CHILDREN, YOUTH AND FAMILIES AMENDMENT (RESTRICTIONS ON THE MAKING OF PROTECTION ORDERS) BILL 2015

Written on the 13 August 2015

CHILDREN, YOUTH AND FAMILIES AMENDMENT (RESTRICTIONS ON THE MAKING OF PROTECTION ORDERS) BILL 2015
Second reading


Ms CROZIER (Southern Metropolitan)The opening comment by the Auditor-General in the report entitled Early Intervention Services for Vulnerable Children and Families, tabled in Parliament in May, is that:
We have an obligation as a community to protect and nurture our children by doing what we can to give them stable and safe family environments. Unfortunately, not all children have this stability and safety
We have an important debate in the house today. The government has introduced this piece of legislation, the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015, into Parliament to address protection for some of the most vulnerable members of our community. As the now Minister for Families and Children, Ms Mikakos, stated in a debate last year when she supported many of the provisions in a bill put forward by the government at the time:
Labor supports some aspects of the bill. We support some provisions that will commence immediately, particularly in relation to foster carers, and do not want to see them delayed.

MsMikakos highlighted in that debate that if the then Andrews Labor opposition was successful in forming government, it would repeal section 276A of the Children, Youth and Families Act 2005, which was inserted by the Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014. That is exactly what this piece of legislation being debated here today is about. Clause 3 repeals section 17 of the amendment act to retain the current requirements set out in section 276 of the Children, Youth and Families Act 2005 for the making of child protection orders, including the requirement that the Children's Court of Victoria must be satisfied that all reasonable steps have been taken by the secretary to provide the services necessary in the best interests of the child.
I remind members about the section in the Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 that relates to the legislation we are debating today. I will read, for the benefit of members in the chamber, what the section we are discussing today, which is being repealed by the government, is all about. I ask members to bear with me while I read from that section. The section that the former government included in the act states:

276A Court to have regard to certain matters
(1) In determining whether to make a protection order, the Court must have regard to advice from the Secretary as to
(a) if a case plan has been prepared in relation to the child, the objectives of the case plan; and
(b) if the child has one or more siblings under the age of 18 years, the arrangements in place for the care of those siblings; and
(c) the age of the child and the period of time that the child has spent in out of home care during the child's lifetime (whether or not as a consequence of a court order).
(2) In determining whether to make a protection order that has the effect of conferring parental responsibility for a child on the Secretary, the Court must have regard to advice from the Secretary as to
(a) the likelihood of a parent of the child permanently resuming care of the child during the term of the protection order; and
(b) the outcome of any previous attempts to reunify any child with the parent of the child; and
(c) if a parent of the child has previously had another child permanently removed from the parent's care, the desirability of making an early decision about the future permanent care arrangements for the child the subject of the proposed order; and
(d) the benefits to the child of making a care by Secretary order to facilitate alternate arrangements for the permanent care of the child if
(i) the child is in out of home care as a result of an order under this Part and has been in out of home care under such an order for a cumulative period of 12 months; and
(ii) there appears to be no realistic prospect 
permanently to the care of the child's parent within a further period of 12 months; and
(iii) there are no permanent care arrangements already available for the child; and
(e) the desirability of making a permanent care order, if the child is placed with a person who is intended to have permanent care of the child.
(3) Section 287A(4) applies to the determination of a cumulative period under this section
I have read that out because I think there is information in here that is relevant to this debate. I say it is relevant because of the many issues within our child protection system that we were faced with when we came to government in 2010.
Members will recall that when the coalition came to government one of the very first initiatives it undertook was to commission the Protecting Victoria's Vulnerable Children Inquiry, which looked at Victoria's child protection system and was undertaken by the Honourable Justice Philip Cummins, together with Emeritus Professor Dorothy Scott, OAM, and Mr Bill Scales, AO.
That inquiry, which undertook an extremely comprehensive review, was really looking at the system. It was established to investigate systemic problems in Victoria's child protection system so that it could be strengthened and be provided with improved protection and support, not weakened. It looked at improving outcomes for children, putting children first, especially the children who require the utmost attentionthose who find themselves in at times unimaginable circumstances being abused and neglected and having no safe environment to live in, to grow in or to nurture them. Some of these children are not provided with an education from parents and are not able to attend an education facility. They are completely abused and neglected, and that is through no fault of their own. These children are some of our most vulnerable, and we have a responsibility to do what we can as legislators and as governments to protect them.
As I said, the Cummins inquiry was an exceptional piece of work. It really did look to the heart of the many failings of a system that was in crisis when the coalition came to power, and it was established within just a couple of months of the coalition government taking office.
Let us reflect on what the situation was here in Victoria when the coalition came to government in 2010, after 11 years of Labor administration. I think the two reports by the Victorian Ombudsman, the Own Motion Investigation into the Department of Human Services Child Protection Program and the Own Motion Investigation into Child ProtectionOut of Home Care of November 2009 and May 2010 are very significant in this area. Those two reports were absolutely scathing. They highlighted a system in crisis, and if you read through those reports, you will find some horrific findings.
I will quote from the out-of-home care report first, where the Ombudsman states:
My investigation has found instances of children who have:
been physically and sexually assaulted by foster and kinship carers;
had limbs broken or been knocked unconscious by residential carers;
been physically assaulted or raped by other children;
been placed with adult 'friends' who have then engaged them in sexual acts;
engaged in prostitution while in care;
reported their carers selling drugs to other children.
These two reports highlighted a most dreadful circumstance here in Victoria. At the time the report of the Ombudsman was handed down in 2009 the Herald Sun also made a report, and some of the comments from that report again highlighted just how shameful the child protection system was and the crisis it was in. It revealed that almost a quarter of abused children were not given caseworkers.
As I said, it also found that children had been put in the care of sex offenders or had even died while in care. It said that some staff manipulated documents to meet performance targets.
Almost 30 reports and reviews had previously been undertaken warning of these failures. What did the government of the time do? Absolutely nothing. It was disturbing reading these reports, and I do acknowledge that the minister at the time
MsMikakosThat is a very selective reading of history.
Ms CROZIERThese are two reports by independent investigators under MsMikakos's watch. She was in that government, and these reports were talking about years of neglect.
MsMikakosWhat about what happened under your watch last year? Shall we go through that as well?
Ms CROZIERI am just reading
MsMikakosIt is nonsense to say that the government at the time did nothing.
Ms CROZIERAs I said, this is the situation the coalition government came to in 2010. These were damning reports, and they are shameful records, revealing a litany of shameful positions that our children were in.
MsMikakos interjected.
Ms CROZIERPerhaps I will read it again, just for MsMikakos's benefit. This is what the Ombudsman found,
MsMikakosYou are claiming that the government at that time did nothing.
Ms CROZIERThe Ombudsman found, under MsMikakos's watch, under her ministry, under her government, a litany of failures.
I will return to the substance of this debate, and I note that government members are very tetchy about this issue, but this is a damning indictment of the previous Labor government. There were 11 years of Labor administration, and this happened under its watch.
It was the coalition government that instigated the Cummins inquiry, which made some deplorable findings. You cannot claim that the coalition government sat on its hands. It undertook that inquiry within the first few months of coming to power, and as I said, it looked at the grossly mismanaged department over a decade, which is why the Cummins inquiry was undertaken. It looked at very difficult issues.
One of the recommendations it madeand I digress slightly from the bill, but it has relevance, and I will come to thatwas recommendation 48, which I know extremely well. It recommended that governments look into abuse in religious organisations, and of course we know former Premier Ted Baillieu made the decision for the Parliament to undertake an inquiry into child abuse, which I had the privilege to chair. Of course members know the outcomes of that inquiry, and we have the royal commission that is still undertaking its work into child sexual abuse. What we heard in that inquiry, as the Victorian public knows only too well, was men and women in their 40s, 50s, 60s, 70s and 80s telling how they were abused as children. Their lifelong suffering, inability to maintain relationships and struggles with employment, and their dealings with the mental health system, acute health system, justice system and welfare system, or all of the above, were lifelong ramifications that these men and women had as a result of being abused by people in trusted organisations.
If we know of the lifelong ramifications for the children who were abused by trusted figures within organisations, as has been the finding of the Victorian parliamentary child abuse inquiry and as the royal commission into child sexual abuse is now hearing, what about those children who are neglected or abused by their parentsthat is, by those who are supposedly the most trusted figures within a child's life? The lifelong suffering and experiences of children abused by their parents can be similar to or perhaps even worse than those of children who are abused by others. It remains ever so important that our most vulnerable be protected, and as a collective, as all members in this chamber, we have that aim. We all want to see that occur.
As I said, the Cummins inquiry was really a landmark inquiry that led to significant reform in this state. The former minister, MsWooldridge, is now in the chamber, and I acknowledge and congratulate her for having the fortitude to enable many of those reforms from the Cummins inquiry to take place during the four years of the coalition government. It is a very strong record that still stands, of which the coalition is very proud and will not shy away from. It is not to say that further improvements do not need to be undertaken, but in those years the reforms undertaken were acknowledged and still need to be maintained.

Business interrupted pursuant to sessional orders.

. . .

Resumed

 

Ms CROZIER (Southern Metropolitan)

I am pleased to resume my contribution to this important debate. Prior to lunch I was speaking about the very important job governments have in making decisions on behalf of some of the most vulnerable members of our community. I am particularly talking about children, especially those children who are in situations of abuse or neglect that are not of their making. I have reiterated the extraordinary and dreadful situation we found the state in when we came to government, exposed through the report of the Protecting Victoria's Vulnerable Children Inquiry, or the Cummins inquiry.
I will refer to the Cummins inquiry again in relation to some of the findings in its report. It was an extensive and comprehensive review of the child protection system. Finding 4 on page 229 of volume 2 of the Report of the Protecting Victoria's Vulnerable Children Inquiry states:
The inquiry finds that the current average time taken for permanent care orders to be granted, when this is necessary to ensure a child's safety and wellbeing, is too long. On average, it is five years between a child's first report and a permanent care order.
That is really what we are talking about in this bill. It is about time lines, it is about delays and it is about children who are in a system, or potentially in and out of a system, and who through no fault of their own find themselves without the permanency or stability they require.
The Cummins inquiry highlighted the many failings of previous Labor governments to provide the necessary support for children within the Victorian protection system. The report made a number of recommendations, including the simplification of Children's Court orders, having a narrower focus on a range of matters before the Children's Court, simplifying case planning processes and looking at the delays in achieving permanency for children. Why is that important? In the second-reading speech introducing the Children, Youth and Families Amendment (Permanent Care and Other Matters) Bill 2014, MsWooldridge, then the Minister for Community Services, noted another conclusion of the inquiry:
A major finding of the inquiry was that it takes too long to achieve alternate permanent care for children when it is recognised that there is little possibility of family reunification. For children unable to live safely with their parents, the inquiry found it takes, on average, five years to achieve permanent care from the time a child protection report is made to when a child is placed on a permanent care order. This is unacceptable and exposes children to additional and unnecessary trauma caused by uncertainty in their care arrangements.
The bill MsWooldridge was putting forward was designed to ensure:
that decisions regarding vulnerable children will be made in a timely way, to avoid children being in care without a timely response and to promote permanency of arrangements, as well as stability for the child.
Those are important elements of a child's development because they are an individual's most formative years. It is extremely important that those early years come with some form of stability. As I highlighted in my contribution prior to the lunchbreak, we know the implications of lifelong abuse.
The government's bill returns the Children, Youth and Families Act to its 2005 form. Minister Mikakos stated in May:
The amendment that was to come into force on 1March 2016 will no longer be implemented. The court will retain the power to refuse to make a protection order when necessary services have not been provided.
I return to the Cummins inquiry. An initiative that came out of the Cummins inquiry was for the government to undertake the 201314 stability planning and permanent care project. The report that came out of that project is a very important report in relation to this important area of child protection. The report details some significant findings. The project looked at our most vulnerable children and at a number of areas around the implications of the additional needs of the child protection system. The project also examined the issue of Aboriginal children and the many issues they face in relation to their unfortunate and overly high representation in our child protection system. Governments of all persuasions are working towards improving those statistics.
There are also important findings in this report regarding siblings, parents, case planning, the workload of child protection workers and court decision-making process. The report states:
The system encourages negotiated outcomes because the alternative is a lengthy adjournment for a contest during which time little progress or change in the family may be achievable.
That is highlighted in this report, and I think that goes to the heart of what the coalition's bill was trying to address. It was about the lengthy time taken for decisions to be reached in contested hearings and all those elements surrounding how a family might be reunifiedwhat the issues are, what the barriers are and what the concerns are.
The report has many other elements. It talks about contact and permanent care. Contact conditions on permanent care orders are often arrived at through a process of negotiation that is focused on the parents' wishes and the carers' wishes rather than an assessment of the child's best interests.
This report analyses significant data and takes into account all those areas that are involved when making decisions around child protection orders or what is in the best interests of those children who have come into the child protection system. The analysis of the data in this report is very important, and I urge the government to continue to look at those elements of this comprehensive report. The findings, the comments and the recommendations made in this report instigated much of the legislative reform undertaken by the coalition government.
Because we are debating an important area of the bill, I will quote from page 73 of the report in relation to the effects of lengthy decision-making by courts. It states:
Currently, the system may deliver the worst of all possible worlds, where a child is removed from their parents' care and placed in out-of-home care, but where planning for reunification cannot commence during the many adjournments that result from a contest. It is not uncommon for parents to be advised by their legal representatives to withhold cooperation from the department as cooperation may weaken their position in the contest. This means that children stay in out-of-home care longer than is necessary, and this reduces the likelihood of successful reunification.

Those things are really at the heart of what the many issues are. This is about a process that has to be undertaken. I have great respect for what the courts do. Indeed I have met with members of the Children's Court, and I acknowledge them for the time they have given me in helping me to understand the issues that they deal with on a daily basis and a far too common theme that comes through the courts when they are making those decisions.
From my perspective it was very helpful for me to attend a number of forums to hear the concerns around what this debate is based on, and I would like to again acknowledge the respect that I have for the various representatives and stakeholders I have spoken to and indeed for those stakeholders within agencies who are also dealing with these issues. It is the agencies and the child protection workers who are dealing with these concerns 24 hours a day, seven days a week. They are not 9 to 5; these are not 9-to-5 issues. They are 24-hour, seven-day-a-week issues where child protection workers need to be looking at and supporting what is in the best interests of families and indeed children. Again I think what goes to the heart of our concerns is what is in the best interests of our children.
For too many children in and out of this system it is like a rollercoaster bouncing in and out. They are constantly at the mercy of decisions being made on their behalf, wondering whether their parents can change. Some of these parents have been in very unfortunate and dreadful circumstances. They might have been exposed to abuse themselves, they might have been exposed to homelessness and to drug and alcohol abuse, they might have mental health issues and they might have disabilities. They could have multiple elements of those factors that I have just spoken about, so they are vulnerable in themselves, but can they provide a safe and nurturing environment for these vulnerable children? That is what we need to address.
If a child is at the mercy of the decisions of courts, with all best intentionseverybody has the best intentionsare their needs being met? Sometimes parents realise that their children might be taken off them. We are talking about the extreme cases here. We are not talking about everyday cases, if I can call them thatand I do not want to diminish them or demean them in any way, because every case is important. I am talking about the most extreme cases of abuse and neglect, where child protection is absolutely imperative. If these children are in an unsafe environment and a parent suddenly gets their act together because they are threatened with the prospect of their child being taken away, have we got adequate services to ensure that that stability will remain there, or will that child again be at the mercy of the unfortunate circumstances of those parents and find themselves in child protection care once again?

I am pleased that the legislation was referred to the Standing Committee on Legal and Social Issues for consideration, and I put on the record my acknowledgment of and thanks to the committee members who have produced the Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015 report which was tabled in the Parliament on Tuesday. I am sure the members of the committeechair Edward O'Donohue, Nina Springle, Margaret Fitzherbert, Cesar Melhem, Daniel Mulino, Fiona Patten, Inga Peulich and Jaclyn Symes, who all served on the inquiry have a greater understanding in this debate because of the many areas and the various views that were covered.
I would like to highlight to the chamber an issue that is addressed on page 13 of the report in relation to care orders. The report states:

At any given time there are a significant number of children subject to interim, protection and permanent care orders in Victoria. The DHHS advised that:

in Victoria there are approximately 7000 children in out-of-home care, by which I mean placed either with kinship, foster, residential or permanent care, and on 30 June 2014 there were just over 9000 children on interim, protection or permanent care orders in the state of Victoria.

These are alarming figures. There are thousands of Victorian children in this position. I think that is one important point to make. But the report goes on to state:

The previous government and the DHHS advised that the 2014 amendments were intended to promote permanency of care for children subject to care orders.

The committee received personal accounts from a number of people, including one from a foster carer about a child who had been placed with at least 10 different carers in the first five years of his life. When we are talking about these vulnerable children, these children in their formative years, with 10 carers, bouncing in and out of systems, it is really heartbreaking to think about what their potential is, having been exposed to that irregularity and that instability.
One of the carers from the Foster Care Association of Victoria said:
I think it is important to know that it is a permanent home, that nobody can ask you to leave, that you can have rows like normal people, that you can be naughty. You could do something really bad but your parents are not going to call social services or say, 'I can't handle him anymore' In my humble opinion, and I am not the expert, we have got to find permanent homes.
That is a heartfelt statement from someone who understands the situation and is dealing with the day-to-day issues. They are at the coalface. They are not in the system; they are working with these very vulnerable children.
It is those people in the community sector, including child protection workers, who are at the coalface dealing with these issues, and they are very difficult issues; there is no doubt about that. Those who work in our child protection system do a tremendous job. I think we would all like to see a reduction in those numbers I quoted from the report, and I hope that we will all do whatever we can to achieve that reduction.
I will get back to the bill and what the government is introducing today. The former coalition government was looking at these reforms and had in mind all these issues relating to ensuring permanency and stability for children. It was about setting some time frames to give guidelines as to how that might be achieved. Without reform and time frames I ask the government whether it can rule out an increase in the number of children in state care and the length of time they spend in short-term care. Can the government rule out an increase in the demand on the Children's Court, which would have a spiralling effect resulting in more cases awaiting allocation, further delays in the court and further delays in the court's decision-making?
I do not expect anybody to be able to answer these questions today; it is a continual reform process. However, these things really go to the heart of the concerns of the coalition in terms of addressing those drift effects that are spoken about by child protection workers and carers in the out-of-home care system and looking at how they might be prevented in the future. We understand that this is a highly emotive area. We understand that there can be protracted cases where parents want to be given the chance to get their situation right so that they can care for their children, but unfortunately and sadly that is not always possible. The coalition's position was to give children in the most extreme cases some permanency and stability.
As I said in my earlier contribution, when she was shadow minister the Minister for Families and Children highlighted in the debate on the coalition's bill, which was brought into the house last year, that she would repeal section 276. We think, however, that this would not be in the best interests of children. We want to know that children in these situations can have decisions made in a timely fashion. We think it is a shortcoming of the government's legislation not to recognise that. We would like further transparency and the ability for the courts to indicate what the barriers are and what is happening. That is why the coalition will move some amendments to support those areas. I ask that those amendments be circulated.
The coalition wants to enable greater transparency, data collection and understanding of what is actually happening. We will put forward these amendments today to enable that to occur. The amendments will require the Children's Court of Victoria to publish information relating to its decisions not to make protection orders and to have that information made available on websites on a quarterly basis and to require the Commission for Children and Young People to report on that information, work with the Department of Health and Human Services, collate that information and provide that information in its annual report. The Commission for Children and Young People, including Mr Bernie Geary and Mr Andrew Jackomos, is doing a tremendous job in its role in relation to further protection of children
MsMikakosOn a point of order, Deputy President, I raise this issue on a technicality. The issue is that we have a proposed motion to provide an instruction to the house, which we are yet to debate and pass, before we are able to even consider Ms Crozier's amendments. Technically Ms Crozier cannot ask for them to be circulated and speak to those amendments until such time as the house has agreed to our considering out-of-scope amendments. I know the amendments have been circulated to members in an informal sense through an email, but I think we need to respect the proper processes of the house, and I cannot see how we can even be considering amendments at this point. I think that needs to occur at a later point in the debate when the house is given the opportunity to consider Ms Crozier's motion on the instruction.
The DEPUTY PRESIDENTOrder! On the point of order, the items are on the notice paper, but they have not been deliberated upon by the house, so technically the minister is correct. At this point in time I myself do not have anything in front of me. My advice to Ms Crozier is that she foreshadow the amendments.
Ms CROZIERI indicate that I foreshadow the circulation and consideration of the amendments. Can I continue with my debate in terms of speaking broadly about considerations?
The DEPUTY PRESIDENTOrder! Yes.
Ms CROZIER Thank you, Deputy President, and I thank the house for its consideration. As I said, what we are seeking to achieve through our amendments is greater transparency and an ability for the Victorian community to understand what is occurring with child protection orders and why they are perhaps being delayed. Is it an issue with service provision? Is it an issue with the court system? Is it an issue with the Department of Health and Human Services in relation to not being able to provide assistance or appropriate support when a child protection order is in place or when a decision is being made? Our amendments look at those areas and seek that the Commission for Children and Young People address those concerns in an annual report. We think that gives the community greater confidence in what is going on in the system. We think that will give the community greater transparency to understand exactly the issues that might be indicated throughout the entire process when a child or a family is in this situation.
The community expects our most vulnerable to be protected. Through the various inquiries that have been undertaken, including the child abuse inquiry which was held in Victoria and the royal commission that is now taking place, the community is now aware of the abuse that has happened within trusted organisations. The community expects greater accountability. People want to understand what is happening in our departments and in our governments. The coalition government enabled that to occur, and equally the coalition rightly expects the rights of the child to be preserved. Quite clearly the bill that has been brought into the house today effectively gives greater rights to parents rather than considering what is in the best interest of a child who requires child protection involvement.
As I have said, the opposition has concerns about the government's legislation, which brings back the old section 276 of the Children Youth and Families Act 2005. The coalition believes the amendments that it will, hopefully, move and get through the house will provide greater transparency. That is what the community expects and that is what the community deserves. The amendments will give the community a greater ability to understand the barriers or shortfalls that are being made evident through data collection and through a more transparent process. That is because the coalition believes that our child protection system can and should be working in the best interest of the child. The child protection workers who deal with this issue principally have the child's best interests at heart, and that is what we believe needs to be done.
We will not be supporting the government's legislation. I do not think this bill makes children the priority, and I believe we must make children the priority. I conclude my remarks by quoting from page 31 of the Cummins inquiry:

All societies have a fundamental commitment to protecting their children. In most societies there is also an expectation that children will grow up safe, healthy and happy in stable and caring environments.

Vulnerability, however, may prevent this from happening for some children. How long does a vulnerable child need to wait before action is taken? If this means we can address that vulnerability and provide a somewhat safe, secure and certain outcome for a child, then surely as legislators that is our responsibility. Greater transparency, greater accountability and greater reporting will enable that to occur.


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