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LSB March 2018_Web


CHILD PROTECTION processes. To expect that under these circumstances parents could navigate the complex and sometimes technical legislative framework of this area of law is just unrealistic. The failure to better equip parents with resources from the outset means judicial officers are tasked with explaining procedures to parents, often slowing down proceedings where there already exist long waiting lists. Meanwhile, parents face the challenge of coming to terms with the circumstances of losing their children whilst trying to understand a whole new legal jurisdiction. An example of one of the difficulties faced by parents includes a case where I appeared for two parents as a friend of the court. Both parents had intellectual disabilities and had come to me desperate for help and advice as they awaited their grant of Legal Aid. They had on a previous occasion adjourned their matter on advice of the Magistrate. When I met with them they handed me an application from the Crown they had received the day before they were scheduled to appear in court. It was over 200 pages long. Suffice to say, they had not read the document and they had not formulated a response, although they were entitled to do so. It is easy to see why some parents may be overwhelmed and give up. These parents were still emotional and traumatized from having their five children removed and no matter what the time frame they would not have been capable of reading and responding to the document. There was no consideration for their position or their disability and they had not been offered any support in the process. As I called for a further adjournment, noting the prejudicial nature of such a practice, one could see the frustration to all parties. IMPACT ON CHILDREN Perhaps the most distressing part of this process is the impact on the children. Fortunately, their exposure to the judicial arm of the process is limited. In my experience, the views of the child 24 THE BULLETIN March 2018 are diverse - as vastly different as the circumstances from which they have come. They are most commonly represented in court by a legal practitioner called the “child representative” (currently two full time positions provided by the Legal Services Commission). The Child Representative considers each application and has an opportunity to interview the child. This is to obtain the view of the child directly, so that they might accurately share these views with the court. It is a position that is unique to South Australia and I cannot praise these professionals enough for the work they do, which I believe is essential and important. Having said that, I cannot help but raise some concerns I have identified with the role. Firstly, interviews are only for those children that are verbal and capable of expressing their views verbally. This excludes those that are non-verbal, under a certain age, or may have a disability or behavioural issue that impairs their communication technique. Due to the number of children being removed, practitioners are usually only able to meet with the child on one occasion. On this occasion the practitioner is expected to engage the child’s trust, remembering that these children are often distrustful of adults due to the circumstances from which they have been removed. Then, they ask them their feelings about their previous living circumstances and in many cases this involves a discussion about their parents. This occurs within a very short space of time from when they have been removed and placed in care, and the child may not have had the opportunity to fully disclose their circumstances or to have had these issues adequately professionally addressed. Interviews take place in the Legal Services Commission Offices within the Adelaide Youth Court which is not an ideal setting for interviewing young and sometimes traumatized children. Nor is it one in which children are likely to feel comfortable and forthcoming with their views. Currently both practitioners are female, non-Aboriginal, lawyers. There is no consultant social worker, cultural advisor or child specialist at hand when these professionals interview the child. Nevertheless, the child representative is expected to accurately represent the children and young people’s views accurately before the court. Fortunately, I am aware that the current professionals in these positions, are compassionate individuals, who have a long history of work within the youth jurisdiction. As individuals they have developed many of the skills necessary for this position, however, there is nothing in place to ensure that this will always be the case. CONCLUDING REMARKS This a snapshot of some potential issues I have identified within this complex and challenging jurisdiction. No doubt there are others and people more qualified to make these assessments. However, in my opinion, it is clear that if we are to reverse the numbers of children, particularly Aboriginal children, being placed into care, it is necessary to give further consideration to reforms in this area of law. Michelle-Robyn Hopkins is a Kamilaroi woman and South Australian lawyer with a long-term interest in advocacy for children and young people. She has worked in several jurisdictions, including Care and Protection, Criminal Law and Family Law. B Endnotes 1 Office of the Guardian of Children and Young People, statistics-children-care-june-2017 2 Section 45(1), Children’s Protection Act, SA (1993) 3 Section 3(1), Children’s Protection Act, SA (1993) 4 Section 16 (1), Children’s Protection Act, SA (1993) 5 Pg 130, Inquest into the Death of Chloe Lee Valentine, State Coroner Mark Johns 6 Section 37, Children’s Protection Act, SA (1993) 7 Article 7, UN Declaration on the Rights of Indigenous Peoples 8 Section 16(5)(a), Children’s Protection Act, SA (1993)

OPINION All Eyes on the Northern Territory CHERYL AXELBY, CHIEF EXECUTIVE OFFICER, ABORIGINAL LEGAL RIGHTS MOVEMENT “Indigenous peoples have the right to selfdetermination. This means that they choose their political status and develop as they want.” 1 have committed personal and working I time to self-determination for our peoples through the “Change the Record” coalition and attending the Uluru Convention in May, 2017. We, as Aboriginal and Torres Strait Islander peoples, have the solutions to these complex problems. Our voice is not being sought or listened to. It’s time for our selfdetermination to be respected. This year, all eyes have been firmly turned towards the Northern Territory due to: • The Uluru Convention in May looking at Constitutional Reform; • The Royal Commission into the Protection and Detention of Children in the Northern Territory; • The decision by the local Traditional Owners to ban the climbing of Uluru; • High incarceration rates of young Aboriginal people as young as 10 years old When we think of the Northern Territory and Aboriginal Australia, the culturally significant site of Uluru is never far from our mind. It was at this deeply spiritual and sacred site on 26 May, 2017 that a delegation of 250 Aboriginal and Torres Strait Islander peoples spoke with a united voice and released the “Uluru Statement from the Heart” 2 calling for a constitutionally enshrined First Nations Voice to Parliament. This was the culmination of the Referendum Council’s extensive process that was supported by all sides of government. However, despite claims of wanting to enter into a meaningful dialogue with Aboriginal Australia, the Turnbull government rejected the Referendum Council’s Report 3 , its advice and subsequent recommendations including the Uluru Statement. Of course, this did not come as a surprise for many Aboriginal and Torres Strait Islander peoples. It is not the first time we have been asked for our opinions only to have them ignored. The road towards constitutional reform has been continuously fraught with impasses, political backtracking, locked doors and deaf ears that has left many advocates frustrated with the entire process. The lack of movement in this area is not only noticed by Australians. In 2017 the UN Special Rapporteur, Victoria Tauli-Corpuz, expressed her support for constitutional reform and its “fundamental importance” as a process that “celebrates the history and cultural heritage of the First Peoples of Australia and provides a key measure of reconciliation by acknowledging their role in the national identity”. Giving a voice to First Nation Peoples will ensure that stronger and more effective decisions are made when passing laws, policies and practices that directly affect our people, and indeed this is a fundamental right under the UN Declaration on the Rights of Indigenous Peoples. 4 Despite endorsing this Declaration in 2009, the Australian Government has been called out for its “failure to respect their rights to selfdetermination and to full and effective participation…”. As a nation, Australia has a tendency to deny and shy away from the confronting truths of our past and our present but in turning a blind eye, we allow for the continued impact on our people to this day, right down to the youngest of generations. Aboriginal children as young as 10 years old, are being removed from their families, community and country at alarming rates. Add to this the fact that while in custody, our children suffer atrocities of abuse, humiliation and neglect, we have on our hands a national crisis. Australia’s shame indeed. Left unaddressed, this issue will result in a lost generation of Aboriginal and Torres Strait Islander peoples. Our people are at the forefront of this issue and have the wisdom, knowledge and passion to remedy it. As many justice reinvestment programs across Australia have demonstrated, we have the solutions. 5 We, the First Nations People of this country, have cared and fought for this land and its people since time immemorial. We have asked, pleaded and demanded equality until our voices were hoarse. The time has come to hear us. As we turn our attention to South Australia, I call upon our partners and other organisations working in this field to support, advocate and work closely with Aboriginal led organisations to address the NT Royal Commission recommendations, 6 to treat detention for young people under 14 as the last resort. Further prevention, early intervention and community programs have to be implemented to effectively divert these young people from the Justice system. Cheryl Axelby is Chief Executive Officer of the Aboriginal Legal Rights Movement, Chair of National Aboriginal and Torres Strait Islander Legal Service (NATSILS) and Co-Chair of Change the Record. Her article was originally written for Reconciliation SA. B Endnotes 1 Article 3 of the United Nations on the Rights of Indigenous Peoples 2 default/files/2017-05/Uluru_Statement_From_ The_Heart_0.PDF 3 default/files/report_attachments/Referendum_ Council_Final_Report.pdf 4 documents/DRIPS_en.pdf 5 uploads/2017/02/The-Redfern-Statement-9- June-_Final.pdf 6 au/Pages/Report.aspx March 2018 THE BULLETIN 25