LSB March 2018_Web

CHILD PROTECTION
Time for Change in our
Approach to Care and P rotection
MICHELLE-ROBYN HOPKINS, PRINCIPAL PROJECT OFFICER, OFFICE OF THE TREATY COMMISSIONER
Having worked in care and protection
for a number of years, I am
disheartened by the ever-increasing number
of children and young people entering the
system. In June, 2017 the Office of the
Guardian for Children and Young people
reported that 3296 children were placed
under Guardianship of the Minister, 34.3%
of whom were identified as Aboriginal. 1
As an Aboriginal woman, I am troubled by
this large removal of Aboriginal children in
South Australia. The community is talking
of echoes from the past, labelling this
period a new stolen generation.
As a lawyer, I am at times affronted by
a legal process that I see contributing
to these statistics. A system which I see
is adversarial undermines the rule of
evidence 2 and may jeopardise the rights
of the South Australian Aboriginal
community.
As a long-time child advocate, I am
disturbed by a failure to adequately
promote the voice of the child in
legislation and I am fearful of the longterm
consequences of putting children
and young people in an out of home care
model, sometimes before exploring all
other avenues available.
The care and protection of children and
young people in South Australia is largely
governed by the Children’s Protection Act
1993 (SA), which states “The primary object
of this Act is to keep children safe from harm”. 3
Care and Protection matters are heard
in the Adelaide Youth Court and parties
include the Crown, on behalf of the
Minister or the Chief Executive of
the Department of Child Protection
(DCP); the child or young person, whose
voice is heard through an appointed
“child representative”; and the parent
or guardian, sometimes represented
by a lawyer, albeit in many cases selfrepresented.
22 THE BULLETIN March 2018
A typical scenario is that concerns are
raised about the circumstances of a child
and DCP remove the child in accordance
with Section 16 of the Act states: “a child
is in a situation of serious danger and that it is
necessary to remove the child from that situation in
order to protect the child from harm”. 4
What constitutes a “situation of serious
danger” is not clearly defined by the Act.
The majority of cases involving Aboriginal
children cite “neglect” as the grounds
for a child removal which differs from
the wider community where “sexual or
physical abuse” is the primary indicator.
One questions whether the removal of
a child suffering from the circumstances
of neglect, often the consequences of
poverty, is an appropriate mechanism to
address these concerns, or whether other
intervention might be a safer option.
Once a child has been removed, an
application is made to the Youth Court
to obtain an order for guardianship under
the Minister. Initially this will be for an
Investigation and Assessment (I and A)
period of six weeks. The threshold is not
onerous and I understand that there has
not been a refusal of such an application
since 2009. 5 Follow-up applications are
for Guardianship Orders of 12 months,
or 18 years. 6
THE ADVERSARIAL MODEL
The judicial model is an adversarial one,
typical of common law jurisdictions.
Parties argue opposing versions of an
application, before an impartial judicial
officer of the court.
The problem with the adversarial model
in care and protection, is that it remains