External Review for Care and Protection
That this Assembly
That the 2004 Vardon Report (‘The Territory as Parent’) and the 2016 Glanfield Inquiry (‘Report of the Inquiry’) both recommended that decisions made by ACT Child and Youth Protection Services (CYPS, or its predecessor) regarding a child’s placement or care plans be subject to external scrutiny or review;
That the ACT remains the sole Australian jurisdiction where such decisions are not reviewable;
That numerous constituents, including parents, carers and agencies, have expressed frustration, both in submissions to inquiries and directly to members of this Assembly, that no pathway exists for aggrieved persons to seek external review of these decisions; and
That the ACT Government in its 2016 ‘Response to Family Violence’ acknowledged that ‘some important decisions are not subject to external review in the ACT while they are reviewable in other jurisdictions’ and promised to undertake a JACS-led assessment of this situation.
2. Calls on the ACT Government to:
recognise the importance of ensuring that decisions regarding a child’s placement and care plans be subject to external review, both to ensure the quality of such decisions and to engender confidence in the system;
provide a detailed outline of the following:
what recommendations, if any, have come out of the JACS-led review; and
what specific steps the Government will take to bring the ACT into line with all other Australian jurisdictions by providing for external review of these decisions; and
report back to the Assembly on these matters by the last sitting day in August 2017.
Madam Speaker, I am pleased to move this motion today because it deals with a very important matter that several constituents have raised with me personally. It has not just been constituents that have raised concerns, however; this matter has also been addressed over a number of years in reports that have looked into the ACT Government’s provision of care and protection for children and young people in the territory.
In May 2004, a report was submitted to the Government entitled ‘The Territory as Parent: Review of the Safety of Children in Care in the ACT and of ACT Child Protection Management’, often known as the ‘Vardon Report’. The stated purpose of this report was to ‘secure the safety of children and young people in care in the ACT and to redress deficiencies in current policies, procedures and practices’ for those children and young people.
One of the main issues raised in the Vardon Report was the lack of ‘external scrutiny’ of decisions made by Family Services – the predecessor to what is now known in the territory as Child and Youth Protection Services or CYPS – including external review of things such as placement decisions and care plans. The report noted that submissions to the commissioner, quote, ‘highlighted the lack of an independent grievance structure. Parents, carers and agencies [all] relayed stories of frustration about having nowhere to go when they disagreed’ with these decisions. The report further noted that, and I quote again, ‘the consensus was that an independent mediator was needed to deal with these disputes’.
The report did not identify a specific external review mechanism but, amongst others, noted that the Children’s Court magistrates and ‘most of the legal representatives with whom the Review spoke’ had expressed support of an administrative children’s tribunal supplemented by a judicial appeal process. One possible option was to create the position of a Commissioner for Children and Young People who would have the power to convene an independent tribunal, the decisions of which should also be subject to judicial review. The report concluded that this would, quote, ‘complete a comprehensive statutory framework for external scrutiny of services dealing with children and young people in the ACT’.
Thirteen years later, Madam Speaker, the ACT has a Children and Young People Commissioner, for which I express gratitude, but still no independent tribunal or access to judicial review.
These points were made clear in a report that was submitted to the ACT Government in April last year. Entitled ‘Report of the Inquiry: Review into the System Level Responses to Family Violence in the ACT’, it is often referred to as the ‘Glanfield Inquiry’ and was prepared by a board that ‘was appointed on 22 February 2016 following the tragic death of Bradyn Dillon one week earlier’. This report noted that ‘important decisions’ such as care plans are not merits reviewable in the ACT, and it quoted from a Legal Aid ACT submission that explained that, for example, a caseworker can drastically vary a Children’s Court-issued care plan, but if a mother is dissatisfied with this variation, Legal Aid can only advise her that, quote, ‘there is no pathway for her to seek external review of this decision’.
This lack of external review surprisingly includes no form of judicial review. According to the Glanfield Report, only a decision made under the Children and Young People Act is subject to such review. The decision regarding a child’s placement, however, is, quote, ‘made by the Director-General [of the Community Services Directorate] pursuant to the care and protection order made by the Childrens Court and is therefore not a decision under the CYP ACT, and is therefore not reviewable’.
In short, Legal Aid was correct to observe that, in the ACT, there is simply no pathway for a parent, close family member or other concerned party to seek external review of a decision made by CYPS regarding the placement of a child or the alteration of a care plan.
This reality creates a situation unique amongst all Australian jurisdictions. Madam speaker, the ACT is the sole jurisdiction that does not currently provide some mechanism for the external review or scrutiny of a child’s placement or care plan:
In New South Wales, the placement of a child can be reviewed by Tribunal, reviews of care plans can be conducted by the Children’s Guardian, and orders can be appealed to the District Court.
In Victoria, case plans ‘and any other decision made by the Secretary concerning the child’ can be reviewed by Tribunal.
In Queensland, both the placement of a child and the refusal to review a decision in a case plan can be reviewed by Tribunal.
In Western Australia, care plan decisions can be reviewed first by the CEO, and then subsequent decisions can be reviewed by Tribunal.
In South Australia, care orders, which are made by the court, can be reviewed by application to the court; decisions made by the Chief Executive count as decisions made under the Youth Court Act; and the Act itself provides that care and protection orders can be appealed to the Supreme Court.
In Tasmania, family group conferences that enable review of arrangements for care and protection of a child under an order must be convened if requested by the child or any two or more members of the child’s family.
In the Northern Territory, a party can apply for variation, revocation, or revocation and replacement of a care and protection order; decisions made by the Chief Executive count as decisions made under the relevant Act; and any order or decisions can be appealed to the Supreme Court.
And in the Australian Capital Territory, Madam Speaker, there is simply no pathway to external review.
I do not wish to be misunderstood on this point, however. The matter before us today is not simply about being out of step with all other Australian states and territories – though the fact that the ACT has been left behind by all other jurisdictions – despite at least 13 years of recommendations to the contrary – should certainly concern us.
External review of decisions relating to a child’s placement or care plan is about two very important things, the first of which being the quality of such decisions. As noted by the Vardon Report, quote, ‘good governance in child protection is about establishing a rigorous safety system for children and young people at risk. The system comprises statutory accountability, internal controls and record keeping, and external scrutiny’.
The relationship between external review of decisions relating to placement and care plans and the quality of those decisions was likewise expressed to the Glanfield Board of Inquiry by the former Children and Young People Commissioner, quote: ‘I consider that the availability of administrative review of such key decisions would improve accountability for decisions that have a significant impact on the lives of children and young people and their families and carers[,] and would promote high quality evidence-based decision-making by CPS (now CYPS)’.
Madam Speaker, without access to external review of decisions made by CYPS or the Director-General of CSD, the territory’s families have no formal mechanism by which to raise concerns, resolve grievances, or find assurance that these decisions truly are in the best interests of their children. And this leads to the second reason why scrutiny of such decisions is so important. Lack of external review naturally leads to suspicion and frustration, and in the unfortunate event when something goes seriously wrong with a child in the territory’s care and protection, it can lead, quite understandably, to an unquenchable rage or grief that no one listened when concerns were raised.
Tragically, the very best policies and procedures will never keep every single child safe 100 per cent of the time, but the right policies and procedures can certainly reduce the likelihood that something will go wrong. For the sake of the territory’s children and young people and their families, and for the peace and security of the good women and men who are every day tasked with making difficult and complicated assessments, I call upon this Assembly to recognise the importance of ensuring that decisions regarding a child or young person’s placement and care plans be subject to external review, both to ensure the quality of such decisions and to engender confidence in the system.
Madam Speaker, I likewise call upon the ACT Government to report to this Assembly with some haste regarding the review that they promised on this matter last year and the steps that they will take to guarantee that the territory’s care and protection system provides similar safeguards to those that families and their children enjoy everywhere else in Australia.