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- 14 November 2001
Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill (No 2)
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Page: 18557
Second Reading
The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [8.15 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have my second reading speech incorporated into Hansard. The speech is somewhat different from the Minister's second reading speech in the other place. In fact two speeches were delivered in that place. My second reading speech is a compilation of the Minister's comments on those occasions.
Leave granted.
The Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill (No 2) proposes amendments to the Children and Young Persons (Care and Protection) Act 1998.
These amendments will require the planning of suitable long-term placements in order to avoid the detrimental impact on children of failed attempts at restoration with birth parents, a drift in the care system and unplanned multiple placements.
This bill follows the tabling of a draft exposure bill last year, and extensive public consultation on the proposed reforms over the past 18 months.
The Minister said at the outset that she wished to actively promote debate about the issues, and challenge some of the prevailing thinking around child protection casework. The Government received many submissions following the release of the draft exposure bill and the subsequent issues paper.
Extensive community consultation has confirmed that there is broad agreement with the principle that permanency planning for abused and neglected children in out-of-home care needs greater focus.
However, it is evident that there is still a considerable amount of contention around the prospect of actively promoting adoption for children who cannot safely return to their birth parents.
Consequently, reflecting the consultation, this bill emphasises that adoption is only one of a range of possible long-term options for children in out-of-home care. It should be noted that it does not make consideration of adoption compulsory, nor does it extend the Children's Court's jurisdiction to allow it to make adoption orders. The Supreme Court will retain its jurisdiction for adoption.
The key provisions in the bill relate to long-term case planning for children in out-of-home care, including a definition of permanency planning, and requirements concerning the preparation of permanency plans for children in care.
The emphasis is on ensuring that children in the out-of-home care system are placed in a safe, nurturing, and stable home environment, which is able to meet their long term needs.
The Bill requires both the Children's Court and the Department of Community services to actively consider whether there is a realistic possibility of restoration to the child's birth parents, as a basis for making decisions about a child's future care arrangements.
While it is widely acknowledged that permanency planning is a central element of good child protection casework practice, there is simply no reference to it in our existing legislation.
This bill aims to provide clearer guidance for courts and child protection workers on this important issue, and to put some legislative checks and balances in place. It seeks to ensure that permanency planning is firmly on the agenda when decisions are made about a child's future.
Legislative reform is necessary to ensure that these crucial issues are properly addressed by decision makers. Of course, these proposed legislative amendments need to be supported and complemented by casework practice, information for magistrates and legal practitioners and other non-legislative measures. But legislation does provide the all-important foundation and framework for the development of sound policy and practice.
This bill proposes necessary reforms to rectify the unintended but detrimental consequences of our current practice for children in out-of-home care.
One of the problems that has contributed to a lack of permanency for children in care to date is the failure of courts and child protection professionals to squarely confront making a judgment as to whether a child will ever be able to return safely to his or her birth parents.
In too many cases this fundamental question is sidestepped, and the child ends up in a series of temporary placements. I understand that magistrates and caseworkers may shy away from making such a judgment if they can avoid it. While this is undoubtedly a significant responsibility, they are the only ones who are in a position to do it. A failure to squarely confront this question leads to ongoing uncertainty and insecurity for children in out-of-home care.
It is a significant omission from our current legislation that no-one is clearly assigned the responsibility for making these crucial decisions that will determine a child's future. This bill seeks to rectify this omission.
For many professionals involved in child protection casework, there is also a real reluctance to confront these critical issues as they fear that it will curtail birth parents' opportunity to rehabilitate themselves and limit their prospects for regaining custody of their children.
This reveals that many child protection professionals are actually more focussed on the rights and needs of the parents than on the need for abused children to have a safe stable and nurturing long-term home.
While the current legislation purports to assert the primacy of the rights and needs of children over that of their parents, the reality is that in practice, parents' interests prevail in far too many cases.
There is irrefutable evidence of a worldwide shift in child protection issues with the serious impact of substance abuse on parenting capacity on a major scale and its attendant risks to children's safety. In short, increasing numbers of drug abusing parents have created new problems in child protection work, and practice needs to change to reflect the degree of risk to children and the real prospect of rehabilitating abusive parents.
All too often children are the hidden victims of our community's growing drug problem. As honourable members will be aware, the Minister has already proposed additional measures to address some of these issues, with the introduction of a drug testing trial at two Children's Court locations.
However, what is reshaping professional debate in child protection is the growing awareness that old assumptions about restoration with birth parents being the overwhelming goal in casework planning no longer hold true for an increasing number of cases.
There is absolutely no doubt that substance abusing parents deserve the opportunity to enter drug treatment programs. On the other hand, there is no doubt that when parents refuse to enter treatment or are unable to overcome their addiction, their children may well require an alternative long-term placement.
Essentially, every child has a right to have their basic development needs take precedence over the timing of their parents' recovery from an addiction.
Substance abuse issues put the permanency planning debate into perspective and provide a crucial context for understanding these proposed reforms.
While the goal of child welfare systems is to promote and support safe and nurturing families for children, there is an ever-increasing number of cases where this cannot be achieved within the biological family.
Consequently, alternative long-term placements must be sought for these children—and we as a community have a responsibility to ensure that those long-term placements provide these vulnerable children with a better alternative.
It is considered unacceptable for children to be parked in a series of temporary placements, or periodically restored to their parents and repeatedly abused while parents are given unlimited chances to kick their drug habit or deal with some other problem and get their life together. This is damaging children and it is not putting their needs first.
Childhood is finite; it is time limited. There is a limited window of opportunity to ensure a child's basic developmental needs are met so that he or she has the capacity to grow into a balanced and functional adult.
It is well recognised that condemning children to spending their most formative years in an insecure series of temporary placements, interspersed with repeated episodes of abuse and neglect, is a recipe for disaster.
What the bill proposes is hardly revolutionary. It goes nowhere near the types of measures being introduced in the United Kingdom and the United States, where prescribed time limits, compulsory adoption and adoption quotas are being introduced.
This bill proposes some very modest reforms. It recognises that adoption is only one option in a range of long-term placements, but it does at least ensure that adoption is considered where appropriate for children in care. This is an important step. Although adoption is technically possible for children currently in long-term foster care, the reality is that it is rarely, if ever, considered.
The bill also proposes amendments to existing provisions concerning sole parental responsibility orders. Sole parental responsibility orders are intended to operate as a more permanent form of care, but one that falls short of the legal certainty and finality offered by adoption. In order to reinforce the status of sole parental responsibility orders as an intermediate step—as the most permanent option besides adoption—the bill proposes to restrict applications to vary or rescind these orders after they have been made.
The aim is not to completely prevent further court review of orders once they have been made, but to limit the number and frequency of appeals in these cases. This is to try to reduce the destabilising impact of ongoing court proceedings, and to enhance the legal certainty and stability associated with a sole parental responsibility order.
Consequently, the bill proposes that applications to vary or rescind a sole parental responsibility order may proceed only if they have the support of the agency which last supervised the child's placement, as well as the leave of the court. This presents potential applicants with an additional hurdle to overcome before they can ask the court to review the order.
Current experience suggests that a major source of uncertainty and anxiety for children in care is when birth parents apply for a variation of court orders, especially when they have little or no prospect of succeeding. While there is no intention to remove a parent's general legal right to return to court to seek custody of their child, the bill seeks to balance the merit of such applications with the level of distress and instability which is likely to be generated for the child.
In the case of sole responsibility orders, the inclusion of more restrictions on the capacity to return to court is consistent with its status as a more permanent form of care. In relation to other orders, the bill introduces an additional requirement that the court should consider whether it is in the best interests of the safety, welfare and wellbeing of the child or young person before granting leave to allow an application to vary or rescind a court order.
It also proposes amendments designed to limit unnecessary court adjournments and applications for variation or rescission of court orders to reduce the uncertainty and instability for children created by ongoing and drawn-out court proceedings. After all, it is important to note that the court has already presided over the case, considered the child's situation in detail and made what is intended to be a final order.
It is not in the child's interest for the court order formalising his or her living arrangements to be continually revisited. This is not conducive to ensuring a settled and permanent placement for the child. However, it is clear that for care arrangements other than adoption there still needs to be some avenue for review of court orders.
The proposals seek to balance the need of the child for certainty and stability with the parent's legal right to challenge court decisions.
Debate on this bill has a special resonance for the Aboriginal community because of the history of the removal of Aboriginal children. It is well known and acknowledged, at least on this side of the House, that Australia has a shameful history of the removal of Aboriginal children from their birth families.
Earlier this century, until only a few decades ago, many Aboriginal children were taken forcibly from their parents and placed with white families, or institutionalised. That had a devastating impact on the Aboriginal community, with many of those affected never again seeing their family members. As we all know, the stolen generation continues to be a source of much grief and sorrow.
I am proud to be a member of the Carr Government, as Premier Carr was the first Premier in Australia to issue a formal apology to the Aboriginal people for the suffering caused through such policies.
The Government is determined to learn from the mistakes of the past. In recognition of that our current child protection legislation and adoption legislation already contain special safeguards concerning the placement of Aboriginal children and maintaining their cultural identity.
While the record of New South Wales in providing culturally sensitive out-of-home care for Aboriginal and Torres Strait Islander children is better than that of other Australian States in many respects, the Minister has acknowledged the need to keep working on this.
She has committed the Director-General of the Department of Community Services to a series of meetings with the Aboriginal community to discuss concerns which have been expressed about the current out-of-home care practice for Aboriginal children.
Both she and the Minister for Aboriginal Affairs will be taking a keen interest in the outcome of this process.
It is disappointing that there has been some attempt to dismiss these measures to improve permanency planning for children in care by suggesting that it simply represents a return to the "stolen generation".
Nothing could be further from the truth, as is clear from a simple reading of the bill. Such claims are irresponsible and can be readily refuted.
Most modern-day Australians share an absolute abhorrence at the pain inflicted by past practices with the experience of the stolen generation. But we cannot afford to allow our abhorrence at what happened in the past to blind us to the new problems that are unfolding today.
We need to ensure that these past experiences inform our response to new problems so that we cannot repeat the mistakes of the past. This is what this bill aims to do, by incorporating a number of safeguards and measures to address issues relating to Aboriginal children in the care system.
Today there is a new generation of children experiencing different problems, such as a drift in care and multiple placements, leading to an inability to form emotional attachments, and we cannot overlook these problems.
No reform process is ever easy, but this process has been productive.
There has been an exhaustive process of consultation on these proposals, and the current bill is the culmination of more than 18 months of discussions.
The Government has reinforced the continued commitment to the Aboriginal child placement principle; that it is expected that for cultural reasons adoption would rarely occur for Aboriginal children; that legal jurisdiction for adoption remains with the Supreme Court, and that the bill does not amend the current adoption legislation; and that the Government will carefully monitor adoption placements for Aboriginal and Torres Strait Islander children.
If there are more than five placements of Aboriginal children to non-Aboriginal families in any 12-month period, this will trigger a review. In response to discussion about how the use of sole parental responsibility orders may impact on Aboriginal children, the Government is also undertaking to monitor the use of these orders. Again, if the number of such orders placing Aboriginal children in non-Aboriginal placements exceeds five in any 12-month period, this will also trigger a review.
In terms of legislative safeguards for ATSI children, the bill requires the consent of two Ministers—the Minister for Aboriginal Affairs and the Minister for Community Services—before a case plan can proceed which proposes a sole responsibility order or an adoption in a non-ATSI placement for an ATSI child.
In terms of the bill's requirement of a review of the permanency planning provisions within five years, in response to the concerns of the ATSI community the bill requires that this review specifically includes the impact on ATSI children. There is, of course, nothing to prevent this review being triggered before five years has elapsed if there are any emerging issues that require examination.
The bill before the House now is one which is truly reflective of almost two years of discussion and debate, and the Government acknowledges the validity of the many issues that have been raised.
Although the provisions in the bill are relatively modest, it is believed that in time they will lead to a greater awareness of the importance of permanency planning for children in care, and practical and tangible improvements in the quality of care experienced by abused and neglected children in this state.
The Minister has emphasised that the bill is not expected to be a magic wand for addressing all out-of-home care issues. But it does provide an important foundation for ongoing and far-reaching reform of our out-of-home care practice. I commend the Bill to the House.
The Hon. PATRICIA FORSYTHE [8.15 p.m.]: This proposed legislation has had considerable media coverage for at least 18 months—back to February last year. The Minister in the other place delivered a second reading speech some time ago and the debate proceeded on a different print of the bill that resulted from amendments. That bill is quite different from the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill (No. 2), second print, that we are debating in this House. The reason I emphasise the name of the bill is that many members at different times will have received letters and read media comments and comments from the Minister on the matter, but unless they focus on the bill that has been circulated today in this House I suspect many such comments and reports will be superfluous to this debate.
This bill is a mere shadow of the one that began its life in the other place. Some of my colleagues have taken a close interest in this proposed legislation because, like so many bills dealing with children and young persons, the subject excites not only interest but passion and enthusiasm. Consequently, many members will wish to speak in this debate. Therefore, members must be clear about exactly what bill we are debating. The bill is different from that which the Minister talked about last year when she spoke about adoption and permanent placement. It constitutes an outcome for some children who had been abused. I understood what the Minister was trying to achieve with the initial bill and had some sympathy for her point of view. However, this bill is an infinitely better bill.
The Opposition certainly will not oppose this proposed legislation, although I understand we will move at least one amendment in Committee. When that amendment is available it will be circulated to honourable members. This bill passed through the lower House last night and today, after 2.30 p.m., it became clear that it would be debated in this Chamber today. Consequently, the Opposition is probably still working with Parliamentary Counsel on the final form of its amendment relating to kinship care. Honourable members will be pleased to know that I will not take up the same length of time taken by my colleague the shadow Minister in the other place to debate this bill. In his contribution he was quite critical of the Minister. I do not step away from his comments, but he knows my point of view on the matter. The debate about why women are in Parliament and whether we have different points of view becomes starkly clear when issues concerning children, young people and babies, and child protection are being dealt with.
When I was the shadow Minister with responsibility for these issues I found the portfolio emotionally very draining. One cannot help but be moved by the phone calls and letters one receives, and the interaction one has with people in the community who experience these issues from a different perspective, particularly from that of foster parents and grandparents who saw children they believed were being abused and perhaps not being adequately supported by parents or by the Department of Community Services.
For all the comments that have been made about the genesis of legislation, I accept that the Minister, as a caring mother and a grandmother—I do not take away from my colleague the Hon. Ron Dyer, who was an equally caring Minister—tried to do something different and adopt a different approach. I do not back off from my support for her in that regard. No-one who comes from a caring background and who is a caring parent could possibly understand how people can do to children and babies what the Minister and shadow Minister have seen from time to time. Adoption as part of that response is not particularly unique. Indeed, Australia uses it almost not at all. Some other countries use it far more as part of what might be termed the management of children once they are taken out of care. The Minister and I have had some talks about this, and I say quite genuinely that in the Minister's heart it was not about the resources of her department. I have not tried to be political about that.
I understand the Minister tried to achieve different outcomes for children. The number of times she must have signed off on orders to restore children to parents, only to see them back in care, having been abused, would be heart rending. No Minister could fail to be touched. I suspect it is mothers, grandmothers and women who would best understand her approach. However, as Minister and shadow Minister one must put objectivity into the debate. One must leave the subjective feelings of compassion and concern to consider what is in everybody's best interests. I am not sure that my colleagues will thank me for these comments, but the Minister knows I regard what she did as a genuine attempt to improve the lot of some of our most abused young children. Whether it would have achieved the best outcome is a moot point, because we now have different legislation. We now have good legislation that the House is able to approve. It is a step forward in the interests of the young people of New South Wales.
Last year, when the Minister raised the concept of permanency planning, it seemed that some people were taken by surprise, as if it were a concept that was not dealt with when we considered the 1998 legislation. Honourable members who kept documentation from the review of the 1987 legislation conducted by Professor Patrick Parkinson would know that the concept of permanency planning was part of the review process. Patrick Parkinson was quite clear about the concept of permanency planning in some of the material he provided by way of background when he examined parental responsibility. In particular he talked about what I regard as the best area of the legislation: the sole parental responsibility order. It is not new, but the timeframe is different. In case anyone thinks it is somehow new, I quote from page 33 of the section entitled "Review of the Children (Care and Protection) Act 1987 Law and Policy in Child Protection: A Summary of Key Issues":
In a small number of cases, children are placed in long-term substitute care with little involvement from their birth parents. Consideration should be given to recognising these as permanent placements in a new family by empowering the Children's Court to make an adoption order. An alternative would be for the Court to make a "sole parental responsibility order" in which the foster-parents would have all the legal powers of birth parents (including the residual powers which would otherwise be located with the Minister). Birth parents would continue to be recognised in law, access arrangements and financial provision would continue, and the arrangement would continue to be subject to on-going monitoring.
The concept of sole parental responsibility, which is at the heart of this proposed legislation, was flagged in the original discussion paper, and the concept of permanent planning was very much part of that discussion process. I say that because many people will claim ownership of aspects of this legislation. I believe that when we accepted the 1998 legislation we went in with our eyes open. That legislation received bipartisan support at the time, but it focused on some of the issues that are dealt with by way of amendments in this bill. I will return to some of those later.
I turn now to the key issues in the bill. It is not my wont normally to go through all parts of the bill, but given that this bill is different and very clear—it is now very simple legislation that we can all understand—some aspects of it deserve explanation. The principal issue is the concept of permanent placement. The question is not whether to remove from the home children who are being abused. None of that has changed. The question is the management and care of children after they have been removed from their birth parents. The definitions set out in item [1] of schedule 1 are important. What is permanent placement? What is a permanency plan? A permanent placement means a long-term placement following the removal of a child or young person.
The bill sets out how long-term placement can be achieved. It can be done by restoring the care of a parent or parents; by placement with a member or members of the same kinship group—I will come back to that aspect because it is certainly significant in so far as the Aboriginal community is concerned; by long-term placement with an authorised carer; by placement under an order for sole parental responsibility; by placement under a parenting order under the Family Law Act; or by adoption. In other words, a sequence of possible outcomes for the child. We should keep that important definition in mind.
Next I want to highlight the principles we are applying in this legislation. What is the key function in child protection legislation? Well, it has to be the best interests of the child. That concept is carefully enshrined in this legislation. Proposed section 9 deals with the principles to be applied in the administration of the Act. It provides quite clearly that the safety, welfare and wellbeing of the child or young person who has been removed from his or her parents are paramount over the rights of the parents. That is the heart and soul of this legislation. The bill is not related to the rights of parents, or parents who, for a variety of reasons, whether in the short term or the long term, have forfeited their rights. It is about the rights of children to be protected, nurtured and cared for; about their safety and their wellbeing.
That is the first consideration and, in all cases, it ought to be the first consideration of the Department of Community Services and of the courts. It was certainly my consideration from day one when I became shadow Minister in this portfolio. It was not something I had been steeped in any of my training or education, but at least two former Ministers said to me, "The key issue, your starting point, is the fundamental rights and needs of the child." And that is what is embodied in this legislation. I believe we need to bear that in mind. If we are talking about a permanent plan for children that involves out-of-home care and not restoration to the family—and that is such an enormous step—then the only consideration is the best interests of the child. That can be the only consideration at the end of the day, but there are many factors that we might need to look at as we move down that path.
I will move on through the bill because, as I said, it is a very simple bill. It is a very different bill from that which was the subject of some debate in the other place. It is important to note some of the aspects contained in the bill. Item [4] of schedule 1 will insert new subsections (f) and (g) of section 9, which will require arrangements to be made in a timely manner, and that is critical to many of the decisions that will be made later. Some members of the Government will probably call upon aspects of the research prepared for the Government by Professor Bruce Perry, who I understand is a professor of psychiatry from the United States of America. Having read the debate in the lower House they will refer to the importance of placing a child quickly; being able to recognise the signs; and being able to deal with some of the early warnings that a child might have been abused.
In the briefing notes provided by the library in regard to the original bill there was reference to Dr Bruce Perry's research. The notes stated that a major proponent of his view argues that aggressive early intervention, which restores a sense of safety and control to abused and neglected children, is required. One of my colleagues said that the research had not been subjected to sufficient scrutiny to enable us to take it as a given. I have to say I attended a seminar conducted by Dr Perry in Parliament House last year. I did so to gain an understanding of the way that the Minister, and indeed officers of her department, think. I know that the Cabinet was briefed on this issue. It is important that we act in a timely manner, but it also has to be a manner supportive of parents. While we focus on the interests of children, we must from time to time recall why it is that children are sometimes removed from their birth parents. We must understand that. We should not ignore it or underestimate the impact of post natal depression on some mothers.
Sometimes a child may be taken from the family because the family—meaning, in particular, the mother—has an inability to cope. Research suggests that that is a short-term arrangement. A child or children—not necessarily the baby, because how the mother copes with them can impact on toddlers and other children in a family—may be removed, but may be able to be restored. What is important is minimising the damage to the child or children. The amount of abuse suffered by a child may impact, indeed, will impact on their behaviour as they grow up. That, as I understand it, was the effect of Dr Perry's research. The sooner there is intervention and a strong caring environment is put in place, the quicker the process of restoration of a child to what we would regard as the normal stages of development.
Without a doubt, a child that is subjected to abuse, particularly at an early age, will see their own progress, their own capacity to grow—be it speech, behaviour or the capacity to interrelate with other people—damaged. I recall that last year the Minister spoke about children who had been the victims of cigarette burns. What psychological damage is caused by such treatment? The sooner children are removed from such an environment the better it will be for them in the long term. I do not intend to be political in this debate tonight because I believe that at the end of the day we have to have common ground. We are considering a matter that goes to the core of our society. It is something we have to be able to move forward on.
I do not want to say this is just about the resources of the department. We know, however, that at the end of the day how well one can deal with a child and how well one can make an informed decision as to when to remove a child from home will ultimately come back to the resources of the department, and the capacity and professional decision making of departmental officers. It is easy to place in legislation a requirement that arrangements should be made in a timely manner, but we know that behind this very clinical explanation are some really hard-core issues about how well departments and courts respond, and how well courts interpret the information that has been provided. It is about time we stopped always giving parents the benefit of the doubt on some of these issues.
The bill states that, unless it is contrary to the child's best interests, decisions about placing young people out of home care and ensuring that they are in a safe and nurturing environment will take into account the pressures on the child or young person and retention by the child or young person of relationships with people significant to the child or young person, including parents, siblings, extended family, peers, family friends and community. Obviously, factors to be considered are the age of the child, the needs and interests of the child, the knowledge of the child, and the capacity of the child to make some decisions. After an interim care order is issued by the Children's Court what can be done in permanency planning? As I said earlier, this process is not about decisions to remove children from home; it is about decisions for the management and care of children once they have been removed from their birth parents.
New section 78A sets out the regime for permanency planning. But permanency planning is not permanent care. Permanency planning may involve evidence put to the courts and decisions made by the court about the future care of a child, and how long the child will be out of home. A parent may be identified as having short-term problems that can be overcome. Some of the problems may have long-term implications for the parent and child but may need to be worked through. The principles in the original Act also have to be considered in relation to the family, the extended family and the support that can be offered. The definition in the bill is in accord with what the Association of Children's Welfare Agencies put to the Minister as being appropriate. Therefore, mindful of the number of organisations that the association represents, the definition in the bill probably represents an appropriate compromise on what we see as the key issues.
The amendments in section 78A with respect to permanency planning relate to meeting the needs of the child or young person, avoiding the instability and uncertainty arising through a succession of different places, providing the continuity of relationships with family—key elements—and recognising the long-term security that will be assisted by permanent placement. I will return later to some of the issues concerning Aboriginal and Torres Strait Islander children and how well they have been consulted, and how well some of what we have been talking about has application to the community. In the case of a proposal for sole parental responsibility or in favour or in recognition of adoption by a person who is not an Aboriginal or Torres Strait Islander, the approval of the Minister for Community Services and the Minister for Aboriginal affairs is to be given. In contrast to the situation applying to other children, two Ministers have to sign off on in such a case. But as our amendment will show, that provision does not go far enough.
New section 83 sets out the steps toward the achievement of a permanency plan, the issues that the courts would look at, including the director-general's assessment of a whole series of issues. I ask honourable members to look in particular at this new section. At the end of the day the court will make orders based on a range of assessments, a range of options that have been put to it. I hope that many children will not have to be involved in those steps. But we would all be aware that there are some children who, having left their families or been taken from their birth parents, are never restored to their birth families. It may be because of the nature of the parents; it may be because of the nature of the child.
In this State we have never put in place a permanent regime to help and support those young people, particularly where perhaps through no fault of the parents, they cannot cope. We have always apportioned blame. Parents have been labelled as "not good parents". I think a better option is recognising the capacities, and recognising that some parents are just plain bad parents. I do not step away from that. Why should people who have repeatedly physically abused their children have the children restored to them? If they have sexually abused them they are unlikely to get their children back, and this has been the case for a long time. Children have suffered horrific injuries. Why should the parents necessarily have rights as parents? That is what is fundamental in what the Minister has been trying to say. On the other hand, children and parents with disabilities should be supported. A parent may have a mental illness or suffer from depression—an element of mental illness. If the parent has the capacity to cope in the longer term a permanent plan could be developed that involves those parents.
Next year this State will have in excess of 15,000 children in need of care because of the insidious impact of drug abuse on people's capacity to care for young people, people's capacity to be good parents. I have not seen the additional resources coming into the department to match what I think must be a crisis in some areas. That is one of the most difficult aspects of our society. Parents who might otherwise be capable and intelligent, to be reasoned in their judgment and able to act appropriately, have simply lost it. I certainly agree with the Minister that the onus of proof is on those parents to prove that they can be good parents. As shadow Minister I saw a variety of things, including case studies, which caused me to realise that the notion of the rights of parents from time to time should be challenged. The rights and needs of children are paramount. Some people have said that parents have responsibilities rather than rights. It is up to the courts to work out the distinction between rights and responsibilities. What I particularly like in this bill, as I said, is the option to move towards sole parental responsibility short of adoption. Section 149 is to be amended to allow orders for sole parental responsibility. Earlier I quoted Patrick Parkinson.
The review does not take away the existence of birth parents, and does not deny them their legal entity and responsibility. In this State thousands of foster parents care for children for the whole of their juvenile lives. For all intents and purposes, the foster parents are the parents. There is a difference between having that care and being an adoptive parent. I will explain the difference as I understand it. One of the reasons that I am particularly attached to the sole parental responsibility is because one of the real problems for foster parents is that the Department of Community Services is forever over their shoulders. There are many fundamental decisions in the day-to-day care of children that the foster parent cannot take.
This bill gives foster parents greater autonomy to make the normal day-to-day decisions in the care and interests of the child. The legislation states that an order can be applied for after the child has been with a carer for two years. That was in response to the submission from the Association of Children's Welfare Agencies and is appropriate. Recently, when I was in Canada, that debate was under way; they were debating the appropriate period. Legislation must define that period, and I am not sure that we have necessarily got it right. At the end of the day the individual circumstances will become a matter for the courts. On the one hand, this is about getting the department out of the day-to-day lives of the carers. On the other hand, to some foster parents the difference is that through adoption that connection with the department is severed. For some foster parents that means severing the opportunity to be paid the allowance to care for a child. Some children in care have multiple needs; many have a disability and have not been able to be cared for in their birth families.
However, they have found loving, caring, spectacular and special people who take on that responsibility. The sole parental responsibility order will allow carers to gain the allowance, but will take the department out of their day-to-day lives. If it is not appropriate that the department be included in the day-to-day lives, presumably the courts will not grant that order. However, for a permanent plan, consideration should be given to how long the child should be in care, and what should be a reasonable time in which the child should be restored to the birth parents. If that cannot be achieved, the courts will have to consider the longer term outlook of care for the child. Part of that decision will be at what point the foster parents could take over that sole parental responsibility. That is what the Minister wanted: stability and security, as well as a strong bond between the foster parents and the child. A sense of certainty is lacking at the moment. In many families that link will last from birth to adulthood.
From time to time children—even when they reach adulthood—will go through a process of adoption so that they can become part of the family when they are able to make those decisions. Therefore, that is the essence of the legislation. With the exception of Aboriginal and Torres Strait Islander children the remainder of the current legislation meets the needs of various interest groups. It certainly has addressed many of the issues they have raised in the past 18 months. The legislation is not out of keeping with the original discussion paper, as proposed by Patrick Parkinson. The concept of permanency planning was fundamental to his discussion paper and was the background to the direction we took in 1998. Page 35 of the review stated:
The parenting plan would be negotiated with parents and make proposals concerning:
• The type of placement appropriate to the child's needs;
• The way in which parental responsibility will be allocated;
• Access arrangements.
If the department or the court decides that restoration is realistic, a restoration plan could be made. The report further stated:
Wherever this is consistent with the child's best interests, birth parents should retain aspects of parental responsibility. Where restoration was not deemed to be feasible, the parenting plan should reflect "permanency planning" principles.
It was recognised at the time that restoration would not always occur. The report continued:
Birth parents could retain the right to seek rescission or various of any order made by the Court. Parenting plans should be based on the principle that the legal powers associated with parenting must match the responsibilities. Certain actions by substitute carers should, however, be subject to approval by the child's legal guardian.
We have moved a little from that, but the 1998 legislation enshrined the concept of permanency planning. What we did not do well was to set out the regime, the order, in which to give consideration. We have reinforced that in this legislation. The interests of the child are the most important consideration. However, some parents—through no fault of their own—will come to the notice of the Department of Community Services, sometimes through a snoopy or prejudiced neighbour, and often it will involve parents with an intellectual disability who can be strong and caring parents but may lack some of the living skills to give the necessary support to their child. We have been too keen to take those children out of their families.
A better approach may have been to bring in services, wrap them around the birth parents and acknowledge their rights as parents. I hope that nothing in this legislation prevents us from adopting that approach. Some parents should forfeit their parental rights because they have not been responsible. Others, who come under the notice of the department, feel that the child has been taken away needlessly. It is better to bring in the services. If that can be accommodated within the permanent plan for the child—and there is no reason why that cannot be done, because part of the legislation involves restoration to the birth parents—I believe that that is the way forward. Some disability rights groups had some concerns in that area. In the Minister's response she may address some of their concerns.
I turn now to Aboriginal care and kinship. During the dinner break some letters appeared on my desk about the consultation that the department has had with various Aboriginal support lobby groups and community groups. Before we go to the Committee stage I will have an opportunity to clarify whether the groups are giving wholehearted support to the legislation. I understand that those groups believe that there has been some lack of consultation in relation to this legislation, and they still have some concerns. Tonight we will clearly define "kinship care", which is particularly significant within Aboriginal communities. In the original review of key issues, Patrick Parkinson produced a special section on the needs of Aboriginal children and families.
Aboriginal children are overrepresented in out-of-home care, in many statistics on child protection and child welfare, and in juvenile justice and corrective services facilities. It is about time we got something right and learnt some lessons from history. We need to move forward on this issue. I did not have an opportunity to go through all the amendments because they were still being drafted. However, in Committee I will return to some of the definitions and the reasons for the amendments. Patrick Parkinson outlined the underlying emphasis in writing the legislation. He said:
The basis for the separate chapter is recognition of the unique history of Aboriginal people's contact with welfare and of the continuing impact of policies which involved removal of children from their families, communities and culture.
He gave a detailed analysis of what he called the legacy of past injustice and he attempted to look at how we can move forward. The section 87 placement principle was the subject of significant discussion in his paper. Not to look at these key and special issues is not to do justice to what the Minister is trying to achieve with the bill. I indicate to crossbench members that I will move amendments in Committee.
The Hon. RON DYER [9.01 p.m.]: I speak to the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill No 2 with very strong feelings, based partly on my experience as a former Minister for Community Services. I strongly endorse the comments made by the Minister for Community Services, the Hon. Faye Lo Po', when she issued her media release with respect to this bill on 23 October. Among other things, she said:
We have to get serious about putting the rights of children above all else. Children only grow up once and it is our responsibility to ensure their childhood is not squandered by allowing them to drift from one placement to another …
All too often children who are abused find their pain is prolonged by a system which deprives them of what they need most, a stable, loving home.
I start my contribution by referring to those remarks of the Minister because I regard them as the central consideration of this bill. What are the interests of the children? If that is overlooked—and I believe it sometimes has been—the interests of those children are set to one side and that is not satisfactory. I refer to my experience as a former Minister in this portfolio. I clearly remember that each week night I would take home at least one large file bag, and on weekends I would take home at least two file bags, and I would work through them. When I came across a particularly distressing child protection or substitute care file my wife, Dorothy, would have to listen to me denounce, in the privacy of my own home, the outrageous conduct, as I would term it, of the parents in the case I was dealing with at that time.
I will not go into the gruesome detail of what some parents do to their children. However, I formed the conclusion, on the basis of my experience in having read such matters, that although it sounds harsh to say it some parents simply do not deserve to retain custody and control of their children. That is the reality. There is only one thing to do: as the law allows, to remove those children from the care of those parents. The problem arises, of course, when some children are placed in foster care and for one reason or another they go through a series of placements. Some children go through 12 placements. Is it any wonder, having had that unsettling experience, that when they become teenagers they are mixed up, to say the least, and end up as a client not only of the Department of Community Services but also of the Department of Juvenile Justice? There is an unfortunate crossover between the two departments. I regard it as absolutely vital that everything should be done to prevent children from having such experiences.
Clear evidence in both local and international studies indicates that multiple foster care placements are damaging to children. To state that should be enough. Commonsense alone would tell us that that is the case. Irreparable harm can occur to the emotional, psychological and social development of children who are subjected to such instability and lack of security. To say that is not to attack foster parents. I am aware of many fine foster carers in this State. I can think of one in particular who probably would not mind me mentioning her name, Mrs Pat Walker, who lives in Newcastle. When I was Minister she held office in one of the foster care associations. One could not think of a better person—she goes to inordinate lengths to care for a succession of children. However, for one reason or another, sometimes children go through a series of placements. It may be because the children are difficult to cope with, foster carers become fed up with the task, or feel that they are not sufficiently remunerated, or some other reason.
When I was Minister, foster care payments were substantially increased, particularly for older children—that is, teenagers. No doubt they have been further increased under the tenancy of the current Minister. There is broad agreement amongst child protection professionals that greater emphasis needs to be placed on permanency planning for children in out-of-home care. What has admittedly caused some consternation is the fact that this bill challenges the prevailing assumption among some child protection professionals and some Children's Court magistrates that eventual restoration to birth parents is the goal to be pursued at all costs in every single case. That is a proposition with which I do not agree, and I am sure that the Minister does not either. When the Minister first introduced this bill in another place earlier this year she noted:
Childhood is finite. Early years are precious, and we owe it to children not to squander it by giving abusive parents too many chances to get their act together.
As a parent I am only too aware of the fact that children grow up very quickly. The early years are precious; they are impressionable years. They are years when children develop very quickly and if sufficient attention is not given to the task the childhood and life chances of that child can, indeed, be squandered. In introducing the bill the Minister has been very much influenced by recent policy and practice changes in relation to the management of children in out-of-home care in the United States of America and in the United Kingdom. In both of those jurisdictions emphasis has been placed on adoption as an important and underutilised aspect of permanency planning.
I would be the first to agree that in recent decades adoption has become less popular and less common than it once was. In fact, the whole thing has been over done. Various social trends have brought about that outcome. Some 20 or 30 years ago I guess there would have been 2,000 or 3,000 adoptions annually throughout the State. Today, apart from intra-family adoptions by step-parents and the like, there would be fewer than 100 adoptions throughout the State in any one year. There has been a massive change in that respect. That is not to say that adoption as a permanent placement option is not desirable in social or policy terms. It is not the only option, but it is desirable and should be availed of in appropriate cases.
The other pressure for change has occurred as a result of hundreds of letters the Minister has received from foster carers and parents whose children were removed because of parental neglect and abuse. Departmental case study files, to which I referred at the beginning of my speech, unfortunately highlight, sometimes in a gruesome and all too realistic manner, the way in which the system—if I may use that term—has failed many children by not providing them with secure long-term placements in a caring and loving environment. Many of the cases brought to the Minister's attention also highlight the significant role that magistrates play in child protection matters, as their decisions affect both children and their family life and direct the work of the various agencies engaged in child protection.
It must be understood that the legislation under which the Minister operates places the duty and the right to make a care application with the director-general of her department. However, when the matter goes to court it is within the competence and ambit of the magistrate to decide what will happen in respect of arrangements for the future care of the child. The legislative mandate of family preservation and child protection creates some difficulties for magistrates and child protection services alike because the two aims that I have mentioned—family preservation and child protection—often conflict. The permanency planning amendment bill endeavours to address the tension by stressing that decision making should be guided at all times by what is in the best interests of the child or young person.
A study was undertaken in 1999 by Sheahan in the Victorian Children's Court for the years 1993 to 1995 to discover the factors that influence magistrates' decision making in child protection matters. It concluded that, while the intention of legislation is to enhance children's rights—that has certainly been the intention of legislation in this State—in reality the legal process appears to protect parents' rights more than children's rights. One magistrate referred to the:
… Madonna complex of you know, mothers and babies, they belong together and mothers love babies and there is no problem.
Unfortunately, there is quite a problem. Mothers are not always Madonnas and fathers are not always Josephs. This view does not accommodate the idea of a dangerous family nor the complex family situations that occur in child protection. The amendments in this bill seek to ensure that children's rights are paramount. I cannot stress that point too strongly; it is the central purpose of this legislation.
Earlier this year the Minister for Community Services, the Hon. Faye Lo Po', met Professor Richard Gelles, Director of the Family Violence Research program at the University of Rhode Island, where he is also professor of sociology and psychology. Professor Gelles is the author of The Book of David, which explores the tension between the rights of parents and the ideology that the child is better off with his or her own family compared with what is in the best interests of the child. Professor Gelles' has closely researched what some refer to as the "rule of optimism": the notion that all parents want to, and can, change.
Gelles asserts that a major failing of child abuse and neglect assessments is the simplistic way in which behaviour change is conceptualised and measured. It is seen as a one-step process, and this is a dangerous misconception on the part of both the courts and child protection workers. Social scientists who study behaviour change across a wide range of behaviours have concluded that relapse is part of the overall change process. They have found that measuring change and the likelihood of change is much more complex than assessing abusive parents' level of co-operation with court-ordered programs.
Gelles argues that caseworkers often use compliance with case plans as an indicator of change. For example, parents who attend parenting classes or go to counselling, anger management programs or drug rehabilitation are seen as changing, even if those same parents continue to deny abuse and neglect. It must be understood that complying with a court-ordered program of services or classes is not the same as undergoing real behaviour change. The belief that having participated in such programs will cause abusive or neglectful parents to change enough to take decent care of their offspring can lead to years of foster care drift—a damaging process to which I referred earlier.
To put the issue in perspective, Professor Gelles points out that when women are violently abused by their husbands, judges do not order them to enrol in an intensive marriage preservation program or assign a marriage preservation worker to their families. He argues the need to establish very early in the process, when a child first comes into care, the realistic likelihood of his or her restoration to the biological family. To do otherwise is just plain wrong as it means holding children hostage as part of some perverse experiment to see if this time drug rehabilitation or some other court-mandated measure will succeed.
New South Wales research also indicates that professionals in human service agencies operate on the "rule of optimism". This occurs, for example, when workers are aware that one or both parents are on a methadone program. There is sometimes a presumption that the parents' drug dependency is being treated and that an infant may be safely discharged to their care without any further assessment. Research also found that major decisions about infants' placements were often made after a very short period of parental drug abstinence—sometimes only a matter of days. There seemed to be an assumption that if the parents stopped using drugs—even if only for a short time—they had recovered from their addiction.
Such premature optimism fails to take into account the inherent difficulties in effecting long-term abstinence or any other long-term behavioural change. Any honourable member who has read the files I have read about drug-abusing parents and the things they have done to their children would be as cautious as I am about making a decision on the basis of a short break in substance abuse patterns. A reduction in parental substance use may not necessarily lead to an improvement in parenting capacity.
Research has found that an abusive parent may be a treatment success as an individual, yet still be an inadequate parent or spouse. There is also a belief that dysfunctional families with a history of child abuse and neglect can change their ways if sufficient resources and support are made available. That may be correct in some cases, but Professor Gelles' research challenges this view. He argues that since 1993 the United States Federal Government has allocated $250 million per year for family preservation and support programs with the aim of increasing the odds of delivering successful family reunifications. This amount was increased in 1997. However, the harsh reality is that adding resources, staff, more training and other resources to child welfare reforms in the United States has not yet resulted in measurable improvements, a reduction in child fatalities or increased child wellbeing. It is a seemingly intractable problem.
For those reasons, this permanency planning bill contains key provisions requiring more stringent assessment as to whether restoration to birth parents is appropriate. It will ensure that case plans submitted to the courts include plans for long-term placements, including adoption as one—and I stress only one—of the options designed to achieve permanency. It will limit non-essential court adjournments and applications, particularly from birth parents, for a variation or rescission of court orders.
The underlying principle in the Department of Community Services and in the Children's Court has to be as it is in the Family Court of Australia: what is in the best interests of the child, not what is in the best interests of the natural parents. It is not good enough to adhere to that as an overriding principle. I conclude my contribution by saying that Ms Gillian Calvert, the Commissioner for Children and Young People in New South Wales, said in a letter to the Minister dated 22 October that she had received a copy of the amendments to be moved in Committee and expressed her support for them. She added:
I believe that the Bill, in its amended form, will have significant benefits for children and young people in New South Wales in that the primary focus of the Department and of the Courts will be on putting in place arrangements which are best likely to ensure security, stability and continuity of care for children and young people who are not able to be cared for by their parents.
Ms Calvert concluded:
The Bill, in its final form, achieves a good balance between the interests of the various stakeholders while keeping the safety, welfare and well-being of children and young people firmly in the forefront of decision-making processes.
I have every confidence in her judgment. She served me very ably and with great expertise as my child protection and substitute care adviser. I am sure she would not write in those terms unless she had formed the honest view that the legislation achieves the objectives I have sought to describe in my contribution to this debate. I very strongly support this measure on the basis of my belief that it puts the interests of children, often troubled children, first.
The Hon. IAN COHEN [9.23 p.m.]: I support the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill, but I have concerns with some technical aspects of it. This bill has a long and chequered history. The second reading debate on the first version was held in June 2000, nearly 18 months ago. The present version has changed considerably from the initial bill. When the initial version was introduced child protection experts were divided on how it would operate in practice even though there was broad support for the objective of strengthening the emphasis on permanency planning. The Minister said in her second reading speech on the first version:
This bill aims to improve the case management of abuse and neglected children who have been removed from their birth parents, where it is unlikely they will ever be able to safely return home. The bill proposes amendments … that will place greater emphasis on the need for permanency planning for children in out-of-home care.
As Patrick Parkinson, Professor of Law and expert in child protection law, said in his submission to the original bill, the objectives are laudable and widely supported by child protection experts. However, in his submission he argued:
I am not aware of any child protection professional who disagrees with this proposition or anyone who believes that eventual restoration to birth parents is the goal to be pursued at all costs, and in every single case.
The debate is not about whether restoration to parents is always desirable. It is about whether adoption is usually the best option if restoration to both parents is not likely to be possible.
The first version of the bill placed too much emphasis on adoption as a preferred means of permanency planning rather than as one aspect of permanency planning. The Minister said in her second reading speech:
The only option which offers real permanency and real security is adoption.
What are the disadvantages of adoption as opposed to other kinds of permanent placements? A main disadvantage of adoption, particularly for older children, is that the legal relationship between the child and the birth family is severed. Section 95 of the Adoption Act specifies that when a child is adopted:
... the child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child.
The child is no longer a member of the birth family; it becomes a member of another family. As Patrick Parkinson points out in his submission, this can be problematic for children who still wish to have contact with their birth family. For many children, the concept of family is more than just parents. Many children would have had contact with brothers, sisters, aunts, uncles and grandparents. While in individual circumstance it may be totally appropriate that a child cease to have contact with parents who may have abused or neglected them, it does not automatically follow that a child should not be able, and indeed may crave, to continue to have contact with other members of their family.
In law, once adoption occurs the child has no legal relationship to members of his or her birth family. For instance, grandparents who may have seen their grandchildren on a regular basis since they were born suddenly have no legal right to continue seeing them. Where no adoption is involved, grandparents can apply to the Family Court for a contact order if they are suddenly deprived of seeing a grandchild because of new circumstances in the child's life—which can happen if the child is adopted. The advantages of adoption are that it is meant to provide certainty, stability and an end to temporary placements and changing circumstances.
Adoption is a legally secure option that is not subject to appeal. This enables a child to get on with his or her life and establish new relationships. It offers a hope of long-term stability and a family for life, it normalises the legal relationship between the child and the adoptive parents, and it gives the adoptive child and parents the same legal standing and protection as birth parents and child. The child is entitled to inherit from and through the adoptive parents, and is treated as the child of the adoptive parents for the purposes of social security, insurance, taxation et cetera. There are alternatives to adoption that do not sever the child's relationship with the family of origin but also provide permanency planning. One is to give parental responsibility to a relative, such as an aunt or uncle. Another is to make a sole parental responsibility order, which has much the same effect as an adoption without severing the legal relationship between the child and family of origin.
What is permanency planning? The bill inserts new section 78A, which defines permanency planning as the making of a plan that aims to provide a child or young person with a placement that has regard to principles set out in section 9 (f), meets the needs of the child or young person, avoids the instability and uncertainty that arises through a succession of different placement and temporarily care arrangements, provides for a continuity of relationships with family members and others significant to the child or young person as long as it is in the best interests of the child or young person. Barnardos Australian uses the following definition when referring to permanency planning:
Permanency planning is generally defined as time-limited, goal directed work with families which aims to help children live with nurturing adults who offer continuity and an opportunity for lifetime relationships.
Barnardos bases this definition on a belief that continuous, long-term living situations are significant for a child's development. Permanency helps to provide young people with a sense of identity, belonging, stability, attachment and bonding. In a 1996 report commissioned by the Department of Community Services entitled "Longitudinal Study of Wards Leaving Care", Judy Cashmore and M. Paxman describe the negative effects of instability and no permanency as follows:
The long term effects of repeated moves involving separation from care-givers are an impaired capacity for trusting relationships, "antisocial and asocial behaviours, chronic depression and low self-esteem, exaggerated dependency, and the tendency to compulsively, though unconsciously, evoke from the new environment a repetition of the original rejection." In addition, children moving from one placement to another are likely to change schools, and this in turn increases the likelihood of placement breakdown and contributes to their poor performance at school.
Commentators and community groups are largely happy with the new bill. There are, however, some concerns about technical aspects of it. For instance, a letter dated 8 November to the Minister from the Association of Children's Welfare Agencies [ACWA] states:
As stated in my letter to you on October 2001 ACWA has welcomed the recent set of amendments proposed by the Government for the Permanency Planning Bill. With these amendments ACWA is in support of the Bill.
Nevertheless there are some additional changes to the Bill which we believe should be made to further improve this important legislation. Most of these changes were outlined in an attachment to my letter of 22 October.
Patrick Parkinson, who is Professor of Law, University of Sydney, Chairperson of the Community Welfare Legislation Review that reviewed the 1987 care and protection Act, and who was heavily involved in the drafting of the 2000 care and protection Act, is also concerned about the technical and illegal drafting aspects of this latest bill. They do not raise any policy issues, but they could have negative impacts if not rectified at the Committee stage. The Greens will move amendments in Committee to deal with some of these issues. I hope we will get support from the Government. It is certainly time that the House dealt with this bill. The Greens support any moves to further protect children and young persons under these circumstances.
The Hon. AMANDA FAZIO [9.32 p.m.]: I support the bill and I support previous speakers who said that changes must be objective and not subjective. We must be objective about what is best for the long-term welfare of our children, and make that the focus of the bill. Honourable members have debated whether some provisions in the bill are appropriate and whether we are headed in the right direction. As honourable members are well aware, the United Kingdom and the United States of America have taken similar initiatives, although the proposals in this bill are not as severe as those introduced in the United States and the United Kingdom.
When we consider what needs to be done we must bear in mind the potential of children. Nothing is sadder than looking at children and knowing they will never be given the opportunity to fulfil their potential. All children have the right to be safe, secure, and well cared for, and to have some stability in their upbringing, particularly in their younger years. The responsibility of parents to provide this atmosphere for growing and developing young children is undeniable, but it is also undeniable that some parents are not able to adequately discharge that responsibility. That is the purpose of the bill.
The bill raises issues in which I have been interested for some time. Many years of work in the social welfare field, particularly with the Commonwealth Office of Child Care, sparked that interest. One example in the United Kingdom highlights how systems and safeguards put in place to care for children at risk can let you down. I instance the very sad case of a young child who was reunited with her family, but whose family was not able to adequately discharge its parental responsibilities. Because of a number of changes in welfare personnel in the local government body in England responsible for the care and protection of children, this child was never followed up adequately.
Welfare officers would visit, only to be told that the child had gone with his or her mother to the playground. When the next visit was due, a different social worker or student social worker would be in charge of the case file. The officers and the child never connected. Very sadly, the child had been locked in a bedroom in a council flat for three months. Small amounts of food and water were provided, and ultimately, the child died. The child had peeled wallpaper off the walls to try to get some sustenance from it and the gum. The parents had avoided being checked by welfare; the welfare system failed; that child's potential was snuffed out.
Although that is an extreme example, those sorts of things can happen anywhere. Systems fail. We must ensure that the highest priority is given to the welfare of children in families in which parents cannot adequately discharge their responsibilities. A submission received by the Minister during consultation on the second permanency planning bill demonstrates in a very down-to-earth way the dilemmas faced by families and carers when they get caught up in the system, and the impact this has on the children particularly. The submission described the experience of a young child who was first taken into care at two months of age and made a ward, initially for 12 months, with the intention of reuniting her with her mother at some time during that period.
The mother was only a young teenager and the baby, whom I will refer to as "Kylie", was removed from her care in late 1997 due to hygiene issues, weight loss associated with failure to thrive, threats to her physical safety, and being left with inappropriate care givers. Mothercraft nurses worked with Kylie's mother on parenting skills. Seven months later Kylie was reunited with her mother in a supervised residential placement. One week later Kylie was back with foster carers because her mother was unable to cope.
A mothercraft nurse again worked with Kylie's mother, and six months later she was returned to her mother's full-time care, one month short of the 12-month wardship order. Two-months later the department sought a 12-month supervision order, and it was made with the mother's consent. During this time foster carers continued to have contact and provided respite care when asked. Five months later Kylie's mother relinquished care of her to the department, because she was pregnant and had difficulties coping. Kylie was returned to foster carers in a voluntary care placement, with her mother's consent.
Only 15 days later Kylie's mother changed her mind and withdrew consent for voluntary placement, and Kylie was returned to her mother in May 1999. Later that month at a case conference a decision was taken to once again seek a wardship order for Kylie. The first court hearing date was August 1999. In September that year, she was made a ward until she reached 18 years of age, with her mother's consent, and an agreement was made for regular contact. In May the following year Kylie's mother made "abuse in care" allegations against the foster family. The allegations were not confirmed, but the relationship between the foster parents and Kylie's mother deteriorated to such an extent that all communication was handled through the department. Professional assessment suggested that Kylie met the diagnostic criteria for post traumatic stress disorder and reactive attachment disorder. Counselling, intensive play therapy and medication are now required to enable Kylie to cope with her day-to-day life, while keeping in mind long-term issues of identity and personal history. This is not an atypical case. The following letter was written by foster carers:
In our situation we have been in court at least once in every calendar year since Kylie was born. She is not yet four. The latest rescission application from Kylie's mum delayed and prolonged the intensive play therapy program we are engaged in. The professional opinion was that it would be abusive to attempt to address Kylie's attachment issues with us, should her mother's application be successful.
The application was dropped, but not before it sucked up considerable resources in the way of time, energy and money. My husband had to take time off work to attend repeated dates, resulting in economic loss for our family.
There was a shift in focus for ourselves and the professionals involved. Instead of being available to support Kylie's placement, her District Officer was bogged down in report writing. Therapeutic issues and strategies to consolidate and maintain Kylie's placement took second place to the practicalities of fending off the court application.
To have things resolved with a sense of permanency, with clarification of roles and acknowledgement of the importance of all parties to Kylie's wellbeing, could only benefit everyone. We are Kylie's 'family of identity' and her primary attachment is to us. However, we are not her birth parents and as she grows they will be more and more important to her. Accepting the status quo would hopefully enable us all to respect the role each plays in her life and to complement each other, rather than feel threatened and competitive. This is my long held ideal.
Kylie's mother is a product of her own childhood. Kylie will be the third generation of this family to have significant involvement with DOCs. Providing secure, safe, nurturing substitute care with a degree of permanency may be the only way to end generational patterns of abuse and neglect. For some families the provision of repeated bouts of foster care only serves to enable and support their dysfunction.
In closing, I would like to express my thanks. The Permanency Planning Issues paper is the most hopeful document I have read recently. It expressed a positive, child focused direction for substitute care. Kylie is an extremely challenging child. Having hope for her future and for children like her enables us to continue our daily struggle.
I think we should all reflect carefully on the words contained in that letter from what are obviously very caring foster parents, people who recognise that there needs to be a continuing involvement in that child's life. They are ready to work together with professionals to try to remediate any damage that has been caused to that young child during disruptive periods of changing care in her early years. I think we should be grateful that we have foster carers in the system who are as thoughtful, positive and as prepared to deal with a child who has caused the family a loss of income through court appearances; who has probably caused them a lot of angst and would have put considerable strain on other family relationships. But they are focused on trying to ensure that they give that young girl the best possible future that they can. We should be very proud of those people and the role they play in the foster care process. The foster carers concluded their history of Kylie's experience in the care system with the following comment:
There needs to be some way that Kylie's case serves as an example and learning experience. Kylie and all the children who come into care should not be abused or neglected by the system meant to protect them.
This was one of the first submissions received after the release of the permanency planning discussion paper. This case and the hundreds like it that are seen by our welfare agencies on a regular basis have made a valuable contribution to the formation of this vital legislation. It is obvious that bringing permanency into our system for young people is a vital element in providing the type of support that will give these young people the chance to develop to their full potential. We, as legislators and as members of the general community, have a responsibility to all children in our community to try to allow them to have equal opportunities through life; and to try to allow them to maximise their potential in life. In some cases the only way we will be able to do that, to provide children with the stability and the nurturing environment in which they can achieve their full potential, is by introducing legislation such as this. For those reasons I commend the bill to the House.
The Hon. IAN WEST [9.45 p.m.]: I wish to add my support to the passage of the bill and note that it has elevated the rights of children in New South Wales to a historic degree. For some children the abuse or neglect that they experience as small children is just the beginning of a tragic life. As has been noted by a number of speakers in the debate, and in the other place, the Community Services Commission and the Bureau of Crime Statistics and Research have documented the drift of State wards into the juvenile justice system, finding that State wards are over-represented in the juvenile justice system.
Permanency is the key element needed to try to begin to overcome this trend. The bill defines what constitutes a permanent placement, and includes a broad range of options from restoration to the parents through to a sole parental responsibility order or adoption order. Permanency establishes the foundation for a child's healthy development. It provides safety and protection, a sense of identity, and validation of the children as important and valued persons. It provides stability and continuity of caregivers and an opportunity to learn and grow cognitively, physically and emotionally. It provides a protected custodial environment that is legally secure.
Permanency, as epitomised by a safe, stable relationship with a nurturing caregiver, allows these basic needs to be met. While the benefits of permanency are obvious, it can be an illusive thing to achieve. As has been noted elsewhere, there are occasions on which it is not uncommon for a child to be placed with some 15 to 20 different foster parents and in other types of arrangements—not necessarily foster parents, but a person up the road, a grandmother or grandfather, an uncle, aunt or cousin, or perhaps someone the parent met a few weeks ago.
It is clear that we need to do whatever we can to improve the experience of these children, to try to ensure that they receive a safe, secure, loving stable home life, that they develop their potential and become productive and responsible citizens. As the Minister for Community Services noted in the other place, what we are trying to do with this legislation is to stop the conveyor belt that often carries these children into juvenile justice institutions and an adult life of crime and antisocial behaviour. This is a problem not unique to New South Wales. Similar problems are being confronted in other countries, including Britain and the United States of America. Many societies are seeking to find the delicate balance between a child's urgent need for safety and permanency and the efforts of agencies and courts to help parents overcome the problems that result in child maltreatment or the making of the child's home unsafe or unhealthy.
Although that situation is faced by only a small number of children, it is an extremely difficult area. We must balance rights with the best interests of the child. While confronting similar problems, the bill does not seek to do all the things that have been done in other jurisdictions such as the United States of America or Great Britain. The bill is the result of an extensive consultation process with local communities and reflects the values of this jurisdiction. The bill now is truly reflective of almost two years of discussion and debate. The Minister has stated that she accepts the validity of the many issues that have been raised in the debate and believes that it is a better bill for this process. I hope and believe that I am not misquoting the Hon. Patricia Forsythe in saying that she would agree with the Minister's comments in this regard.
All stakeholders have been consulted and have had input into the final form and wording of the bill. The bill does not deal with easy decisions, but they are decisions that must be confronted. A failure to do this means that we fail these children. It means that they are condemned to a childhood adrift, without the sort of emotional security and stability that most others take for granted. The amendments attempt to strike a balance. The general presumption in current child protection law and practice is that children are almost always better off with their own parents and that removal, especially permanent removal, is an option of last resort in the most extreme cases.
There is no intention in the bill to change this fundamental principle. But the bill does aim to improve the experience of children who cannot safely return home. It directs courts to squarely confront decisions about whether there is a real prospect of safe return of the child to the care of the parents. The aim is that this will happen early enough to allow long-term planning for the child's future to take place before too much damage has already been done. This will avoid the situation of drift through multiple temporary placements, and multiple failed attempts at returning them to live with their parents, exposing them to further neglect and abuse.
In addition to these amendments to the proposed legislation, the Government has made a number of commitments to address the issues raised in relation to Aboriginal and Torres Strait Islander children. The Government remains committed to the Aboriginal child placement principle. It is expected that for cultural reasons adoption would rarely occur for Aboriginal children, and legal jurisdiction for adoption remains with the Supreme Court. The bill does not amend the current adoption legislation, which, as noted by the Parliamentary Secretary for Aboriginal Affairs, "virtually ensures that no Aboriginal child can be brought up outside his or her culture".
By the adoption legislation that this Government has put in place, any placement of an Aboriginal child with a non-Aboriginal family is only as a last resort, and only if the family can assure the Supreme Court that the child will be brought up in the knowledge of his or her own culture. And even then it will be only with the consent and approval of the relevant Aboriginal community. This bill is about things that most of us take for granted, the things that provide a foundation for future development—a home, a safe environment in which to simply be able to grow into ourselves—things that are absent from the lives of many children. I urge the Legislative Council to take this chance to give these kids a better future and support the bill. I commend the bill to the House.
The Hon. JOHN TINGLE [9.55 p.m.]: I will speak only briefly to the bill. I not only support it; I also welcome it, because in my opinion it is long overdue. As somebody who has been both an adoptive parent and a foster parent I know just how difficult the situation can be and how complex it can be to try to adjust the lives of young children, and even babies, when they are no longer able to stay within what we consider to be the normal family environment. I have always believed that what children need most of all is stability, an assured continuum of affection, and the sort of safety and comfort that is quite necessary if a young personality is to grow up in a stable and balanced way.
I know there has been some concern that the bill has taken a little time to come to fruition. I actually welcome that because I think it is such an important bill that we needed to get it right. I would rather see the Minister take the time developing the bill through consultation, and with amendments, than simply trying to rush it into place hoping that when we patch it all together it will do something to make the whole system of permanency placing and foster care work a little better. I have known very small foster children of the age of four who cowered into a corner when they were taken home and who were quite terrified of what might happen to them next. These were kids who had been in a number of foster placements and who were obviously destined, because their parents kept on coming to claim them back and then putting them back into care, to be in and out of foster homes probably for all their young lives until they reached adulthood. I have often wondered what happened to some of those children.
We have come a long way. In the 1930s what was called the child welfare system was pretty dreadful and the child was merely a cipher, often sent to what was called a children's home where a number of children were being cared for by a house mother, if you like. Indeed, one of my cousins disappeared into the system in the middle of the 1930s. We lost contact with her completely; we have not seen her for more than 60 years. I have no idea whether she is still alive. We have come a long way from that situation and we are trying to make the system more humane, compassionate and centred around the only thing that matters: the future welfare and the happiness and health of the child.
It seems to me that one of the important things about this bill is, as other speakers have said, that it departs from the concept that a child is automatically better off in what is called its natural family. There are many natural families that are always going to be dysfunctional. Unfortunately, there are some people who, while they may have the physiological capacity to have children, do not have the psychological adjustment, the temperament, the capacity or the endurance to bring children up in the way they ought to be brought up. If we revert to the theory that this is all about the welfare, and even, if you like, the rights of the child or young adult, we have to put that view before the supposed theory that they should be with their birth parents or even with what we call their natural family.
I have studied some of these cases and there is increasing statistical evidence that in a de facto relationship when the child is the child of only one of the two people involved, there is an increasing incidence of abuse—physical, sexual and psychological abuse—of the child by the non-natural parent. In situations such as these, where the child is obviously in many cases being used as a weapon and is being manipulated, the welfare of the child demands that it be removed from that environment. The situation also demands that we should not automatically think that the child should go back into that environment.
The image is burnt into my mind of a little moppet of about four years with flaming red hair sitting on a bench outside the door of a Catholic orphanage, a children's home, with a very small packed suitcase beside her. At about one o'clock in the afternoon we went to the home to pick up young twins whose mother was ill, for short respite care. I asked a nun at the home who the little girl was and I was told that she had been sitting in the same position since 7 o'clock that morning waiting for people who were supposed to pick her up. They had not at that stage turned up. I said to the nun that we would take her, but I was told that we could not do that. That pretty little girl sat there determinedly looking at the road; she was quite sure that the people were coming to pick her up.
About three weeks later, when we took back to the orphanage the twins we had picked up, I asked the nun what happened to the little red-haired girl. I was told that she had sat waiting all day and would not come in for lunch. The little girl had said, "They are coming to get me." She sat with her teddy bear and her cardboard suitcase. That image burned into my mind. But the people never turned up. That child thought she was either going on a holiday or being put in permanent placement— probably the most exciting thing that had ever happened to her. Her parents had abandoned her, and I often wonder what happened to her. I wonder what that perception of rejection by people who did not bother to turn up did to that four-year-old girl. I wonder what sort of person she is today. That was 40 years ago.
This is an important bill and it contains some very important provisions, including that a child in placement be allowed to retain contact with what I call the extended family. I know of a great many cases in which although the first-generation parents could not handle a child, the grandparents were valuable because they could restore the sense of family and provide the sort of stability that the child so badly needed. The Minister has gone to a great deal of trouble to sort out the culturally difficult situation with permanent removal of an Aboriginal or Torres Strait Islander child. We certainly do not want another lost generation accusation emanating from this legislation.
I welcome this bill. I know that amendments have been foreshadowed; some of which I believe are worthy of support and some are merely technicalities that we should not be concerned about. We need to be concerned about only one thing when we discuss this bill and decide how we are to vote on it: is it going to make life better for a lot of children who otherwise would simply go from hand to hand and wind up seriously injured personalities. This bill is important because it is not about the past or the present, it is about the future.
Debate adjourned on motion by the Hon. Peter Primrose.
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