made by social workers to build their case. Professor Dorothy Scott, who was also heavily involved in the child protection system, spoke of the same sorts of goings-on.

We had five social workers from Families SA who came in to give evidence at that inquiry who spoke of exactly the same kind of practices. I have had at least 15 ex-social workers, senior social workers, who retired from the child protection industry because they could not work under the conditions that they were required to—and I am not talking about just their heavy workload: I am talking about the ethical misconduct that they were required to practise under, or the threat of being bullied or intimidated. When the Hon. Russell Wortley says there is no foundation for the need for this bill, I could go on all night countering that particular fallacy.

At the end of the day, this is about children and their right to be with their birth parents where and when possible, and a lot of these children are removed based on a snapshot of a family that may be going through a difficult time. I do not know of any family with children that does not at some stage have a rough patch, but these children are removed.

There is no legal recourse. I referred a number of cases to the office of the community services commissioner and got back a response that, although there are guidelines in place for child protection workers, they are not bound by those guidelines and there is nothing she can do about these cases. The Ombudsman takes the same long-armed approach because nobody wants to take the risk of going against the recommendations of child protection workers just in case something does happen to these children.

In my office, I have a policy that, when parents have been accused of abusing or neglecting their children, before I advocate for them—and I mean advocate: I do not just mean hear both sides of the story—I have them undergo a forensic FBI-approved polygraph test. We have one of only two people in the country who is qualified to do this kind of forensic testing, and I believe that he was engaged for a period under contract to conduct polygraph tests for recruiting of police officers.

So, it is not that the government does not have faith in this process because they have used it on occasion themselves. I do engage Gavin Wilson quite often to undertake polygraph tests of parents who deny that they have abused their children and, if that test comes back that it is 98 per cent likely that they are telling the truth, I follow through on those cases.

I try to be as careful as possible about the accusations I make in here about some social workers. I do not like to defame people. As the Hon. Jing Lee said, there are a lot of dedicated social workers within the child protection system, and they work their butts off and try the very best they can to do the best job they can. Unfortunately, there is a bullyboy culture, and it was described in the report as a toxic and invasive culture within Families SA that is going to take a long time to turn around.

Again, I am disappointed that the government has not been able even to confer with its own members and take notice of what they have had reported to them about the conduct of some within the department and that it is not prepared to take just the smallest step forward to try to rectify this.

I remind everybody of the Mullighan inquiry into victims of abuse in state care, when Ted Mullighan himself said the evidence he took was just the tip of the iceberg. I have said it many times in here and I will say it again tonight: we will have another one of those inquiries, maybe in a decade or so, and we will hear more evidence of a government that failed to act.

I would also like to thank the opposition for supporting this, and I do support their amendments. The Hon. Jing Lee and I have discussed it and what she has proposed makes perfect sense to me. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.L. VINCENT: Not having made a second reading speech, I would just like to indicate that having this debate and clarifying a few things with regard to the Hon. Ms Lee's amendments, I will be very strongly supporting the bill. As the Hon. Ms Lee said, in an ideal world a panel such as this would not need to exist, but as I am sure we are all aware we do not as yet live in an ideal world, particularly when it comes to child protection in South Australia and, of course, none of the measures, including guardianship of a minister are presently perfect.

I would just like to quickly point to one particular recent case where a mother who had disabilities, one of them being that she was deaf, was first ordered to attend a parenting class which she fronted up to, but because an Auslan interpreter was not provided she was not able to understand or participate in the class and subsequently, I believe, lost her children even though she had demonstrated the right will and intent towards those children by showing up to this court appointed parenting class. Certainly there are shades of grey that need to be addressed, and while these things exist I think it is obligatory that panels such as this exist as well and therefore I support the bill and the amendments.

The Hon. D.G.E. HOOD: I would very briefly like to place on record that Family First also supports this legislation.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

The Hon. J.S. LEE: I move:

Page 3—

Line 12 [clause 7, inserted section 44A(2)]—After 'consists of' insert 'at least'

Lines 14 to 20 [clause 7, inserted section 44A(2)(a) to (d)]—

Delete paragraphs (a) to (d) (inclusive) and substitute:

(a) 1 member must be a child psychologist; and

(b) 1 member must be a legal practitioner of at least 5 years standing; and

(c) the remaining members must be persons who collectively have, in the opinion of the Minister—

(i) knowledge, skills and experience in relation to family preservation models; and

(ii) experience in acting as an advocate for children at family care meetings; and

(iii) experience in social work involving children; and

(iv) such other knowledge, skills or experience as the Minister considers appropriate having regard to the functions of the Panel under section 44G.

Lines 21 to 23 [clause 7, inserted section 44A(3)]—Delete subsection (3) and substitute:

(3) A person may only be appointed to the Panel if he or she has not, in the 2 year period preceding the appointment, been employed or engaged by the Minister or the Department.

I have already provided an explanation earlier in my second reading speech. I do not believe I am required to provide any more information. I believe the Hon. Ann Bressington has already accepted those amendments.

Amendments carried; clause as amended passed.

Remaining clause (8) and title passed.

Bill reported with amendment.

Third Reading

The Hon. A. BRESSINGTON (21:05): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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