This session was part of the Advocacy Sector Conversations Forum series held on Zoom on 26 October 2021.
Respect for home and family is recognised as a right for people with disability under the United Nations Convention on the rights of Persons with Disability where state responsibilities are clearly articulated. Yet all too often, we see discrimination within our child protection system that separates rather than supports families where one or more parent has an intellectual disability.
Denise Boyd is the Executive Officer of Star Victoria and works closely with parents with intellectual disability and their families. In this session, she shares real life examples of how these barriers impact the lives of people with intellectual disability. Robyn Buchanan,the Senior Advocate at Independent Family Advocacy & Support (IFAS, joins her to provide some useful advice for parents and advocates who find themselves involved with child protection, along with Elicia Savvas, who manages the Child Protection Program at Legal Aid, unravels the mysteries of the Children’s Court.
Links and downloads for resources mentioned in this session can be found at the bottom of this post.
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Audio & Transcript
Good morning, everyone. Welcome to the first session of the October 2021 Advocacy Sector Conversation series. My name is Melissa Hale and I’m the Coordinator of the Disability Advocacy Resource Unit. Before I begin, I would like to begin by acknowledging the Wurundjeri People of the Kulin nation, the traditional custodians of the land on which I am coming to you from today, and pay my respect to their elders past, present. I extend that respect to all First Nation people here today.
Once again, we are delivering the Advocacy Sector Conversation forum to you online. We hope at some stage soon to be able to deliver this series to you face to face when it is safe to do so in an inclusive and accessible way. However, we hope you have all settled in comfortably and are ready for a fantastic series this week. We encourage your active participation today. So please type your questions in the Q&A box. And at the end of the session, I’ll be facilitating a Q&A session with our presenters.
The first session today is about advocating in Victoria Child Protection system. Respect for home and family is recognised as a right for people with disability under the United Nation Convention of the Rights of Persons with Disability, where state responsibilities are clearly articulated. Yet all too often we see discrimination within our child protection system that’s separates rather than supports families where one or more parent has an intellectual disability.
Denise Boyd is the Executive Officer of STAR Victoria and worked closely with parents with intellectual disability and their families and will share some real-life examples of how these barriers impact a lot of people with disability.
She will be joined by Elicia Savvas, the Programme Manager of Child Protection, and Robyn Buchanan, the Senior Advocate of Independent Family Advocacy and Support, both in Victoria Legal Aid to shine a light on what could be done better. Please give a warm welcome to Denise, Elicia and Robyn.
Good morning. And thank you for that introduction, Melissa. I’d like to start by acknowledging the traditional owners of the lands that we’re meeting on, their elders past present and emerging as they hold the memories, the traditions of culture and the hope of Indigenous Australians.
So, just a little bit about who is STAR who may not be familiar with our work. The STAR was established to provide advocacy with and for people with intellectual disability in their families. And since 1970, we’ve been empowering people with intellectual disability and their families to speak up for their rights and to change community attitudes and fix the laws to give people with intellectual disability access to services and supports and an opportunity to live their lives.
So, we help people through telephone and face to face advice and information, referral and support. And we can provide individual advocacy. With a current area of focus is the topic of today’s discussion. That’s parents with intellectual disability. We take an integrative practice approach to our work where we take what we see in our individual advocacy and apply this to our systemic advocacy where we present the evidence from our work to policy and policymakers and legislators to change what’s not right.
So, we take a human rights approach to our work. And this underpins our advice about how to tackle the problems that we see for parents with intellectual disability and their experience of the child protection system. So first, let’s look at some of the evidence. And I would like to acknowledge and thank Dr. Susan Collings from the research centre for Children and Families at the University of Sydney for some of the information I’m about to share with you now.
So, the number of people we’re talking about isn’t entirely clear, but it is thought that it is somewhere between less than 1% and up to about 3%. That might be the range. The reason for the lack of clarity is due to a number of factors, including that some people don’t formally identify as having an intellectual disability, or there may be differences in diagnosis or definitions. And I should say also that most of the research is from high income countries like Australia with a specific focus on mothers, so there is a bias there. But what’s clear is that there is a consistent picture of a Child Protection investigation and removal of up to, and I do stress the up to, about 40 to 60% in the jurisdictions for which there’s information.
Now, I’ve said that we take a human rights approach to our work and Melissa mentioned this in her introduction. So, in this context, we rely on Article 23 of the UN Convention on the Rights of People with Disability, which says that people with disability have the right to marry and to find a family. And that countries must provide effective and appropriate support to people with disability in bringing up children. It also goes on to say that they must also provide alternative care for children with disability where their immediate family is unable to care for them.
There’s also another convention, and that’s the Convention on the Rights of the Child. Under Article 3, there’s the principle of the Best Interest of the Child. And that provides that in all actions concerning children, whether undertaken by private or public social welfare institutions, court of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.
So, the Children Youth and Families Act of 2005 is the guiding legislation for child protection in Victoria. In that act, best interest Principle 3, Part A… I am being very specific here, because it is an act says, “Consideration must be given to the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society. And to ensure that intervention into that relationship is limited to that necessary to secure the safety and the wellbeing of the child.”
In our communities, we generally see that the interests of parent and child being interlinked. And yet, as wat you’ve just seen from what I’ve shared with you, we separate them in law and policy. And what that does is that weaponises how we interpret the Convention on the Rights of the Child and gives effect to this in our domestic legislation.
Now, there is a view that, of course, that this is a fallacy. It limits the options available, and in the worst of cases leads to grief, separation and loss. Parents with intellectual disability are more likely to have their children removed. And we conclude that this is a function of our culture of structural ablism. And that’s where we see the disability before we see the person. There are negative attitudes towards people with intellectual disability leading to negative attitudes. Also, laws and policies that see intellectual disability as a risk.
So, let’s briefly talk about the Parenting Capacity Assessment. It might be familiar to many of you who have been working with parents with intellectual disability with Child Protection Interest and intervention. It is a key feature of Child Protection investigation, and the stakes really couldn’t be higher. A negative assessment can more than likely lead to child removal. Parenting capacity assessments are contaminated by unconscious bias and reliance on inappropriate metrics. If intellectual disability is suspected, IQ tests are often used as a risk assessment factor, and that’s based on the incorrect belief that the lower the IQ, the higher the risk of neglect. Even though this isn’t borne out in the research.
The assessment is focused on the individual and not the context in which the parenting is taking place. So, a circle of support that may be in place is not considered. And we also know that ability is not static, we learn as we do. And all this means is that at a point in time, that a point in time assessment that’s focused on the parent can be used to make decisions with lifelong consequences for parent and child.
So now, I’d like us to hear from some parents themselves about what the impact of this has been on them. Wat I am about to show now is a video from our colleagues at Positive Powerful Parents. This is a self-advocacy group for parents with intellectual disability based in Melbourne. I know that some of them are here today, and I thank them deeply for the opportunity to showcase some of their work.
I have been in Powerful Parent self-advocacy group is run for and by parents with an intellectual disability who have either lost their children or have still got their children in their care.
PPP would like people to know that parents with an intellectual disability can parent their children with the right support.
We can learn if we are given the chance to prove that we can learn.
What I think good supports looks like is what they listen to what we’re saying and that they act on what we’re saying.
The supports that parents with intellectual disabilities need are in-home support, help with grocery shopping, help with meal prep and accessing important appointments.
There are not enough supports out there ready to take a parent with intellectual disability or understand how we best learn.
They are mainly for mainstream people, and they are not catered for people with an intellectual disability.
No one wants to listen to you when you have a problem. They think that you don’t need the help and it is only until things get really bad that they will actually step in and get the help that you need, but by then it is sometimes too late. They take the kids and then you don’t any support, you don’t get the support that you have asked for.
Positive Powerful Parents wants to achieve that parents get to keep their children with the support they need to keep their children at home with them rather than out of home care or foster care.
We can parent our children with the right support we need.
We thank all of the self-advocates who have worked very hard over many years for equality and human rights of all. Self-advocates have to be brave to speak up for their rights. We support people with disabilities here. Keep speaking up for their rights.
Thank you to Positive Powerful Parents for that excellent video, and I encourage you to visit their website to learn more about their work. As those parents said in their own words, they can and do learn new skills as long as the training matches the person. We all, all of us learn differently and we learn more effectively from someone who understands our learning needs. Parents with intellectual disability are no different.
Parenting is also shaped by our environment. We know that people living with disability experience higher levels of exclusion, discrimination and disadvantage. That should be an opportunity to help not hinder the ability of a person with intellectual disability to live a normal life. And if that means being a parent, then along with being assisted to have an inclusive education and enter the workforce, being a parent is a normal part of life. There are ways to do that, and I acknowledge the excellent work of the Women with Individual Needs Clinic at the Royal Women’s Hospital, who since 2002 have been supporting women with disabilities along their birth journey and ensure a smooth handover to support services with an extended post birth programme.
If you haven’t heard of this service, please do investigate it. There’ll be a link to the website in the package after this, this presentation. And if you’re working with a woman with intellectual disability who’s pregnant and who lives within the catchment of the clinic that’s 30- to 40 kilometres, that’s a pretty big catchment, then do everything you can to refer them to the clinic so that they can start their parenting journey with a programme designed to help and support them.
I’d now like to hand over to Robyn Buchanan from the Independent Family Advocacy and Support team IFAS, as they’re known, has rapidly built a strong reputation of non-legal, confidential and free advocacy and support for parents and carers involved in the early stages of child protection. Robyn’s knowledge and advice have been a great support to me as I learn about the intricacies of this area of work. Over to you, Robyn.
: Good morning, everyone. And thank you very much for having me here today. My name is Robyn Buchanan and I’m the Senior Advocate with Independent Family Advocacy and Support or, “IFAS” for short. So, before I begin, I’d also like to acknowledge the traditional custodians of the lands that I’m on today. And that’s the Boon Wurrung Wurundjeri People of the Kulin nation and pay my respects to elder’s past and present, and any Aboriginal people here with us today, and acknowledge that sovereignty was never ceded.
So, a little bit about IFAS and what it is that we do if you haven’t heard of us. So, IFAS provides non-legal advocacy and support for parents and / or primary carers in the early stages of Child Protection involvement with their family. And so, by early stages, what we do, what we mean there is families where Child Protection are investigating a report of a risk to harm of a child. So, when Child Protection are in that investigation and assessment stage, when there’s an unborn report, and also when Child Protection have issued what they call a protective application by notice.
The work that we do is directly led by our client. And I guess what separates us from other services in and around the Child Protection space is that our client is the parent, not the child. So, we’re directly led by what it is that the parent wants and what the parent feels is best for them and their family. We do this by providing parents with information about not just what their rights are, but also what their responsibilities are when Child Protection are investigating concerns by providing referrals to appropriate support, and by supporting parents to navigate and understand how the child protection system works.
We work with parents or carers who live or work in the local government areas that are covered by the Preston and Bendigo and Ballarat Department of Families, Fairness and Housing Offices.
So, our primary focus is on working with parents and carers of Aboriginal and Torres Strait Islander children, parents and carers with an intellectual disability, and / or culturally and linguistically diverse parents. We also have a focus on being informed by people with lived experience of the Child Protection system and we run a lived experience advisory group called Shared Experience and Support or SESs for short. And this group was a part of the development of IFA and continues to be a part of IFAS as we continue to grow and develop our practice. Sorry, I’m just going to move to the next slide and my phone has slowed me down a little bit, sorry.
All right, so what to expect when Child Protection are investigating? So, when Child Protection receive a report in relation to a child and decide that the report is worth investigating, this will be sent to what they call the “Investigation and Assessment Team” within that region. So, when Child Protection decide to investigate a report, they will want to meet with the parents and the children. One of the things that they will do at that first meeting is that they will go through what they call their role and mandate. Part of that is informing parents that if the concerns are significant, and if they’re unable to work with the family to address those concerns, that one of the things that may happen is that they may need to go to court.
Quite often when we speak with parents, parents feel that Child Protection saying this to them is them threatening them with going to court. And whilst this is really distressing to hear that Child Protection may go to court and children can be removed, this is Child Protection being really transparent with parents that is kind of the worst or the most extreme outcome that can occur, and Child Protection are not using this as a threat to parents. It’s really important that parents know that if their children are old enough that Child Protection will want to speak with the children individually and separately from the parents. And in certain circumstances, Child Protection can interview children without a parent’s consent and without informing the parents first.
So, this would, this is situations in which there’s concerns around family violence, or sexual abuse of the child. And what this looked like pre-Covid is that Child Protection would normally go to the child’s school to interview the children and once that… And potentially also with the Police socket unit. And as soon as that interview was done, Child Protection would then make every attempt to get in contact with the parents to let them know that those interviews had occurred. And it’s also important that parents know that Child Protection when conducting these interviews, individually and away from the parents won’t ask the children leading questions, they’ll conduct these interviews in really child friendly ways and with really age-appropriate language and questions that they’ll be asking.
So, voluntary engagement with Child Protection. So, the initial engagement in the investigation and assessment stage with Child Protection is voluntary. However, most parents would describe this as not feeling voluntary. So, Child Protection in that voluntary investigation and assessments phase should be involved with families for up to 90 days. But this can be increased with Team Manager and then Deputy Area Operations Manager approval to up to 150 days. So, except in exceptional circumstances, Child Protection should not remain voluntarily involved with the family for more than 150 days.
So, this means that if Child Protection want to be involved with families for longer or feel that there’s a need Child Protection don’t want to be involved with families for longer than that, but if they feel that there’s a need for them to be involved for more than 150 days, then that matters should be taken to court for a magistrate to make a decision on that.
So, Substantiation and case plans. So, Child Protection should make your decision to substantiate risk of harm within 20 days, or sorry, 28 days of receiving the report. So, that substantiation or the substantiate the risk means that Child Protection need to make a decision as to whether or not they feel that there is a likelihood of risk to the child based on the concerns and their investigation and assessment. So, Child Protection deciding to substantiate a risk. So, saying they believe that there is a likelihood of harm does not mean that Child Protection are going to automatically start legal proceedings or that the children will be removed. That’s actually the majority of work that of what IFAS does.
So, what we do is we work with families where that risk has been substantiated to support them to work alongside Child Protection to address those risks, without the matter needing to go to court. So, Child Protection, once they’ve substantiated the risk, what they need to do then is alongside the family, they need to complete a case plan, and this is the plan of how everybody’s going to work together to address the risks that have been identified. So, this plan should be completed and provided in writing to parents within 21 days of Child Protection being able, sorry, Child Protection making that decision to substantiate the risk.
Now, if a parent or carer disagrees with the case plan developed by Child Protection, they can request an internal review of the case plan. And they can do this by in writing, letting the case manager or the caseworker from Child Protection know that they would like a review. And part of this process is that this will generally sit with the Deputy Area Operations Manager, this review, and they can request a meeting with that Deputy Area Operations Manager to express their concerns and the things that they would like changed within that plan.
So, investigation outcome. So, when Child Protection decide that the concerns are enough that they need to investigate, there’s generally three outcomes that can happen from that. So, Child Protection can conduct their investigation assessment, and assess that there’s no risk or what risk is there is already being addressed by the parents or the family. So, they can decide that there’s, the risk is not enough to substantiate, and they will close their involvement with the family.
The second option is that c Child Protection assess that there is a risk, and they can substantiate those concerns. When they do this, they work with the family voluntarily so voluntarily means without court orders to address the concerns, and if further assessment shows that the risk is being addressed, Child Protection can then close their involvement with the supports in place.
The third outcome is the Child Protection assess that there’s an unacceptable risk to the child or children or once they’ve substantiated, they’ve put a plan in place, but they’re unable to work with the family to address the concerns and so Child Protection will then need to make a decision whether or not they need to legally intervene. So, that is issuing a protective application and taking the matter to the Children’s Court.
So, how can you support a parent when Child Protection are involved? So, it’s really important that parents understand what Child Protection’s protective concerns are, and the reason for Child Protection’s involvement. And so, it’s really important that parents are supported to understand exactly why it is that Child Protection are involved. Now, Child Protection will explain this to parents. But Child Protection involvement in itself can be really distressing for parents. And so, parents may not be able to take in all of that information when they’re meeting with Child Protection or when Child Protection are coming out to the home. So, it’s really important that parents are able to have somebody to support them to understand that, to reiterate, and to reiterate that.
Part of that is encouraging parents to ask for information in writing, and where possible to communicate with Child Protection in writing. So, this could be if a parent is comfortable with email, asking for the allocated workers email address, and where possible, doing all communication via email. Otherwise getting the allocated workers phone number, and having this communication in, having as much communication as possible in text message. And this means that the parents have something in writing that they can go back to to ensure that they’re doing everything that’s expected of them, or that’s being recommended by the department.
This is also really important, because as discussed before, when I talked about case plans, sometimes that case plan is the first thing that parents might receive in writing about what the concerns are for their children. And given the timeframes that child protection have for substantiating and then providing those case plans, Child Protection may have been involved for nearly two months before the parents receive anything in writing about exactly what the concerns are, and what Child Protection’s expectations of them are. So, it’s really important where possible that parents trying to get some of this information, whether it’s via email or text message prior to being two months into that involvement.
We can also support parents with Child Protection involvement by modelling positive and transparent communication with Child Protection. We understand that Child Protection involvement can be really distressing, and, in some situations, parents can find Child Protection’s intrusion into their life and their family in their home really frustrating. And it’s really important that parents understand that by communicating and engaging in a positive way with Child Protection, then likely to actually get, they are more likely to get a positive outcome from Child Protection’s investigation and assessment phase with their involvement. If Child Protection are not able to engage with the family, this is only going to increase the risk assessment that they may have for that family because the risk will be unknown without the information that the parents are able to provide.
It’s also really important that you, that we encourage parents to identify any formal and informal supports that they already have in place. And to, to, in place, sorry, in place to support their family. So, this can be extended family members, neighbours, teachers’ school, other support services that are already in place. So, these informal, informal supports Child Protection may not be aware of when they received the report. And so, if these supports are in place, this is also going to help Child Protection to be able to complete their risk assessment knowing that the family already has the supports in place.
A really important support for parents when Child Protection are involved is having a support person who can be with them for meetings with Child Protection and communication with Child Protection. So, this is somebody who can be present for face-to-face meetings, during Covid time, somebody who can be online for the Zoom and Microsoft Teams meetings, and somebody who can be there over the phone.
And this can be purely somebody who can take notes of what’s said, to support parents to really understand what their concerns are, Child Protection is expecting of them of the family and the parents, what are the things that Child Protection have said that they’re going to do as part of this investigation, and the timeframes for which everybody expects these things to be done.
So, just supporting parents, it’s another way of really supporting parents to understand because if parents don’t understand what their concerns are, and what the expectations on them are, then it’s going to be really difficult for parents to address those concerns or to mitigate the risk.
And finally, a really important step in this process is for parents to seek legal advice. So, in the investigation and assessment space, in the voluntary involvement with Child Protection, that may, that is not seen as legal involvement. However, we would encourage parents or advise parents to seek legal advice, because that can become a legal intervention very quickly.
And so, while, while I’m on the topic of legal intervention, I’d like to hand over to Elicia Savvas, who’s the Programme Manager of the Child Protection legal team at Victoria Legal Aid who can talk to you a bit more about Child Protection legal intervention, and what that looks like.
: Thanks, Robyn. So, as Robyn said, my name is Elicia, and I am the Manager of the Child Protection Legal Services. So, a different part of Child Protection services at Legal Aid. And I’m going to talk to you about the legal components of the Child Protection system, and what support there is for parents.
And to start with, I also wanted to acknowledge the traditional owners of the land. I am on the land of the Wurundjeri People and to acknowledge the traditional owners and past present owners. Hang on, let me just navigate my slide sorry. A couple of different devices going here. Okay, excellent. So, Robyn has given you an overview of what happens with the, when the department investigating Child Protection concerns.
So, I’ll talk about where Child Protection issues become legal issues. So, people often assume that Child Protection involvement becomes a legal issue when it gets to court. But there actually are a range of legal and non-legal options available to parents to try and resolve the Child Protection issues before they, before they go to court.
So, as Robyn describes, IFAS at Legal Aid is non-legal advocacy service, and they do incredible work to try and prevent Child Protection issues becoming legal issues. Obviously, there’s also involvement from other advocates. So, disability advocates and other people working with families in the system do great work as well.
In terms of legal work before court, parents and children can get legal advice about Child Protection issues before a protection application is issued in court. So, Legal Aid runs a daily advice service. And that is staffed by specialist Child Protection lawyers, who can provide advice about a range of things like what the department’s powers are, explaining the process and, and giving parents advice about things like whether they, how they respond to a request from the department, or whether they should sign a voluntary agreement, and we’ll talk about that in a minute. And often what we’ll have at Legal Aid is we will have IFAS advocates, like Robyn and her team, and lawyers working together so we can have legal advice and non-legal advocacy working together.
One of the most common calls that we have to our legal advice service is about voluntary agreements. So, this is where Child Protection asks a parent to sign an agreement that, that deals with what Child Protection have assessed as a risk for the child. And it might be something a sort of holding arrangement while they are conducting investigation, or it might be to see whether that arrangement can resolve their concerns about the risk to the child.
So, common voluntary agreements that we see, we get calls about, will be a call, will be an agreement, Child Protection, asking a mother, say, to sign an agreement, saying, “Don’t let the father have contact with the children”. That might be with intervention orders in places well, or it could be something like, we want you to agree to have the children placed in their grandparents’ care for a period of time while you address these protective concerns.
So, those are kind of common agreements. And what lawyers can do is lawyers can help work out what should be in those agreements. A good voluntary agreement will have clear expectations about what is expected of the parents, and what is expected of Child Protection, it will have a clear timeframe. So, it will have an end date and something that doesn’t just go off and no one knows when it will end. It will have a clearer understanding for everyone of what the consequences are if the agreements not followed. And it will have a process for returning the children to the care of their primary carers if the protective concerns are addressed.
And ideally, what we want is for parents to understand what the alternative options are for them, if they don’t want to agree to the voluntary agreement. It isn’t… It is a voluntary agreement. People don’t have to sign it. But it’s really important that parents understand the, the pros and cons of, of making that agreement or not and having lawyers involved in giving this advice means that we can often avoid complex situations where parents think that they’ve done everything that was asked of them by Child Protection, and the child still wasn’t returned.
So, we can try and work through those issues in advance. And often there are really complex legal issues happening, like there might be family law parenting orders, or there might be intervention orders as well. So, trying to work out how all those different agreements work together, because it’s really, it’s complex stuff for anyone to understand. So, it’s really good to get legal help at that point in time. Okay.
So, if the issues aren’t resolved in that voluntary pre-court stage, as Robyn said before, Child Protection can apply to the Children’s Court for, for court orders where a child is at risk of significant harm, and they, and they have assessed that a parent is unable to protect them from that harm.
There are a range of grounds… There have to be specified grounds for the department to bring a protection application to court. I’ve got them on the slide there. The most common ones that we would see in court are a risk of significant physical harm, or risk of emotional harm. We do see a case of a risk of sexual abuse or sort of medical neglect cases from time to time to that risk of physical harm and emotional harm are definitely the most common cases at court.
What this looks like it can be because there has been a single event that’s happened, or it could be from the department saying a parent hasn’t done something, or it could be cumulative harm. So, harm that has built up from different or repeated risks of harm over time.
Something that’s really important to note is that parent, a parent with a disability, that, their disability is not the ground for a protection application. Although we do know that parents with intellectual disability are significantly overrepresented in the child protection system. That is not the basis on which Child Protection can bring a case to court.
So, to bring a protection application to court, Child Protection must have assessed that that specific child has experienced or is at risk of experiencing harm in one of these categories. And it has to be more than a risk of harm that’s based on a presumption about parenting capacity or parenting ability. It must be the specific risk to that child and their parents.
So, how cases come to court, they can come to court in a couple of different ways. They can be notice applications, which are a planned application where a family is given a court date, usually a month in advance. But most protection applications are started by emergency care. So, this is where a case is brought to court usually in the next, the next working day. And in those cases, a child might be removed from a parent’s care, or they might not be as well, it just depends on the urgency of the case, and what the assessment for that parent is. Most cases in Child Protection are emergency care matters. So, I think it’s around 85% of cases are started by emergency care. And that can happen even if Child Protection has been working with the family before. So, it gives a sense about what the urgency in the crisis nature of the system is.
So, when a case is brought by emergency care, there’s a range of options. And the court can make orders to place the child in, in different people’s care. So, it could be a parent, or it could be an out of home care placements.
So now I just wanted to make this point, this is a really important distinction between Child Protection court system and Child Protection as government agency. They are different. So, even though the Children Youth and Families Act governs both Child Protection as an agency and the Child Protection decision making in court, they are different.
So, that means that even though Child Protection may have made an assessment about the risk of harm to a child, the court will still need to make their own decision about that too. So, when a case goes to the Children’s Court, the magistrate will listen to all the parties in the case. So, this will usually be the parents, Child Protection. So, the Child Protection worker, children who are older than 10 are a party. And they will have a say in the case as well. A child under 10, in exceptional circumstances, may have a lawyer who is, makes recommendations about what is in that child’s best interests. So, that’s a little bit different. And they don’t get it direct say. The child under 10 doesn’t have a direct say in the case, but they’ll have a lawyer saying what they think is in that child’s best interest.
And from time to time, there are other parties as well. So, it could be a relative or a carer that might be made a party to the case, and will have a say in the in, in the decision making before the court.
So, when those cases go to court, the magistrate will make decisions about whether it’s right for the Child Protection to be involved. And they’ll make decisions about where a child lives, who they have contact with, and a whole range of conditions about the child’s safety and welfare. So, when a case goes to court, all parents are eligible for something called a duty lawyer legal service, so that is a, a one-off legal help for, usually for the emergency cases that court. Legal Aid will organise a lawyer to represent the parent or the child on that day at court so that they have someone helping them understand the court case and speaking to the magistrate on their behalf.
One thing to say about going to court is that parents are often rightly, you know, very worried and anxious about, about having a case go to court. It’s not always a bad thing to go to court. Sometimes having the magistrate make a decision might get the parent having a better outcome than what might have had, what they might have had with a voluntary agreement. But it’s really important that parents get legal advice, because it’s really, if we can try and keep people out of court, we can. And we would only want cases to go to court if they’re going to get a better outcome then, then by agreement with the Department.
So, one example might be there might be a voluntary agreement, and the department says, “We don’t want dad to spend any time with the children”. But if the case goes to court, the magistrate might say, “Well, yes, there is a risk, but dad can have supervised time with the child”. So, those are the kinds of situations where there might be a better outcome for parents by actually going to court. I’ll just move my side.
Okay. So, when the magistrate is making decisions, they will be making decisions about what is in the best interest of the child. So, these are some of the things that the magistrate will, by law, has to think about.
So, it’d be protecting the child from harm, promoting the children’s right, the child’s rights and their development. And as Denise mentioned earlier, about giving the widest possible protection and assistance to the parent and recognising the family as the fundamental group in society and making sure that the intervention by Child Protection is the lowest level of intervention possible.
There are also specific considerations for making decisions around Aboriginal children as well.
So, when working out what the best interest of the child is, every party in the case, so the parents, the children, and Child Protection, they will, they may all have their own opinion about what is best for the child. So, they will all get a chance to say what they think is in the child’s best interests. And that’s what the magistrate is listening to and will make a decision about. So, the magistrate will listen to what people want, and what they think. And they will listen to, to evidence from witnesses or reports from experts, like doctors as well.
So, I think one of the really key things for parents with intellectual disability is, like Denise pointed out before, it’s the minimum intervention to keep the family safe. That is one of the best interest principles.
NDIS plans and disability supports are an excellent way of addressing risk for children and minimising the need for child protection to be involved. If we can show that the parent with the support, you know, that addresses the concerns that Child Protection have, then really there’s a really strong arguments say there’s no need for Child Protection to be involved when the parent has those supports in place. And it’s really important for lawyers to advocate to a magistrate to look at what the parent is like with the supports in place, not without.
So, I think this is a really tricky issue we see with the NDIS at the moment is sometimes the NDIS plans are used to say that parents don’t have a particular ability or there is a risk. But actually, what we want to say to the magistrates is that the parent with the support, this is, this is this is their parenting ability and with those supports, those, any concerns they may have maybe addressed. So, that’s a really new and sort of emerging issue for us in, in, the last couple of years with the, the introduction of NDIS.
So, supporting clients through the court process. My clicker is not working. Sorry. There we go, thanks. So, days at court, I mean, they’re a little bit different at moment with hearings being online because of the pandemic. But normally, court days can be very long. So, making sure that, that parents are aware that it can be a long day at court.
Lawyers can meet with their clients away from court. And that’s really important, particularly if their safety concerns as well. And we know for people to be able to think about the decisions they need to make and be able to speak with their lawyer, it’s often better that they can have those conversations away from court when they’ve got time to think about the material and work through what the options mean for them.
When it’s a new emergency case, at court, the lawyers will often be seeing more than one client, so they may be going between different clients on the day. So, that’s something to make sure parents understand that, you know, they may be going to speak to different people throughout the day. And sometimes lawyers will have to triage. So, particular clients might get that legal assistance first. So, if there’s interpreters and things like that often we need to, to work with those clients first of all.
One of the things I think can be a bit of a shock for parents is finding that when you go to court actually you might only spend two minutes in the actual courtroom before the magistrate. Most of the work is done by negotiation outside of the courtroom itself.
One thing for advocates working with parents is that supporting them on the day at court and if you can assist with letters of support, this is really, really helpful for a new case at court, being able to have the information to tell the magistrate about what the supports the parent has means that we can show to, to a magistrate everything, the whole range of supports and family and services that are working with the parent, which might be addressing any risk of harm.
So, that’s really helpful if we can get that particularly in writing. But even if it’s not in writing, just having that information is really helpful.
So, I think with that, as well, the working together, lawyers and advocates working together is really helpful because we can work through what the needs of the client will be, and, and working out what the supports are, and making sure that parents are supported to be able to give their full instructions. So, being able to say what it is exactly that they want, and what their concerns are and what they’re hoping to get out of the court process.
So, advocates are always welcome by VLA lawyers were always very happy to work with advocates in the court setting as well. Sorry, I just changed my slide.
Okay. So, this is just a quick overview of the court process. And so, you see on the left, that’s where cases don’t go to court, which is what Robyn was talking about how Child Protection when they investigate, there might be that different outcome there. But as you can see, on the right, when a case goes to court, it goes through a whole range of different types of court hearings and hearings can go on for, your cases can go on for many months.
So, I think the average case is about six months at court, as well. And the as, as the case goes longer in the system, it’s more about the magistrate listening to evidence and less about negotiation. So, it’s often better to try and resolve things, if we can, earlier on where parents have more control and say in the negotiation and decision making.
Okay, so just a little bit about Victoria Legal Aid. So. So obviously, we have IFAS and we have the legal services as well. So, we are a government agency, but we are separate from government as well. So, we have a distinction. And we don’t have to agree with what government says. And we are separate from Child Protection, obviously, as well. So, we have in house legal practice, but we also pay for lawyers to represent other parties as well. So that might be private lawyers or community legal centres as well. Child Protection is our largest programme after criminal law. And we can give help at various stages.
So, through IFAS, through early legal advice, and in court, as well. And we would encourage early contact, as soon as you know that there might be a legal issue and we can help with a range of other issues. So, it might be helpful, Criminal Law, Disability Discrimination, Mental Health Tribunal. All sorts of legal issues, family violence, as well. But I think, probably running out of time, so I might skip to the end. So, there’s time for questions.
Thank you very much, Denise, Elicia and Robyn. I just wanted to tell everybody that this is quite a traumatic content. And I encourage you all to keep in mind that vicarious trauma is a real thing, and to reach out for support through your organisation’s EAP programme, or through your GP or other mental health providers if you need to.
And I think before we go to questions, the first thing I would like to highlight is the slides and recording of this session will be available after this on the DARU website as usual. So, we will go to questions and answers now. We don’t have that much time for questions. So, I will pop up the first question now.
What happens if the child has a disability if this was in relation to if the child has a disability, and like you were saying before the Child Protection might come up to the school or the `00:55:00 team comes up to the school and the child has a disability. Who would like to take that question?
So, look, Child Protection, as I said, would engage with the child in, when they’re doing that individual interview, in an age appropriate and child appropriate ways.
So, what they should do in that situation and what they would likely do, I guess is have a conversation if they were going to the school or the childcare centre, without speaking to the parents first, is having a chat with the school or that centre about how best to engage with the child, they wouldn’t necessarily speak to the school or the childcare centre about what they’re speaking to the child about. But it would be about speaking to the people who know the child, about how best to engage in those conversations with the child.
If a child was nonverbal, they probably wouldn’t attempt that interview, because they don’t have the specialist skills to be able to communicate with the child in that way, in an immediate kind of way that they would you know, they receive a report, they need to go out there and have this do this interview, you know, in the next 48 hours kind of situation. So, yeah, and also, as always, if Child Protection do, we receive report and a child has a disability, and the child is not linked with NDIS, Child Protection should be supporting the family to have, to link with the NDIS to get the funding and supports that that child needs as well.
Okay, that’s really interesting. I wasn’t aware of that. Well, thank you for that. Next question. Is there a time limit on requesting an internal review? During your presentation, Robyn, you mentioned that you could request an internal review. We were wondering if there was a time limit on that?
I think potentially, when it comes to case plans, there may be a time limit on I believe it might be 28 days after the plan being endorsed or provided to the parents or to the family. However, there are situations in which they will accept an internal review after that timeframe.
But parents can also request an internal review of any decisions made by Child Protection. So, it’s not just the case plan. If Child Protection haven’t made a case plan yet in writing, but maybe they’re making a decision, say, for example, that, you know, the father isn’t allowed in the home. That’s, that’s a significant decision made by Child Protection. And parents can actually request an internal review about those decisions as well.
Okay, great. And the last question, please. That’s the next one. We’ve already asked that question. What happens when Child Protection refused to communicate… I need to read this from another screen… in writing, even when requested as a reasonable adjustment? They are now after I was declined, the advocate did this.
Look, this is an interesting one.
Sorry, you go.
And then I’ll pass on to you, Denise. ..
Look, this is an interesting one, because we definitely encourage clients to communicate in writing. And we’ve definitely had situations in which the department have been hesitant to communicate directly with clients in writing. We have found that with persistence, we have always been able to get there to have that communication, in writing. And sometimes, there are situations where the department might be more likely to consider communicating in writing, if they’re communicating with the advocate on the client’s behalf rather than directly emailing with the client. But that’s few and far between.
Ultimately, that is Child Protection’s decision. And they do have complaints processes that you can go through.
So, if Child Protection were refusing to communicate in writing, and particularly if this is around making adequate adjustments for someone’s disability, then they can go down the complaints process and even the review process about Child Protection’s refusal to communicate in writing.
And I’ll pass on to you Denise, because I know you wanted to say something there as well.
Yes, thanks for that, Robyn. I would probably also note that a request to communicate in writing isn’t just reasonable request. It’s a reasonable expectation that critical decisions that are made about your future and your child’s future should be documented in writing. Child Protection is a very process driven organisation. And so, it is reasonable to expect that they provide their concerns in writing.
If I haven’t encountered that problem yet. But if I did, I would go up the line inside Child Protection, and I would go to the Deputy Area Operations Manager. And if I didn’t get any joy there, I’d go further up the line. If it became a real sticking point, I’d go to the person’s MP, and ask the state MP to lodge a request on behalf of that person.
So, there are various different levers that you can pull. going to the MP is a bit more of a nuclear option. But if the, if that particular Child Protection team are being demonstrating what I would call an obstructionist approach, then I would, if I didn’t get any joy internally, I’d take it outside.
Yes, that that would definitely get my backup if they refused to put things in writing, that would make you really suspicious.
Well, we have come to the end of the session today. I would say thank you very much Denise, Elicia, and Robyn for your time to bring this presentation to us today. We really appreciate it. Thank you very much.
Thank you for having us.
So, everyone, we have come to a close for our first session of the series. A very important topic. You’ll be able to watch it back later on to review all that really important information we’ve heard today.
Thank you to the Auslan interpreters for their hard work today. Thank you to Show Division for bringing this production to you today. Have a wonderful week everyone, and we’ll see you next time.
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- Date published:
- Tue 26th Oct, 2021