In the best interest of the child and human rights: Alecomm legislation amendments submission
- Category: What do we want?
- Created: Wednesday, 12 May 2010 16:26
- Written by Alecomm
RECOMMENDATION 1 : Statutes of limitations be changed or amended under the child protection act. With no time limit. This would only apply from the date this has been passed. This in turn will hold the perpetrator accountable for their actions. Thinking before acting. Putting the right people in the job. Relieving the system (State government) of further litigations, hence freeing up funds.
RECOMMENDATION 2 : Those that are found to be making false and miss leading allegation to be held accountable where by a fine or jail time is imposed. This includes healthworkers, caseworkers, casemanagers, etc.
This will free up funds making funds more available to be spent elsewhere. This will also free up time for caseworkers.
This will also weed out the time wasters or people that just want to be malicious.
A program put in place for young people in the system. This program will reflect or focus on future goals and what little happiness they have experienced.
Blue cards or working with children cards (this includes volunteers) for any business that involves children directly or indirectly. A national police check wWith guidelines set out and enforceable. This matter would have to be addressed extensively with more work, as this is only a basic out line.
Victims or passed YIGGS to take part in new recruits and tell their stories. This will create a better understanding of these situations and can be more understood by the recruit for people that have not had these experiences. They are able to learn from past mistakes.
This includes anyone who works in the department. (Foster Parents, Group Home, Detention Centres etC)
A day or week of recognition for YIGGS past and present.
Incorping the following matters:
1. Recruitment of staff and carers (foster/temp e.c.t)
2. Child abuse awareness.
3. Child abuse is every body’s business.
4. Encourage victims to come forward.
5. Recognition for past mistakes.
Put in place a program of living skill. This will include how to cook, do washing, shopping, budgeting and general day to day living skill that will be required for basic day to day living in the real world. In turn this will make the transition to independent living smoother.
To the Honourable the Speaker and Members of the Legislative Assembly of New South Wales in Parliament assembled.
The Petition of the residents of New South Wales humbly ask the Honourable the Speaker and Members of the Legislative Assembly of New South Wales, firstly, that the compliance with the rules regarding the disclosure of the residential address of the signatories to the Petition be dispensed with.
One of the reasons for this request is that, in this day and age of the increased security risks, some people are reluctant to give their addresses to strangers, that is, to those volunteers who are collecting the signatures.
The second reason is that the subject of the Petition is with respect to the Children and Young Persons (Care and Protection) Act 1998, which allows for a great deal of flexibility and at the same time offering generous provisions of informality.
The Petitioners bring to the attention of the House certain provisions of the Children and Young Persons (Care and Protection) Act 1998 which, if not amended, will continue adversely affecting large number of children, parents and other people in New South Wales, who get involved with the Department of Human Services (DoHS).
The Petitioners, led by the New Stolen Generation by DoHS (NSGBD), request the following amendments to the Children and Young Persons (Care and Protection) Act 1998 and give the reasons for each requested amendment.
Section 3 Definitions
Add definitions of “serious risk of harm” and “risk of harm” (with examples, if practicable)
Reason: Uniformity and certainty of the interpretation of the provisions of the Act.
Section 27 Mandatory reporting
Replace “risk of harm” with “serious risk of harm”
Section 37 Alternative dispute resolution
Add a sub-section: “No party may be legally represented at the alternative dispute resolution stage.”
Reason: The experience shows that some legal practitioners, in particular Legal Aid funded ones, tend to take “short-cuts” by putting pressure on parents, from whose care the child is removed or considered for removal, with purported threats that, if the parent did not consent, the chances of getting substantial contact with the child would be diminished.
Section 38 Development and enforcement of care plans
Remove the provision for the Children’s Court to make “consent orders” unless the matter has come before the Court from the mediation process not involving legal representatives.
This proposal will need a substantial amendment to subsection (3). It is the Court who must be satisfied that the proposed plan serves the best interest of the child.
Reason: See reasons for section 37 above.
Section 42 Sexually abusive behaviour by certain children and young persons
This section should apply to the cases where the child has already been removed from a parent or parents and is in care of the Director-General or another person.
Reason: there is no difference between the causes of the sexualised behaviour of a child whether that child is in care of the parent(s) or Director-General or any other person. There are cases of such behaviour of a child, who is in the care of the Director-General or other person, where Director-General does not report the matter to the Police or even where the DoHS case workers try to cover up or make excuses for the child’s behaviour.
Section 56 Matters for consideration in making an assessment order
Add subsection (3): “the Children’s Court must give reasons (including reference to the relevant evidence before it) for making or refusing to make an order under this section.”
Reason: In case a party is not satisfied with the order (or a lack thereof) that party is entitled to know the reasons in order to consider whether to appeal to District Court or not.
Section 61 Applications for care orders [important amendment]
Subsection (2) “...and the grounds on which it is sought” is one of the most important amendments sought in this Petition. It must be made mandatory that the application specifies in detail circumstances (including reference to the relevant evidence to prove the circumstances) which led to the making of the application.
Reason: Under the current provisions applicants routinely tick the boxes in the application form. Nobody knows, including the Children’s Court, the exact meaning of the application. This will be clarified later.
Section 63 Evidence of prior alternative action [important amendment]
Subsection (2) should be removed and replaced with a requirement that, if the Children’s Court is not satisfied by the evidence presented by the Director-General regarding the alterative action, the Children’s Court must adjourn the proceedings and order the Director-General to present such evidence within a reasonable time (not longer than 21 days).
Any other party is to be given an opportunity to present the alternative course of action, the evidence and the reason in support of such.
Reason: Director-General will be forced to consider alternatives, less intrusive and less expensive, which may satisfy the requirements of the child care and protection and the best interest of the child. This requirement will, in long run, free more resources than those that are required for the above consideration.
The Children’s Court is routinely ignoring consideration of alternative actions – to the detriment of all those involved, including the Director-General and the courts.
Section 64A Evidence in the form of a recording
A provision should be made for the person being interviewed by the DoHS workers to record the interview.
Reason: to avoid potential abuse of the process (such as, cover up by DoHS).
Section 65 Preliminary conferences
Add subsection (3A): A party’s legal representative must not insist with his or her client on the consent orders that involve removal of the child or keeping of the child removed from that party’s care.
Reason: Parents involved with the Children’s Court routinely report pressures exercised on them by their legal representatives to consent to orders, either with promises of a more generous contact with the child or with threats of losing all contact if they would not consent.
Add subsection (3B): Consent of a party to any orders or undertakings must not be admitted as evidence against that party in subsequent section 90 applications or appeals to the District Court.
Section 70 Other interim orders [important amendment]
Add subsection (2): “The Children’s Court must not make any other order regarding a child, without a current need for a care and protection order. Any such order made by the Children’s Court must be within the jurisdiction of the Children’s Court and must not intrude into the provisions of the Family Law Act 1975.”
Reason: Not so infrequently, a need for a care and protection order that was initially justified no longer exists, leaving other ancillary orders in place, which are for all intents and purposes orders within the exclusive jurisdiction of the Family Law Act 1975.
Section 72 Determination as to care and protection [important amendment]
Add subsection (3): “In making a care and protection order the Children’s Court must specify in detail which of the circumstances and evidence, filed by the Director-General when making the application, have been taken or not taken into account and give reasons for taking or not taking into account those circumstances and evidence.”
Reason: In most cases a parent from whose care a child has been removed may or may not be aware of all the allegations made by the Director-General.
The Children’s Court routinely fails to give reasons for judgment, thus depriving the parent from knowing what are the most serious reasons for the removal of the child, what areas of his or her weakness he or she should address first and what grounds for the section 90 application he or she may specify.
(See further proposed amendments to section 90.)
Section 73 Order accepting undertakings
Add a definition of what kind of undertakings the Court may accept.
Reason: In practice there are some rather bizarre undertakings that parents had to sign (often under duress), such as, not to give child “junk food” or “sugary food” (without specifying the meaning of either expression).
Often an undertaking is made by a parent “not to denigrate” other parent in the presence of the child, resulting in the contact supervisor having to be “within the earshot” from the parent. At the same time, if the child is in care of the other parent, there are no such undertakings by the other parent and no supervision to the same effect.
This practice leads to the alienation of the child from his non-carer parent and to the reduction of prospect of restoration.
Section 76 Order for supervision [important amendment]
Add a provision that each case must be determined on its own merits and that the applicant for the contact supervision must justify the length of time for which the supervision is considered and the evidence to back the justification.
Add a provision for different levels of supervision so that each case can be determined on its own merits.
Reason: The supervision orders are routinely made for a duration of 12 months thus resources are wasted rather than being applied elsewhere. In a large proportion of cases a need for an out of home supervised contact is simply not required or, if it is, it is only for a short duration.
Section 78A Permanency planning [important amendment]
This section should be abolished or replaced with a section that deals exclusively with children who have been adopted or are in out of home care.
Reason: This section is routinely interpreted as meaning that the parenting responsibilities and the living arrangements for a child must be made until the child turns 18.
This is a violation of the provisions of the Family Law Act 1975 and, in fact, contrary to the provision of section 9 of the Child and Young Persons (Care and Protection) Act 1998. The application of this section in practice is turning the care and protection jurisdiction into family law jurisdiction. It is a breach of s109 of the Constitution.
Section 79 Order allocating parental responsibility
Notes made under section 72 above apply here as well.
Section 83 Preparation of permanency plan [important amendment]
See notes under section 78A above.
Reason: Director-General routinely specifies that there is no prospect of restoration to a parent (or to both of them) without any justification.
If the permanency planning policy and provisions are not fully abolished a requirement for a justification, with the evidence admissible only in accordance with the rules of evidence, must be a mandatory requirement before a permanent plan is submitted to the Children’s Court.
Section 84 Requirements of permanency plans involving restoration
See section 83 above.
Section 85 Provision of services to facilitate restoration [important amendment]
This section should be expanded to include and emphasise, and if need be, enforce, considerations for the restoration of a child to his or her natural parent(s).
Reason: The Department of Human Services is there to provide “human services”. It is not there to routinely keep removing children from their parents and opposing restoration without first facilitating restoration by helping parents to improve their parenting skills.
Section 85A Review of permanency plans involving restoration
Section 86 Contact orders
See notes in section 76 above.
Section 90 Rescission and variation of care orders [important amendment]
Subsection (2) should read: “The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances which led to the making of the final orders.”
Reason: The current provison is open to an abuse of process, whereby Director-General (or any other party) may make an application for some cosmetic changes to the final orders (as cosmetic as a new undertaking by a parent).
Under the current provision of subsection (2) any changes to the circumstance that took place prior to making such a cosmetic order will be wiped out, thus depriving the parent who implemented those changes from obtaining variation of orders, since that parent does not satisfy the requirement for the change taking place after the orders were last varied.
This is leading to children being permanently deprived of any substantial relationship with one of his or her parents even though none of the circumstances that existed when the child was removed are in existence, and perhaps never again will be.
In some cases even before the final orders are made (the process that can take many months) the circumstances that led to the removal of a child no longer exist. In other words, the parent from whose care a child has been removed will never be able to prove that there are changed circumstances since the final order was made.
This amendment, together with the amendment proposed to section 72 (above) can be and should be introduced immediately.
Section 91 Appeals
A provision should be made for the District Court to declare that, if under the circumstances current at the time of the appeal, the Court can declare that the child is no longer in need of a care and protection order and that the matter falls under the jurisdiction of the Family Law Act 1975.
The District Court should be given power to make interim parenting orders which are to remain in force until varied by the agreement between the parents or until the issue is resolved under the Family Law Act 1975.
The Petition requests amendments to the Children and Young Persons (Care and Protection) Act 1998 which will promote the best interest of children, which will free the resources of, and prevent abuse of power by, the Department of Human Services.
It would be appreciated that the above proposals are not given to the Department of Human Services for their verdict but rather be presented to a Parliamentary Committee for revaluation.
Under Construction & In Collaboration with NSGBD & YIGGS