Amendments to the Children, Youth and Families Act

Amendments to the Children, Youth and Families Act by the Children Youth and Families Amendment (Permanent Care and Other matters) Bill 2014 have now been passed. In a press release (http://www.marywooldridge.com/Media_Detail.asp?ID=609), the Minister for Community Services said:

“Reform to the Children, Youth and Families Act will: 

give permanent carers certainty to form lasting relationships with the children in their care, while recognising that children need to maintain a positive level of ongoing contact with their birth family unless the court orders otherwise; require case plans to be developed earlier and align these with a child’s court order; ensure the cultural needs of Aboriginal children in care are met through requiring cultural support and providing a cultural plan for every Aboriginal child in out-of-home care; double penalties for offences relating to the exploitation of children in care – specifically offences that involve grooming children including harbouring children and loitering around placements where children are living; and increase diversionary opportunities for young people in an effort to avoid their further progression in the criminal justice system, including expanded access to rehabilitation through the use of group conferencing. 

However, many involved in the protection of children do not believe that these changes are in the best interests of vulnerable children because the proposed amendments give more power to the Department of Human Services and less to the Children’s Court in managing complex child protection matters.

The Law Institute of Victoria, in a submission on the bill (http://www.liv.asn.au/For-Lawyers/Sections-Groups-Associations/Practice-Sections/Family-Law/Submissions/Submission-Children--Youth-and-Families-Amendment-?glist=0&rep=1&sdiag=0), raised five principal concerns about the amendments:

“(a) the diminishment of the ability of the Court to exercise its statutory functions and to review the decision making of Department of Human Services (“DoHS”);

(b) the increase in the ability of DoHS to assume parental rights and responsibility for children involved in the Victorian Child Protection System;

(c) the repeal of the obligation on DoHS to implement services for the benefit of children and families;

(d) the repeal of the Court’s ability to make conditions on the new Care by Secretary Orders, such conditions previously ensuring that children can regularly and with certainty have contact with their parents from whom they have been removed;

(e) the limitation on the Court to order contact on a Permanent Care Order no more than 4 times per year.”

One of the fundamental difficulties in giving DoHS more power is that when abuse or sexual exploitation of children in care occurs, it is DoHS which deals with the complaint in the first instance. In other words, DoHS can be in a conflict situation where reports of abuse occur because the complaint may involve DoHS staff directly or may be a result of a failure of duty of care on the part of DoHS.

Further, contact with family is essential to ensure that there is someone close to the child who can raise issues and advocate on behalf of the child. Further, return to a child’s birth family (where possible) is the best outcome for a child and his or her family, and regular ongoing contact with a child’s birth family is more likely to ensure reunification, even if for extended periods of time a birth parent(s) cannot care for their child.

There is also a concern that where Aboriginal children are involved there remains no statutory provision for an Aboriginal guardian to be appointed. We do not want to see today’s Aboriginal children becoming the modern version of the Stolen Generations because as a result of removal they lose all contact with their culture and their family of origin.

There is also concern that proposed Family Reunification orders overall have a significantly limited time-frame of 24 months in which reunification of the child must occur. Under the amended Act, this period of 24 months cannot be extended by the Court.  This means that the Court cannot take into account the difficulty many will encounter in accessing services which DoHS is no longer obliged to provide to implement the changes required to have the children returned to a parent’s care.

 

Recommendations of the Betrayal of Trust Report must be Implemented.

In other developments, a forum was held in Melbourne by COIN at which representatives from the Coalition Government, the ALP and the Greens outlined their party’s policies with respect to the implementation of the recommendations of the Betrayal of Trust report.

 

Whilst all parties have committed “in principle” to implementing the recommendations, sadly the two major parties were short on concrete commitments regarding the timing and actual implementation of specific recommendations. Whilst the Coalition Government which was represented by the Attorney General Robert Clarke did not say that it would await the outcome of the Royal Commission before implementing all the recommendations, he did make it clear that his Government intended to work hand in hand with the Commission. Further he refused to be drawn on timing even when it became apparent that there are only 12 sitting days of parliament left before the next election and it appears that Parliament already has a full legislative program. Indeed, Clarke refused to be drawn on timing even when Bryan Keon Cohen, president of COIN, sought a commitment to schedule an extra sitting day so that the recommendations of the report could be dealt with.

 

There was also a lack of detail from the ALP which was represented by the spokesperson on Community Services Jenny Mikakos. Ms Mikakos also supported the recommendations in principle but indicated that the ALP would not be proposing any legislative change until the Royal Commission handed down its interim report on civil litigation. Having said that, the Shadow A-G, Martin Pakula has indicated that the ALP is working towards more concrete proposals as to the implementation of the Betrayal of Trust recommendations.

 

There is an election in this state in November.  Victims and their supporters should contact their local members and/or the Premier (Dennis Napthine), the A-G (Robert Clarke), the Minister for Community Services (Margaret Wooldridge), the shadow A-G (Martin Pakula) and the shadow minister for Community Affairs (Jenny Mikakos) to seek commitments before the next election that the recommendations of the Betrayal of Trust report will be implemented in full during the next term of Government. Contact details for all members of parliament can be found here: http://www.parliament.vic.gov.au/members/.

 

Institutions respond to the Royal Commission Issues Paper on Redress Schemes

August was a busy week for those of us who have been involved in advocating for the rights of victims of institutional abuse.

The Royal Commission into the institutional abuse of children publicly released submissions made with respect to the issue of Redress Schemes and the importance of victims having access to compensation. (http://www.childabuseroyalcommission.gov.au/submissions/752/issues-paper-6A)

A national, independent, redress scheme or reparations tribunal is a vital part of justice for victims of abuse and many of the submissions supported the implementation of a redress scheme, provided that victims would retain the choice of accessing compensation through a redress scheme or having the right and the ability to pursue their claims in court.  The Royal Commission has previously called on submissions on the barriers to justice in our current civil litigation arrangements. (http://www.childabuseroyalcommission.gov.au/submissions/314/issues-paper-5,-civil-litigation) These submissions have underlined the difficulties that many victims of historical abuse have in pursuing their claims in courts of law.

One of the submissions on redress schemes which has attracted a lot of attention is from the Catholic Church. (http://www.childabuseroyalcommission.gov.au/getattachment/ff10e21b-a871-4a58-8dd8-1f43764c4f44/82-Truth-Justice-and-Healing-Council. The Church’s responses to the Royal Commission have been followed with interest, not least because it was the sex abuse scandal within the Catholic Church which led to the establishment of the Royal Commission.

One of the significant issues for victims is proving their allegations. Sexual abuse usually happens behind closed doors and in the case of historical abuse, locating witnesses, unreliable childhood memories and a lack of or destruction of documentation can all mean that victims will struggle to prove their allegations as required by a court of law which in civil proceedings is “on the balance of probabilities. Notwithstanding recognition that problems of proof is one of the reasons we need a redress scheme, the Catholic Church strangely still recommends a balance of probabilities test for a redress scheme.

The Salvation Army on the other hand refers to a plausibility test (http://www.childabuseroyalcommission.gov.au/getattachment/e56fff77-02a1-4f45-8590-a0c94b5b473d/55-Salvation-Army-Australia) which is of a much lower standard and is consistent with other redress schemes which have been established in this country and elsewhere including with respect to the Defence Abuse Taskforce which has the following test:

“The Taskforce must be satisfied that the person plausibly suffered abuse or had their allegation of abuse mismanaged by Defence. To meet the threshold test of plausibility, the Taskforce must be satisfied that the claim of abuse and/or mismanagement has the appearance of reasonableness.”

 

Another important issue is the question on whether there should be a cap on compensation and how levels of compensation should be assessed. The Catholic Church recommends that there is a cap which is in line with community standards’

 

A cap of itself limits the capacity of an independent tribunal to apply community standards which will vary depending on the nature of the abuse, the culpability of the institution and the damage done to the victim. On the other hand a cap minimises or “caps” the cost to the institution.

 

 A properly instituted and independent Tribunal will develop its own precedents and guidance to victims and their representatives as to how or particular claims should be assessed.

The Catholic Church submission also speaks of “limited free legal advice” for victims. It does not refer to the capacity of the Church to obtain and rely on legal representation and advice and whether this should also be “limited”. The scheme can only be just if both sides have the power to brief and rely on the best lawyers. Otherwise the same imbalance of power that has led to the discrediting (and now abandonment) of the Catholic Church processes Towards Healing and Melbourne Response, may replicated in another body.

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