Children and Young People Amendment Bill 2018
Madam Speaker, I rise today to resume debate on the Children and Young People Amendment Bill 2018, which was first presented to the Assembly on 10 May this year.
This bill seeks to amend the Children and Young People Act in two main ways. First, it clarifies that a limited care and protection appraisal may be carried out without the permission of the child’s parents or the person or persons with daily care responsibility for the child if the parent or carer is the alleged perpetrator of abuse or violence.
This legislative clarification is a direct response to Recommendation 9(a) in the Glanfield Inquiry. Mr Glanfield specifically recommended that, in such circumstances, ‘the Director-General should not be required to obtain agreement to the appraisal from each parent or each other person with daily care responsibility or seek an appraisal order from the Childrens Court’.
The ‘Report of the Inquiry’, somewhat incorrectly, notes that Child and Youth Protection Services (or CYPS) is currently required to obtain permission from each parent or carer in order to undertake an appraisal. This has resulted in a situation where, quote, ‘parents often refuse to agree to an appraisal and their children being interviewed without their presence. In cases where the parent is accused of inflicting violence and the parent is present, disclosure from the child is unlikely to be obtained’, end quote.
In actuality, Madam Speaker, section 368(3)(b) of the current Children and Young People Act already provides an exception to this requirement, specifying that the director-general must take reasonable steps to obtain the agreement of each parent or carer ‘unless it is not practicable, or not in the best interests of the child or young person to do so’.
In addition, section 370 of the act specifically exempts the need to seek the agreement of a parent or carer if the director-general suspects on reasonable grounds that doing so ‘would be likely to put the child or young person at significant risk of abuse or neglect or jeopardise a criminal investigation’.
This appears to be another situation where disinclination to do the right thing within CYPS has been based more on a misguided workplace culture than on the actual legislation. A similar situation was identified by Mr Glanfield in the area of information sharing. According to the ‘Report of the Inquiry’, adequate avenues for ‘the information sharing that is required to properly assess and manage family violence cases’ already existed in the territory’s legislation, but workers nevertheless felt that they lacked the authority to share and did not have ‘an information sharing culture’ in the workplace.
Mr Glanfield therefore strongly recommended changes to law that would both clarify the need to appropriately share information and emphasise the authority to do so. This, he hoped, would help shift the ‘information sharing culture’ in the ACT. For this reason, Madam Speaker, two Reportable Conduct and Information Sharing Legislation bills have been approved by this Assembly over the past two years. I sincerely hope that their additional clarity is having the intended impact when it comes to sharing critical information in the areas of child protection and family violence.
It appears that we have a similar need to shift the misguided workplace culture that has resulted previously in the kinds of situations described in the Explanatory Statement for this bill, and I quote, ‘where a violent parent endangers the safety and wellbeing of a child and intimidates CYPS’. As noted in the briefing obtained by my office, perpetrators of domestic violence are often skilled at coercive, controlling behaviours, and too many child protection workers have apparently fallen victim to this behaviour.
It is shameful, Madam Speaker, that this and previous Labor-Greens governments have overseen the development of such situations without swift correction. Staff inside CYPS have extremely difficult jobs. If they have been threatened with violence as a result of false assumptions about what they were required to do, where was the training to correct the workplace culture? And if the end result of leaving CYPS workers to be unnecessarily intimidated by violent parents was also leaving children in danger, where were this and previous governments on this point? If overworked staff don’t fully grasp the legislation, shouldn’t we at least expect that the Labor ministers whom they have worked for do understand it?
This appears not to have been the case. It is wise, therefore, to improve the language of the Children and Young People Act in order to clarify that a limited care and protection appraisal may indeed be carried out without the permission of the child’s parents or the person or persons with daily care responsibility for the child if the parent or carer is the alleged perpetrator of abuse or violence.
Significantly, this amendment also clarifies the threshold for carrying out a limited appraisal without agreement. As I already noted, section 368(3)(b) of the current act sets this threshold as the ‘best interests of the child or young person’, but section 370 speaks only of the need to avoid putting ‘the child or young person at significant risk of abuse or neglect’. This bill makes ‘best interests’ the consistent benchmark across all sections.
Madam Speaker, the Canberra Liberals regret the failure of this government to adequately train and support its child protection workers in this space, resulting in unfortunate situations where CYPS staff have clearly been threatened and intimidated by violent parents or carers, leaving vulnerable children at risk. This never should have been allowed to occur. When a workplace culture is based on a misunderstanding of the legislation, good governments take proactive steps to change that culture. It is time to make a much-needed change, and so the Canberra Liberals will be supporting this amendment.
The second main purpose of this bill is to allow for the sub-delegation of functions in care and protections decisions. Currently, the director-general can delegate specific decision-making to responsible persons within approved kinship and foster care organisations as well as approved residential care services. Under A Step Up for Our Kids, the stated plan was for these decisions to, quote, ‘be made more speedily and closer to the child or young person and their carer’.
The Legislation Act 2001 does not allow a delegate to sub-delegate responsibilities, however, blocking this intention and turning responsible persons into bottlenecks, effectively slowing down decision-making instead of speeding it up. This amendment changes the act in order to list all delegations in a single place, making the law much clearer. It also specifies that responsible persons within approved organisations can sub-delegate these enumerated functions. This means that the case workers who work directly with children and young people will be able simply to take what they deem to be the most appropriate actions.
The proposed changes specify that the responsible person still bears responsibility for ensuring that the sub-delegated functions are properly exercised. The sub-delegate must also be an employee of the organisation who ‘has skills and qualifications appropriate for the function to be exercised’. Moreover, I have been assured in a briefing that the authority to sub-delegate specific functions in no way alters the complaints process. If a parent or carer has concerns about a decision, she or he can still raise that concern.
This does touch upon a significant point, however, and that is specifically the way in which complaints and concerns are handled within this territory’s care and protection system. I have raised this issue in this chamber on more than one occasion previously, but I remind this Assembly that it is a real issue and that it has not gone away and will not simply go away.
In an ABC Radio interview with Genevieve Jacobs on 5 October last year, Dr Helen Watchirs, the Human Rights Commissioner, addressed this very concern. Jacobs specifically queried the lack of accountability for decisions made in the care and protection system, and Dr Watchirs responded by noting that, in the ACT, quote, ‘a lot of decisions are not reviewable on their merits as they are in other jurisdictions’. Madam Speaker, this is a problem, one that the Human Rights Commissioner went on to suggest undercuts this government’s alleged commitment to making Canberra a ‘restorative city’.
Mr Glanfield himself found specifically that, and I quote from his report: ‘Certain CYPS decisions have only a limited form of internal merits review[,] and some important decisions that are externally merits reviewable in other jurisdictions are not reviewable in the ACT’. In addition, and I quote again, ‘Decisions made early in the process, such as intake assessment, are not subject to merits review’, and ‘There are no formal, internal, dedicated and regular quality assurance mechanisms for CYPS decisions’.
For these reasons, the report recommended a review of CYPS decisions that should be ‘subject to either internal or external merits review’. I was informed in budget estimates hearings a few weeks ago that release of this review is imminent, and I look forward to seeing significant improvements in this area.
I also look forward to greater clarity from CYPS itself. Again, in budget estimates hearings, I was told that even the current inadequate complaints process is unclear, with parents and carers often not understanding the ‘multiple pathways’ they ‘might choose around having a decision reviewed, accessing advocacy, or taking a complaint[s] process’. The assurance is that this clarity will be provided in an updated carer handbook, also imminent.
I and the rest of the Canberra Liberals understand that not all decisions affecting children in out-of-home care can be made by a single person or even by a small handful of people, so we will support this particular amendment. At the same time, we emphatically restate our support for the unified voices of parents, carers and experts alike that have long been calling for greater accountability and clearer, easier access to fair and open review of care and protection decisions. In consultation with stakeholders, this was the single greatest worry raised by this bill.
If this government is going to make important decisions on behalf of children and young people – decisions that sometimes involve, quite literally, matters of life and death, as the very existence of the Glanfield Inquiry reminds us – it doesn’t matter how many people are charged with making them; those decisions need to be open to review. And the dedicated, hardworking staff who are charged with making such decisions need to have the full support and commitment of this government so that they no longer find themselves in dangerous situations that the legislation was actually designed to avoid.
Madam Speaker, having – once again – raised these serious concerns, I commend this bill as drafted to the Assembly.
 Laurie Glanfield, ‘Report of the Inquiry: Review into the System Level Responses to Family violence in the ACT’, April 2016, p. 70.
 Ibid., p. 69.
 Ibid., p. 5.
 Ibid., p. 87.
 Helen Watchirs interviewed by Genevieve Jacobs, ABC Radio, Canberra, 5 Oct 2017, 9:18 AM.
 Glanfield, ‘Report of the Inquiry’, p. 78.