Children And Young Persons (Care And Protection) Bill; Children And Young Persons Legislation (Repeal And Amendment) Bill



About this Item
SpeakersShaw The Hon Jeffrey; Forsythe The Hon Patricia; Arena The Hon Franca
BusinessBill, Second Reading

CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) BILL
CHILDREN AND YOUNG PERSONS LEGISLATION (REPEAL AND AMENDMENT) BILL
Second Reading

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [3.25 p.m.]: I move:
      That these bills be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.
      I am proud to propose these bills which contain vital and fundamental reforms to child protection within this State. These bills continue to demonstrate the commitment of this Government to the safety and wellbeing of children of this State. These bills have arisen from four years of intensive, and extensive, consultation. Individual members of our society and a myriad of groups have all contributed to, or been consulted in, the preparation of the report which laid the foundation for these bills. That report was released in March of this year and at the time I expressed my thanks to Associate Professor
Page 10898
Parkinson and the members of the review team who worked so hard in producing it.
      As Professor Parkinson recommended, further work is still taking place on matters surrounding child employment. That is an area which is not just limited to questions of child abuse but raises significant issues of microeconomic reform, industrial practice, educational and training concerns and occupational health and safety. All of these areas will now be considered together and a cross-government approach made to improve conditions affecting our children. Likewise, recommendations in the review concerning licensed children’s services, which includes preschools and other child care services, are receiving further consideration by the new Office of Child Care, recently established by this Government. This office will work with all providers of children’s services to ensure a uniformly high standard of care for our children. These standards will only be set after consultation with the sectors concerned.
      I am proud to propose bills that make the most vital and fundamental reforms of the child protection system within this State. These bills make the needs of children, young people and their families the central focus of the legislation. These bills are about them and they are for them. They also emphasise a whole-of-government approach to child protection. Although my department will continue to have major responsibility for ensuring the safety, welfare and wellbeing of children, young people and their families, it will need to do so in co-operation not only with other government departments but also with community agencies. This is an important feature of the bills. Our children, our young people and our families need the support of us all. The principal bill contains statements of objects and principles to apply to the entire bill. The lack of such statements in the Children (Care and Protection) Act 1987 was consistently raised in consultations as a major concern. A statement of objects and principles will guide actions taken, and services provided, under the Act. The objects and principles will also assist the understanding of the legislation by the diverse range of people who work with, or are directly affected by it. These include, but are not limited to, the children and young people and their families who may be supported or assisted under the legislation, district officers and other government workers, the broad range of community organisations providing support and assistance under the provisions of the legislation, the Administrative Decisions Tribunal and persons working in the Children’s Court. They provide vision and purpose for both workers and clients in the child protection arena.
      Part 2 of chapter 2 contains some very important provisions relating to Aboriginal and Torres Strait Islander children, young people and their families. Clauses 11 and 12 articulate some fundamental principles relating to Aboriginal and Torres Strait participation in decision making and self-determination. The application of the Aboriginal and Torres Strait child placement principle has been extended and now includes voluntary placements of Aboriginal and Torres Strait Islander children, and placement pending final orders, although there is an exception for emergency placements made to protect a child or young person from the serious risk of immediate harm, and other placements required for less than two weeks. Principles are also established for the placement of children and young people with parents from different Aboriginal and Torres Strait Islander communities, and for those with one Aboriginal or Torres Strait Islander parent and one non-Aboriginal or Torres Strait Islander parent.
      Clause 32 of the bill requires prompt action by the department to determine if a child or young person who is the subject of a report is Aboriginal or Torres Strait Islander. Other provisions relate to self-identification and the wishes of an Aboriginal or Torres Strait Islander child or young person, and the keeping of records. Clause 21 of the bill states in very simple form that either a parent or child may seek the assistance of the department and the department must do what it can to support and assist the family to obtain the services which will enable the child or young person to remain in, or return to, family care. This is a small but simple reform. So often the first time that the department becomes aware of a family in crisis is when there is a report, and if they ask for help, it has often in the past been treated as if it were a notification of abuse and neglect.
      We want to encourage parents to come forward and seek assistance in the knowledge that they will not be treated as abusive parents but will be treated with respect as parents who need external support to assist them in their difficult parenting tasks. This will not to be taken as a sign of failure, but instead is a realistic assessment of where help is needed to assist them and strengthen their ability to care for their family. The aim of these reforms is to allow my department to work co-operatively with parents and reach agreements with them on plans for the care of the children. Even where it is necessary for a child to be taken into out-of-home care, the bill makes provision for parents to continue to have some parental responsibility for the wellbeing of their children. The child is of paramount importance and these provisions do not focus on any alleged criminal activity but solely on the needs of the child or young person.
      The majority of the problems coming to the attention of the department will still no doubt occur through reporting by members of the community. The bill sets out five grounds on which a child may be deemed to be at risk of harm and requires all professionals who are working with children in specified services to report reasonable suspicions that the child is at risk of harm. The bill only requires people to report where there is presently a risk of harm to the child. There have been concerns in the past that counsellors and others involved with children and families were legally obliged to report past abuse even though there was no present risk to the child. This bill makes it clear that this is not the case and the child must presently be at risk of harm as the result of abuse or other circumstances. Intervention by my department will not be required in these cases unless there is a risk of harm.
      The bill makes clear what my department’s responsibility will be when it receives a report or when it assesses that a child is at risk of harm. It must make whatever investigation and assessment the director-general considers necessary. The bill also requires the department to give priority to those cases where the child is at greatest risk of harm. Where the child’s safety is adequately assured by other means or the department’s assessment is that there is no risk of harm, the department need take no further action beyond noting the details of the matter. Reporting to the department does not mean necessarily that the department needs to intervene. However, reporting will be a means by which the department is made aware that concerns exist. Just as there are changes to the ways in which children, young people and their families can receive assistance and support, so there are major changes proposed to the work of the Children’s Court.
      In making these changes the Government is committed to resolving the many concerns identified by the review report about the conduct and management of care applications and proceedings in the Children’s Court. The proposed improvements will have a significant impact on the experiences of children and their families when required to
Page 10899
      attend the Children’s Court. They will spend less time waiting around the court, list days will be abolished, there will less often be a need for a hearing, there will be less delay until a hearing can take place and the hearings themselves will be more clearly focused on outstanding issues. The reforms should also promote more meaningful involvement of children, young people and their families in a way which will be more beneficial for the children.
      It is fundamental to these reforms that an application to the Children’s Court for a care order is a step of last resort and my department will have to justify why that step has been taken rather than another less severe intervention and must show what options they have attempted or were considered not appropriate to the circumstances. The bill states some fundamental principles for the way in which all those working in the child protection system are expected to go about their tasks. One of these principles stresses the importance of child participation in decision making. The bill recognises the rights of children and young people to participate in decision making and imposes some specific obligations on the department to give practical effect to this principle.
      I turn now to some specific sections of the bill. Chapter 3 introduces the term "reports" to refer to information given to the department that a child or young person is at risk of harm. There will be no requirement in law to investigate all reports as may exist under the current Act. The information received may be sufficient for the department to conduct an assessment and if the report does not disclose any grounds for believing that the child is at risk of harm the department may choose to take no further action beyond recording that the report was made. Alternatively, clause 35 of the bill provides that even where the director-general considers the child or young person to be at risk of harm, she may decide to take no further action if the director-general considers that proper arrangements are being made for the child or young person. These decisions will therefore be openly made and will be transparent.
      The basis for persons making reports generally and for mandated reporters is now the same, that is, they must have reasonable grounds to suspect that the child or young person is at risk of harm. There is a provision for reporting before the birth of a child that the child may be at risk of harm after his or her birth. This has been introduced in order to provide assistance and support for the mother. It does not give rise to any right for the department to intervene in the life of the pregnant woman or to interfere with her rights in any way, nor does it put any onus on the woman to accept the assistance and support offered by the department. This provision is designed to minimise the likelihood that the child, when born, will need to be placed in out-of-home care. It is a preventative measure to prevent abuse and to try to keep children with their parents.
      Consistent with the recommendations of the police royal commission, this bill significantly expands the range of professionals required to report circumstances where a child is at risk of harm. These will now include all those who in the course of their professional work or other paid employment deliver health care, welfare, education, children’s services, residential or law enforcement services to children. The requirement also includes managers and supervisors in these areas. The proposed reforms reflected in clause 27 will have the benefit of providing much greater clarity to the law on mandatory reporting. This reform will allow for a consistent approach and also make a clear statement to the community about the high expectations placed on those who are in the privileged position of working with children and young people.
      The effect of this reform is to require mandatory reporters to notify all circumstances in which a child or young person is at risk of harm. From a child or young person’s perspective, there is no logical reason to differentiate between the forms of harm for reporting purposes. Each has the potential to cause significant physical and/or emotional harm to the child or young person and protective intervention should be readily available in all circumstances. The Government has not acted on the review recommendation that mandatory reporting should be extended to include young people aged 16 to 18 years. There were significant differences of opinion in submissions and the consultations about whether mandatory reporting should apply to all those under 18 years and we are of the view that mandatory reporting of 16 to 18-year-olds is not appropriate. However, the services of the department will, of course, be available to any young person who wishes to access appropriate support and assistance.
      Honourable members would be well aware of the tragic consequences which can flow when members of the community fail to report to the department circumstances when children, particularly very young children, are at risk of serious harm. The unfortunate reality is that for many people, concern that they may be identified as the reporter is a strong impediment to their reporting such children. Clause 29 of this bill significantly extends the protections offered to people making reports. People who notify someone who has the responsibility to make a report will receive protection as if they had made the report themselves. Thus, for example, a teacher who reports his or her concerns to the principal who then makes a report to the department, will enjoy the same protections under the law as the principal who made the report. A court or other body will be restricted in disclosing the identity of the reporter to those circumstances where it is satisfied that the evidence is of critical importance to the proceedings. Where the court does disclose details of the reporter it must state the reasons why and take steps to let the reporter know.
      A report will be an exempt document under the Freedom of Information Act. However, the various protections offered will only apply where a report has been made in good faith. A person who knowingly makes a false report with the intent of causing injury or harm to the reputation of another person will not be protected from legal liability for defamation or other legal actions. The proposals in chapter 4 of the bill provide a framework for the department to provide support services, to work co-operatively with parents in developing care plans to meet the needs of the child or young person, and, if necessary, to seek orders from the court. It establishes principles of intervention that specify the department’s responsibilities to take action and when it need not take any action. These principles give paramount consideration to ensuring the immediate safety, welfare and wellbeing of the child or young person in his or her usual residential setting and provide that removal may only occur where it is necessary to protect the child or young person from the risk of serious harm. While the provisions provide greater flexibility to the director-general they are balanced by provisions for greater accountability to the Children’s Court.
      The director-general, in considering what action should be taken, must have regard to whether an application for an apprehended violence order to remove an alleged offender from the home would be likely to secure the safety of the child or young person. The director-general may also have regard to a number of other factors including what action another agency might already be taking or proposing to take. Once again the child becomes central to decision making and if it is in the best interests of the child to remain in the home
Page 10900
      and others be removed, the bill will require this. Chapter 5 of this bill proposes major reforms to the conduct of care proceedings in the Children’s Court. Procedures under the current Act often operate to force parents into defensive positions arising from the lack of a clear indication of what evidence the department has in the case and what orders the department may be seeking. This gives rise to long delays, as often parents, quite understandably, resist proposals because they are unsure of the possible outcomes and often assume the worst. This bill proposes that where a child or young person has been removed the matter must be immediately brought before the court, that is, no later than the next sitting day. The court will then be able to make a range of interim orders which will allow for a full assessment of the circumstances. It will allow the department to gather reports and evidence, and allow the department to decide if a care application is needed and what final orders will be sought. During this time the department, working with the family, may be able to put in place a plan for the care of the child which does not require a care application to proceed. Alternatively, if the department does decide to file for a care application, the parties will be aware of all the evidence and the final orders sought.
      The bill provides for new grounds for bringing an application for the care and protection of a child or young person. A real distinction is made between the circumstances in which a child or young person may be reported as being at risk of harm, and the circumstances in which an application may be made to the Children’s Court because the child or young person is in need of care and protection. The powers of the Children’s Court to order intervention in the lives of families and, in some cases to order the removal of a child or young person from his or her parents should only be invoked where absolutely necessary. The grounds for care proceedings have been drafted in such a way that the circumstances in which the court’s powers may be exercised are clearly stated and are no wider than is necessary to protect a child from serious harm.
      In line with the reforms to the Family Law Act this bill will do away with the terms custody, access, residence, guardianship and wardship. Instead, it will refer to contact, residence and parental responsibility. Thus the concept of wardship will be abolished and will be replaced by reference to a child or young person for whom the Minister has parental responsibility, and access will be referred to as contact. The effect of a wardship order is to operate like a temporary adoption order. The Government does not believe this is appropriate in modern child protection work where it is expected that most children will eventually return to their parents. We want to ensure as much ongoing parental contact with the child as is reasonable in the circumstances, in order to increase the potential eventual restoration with parents. Included in the broader and more flexible range of final orders are orders for contact and the provision of services with the consent of the service provider. This will provide for a much greater level of certainty about the specific services which will be provided to the child or family.
      Clause 86 allows the court to make contact orders. This provision is not in any way intended to be an alternative to family court action. An important prerequisite to the Children’s Court making a contact order is that the child or young person must be the subject of care and protection proceedings before the court that can only be initiated by the director-general. The ability of the court to vary or rescind orders it has made in response to changed circumstances is an important feature of the court’s work. However, this does have the potential to greatly expand the work of the court. A criticism of the current Act was that regardless of the merits of the case or changed circumstances, there was no limit on the number of applications a party could file for rescission or variation. This generated significant work for the court and for the department and was often very unsettling for the child or young person. Clause 90 of this bill now provides that an application for rescission or variation of an order may only be made with leave of the court.
      Many parents of children who come into care have not been malicious to their children or have not intended to cause them serious harm. Often they are suffering problems in their own lives whether they be with drugs, alcohol, or a mental illness and are simply unable for the time being to care for their own children. We do not think the law should deprive such parents of all parental responsibilities and involvement in these children’s lives. In many cases, although primary responsibility for the care of the child must necessarily rest with the Minister and the foster care system, parents will still have some involvement in the lives of their children. For example, the right to be involved in decision making about their education and training, attend parent teacher meetings, make medical treatment decisions not of an urgent nature and the right of contact as long as it is in the best interests of the child.
      When the department applies to the Children’s Court for orders which involve the Minister having parental responsibility, the department must provide a care plan which, as far as is possible, will have been developed with the agreement of the parents. A care plan for the reallocation of parental responsibility is more than simply draft orders of the court. It is a detailed plan of how it is proposed the child should be cared for while in out-of-home care. The department may be asked to specify the kind of placement which it is proposed to be sought for the child. Clause 82 of the bill contains safeguards for this by providing that a magistrate can require a written report on the placement within six months and if not satisfied that proper arrangements have been made may review the existing orders. This bill also contains provisions relating to the important area of restoration of children to their families. The requirements for restoration plans contained in clauses 83 to 85 recognise the reality that most children who come into care do not stay for a long time.
      Of course there will be some children for whom there is no realistic possibility of restoration in the immediate future given the extent of the abuse they have suffered or because of the parents’ incapacity to care for the child. For these children it is important that there be planning for long-term care from the beginning to minimise the disruption and uncertainty in the child’s life. However there will be many others where there is a realistic possibility of restoration if the parents can resolve some of the problems in their own lives or make changes which will make it safe once again for the child to return to their care. For these children there will be a restoration plan which will set out not only the minimum outcomes the parents need to achieve but the services which will be provided to assist them to achieve these outcomes. Necessarily, such active restoration planning must have time limits. Children can not live in uncertainty and lack of permanency merely in the hope that they will, sooner or later, be reunited with their families.
      Another important provision is that for an order to attend a therapeutic or treatment program. There are, unfortunately, a small number of children who sexually offend against other children. However, many parents and others fail to appreciate the potentially serious consequences if these behaviours are not addressed. Under this bill, the court will be able to make an order requiring a child under 14 years of age to attend a therapeutic program. Beyond 14 years it is appropriate that the offending behaviours be addressed in the criminal courts. This bill will allow for the behaviours of children between the ages
Page 10901
      of 10 and 14 to be addressed in either the care and protection context or the criminal court. The administration of this provision will require the development of detailed protocols between all the relevant agencies to ensure that a child receives a comprehensive assessment to determine the nature of his or her behaviours and to identify the forum in which they can be most appropriately addressed.
      Another major reform of this bill is to introduce less adversarial processes into the Children’s Court. This will be achieved through a range of provisions which will have the effect of doing away with list days in the Children’s Court. These days can only be described as humiliating, overcrowded, uncomfortable and emotion-charged. It is not the practice in the specialist children’s courts to indicate a time at which the matter will be heard. On an average list day there may be up to 35 matters listed. Parties are expected to be in attendance from 10.00 a.m., even though the court may not sit at that time, and then wait for their matter to be called. Children, young people, families and support workers may wait up to five or six hours.
      I am pleased to announce a raft of proposals is included in this bill to address the issues and considerably improve the way we treat children, young people and their families who are involved with Children’s Court matters. Collectively these proposals will do away with list days and provide for a more supportive environment which will promote the resolution of matters by consent or where that cannot be achieved, by speedy progress toward a hearing before specialist Children’s Court magistrates. This bill makes it very clear that Children’s Court care proceedings are not to be conducted in an adversarial manner; that proceedings are to be conducted with minimal formality and legal technicality; and that the court is not bound by the rules of evidence.
      In determining matters in the Children’s Court the best interests of the child are of paramount importance. It is proper that the court should inform itself on any matter in whatever way it considers appropriate to ensure that it has all the relevant information before it on which to base a decision. This can include applying the rules of evidence where appropriate. It is appropriate that the court be permitted to take a proactive approach and the bill makes it clear that the court has the power to manage hearings and to examine and cross-examine a witness. Specialist children’s registrars will facilitate preliminary conferences, held on an appointment basis, which will identify areas of agreement between parties, identify issues in dispute, refer cases to alternative dispute resolution where appropriate, and refer matters to hearing where no agreement can be reached. These facilities will be available in rural as will as metropolitan areas - unlike the situation in the Commonwealth Family Law Courts.
      The bill promotes the use of alternative dispute resolution mechanisms as an early intervention strategy, as an alternative to a care application or during the course of a care application. It is anticipated that through the use of these processes children, young people, parents and other family members may feel more able to participate in a more informal process. They will also have an opportunity to develop creative solutions to difficulties, have more control over the outcome and are more likely to be committed to a solution that they have contributed to. It is anticipated the use of alternative dispute resolution will also result in cost savings if care concerns can be resolved without the need for court hearings. Alternative dispute resolution will not be appropriate or useful where there is a dispute about whether the child or young person has been abused or is for some other reason in need of protection. The purpose of conferencing or mediation is to develop plans for the care of the child once it is recognised that some form of intervention is needed.
      Alternative dispute resolution is most likely to work where people are clear about the concerns for the child and are focused on finding practical solutions that are in the best interests of the child. An advantage of alternative dispute resolution is that it allows families to acknowledge the concerns about their child and the possible need for alteration to parental responsibilities without having to resort to a court hearing. The bill also recognises that there is no one model of alternative dispute resolution which can or should be universally applied. Communities vary in many ways and the provisions of the bill will allow for different models to be developed to meet the unique requirements of each community. In the more serious cases where the department has made an application under chapter 5, it will be important that there is a recognised level of impartiality in the alternative dispute resolution process and funding will be made available to allow for facilitation by persons who are not employed within the department.
      The use of authorised magistrates will be phased out and all cases throughout the State will be heard by specially appointed Children’s Court magistrates. Along with this, the Senior Children’s Magistrate will be the head of the Children’s Court jurisdiction, with the same status as a Deputy Chief Magistrate. A Children’s Court Advisory Committee chaired by the Senior Children’s Magistrate will be established. A Children’s Court clinic will be established to provide the court with high quality clinical psychological assessment reports, prepared by recognised and independent professionals. This will be of considerable assistance in rural areas where the means of obtaining such reports has often proved difficult and has been a cause of many delays in dealing with particular issues. Chapter 7 of the bill deals with the very difficult area of conflict between older children and young people and their families. The bill makes a very clear statement that parents should have responsibility for a child unless it is not in the best interests of the child. This is the principle to be applied in the administration of this part of the bill.
      A number of measures are proposed which will facilitate early intervention in situations of serious conflict between adolescents and their parents where, as a result of these conflicts, the wellbeing of the child or young person is in jeopardy. Currently, the ability of the Children’s Court to assist in cases of serious conflict is very limited. This bill proposes a more active role which will allow the court to assist in resolving the matter through the development of alternative parenting plans. These plans may not work in all situations, for adolescence is a difficult time for many young people and their families. However, we will now have a system to assist in resolving issues in an orderly, co-operative and supportive approach which will allow for the practical things to be done if the child or young person is insistent that they are not going to live at home.
      Under clause 120 the director-general may provide a range of services to a child whose homelessness has been reported to her. If it is appropriate that accommodation be provided, this may occur. However, in many cases some other form of assistance, such as transport assistance to allow the child to return to his or her family, may be more appropriate. The consultation process revealed a great deal of confusion among those caring for children and young people in out-of-home care about when it is lawful to restrain a child or young person from doing serious harm to themselves, others or property. Clause 158 of the bill will provide clarity in the law so that those with parental responsibility or the care of
Page 10902
      children and young people under this Act are clear about when restraint of a child or a young person is lawful. Such clarity is essential in dangerous situations such as where a young person has a knife and is threatening to attack a worker or another child, or where a young person is behaving in such a way that, unless reasonable restraint is used, he or she may be seriously injured.
      Clause 158(2) makes it clear that where a person has parental responsibility or the care of a child or young person under this Act the person cannot restrain a child or young person, except on a temporary basis, and to the extent necessary to prevent the child or young person from causing serious harm to his himself or herself, others or property. Restraint can only occur for as long as is necessary to deal with the immediate crisis situation and the force used can be no more than is reasonable in the circumstances. The bill also makes it clear that where restraint of this kind is carried out in the circumstances described in the bill, there is immunity from any civil or criminal liability that arises as a consequence.
      It is an unfortunate reality that there are within our communities, a small number of children and young people who are a serious danger to themselves but who do not fall within the definitions of a mentally ill person. These children and young people invariably display complex and extremely difficult behaviours which mean that no one service or government agency can adequately meet their needs. Typically these children and young people have a long history of abuse and disrupted placements, and complex emotional, social, and mental health needs including suicidal tendencies. For these children and young people, the review report recommended that the Children’s Court should be able to make orders for protective supervision. This recommendation was made to provide powers to protect a child or young person from suicide or other serious self-injury. The order would provide round-the-clock supervision for limited periods with further review by the Children’s Court built in. The need which has been identified by these recommendations is accepted as a real need for those who deal with a small subset of children and young persons who require intensive supervision.
      The recommendations made in the review have not been accepted in full due to a concern that the order could encourage the creation of new centralised care units. This Government has played a vital and reforming role in removing the blight of institutions for young people and it is not about to reverse this process. Under part 3 of chapter 7 it is proposed that the need identified by the review should be dealt with by permitting the Children’s Court to make compulsory assistance orders for children or young persons. These orders will only be made upon the personal application of the Director-General of the Department of Community Services, and where the court is satisfied that it is required as a last resort and as a life-saving measure or to prevent serious harm to the child or young person. Because of the serious implications of these orders, a number of prerequisites are to be met before the court can make an order. These prerequisites offer safeguards against abuse of this program and include a comprehensive mental health assessment prior to admission, the preparation of a therapeutic program designed for the individual child or young person, the identification of a service provider able to deliver the program in an appropriate environment, and the allocation of resources necessary for the program.
      A compulsory assistance order will not have effect for longer than three months without a further order of the court. Because of the importance of continuous therapeutic support, the making of a compulsory assistance order will allow the child or young person who leaves the premises specified in the order to be returned to the specified premises. The order will permit the specified providers of assistance to act in accordance with the approved service plan and where they or their staff did so in good faith no personal liability would be incurred. The above prerequisites and oversight by both the Children’s Court and the Children’s Guardian will mitigate against inappropriate use or overuse of this program.
      Chapter 8 of the bill provides for the much-needed reform of the out-of-home care system. Outdated terms such as substitute, alternative and residential care are no longer used. The bill introduces the concepts of designated agencies which will have supervisory responsibility for children and young people placed in out-of-home care with authorised carers. This is a much simplified approach under which care responsibility can be allocated to the authorised carers to allow them to make the decisions required in the day-to-day care of issues such as consenting to school excursions or medical and dental treatment not involving surgery. It also allows authorised carers to correct and manage the behaviour of a child or young person subject to the regulations. Designated agencies will have supervisory responsibility for the authorised carers which will include the power to place a child or young person with, and give directions to, an authorised carer. Some powers relating to the child or young person will remain with the Children’s Guardian and these will include the power to apply for a passport or to consent to the marriage of a young person.
      Designated agencies, be they the Department of Community Services, another government department or a community-based organisation, will all account to the Children’s Guardian, will all have the same responsibilities and will all be required to meet the same standards for accreditation. I am very pleased to refer to clauses 155 and 156, which are detailed provisions relating to the monitoring and review of children in voluntary out-of-home care. The origins of these provisions lie in the concerns for the needs of children with disabilities who are not living with their families. These provisions will ensure that even when children are voluntarily placed in care, they will still have adequate safeguards for their welfare and planning for their care.
      Unfortunately it does sometimes occur that parents of children with an intellectual disability place the child in long-term care and lose active involvement in their children’s lives. The goal of these provisions is to ensure proper care planning and if necessary, a care application when it appears appropriate that parental responsibility for the child or young person should be reallocated. The bill also contains important provisions for authorised carers to have access to relevant information, and for the maintenance of, and access to personal information by children and young people when they leave care. Clause 173 of the bill clarifies what was considered by some to be an unclear provision in the current Act relating to medical examinations of children.
      Where there are concerns that a child may be in need of protection a medical practitioner may be requested to conduct a medical examination. For some children, especially the very young, it is vitally important that this examination be as thorough as the medical practitioner considers appropriate to determine if the child has been subject to injury or abuse. Some significant changes have been made to the provisions relating to special medical treatment. The first has been to amend the definition of special medical treatment to exclude from the definition a medical treatment where sterilisation is an unwanted consequence of a treatment intended to achieve another essential goal. Under the current Act, section 20B applies to any treatment that is, inter alia, "reasonably likely to
Page 10903
      have the effect of rendering permanently infertile the person on whom it is carried out". Some treatments for cancer, and possibly other life-threatening conditions, have the effect of rendering the child on whom they are carried out permanently infertile. This is the unfortunate price of saving the child’s life.
      The current Act requires that the child, the parents and the treating doctor go through the ordeal of a Supreme Court hearing in order to obtain a valid consent for such treatment. We believe that such action is unnecessary where sterilisation is an unwanted consequence of a treatment intended to achieve another essential goal and clause 175(5)(a) reflects this position. Clause 175(2)(b) provides that consent to the carrying out of some forms of special medical treatment on a child will be determined by the Guardianship Board and that the child is entitled to have legal representation during such proceedings. Under the current Act a person shall not carry out a sterilising operation on a child under 16 years of age without the consent of the Supreme Court. Applications of this kind are seldom made, and where they are they are usually made in relation to a person with an intellectual disability.
      Supreme Court judges have no particular expertise in this matter and whilst they are clearly skilled in assessing evidence and analysing the law, these are not issues in which those skills are required to the degree available to the Supreme Court. We are of the view that the sterilisation of children or young people who lack capacity to decide for themselves is a matter more appropriately placed within the jurisdiction of the Guardianship Tribunal. The tribunal currently deals with 10 or more applications for sterilising treatment for adults each year. Its members have expertise in the medical and practical issues raised by this matter as well as expertise in the relevant statutory and case law. Chapter 10 of the bill contains an important initiative - the establishment of the position of the Children’s Guardian.
      The Children’s Guardian will play a vital role in exercising the parental responsibilities of the Minister for a child or young person; in promoting the best interests of all children and young people in out-of-home care; in ensuring that the rights of children and young people in out of home care are safeguarded and protected; in reviewing case plans for such children and young people; and in accrediting designated agencies and monitoring their responsibilities under this Act. It is important that I emphasise at this point that the Children’s Guardian is not a watchdog and does not have investigatory, complaints handling or general advocacy functions. Rather, it is the ultimate safeguard to ensure that children and young people are not lost in the system, that regular review occurs and that they are cared for in accordance with agreed guidelines and standards. It is anticipated that the Children’s Guardian will be supported by approximately 30 specialist workers and an annual budget in excess of $2 million.
      Clause 216 in chapter 10, children’s services, is an important provision which will allow the director-general to issue an exclusion notice on a person whose continuing presence at a children’s service would, in the opinion of the director-general, constitute an unacceptable risk to the safety, welfare or wellbeing of children at the service. This provision is necessary to allow for the removal of such persons during the 28-day period which the licensee has to respond to a notice that it is intended to impose a condition on the licence or to revoke the licence. Chapter 15 contains provisions that enable the removal of children and young people under the authority of a search warrant. There are also provisions which allow for the entry and inspection of premises, either under the authority granted by a specific provision or a search warrant. Under clause 233 a search warrant will not necessarily have to specify a particular premises.
      One of the difficulties for the director-general in exercising her responsibilities to investigate reports and responding to concerns that a child or young person is in immediate risk of serious harm is knowing precisely where the child or young person is at any point in time. In such circumstances those responsible for a child will often be on the move and this provision will allow the director-general greater flexibility to enter premises when searching for a child or young person and also to remove a child or young person.
      Finally, I would like to acknowledge the work of Associate Professor Patrick Parkinson and Dr Judy Cashmore and the members of the advisory reference group and thank them for their invaluable contributions to these bills. My thanks also go to the many organisations, agencies and individuals that have contributed to the extensive review process. I would also like to acknowledge the work of the officers of the Department of Community Services who have managed the legislation unit, Mr Gary Rogers, Ms Kerry Lannoy and Ms Maggie Smythe, as well as their staff, for their vital contributions. These bills are deserving of bipartisan support, and the Government trusts that they will receive it. I commend these bills to the House.

The Hon. PATRICIA FORSYTHE [3.26 p.m.]: The Children and Young Persons (Care and Protection) Bill and the Children and Young Persons Legislation (Repeal and Amendment) Bill represent important legislation in terms of the interests, safety and wellbeing of children and young persons in New South Wales. The effect of the bills will be to replace the existing children care and protection legislation as well as to amend the Children’s Court Act 1987. The Opposition is satisfied that the process of consultation undertaken by the Government in the preparation of this proposed legislation was, to use the words the Minister used in her second reading speech in the other place, both intensive and extensive.

For this reason the Opposition does not oppose the bills. Indeed, other Ministers should consider the same depth of consultation when drafting other bills. When proposed legislation has been subject to the degree of consultation that has been undertaken on this occasion governments have a right to expect some support from the Parliament. The extensive process that has led to the introduction of these bills has set a benchmark for future governments.

The proposed legislation fundamentally underpins the work of the Department of Community Services in its care and protection of children. The process was originally commenced by the coalition when in government. As the responsible Minister the Hon. Jim Longley appointed Associate Professor Patrick Parkinson of the law faculty of the University of Sydney to undertake a review of the legislation. Professor Parkinson, later assisted by Dr Judy Cashmore, undertook what
Page 10904
could be described as four years of extensive consultation and review around the State, and issued a number of volumes of discussion papers. This led to the presentation to the Minister in February of a document entitled "A Review of the Children (Care and Protection) Act 1987: Recommendations for Law Reform". That 250-page document formed the basis for the proposed legislation we are debating today.

The Government has consulted extensively on this proposed legislation, and it has received wide support. That is not to say it is perfect. No doubt problems will arise during its implementation and further consultation will be required. The Minister noted in relation to child employment, child care and children’s services that further work is being carried out by the review committee. Although the Government does not adopt every one of Professor Parkinson’s recommendations, the main bill has been the subject of review and has the general support of all the children’s welfare agencies. I will do everything I can to facilitate its enactment.

Some weeks ago I told the Government that it was not my intention to amend the principal bill, although certain aspects will require further refining. Although the children’s welfare agencies have supported some suggested amendments which may enhance it, it is more important that the bill is passed and that consultation continue during its operation. The Opposition supports the bill.

The Hon. Dr B. P. V. Pezzutti: And will be happy to implement it in government.

The Hon. PATRICIA FORSYTHE: We certainly will be happy to implement it when we are in government. One of the reasons I did not seek to dissect it is that it could be six months before Parliament resumes. If I had my choice, Parliament would resume in February but, knowing this Government, that will not happen. It will be well into April before the form of the next Government is known, and with a change of government the next parliamentary session will probably commence in June. If this legislation is not passed now, six months will be wasted.

The title of the principal bill refers to children and young persons, and that is an important step forward. That implies that emphasis will be put on support for young people. Some of the strongest complaints that I receive as shadow minister are from parents seeking support in relation to young people with whom they have difficulties - such as young people seeking to leave home, or drifting onto the streets - but for whom they receive little support from the Department of Community Services or the Police Service. It is assumed that 16-year-olds can care for themselves and that they are not in danger, but many parents believe differently. This bill has as one of its objectives the care and support of young people, and that principle has led me to support it.

The objects of the principal bill are contained in clause 8, which introduces some important principles that I believe are worthy of support by the House and the community. I look forward to the Department of Community Services changing its culture, changing its priorities.

The Hon. Dr B. P. V. Pezzutti: Leading the change.

The Hon. PATRICIA FORSYTHE: It will need to change its fundamental thinking and the culture that underpins it. Clause 8 of the bill asks, "What are the objects of this Act?" Subclause(a) states:
      that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of their parents or other persons responsible for them . . .

That clear statement was not contained in earlier legislation. For that reason it is imperative that the bill be passed in this session of Parliament. Clause 8(c) states:
      that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

One of the objectives of the bill is to oblige the department and the Government to provide appropriate assistance to parents and others responsible for children and young persons. This is particularly important in relation to young persons. No-one wants to know them; it is difficult to find foster families for them; and limited residential care facilities are available. Governments in general do not treat this difficult issue as a high-priority issue in terms of resources, but I would place a very high priority on it. I am delighted that the Government has acknowledged that it has a role in providing assistance.

The bill makes provisions in regard to support of families and keeping families together. Parents should be able to approach the department for support when they are having difficulties caring for their children and young people without fearing that they will be taken from them. This is an important step forward for this department. Currently if
Page 10905
allegations are made against families or if families admit that they are having difficulty caring for their children and young people, the first reaction is to break up the families. The department’s primary responsibility should be to hold families together. That principle is fundamental to the bill. The Minister for Community Services noted that clause 21 of the main bill is most important. She said in her second reading speech:
      . . . in very simple form that either a parent or a child may seek the assistance of the department and the department must do what it can. . . .

The department must do what it can to support and assist families to obtain services. Neither the proposed legislation nor the Minister’s second reading speech contains a commitment to the resources necessary for the proper implementation of the bill. There is no doubt that if legislation stipulates that the department must do what it can, that has fundamental resource implications for the Government. In principle the Government strongly supports this proposed legislation. In reality I have yet to hear a statement about its resources or an assurance that in implementing the legislation it has the resources to support and assist families that seek assistance. However, on principle alone I am keen to see the proposed legislation passed.

The Minister said she wanted to encourage parents to come forward and seek assistance in the knowledge that they would not be treated as abusive parents. That fundamental point must be highlighted. If we are to change the way young people in this State are protected we must have better prevention services and early intervention. Prevention measures must be implemented to ensure that young families in particular, but parents in general, who are not coping well with new-born babies, toddlers or a number of young children, and who do not have the basic parenting skills or the fundamental economic and social resources such as extended families, will be able to come forward and seek assistance.

Patrick Parkinson and Judy Cashmore are committed to that fundamental part of child protection. I am delighted that the Government has addressed that in the proposed legislation. That implies that additional resources will be made available in the community and in family support organisations such as Family Support Services and others that work in early intervention and prevention. That work cannot be done by government alone. It needs a network of support across the community. When families approach the department for help the Government should not have the onerous responsibility to provide services, but resources should be available in the community to refer them to other agencies. The Family Support Services Association was particularly disappointed at not receiving the additional $3 million it sought from the last budget for community resources.

Where a child is taken out of home it does not mean that the family is to be broken up, causing difficulty in re-establishing the child-parent bond. Rather, a fundamental shift from the existing legislation is that parents will continue to have parental responsibility for their children even when the child is taken out of home. The child will remain of paramount importance and bonding between parents and children should not be disturbed. The majority of young people taken into foster care are taken in as babies or toddlers, at a time when their parents find it most difficult to cope. In such case or in cases involving drug taking the parents may still have an interaction with the child so that later the families can be restored and prosper. The community supports the philosophy of maintaining and supporting families. The bill distinguishes between families that need support and that can adjust to the care of their children and those in which there is a long-term risk of harm.

I particularly analysed the aspect of the bill setting out the department’s responsibilities following a report to it. This is fundamental to the workings of the Department of Community Services. Cases have built up because the department has not been able to analyse and prioritise them. Chapter 3 of the principal bill contains a hierarchy of action in relation to requests for assistance and reports. It sets out clearly what is to be done in relation to the child or young person at risk of harm, and what follows from each step in relation to the assessment. This will make clear the responsibilities of the department. However, I hope it is not an excuse for cases simple to be dismissed. Children who are presently at harm should be given priority. It may reduce the number of notifications. If there is a scarcity of resources priority must be given to children who are at present at risk of harm.

The department at the moment has a policy about children under the age of one. The difficulty I have with the department’s interpretation of the policy is that it has been to the exclusion of children over the age of one. While babies are the most vulnerable and fragile, children of two and three are not much less vulnerable. It may make for better case management if all the circumstances of children at risk of harm are considered rather than concentrating only on children under one. The bill requires the department to give priority to children at greatest risk of harm; it does not refer only to children under one.

Page 10906

The Minister highlighted that the department does not need to intervene following every report to it. In some areas the department has overreacted and in some it has not responded adequately to a telephone report. In the last couple of years children and babies have tragically died because of a lack of resources, inability, and professional assessments. The cases have not been adequately followed up. The community might better work with the department to give children better protection if the community understands that notifying the department about a child being at risk will not mean that the family will be broken up. It might be a better basis for the community and the department working together.

I support the bill because it contains this fundamental principle. The changes to the Children’s Court are welcomed by the Opposition as they accord with the Opposition’s view of how Children’s Courts should proceed. But as with other aspects of the bill there is no indication yet that additional resources will be provided. The bill will not succeed without additional resources. For example, the Children’s Court will have a role in conciliation, mediation and preventive measures. All of these will require additional resources which are not provided in the bill.

The Hon. J. W. Shaw: It would not be normal to do so, would it?

The Hon. PATRICIA FORSYTHE: My copy of the Minister’s second reading speech is 25 pages. It may not be necessary to refer to what resources the Government will provide but there should be an acceptance by the Government of the need for additional resources to underpin the wider role of the Children’s Court. That would reassure the groups that have strongly supported the Government’s aims that the Government is serious about the implementation of the reforms. The bill proposes that there will be no list days: where a child or young person has been removed from home the matter must be brought immediately before the court no later than the next sitting day. That has obvious resource implications for the court.

If a plan for the care of a child is to be put in place, there will be implications for the court and some of the other roles of the court, in particular providing for additional therapy and support where a young person has particular issues that need to be resolved. The Government could have made a general statement acknowledging the need for extra resources. Opposition support for the bill in many ways is conditional on necessary resources being provided. The Opposition supports the fundamental principles. The Government should accept its responsibility for adequate resourcing of the courts and the department in the shift from their existing roles. Neither the Opposition nor the House would expect that in speaking to these bills I should not note the need for additional resources and indicate that the Opposition assumes that the Government has a commitment to the provision of extra resources.

It would be appropriate for the Minister in response to acknowledge that additional resources will be required for the implementation of this legislation. The Opposition supports the shift in the concept of wardship. Wardship is to be a concept of the past; young people are to be put under the care of the Minister. The State Network of Young People in Care, an organisation that supports young people who have been in care, expresses its belief that there is a stigma attached to wardship and welcomes the change in that concept. The establishment of the office of Children’s Guardian is one of the most important aspects of this proposed legislation and is fundamental in the separation of the department’s investigative role and its responsibility for the long-term care and support of young people.

I have long been concerned that there is a potential for conflict in the department having the legal responsibility for young people who come into its care as wards. The appointment of a Children’s Guardian dissipates the potential for the conflict of interest. This issue was discussed widely in all consultations undertaken by Professor Parkinson. The House should support that initiative as one that will assist in abolishing the stigma surrounding young people who have been taken into care. The initiative will provide the basis for the better care, protection and long-term support of young people who for one reason or another are taken out of their home.

The provision for alternative dispute resolution in the Children’s Court is an important step forward. It is time that we recognised that young people who come before the courts, and their families, are often in desperate need of help. The nature in which many cases have been conducted in the past has led to an unsettling emotional experience for all involved. The direction followed by these bills has the support of many people, including the Senior Children’s Magistrate, and is particularly welcome. Children’s care and protection legislation has traditionally enjoyed bipartisan support. It is certainly my intention to maintain that tradition with these bills.

I support these bills mindful of the fact that review of the legislation was initially proposed by
Page 10907
the coalition, which recognised that many of the concepts contained in current legislation are out of date, do not meet reality and do not provide for appropriate response from the Department of Community Services. These bills clarify the role of the department. I look forward to a long-term commitment from the Government to the provision of resources. The Department of Community Services will be required to rethink the way in which it deals with families, young people and children. This proposed legislation will provide the basis for much-improved interaction between the department and the community. I commend these bills to the House.

The Hon. FRANCA ARENA [3.54 p.m.]: I support the bills. Between 1994 and 1998 a review of children’s care and protection legislation has taken place. This important and thorough review was chaired by Associate Professor Patrick Parkinson of the University of Sydney, who has excellent credentials in the field of child protection. Other members of the review committee included representatives from groups with similarly good credentials - such as the Council of Social Service of New South Wales, the Child Protection Council, the Association of Child Welfare Agencies, and the Disability Council - a children’s magistrate and a specialist children’s lawyer. The review committee undertook comprehensive consultation with community groups and interested individuals. These important bills are the result of the review.

The bills provide more flexibility for the Department of Community Services in its work with families to strengthen their ability to care for their children. In modern society, which unfortunately has many dysfunctional families, it is very important that the ability to care for children be given to the family. The bills recognise that the responsibility to care and protect children goes beyond the role of a single government department. They recognise the importance of government agencies working with the community sector in the care and protection of children and young people.

The new provisions make it clear that the Department of Community Services has a role to play in prevention and early intervention. Most urgent cases of child abuse and neglect will be given priority and more professionals who work with children will be required by law to report concerns about children. One would think that there was no need for a review to establish the importance of child protection. I would always have expected urgent cases of child abuse and neglect to be accorded priority. Instances of toddlers being abused and maimed or killed, without anybody seeming to care, are not acceptable. It is my sincere hope that any urgent case of child abuse or neglect will be given top priority.

Care plans to meet the needs of children and young people will be developed in consultation with parents. I am very pleased with that development. Often it seems that parents are left out of the equation when it comes to provisions such as these, and we all know how important the family structure is. It is extremely important that parents are consulted and work with their children so that the family structure is kept as strong as possible. A care register will be established and the system of court list days will be abolished in favour of individual court appointments. The office of Children’s Guardian will be established. As the Hon. Patricia Forsythe has said, that is a most important initiative.

The Children’s Guardian will ensure that all children in out-of-home care have a regularly reviewed care plan. Authorised carers will have the responsibility of making decisions about the daily care and control of a child. Parents will be encouraged to maintain links with their children and to exercise some parental responsibility. It is most important that parents and children be kept as close as possible. Some parents, perhaps young parents, have not been taught parental responsibility. It is important that parents be taught about their responsibilities and how to exercise them. The bills require that when possible the views of children and young people are sought and taken into account.

I am pleased that Aboriginal and Torres Strait Islander families and communities are to have greater involvement in decisions about the care and protection of their children and young people. We have all read of many unfortunate cases of very young Aboriginal children and adolescents being out of control because they are not cared for properly. It is therefore most important that their communities and families be consulted to develop greater care and protection for them. The bills provide that young people under 16 years of age should live at home with their parents and should be supported to remain at home unless that is not in their best interests - which I suppose would be in cases of abuse.

In many other countries young people live at home until they have finished school or university. When young people aged about 18 years are asked whether they still live at home they are horrified at the suggestion, but that is the best place for them to live. It is a sad indictment of our society that children who become young adults feel they must leave home and that they cannot be friends with
Page 10908
their parents. It is wonderful for parents to witness their children grow up into young men and women and to be able to discuss political and other matters of interest with them as friends. I support any measure that will keep families together and children close to their parents. I commend the Government for the bills, which I support. I look forward to their being enacted and will certainly monitor the legislation very carefully.

Pursuant to sessional orders business interrupted.