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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2022-02-10 Daily Xml
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Bills

Children and Young People (Safety) (Foster and Kinship Care Advocate) Amendment Bill

Introduction and First Reading

The Hon. J.A. DARLEY (15:28): Obtained leave and introduced a bill for an act to amend the Children and Young People (Safety) Act 2017. Read a first time.

Second Reading

The Hon. J.A. DARLEY (15:29): I move:

That this bill be now read a second time.

This bill establishes the position of Foster and Kinship Carers Advocate, independent of direction or control by the Crown or any minister or officer of the Crown. The advocate must regularly consult with foster and kinship carers and their families and other groups and persons representative of foster and kinship carers.

An important function of the advocate is, on request, review a decision of the chief executive or child protection officer. The applicant may confirm a decision or, after consultation with the chief executive, vary or revoke the decision and require a report on the action that has been taken in relation to the decision.

The existing act allows for an internal review of decisions of the Department for Child Protection by the Department for Child Protection. A person who is aggrieved by a decision of the chief executive or a child protection officer, in a manner and form determined by the chief executive, may apply to have that decision of the chief executive reviewed and the chief executive may confirm, vary or reverse the decision under review.

Since my attention has been drawn to chapter 12 part 1 of the legislation, it describes a review process where the chief executive investigates the actions of his or her department over which he or she is responsible. An appeal right to SACAT after this review process does not compensate for the power imbalance in this initial process. Carers understandably are fearful that the children in their care may be removed by the very people to whom they are required to lodge a grievance.

In an organisation, for employees, an internal grievance process on some matters may make sense. For carers concerned about children in their care, as non-employees providing an essential service for the state, to be subject to such a complaints process, and face those to whom the complaints and grievances may be directed, is obscene.

Carers have been raising the issue of the power imbalance for many years. The Child Protection Systems Royal Commission reported in August 2016 after inquiring for two years, and I quote:

[Some] carers feel overwhelmed by the power imbalance between them and Families SA, which has the ultimate power to remove the child from their care.

So the royal commission identified the problem for foster and kinship carers in the system:

There were some examples of good cooperative relationships but, in many other examples, carers were treated poorly and the value of their contribution was minimised. They were often met with the comment, 'You're just the carer’.

The Layton Review emphasised that the state cannot parent, but it must facilitate and support the parenting done by others. Thirteen years later, a lack of clarity remains about the reach of the Agency into day-to-day decision making for children in home-based placements.

Unfortunately, the royal commission did not recommend an external, independent complaints system, and I quote again:

The Agency should develop a centralised complaints process for carers, to investigate complaints independently. It need not be a formalised investigation, but it should respond promptly in writing to complaints. The availability of the process should be well publicised.

Therefore, with the legislative amendments that followed, foster and kinship carers' complaints still occur within a system internally administered by the department. This needs to be addressed once and for all.

In a letter received from the minister on 30 November, the day before the bill for the independent inquiry into foster and kinship care was passed in the other chamber, the Minister for Child Protection referred to:

…the development of a new complaints management processes and procedures [probably in 2019] that are robust, transparent and client-focussed. It may be that you are not aware of these new systems or pathways available to carers. I am advised that carers are aware of these provisions and accessing the pathways for complaint and review available to them. For your own background, I can confirm that initially complaints should be directed to the local DCP Office. If a complainant is not satisfied, the matter can be escalated to DCP's Central Complaints and Feedback Management Unit.

I think the minister and her department would understand that this is internal to the department and would of course be well aware of the Hon. M. Nyland's comments in the report of the royal commission of the power imbalance following the statement that carers are 'living in fear that the Agency will remove the child from them at any time'. Therefore, the assertion that this new system is 'robust, transparent and client-focused' must be challenged. Whilst the royal commission did not recommend an external complaints system, it did recommend:

The process should not require as a matter of course that the first approach with the complaint to be to the local office or worker concerned. Although usually complaints should be raised initially at the local level, this should not be a prerequisite to raising the matter through a complaints office. The complaints office should however encourage, in appropriate cases, attempts to resolve issues through informal mediation between the parties.

The minister goes on to say, 'If a complainant remains unsatisfied, there are a number of pathways for escalation and independent review including', wait for it, 'internal reviews', the Contact Arrangements Review Panel (CARP), which is available for limited matters, and the Ombudsman SA and SACAT, which are not timely processes or of particular value and, in any case, by then the carer has probably been through a harrowing experience and the child may have formed attachments to others. The minister continues:

In this context, and noting the Department's ongoing dialogue with CFKC-SA, Child and Family Focus SA as the peak representative body for carers, you will appreciate that we would find it difficult to support the investment of significant resources into a further 'independent inquiry' at this time. That is not to say the Government is not committed to a process of continuous improvement. We simply encourage our carers, and others as appropriate to take advantage of these already established processes and mechanisms in order to have them addressed.

And here is the rub: carers are complaining about the mechanisms the minister is urging them to use. Carers consider them inadequate. The minister is not listening. The need for the independent inquiry is because the minister has not listened, nor has the Premier.

I met with the Premier on 3 August last year, with carers, to discuss the need for an independent complaints mechanism. Carers provided clear advice to the Premier at the meeting that many carers felt they were not treated with natural justice and procedural fairness when making complaints, and this is affecting their role and the retention of carers. He listened, but no action followed. And so the situation continues of the inherent enormous power imbalance between DCP officials and foster carers who are afraid that if they question decisions of the department they could lose custody of children in their care.

The bill proposes an independent foster and kinship carers advocate to provide one model of how the system of dealing with complaints can be made independent of the administering department. Hopefully, the independent inquiry will listen to the foster and kinship carers and make the recommendation finally for a truly independent complaint system.

In addition to the advocate responding to any grievances lodged by reviewing departmental decisions (item 8), the advocate has the following listed functions allowing ongoing monitoring and improvements in the system and providing a place in the system for the voice of foster and kinship carers to be heard:

1. To support, promote and advocate for the rights and interests of foster carers and kinship carers.

2. To regularly review all programs designed to meet the needs of foster carers and kinship carers in the public and private sector.

3. To identify areas of unmet needs or inappropriately met needs of foster carers and kinship carers and to recommend to the minister the development of programs for meeting these needs or the improvement of the existing programs.

4. To make recommendations to the minister for legislative change in respect of unmet needs or inappropriately met needs of foster carers and kinship carers.

5. To advocate for and promote the rights and interests of foster carers and kinship carers.

6. To advocate for and negotiate on behalf of foster carers and kinship carers in the resolution of any problem faced by them arising out of their role as a foster carer or a kinship carer, as the case may be.

7. To advise foster carers and kinship carers on the application and operation of this act in relation to foster carers and kinship carers.

8. To review decisions of the chief executive or child protection officers in accordance with this chapter.

Accordingly, I commend the bill to the house to address a flawed system long overdue for an overhaul. If the Legislative Council sits again before the election, the contribution and discussion of other members on the issues involved will be most welcome. In any case, the desperate need for change has been put and, with the independent inquiry proceeding, a new parliament in May and a requirement to complete a comprehensive review of the legislation for introduction to parliament by October, discussion on the merits of this bill can also contribute and inform these processes. I commend the bill to the chamber.

Debate adjourned on motion of Hon. I.K. Hunter.

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