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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

CHILD PROTECTION a lawyer’s duty to vigorously defend the position of their client regardless of the jurisdiction. In circumstances where one imagines the objective should be to achieve the best interests of the child, it seems nonsensical to have skilled professionals arguing against one another. Such an approach will often work to place a further wedge between parents and the DCP, potentially derailing any chance of resolving issues outside of court. A more rational alternative might be for parties to try and better understand the circumstances and wishes of the child and work toward moving interests closer together. For confidentiality reasons, sessions occur in a closed court, meaning there is a failure to involve the wider family and community connected with the child. In an Aboriginal context, this seems to be in contravention of the UN Declaration on the Rights of Indigenous Peoples. 7 This is a potential concern when one considers the disproportionate number of Aboriginal children placed under the guardianship of the Minister. One cannot help but ask whether these proceedings are culturally appropriate or whether the answer may contribute to the disproportionate number of Aboriginal children in care. ACCESS TO JUSTICE FOR PARENTS The removal of a child can be a traumatic experience for all involved. When removal occurs, there currently exists little, if any, advice given to the parents. Parents are often instinctively combatant toward staff from DCP at this time. However, it is not the role of DCP staff to offer support to parents because their interests lie with the safe removal of the child. SAPOL officers may offhandedly suggest that parents retain a lawyer, however it is not the responsibility of SAPOL officers to give legal advice to parents. Statistically, many parents who become involved with the Child Protection System will come from backgrounds of social disadvantage. Some will have disabilities or varying degrees of intellectual capacity; some may have come from the child protection system or have a background of trauma themselves. There are no user-friendly brochures or information packs explaining parental rights or the legal process and there are few support services to assist parents through the process of having children removed. Services that do exist, for example Aboriginal Family Support Services, are tasked with providing the courts with culturally specific advice on each Aboriginal child and thus may be seen to have a conflict in providing support to parents. A clear barrier to justice for parents is their naivety to the workings of the court, particularly in this jurisdiction. They often believe, rightly or wrongly, that an injustice has occurred through the removal of their child and that as soon as they get to court they will be able to offer an explanation to a judge and the child will be returned. This is far from the case, and is a constant cause of distress for parents who are often sent away to seek advice. A service which could offer independent advice and support to parents whilst advising them of their rights may in the long term prove worthwhile in saving court time and general frustration. Contributing to the difficulties of the unrepresented litigant are the strict timeframes in which matters must appear before the court. For example, an application must be made to the court by “the end of the working day following the day on which the child was removed.” 8 Parents lives are often in turmoil during this overwhelming experience. Applying for Legal Aid or arranging legal representation can take time for someone unaccustomed to such