Reform for better child protection
- Details
- Category: What do we want?
- Created: Sunday, 09 March 2014 11:13
- Written by Alecomm2
Given that Australia has ratified and signed the International Covenant On Civil And Political Rights; and that Article 3 states “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”[1], we hereby state request the following changes in the protection of our most vulnerable assets, our children. Let us see the government show us that children are important to them, and that accountability when it comes to child protection is at the forefront of all their decision making.
The only real remedy for the abuses of the child protection system is its abolition. No one should have the power to take children from their parents by force of arms, and the upkeep of children should not be paid with appropriated funds. Once the child protection behemoth is dead, private charity can easily handle the small load of orphaned children, as it responded to the much larger number of homeless children a century ago before the creation of the welfare state.
Since the political will to eliminate the child protection system is nowhere near to realisation, we have here a list of lesser reforms that may alleviate the hardships in the current system, and lead toward more comprehensive reforms.
Child Protection Legislation Amendment Bill 2013 introduced:
1. Section 3d Definitions of persons
Section 3 Amendment of Children and Young Persons (Care and Protection) Act 1998 no 157 definitions [2] will cause confusion to both children, carers, caseworkers and other persons involved in the care and protection of children, by causing unrelated persons to be identified as relatives. This violates the child’s right to grow up knowing his family (relatives) and is a cruel action to both true relatives of the child and the child itself.
2. Section 10a Permanent Placement Principles
Schedule 1 Section 10 of the Amendment of Children and Young Persons (Care and Protection) Act 1998 no 157 on page 4 states “the last preference is for the child or young persons to be placed under the parental responsibility of the Minister”.[3]
This serves no purpose other than for the Minister in charge to be able to say how much she has lowered the amount of children “in care” since taking on the role.
This amendment not assist in the protection of children, it serves to palm the responsibility of what happens to children, after they are removed from their parents, to anybody but the minister.
The state is currently apologising for the abuse of children taken from parents many years ago and enactment of this legislation will provide for the exact same abuses of children, as there is and still will be no assurance that those given responsibility for removed children will act in any manner which is in the best interest of the child. In fact, the mere fact that NGOs and agencies receive an exhorbident amount of money to keep children in their care only encourages their motive to not do anything contrary to losing their “assets” as this will surely affect their annual revenue.
3. Section 83 Restoration Plans (from 2001) needs to be placed back into legislation
There is nothing in the current legislation that gives parents any form of written and / or legal requirement as to what they need to do to satisfy the courts and the caseworkers, in order to have their children returned to their care.
All that exists now is care plans, permanency plans, court orders etc. At least in Victorian child protection legislation, the caseworkers are required to disclose to the client parent, exactly what they need to do in order to have their children returned.
This is provided for in historical versions of the act. [4]
4. 244b Protection of information disclosed in mediation
This is unnecessary and encourages both legal representatives of the department, and caseworkers to make frivolous and vexatious allegations in order to advance their case.
Providing immunity to those that have everything to gain by winning - which is exactly what DoCS KPIs (key performance indicators) are based on - ensures that anything goes - because there is no consequences for utilising false and inaccurate information.
Any words spoken by caseworkers need to be treated as under oath, and nothing less will prevent them from using false and misleading information to utilise the Children’s Courts to favour their wishes, in the removal of a child. [5]
Children’s rights
5. Children’s Charter of Rights
There is a requirement that within twelve months of the legislation being passed, that all children have a charter of rights. This is wonderful, except nobody supplies it to the children, and they are the ones who need it is intended for.
Section for amending
162 Rights of children and young persons in out-of-home care
(1) Within 12 months after the commencement of this Chapter, the Minister must prepare a Charter of Rights for all children and young persons in out-of-home care.
(2) The Minister must promote compliance with the Charter of Rights by all designated agencies and authorised carers.
(3) Each designated agency and authorised carer has an obligation to uphold the rights conferred by the Charter of Rights.
Add into legislation :
(4) All children to be supplied with the relevant-to-their-age Children’s Charter of Rights by either DHS workers upon removal of the said children, or by the ICL at the very first meeting. Preferably by both to ensure that these children understand that the government is serious about enforcing their rights.
6. Tell children their rights
A reform that sounds good. But what is the use of informing a child of rights that he has no power to exercise? Legislation requires children to be given the Charter of Children's Rights. This is rarely done, and it is a conflict of not only legislation but the child's international civil rights.
7. Recognise right of children to parents
Policy should recognize that children have a right to their parents. For young children, this means that the decisions of parents take precedence to the decisions of service providers such as teachers, doctors or social workers. For grown children, this means the right to know the identity of their parents, and the rest of the family tree.
8. Place children near home
Children not placed with their family should be placed as close as is practicable to their home. Very often children are placed many miles away from family. This should be avoided.i
9. Complaints by children in care
Children in care with complaints, for example, abuse in a foster home, should have a means of getting their complaint heard and resolved independent of the child protection bureaucracy. As it is now, they must complain to their children's aid society, the same agency imposing the abuse. [i]
10. Do not separate parents from kids when placing with family members
A seventeen-year-old mother reported that her baby was taken from her and given to her own mother, the baby's grandmother. So far, this sounds reasonable; grandmothers have been helping in this way for centuries. But then Community Services (DHS) issued an order preventing the mother from seeing her own baby while in the grandmother's care. This latter part of the order served no purpose, and should not occur.
11. Do not seize babies or children until after establishment hearing
The law now in most jurisdictions requires judicial authorisation before child removal, but it comes with an exception for children in (apparent) immediate danger. For the caseworker, this means checking a box on a form. In practice, children are always picked up first on pretense of emergency, and court hearings are after-the-fact. The caseworkers enjoy immunity, so they cannot suffer from any misrepresentation.
The law could be changed to eliminate the exception, delaying child abduction until a judge has signed a warrant on probable cause.
By itself, this is unlikely to do much good, since child protection agencies with millions of dollars in revenue will find a way to induce friendly judges to rubber-stamp their requests.
A more meaningful reform is to first mandate an establishment hearing in which the parents can present evidence in opposition, and only then can the court issue a pickup order. This would at least protect innocent families able to hire competent counsel.
12. Refusing psychotropic medication is not neglect
Failure to follow a doctor's orders is now treated as neglect. This rule turns psychiatrists into drug pushers, since parents cannot refuse to follow a prescription. In a few American states, parents now are granted authority to refuse such drugs, without that being treated as a reason for child protection intervention. NSW should give parents the same authority.
13. Forced use of untested psychotropic drugs on children in care
Thousands of children removed from their parents, as young as eighteen months old, are being prescribed powerful psychotropic medication and sedatives as a form of chemical restraint. The outcome of long-term use on these powerful drugs has not been documented, however many of them state they are not to be used on children under fifteen years of age. The department however, see no age limit to the use and is potentially allowing billion dollar pharmaceutical agencies to use young children as common guinea pigs and no legislation has been amended to make both the department liable for any long-term effects the children might suffer as a result of the use of this forced medication.
Parents rights
14. Tell parents their rights
The United States Congress enacted a provision requiring social workers to notify a parent of certain rights at the onset of a case. That might be a good idea in Australia as well, at least if parents had any rights. There are none enumerated in the Child and Young Persons (Care and Protection) Act.
An even more comprehensive reform requires informing parents of their rights at later stages of the process.
15. Notify parents when children are removed
Several parents have reported that they did not learn of the seizure of their children until the children failed to return from school. At minimum, parents should be notified immediately when their children are taken into custody.
16. Notify parents when children are injured
Parents are entitled to know that how their children are doing in foster-care. They are also entitled to know if their child has been injured. However, caseworkers routinely fail to inform parents of injuries and sometimes have bombshells dropped on them in court when they receive an affidavit that states their child has been sexually assaulted. (Even worse when three of the parents seven children have been sexually assaulted after being placed in the care of the department -- who’s caseworkers ignored the mothers statements and Victims of Crime statements that she was sexually assaulted by the prospective care-giver when she was a child).
17. Provide parents with adverse evidence
Provide an automatic right for parents to receive copies of case conference notes and all evidence used against them in court, just as they would in a criminal trial. This is most vital for unrepresented parents who must get this material without specific application.
18. Parents to receive court reports upon preparedness by court clinicians
Section xxx of the Children and Young Persons Care and Protection Act states that proceedings must proceed in a timely manner, however court reports are not provided to parents until the matter is in court again.
This serves to have the parents defence unprepared, and to also drag out the court case for longer than necessary. When dealing with the welfare of a child it is not in their interest to have matters drawn out for as long as possible so DHS can build the strongest case possible against the parents (usually in the form of negative contact notes).
DHS routinely adjourn cases where there may be another sibling case in progress, in which they are waiting on the outcome of that case to then use against the parents to permanently remove a newborn child from their parents. Babies are sometimes kept from their parents well over twelve months without any establishment being proven that the child was in need of care or protection at the time it was removed. [6]
Division 5 Section 51 of the Children and Young Persons (Care and Protection) Act [7] needs to be amended to include that the department supply the parents with any and all evidence, adverse and positive that the department have in its possession.
This will also include any information obtained under Chapter 16A Section 248 [8] which gives the department access to records from other agencies.
19. Minutes of meetings to be signed by all parties. Copies to be distributed to all parties.
Interpretation of meetings usually varies between client and caseworker. As Community Services caseworkers refuse to be recorded, there is no evidence to support what has been said between worker and client parent.
We suggest that Minutes of Meetings supplied by the department have mandatory fields added, to which the parent is given opportunity to agree or disagree with the statements, and another section for them to give their version of events. This is a must when there is no enforceable means of obtaining evidence - ie recording of information - as most parents would prefer to do.
This ensures the integrity of not only the meeting, but the integrity of the information that is then given to the magistrate involved in the proceedings - as he is led to believe that the department is a model litigant, when in fact that are quite often not.
20. Video tape all contact between families and Community Services (DHS)
This would eliminate much of the private bullying by Community Services (DHS) workers. It would also eliminate another abuse, coaching children. In one case, a three-year-old girl was coached, off camera, then induced to say on camera that her mother hit her with a frying pan. The mother later found that the girl did not know what a frying pan was. There are thousands of cases such as this.
21. Parents rights to record / video contact and other contact between families and DHS
DHS and NGO’s routinely prevent families from taking photographic evidence or video footage of child abuse in care. It is common to threaten to stop contact if a parent takes a photo of an injury of a child that has happened in care. This is because NGO’s get $40k per year to keep children in their care and they do not want to lose that lucrative money by allowing the public to see that children are being abused in care - and by threatening parents with cancelling contact is the leverage they use to cover up the abuse.
22. Never suggest divorce
One activity that needs to be treated as felonious, is forcing divorce against the will of both partners, a shotgun divorce. In dozen instances of this have been reported, with no true “substantiated” grounds to warrant the request.
Contact between parents and children
23. Use of native language during contact is an international civil right of the child
Many caseworkers force parents and children of ethnic/indigenous nationality to use only English when having contact. This is a violation of the rights of the child under the Article 30 of the International Covenant of Rights of the Child which clearly states :
“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language”. [9]
24. Revision of suppression and gag orders in child protection matters
The International Covenant of Children'
Alternative Dispute Resolution
There is no evidence to support the fact that Alternative Dispute Resolution lowers the amount of time spent in the Children’s Courts. [10] It merely serves to keep more solicitors and lawyers making money from the care system.
To improve the ADR we suggest asking end-users what could be done to improve ADR conferences, as between 60 and 80% of participants did not feel better about Community Services after the conference. This would have to give doubt as to whether ADRs are even practical at all, and part of this is related to the fact that there is no requirement for caseworkers and their legal representatives to have to be honest and ethical in any of the proceedings due to their extremely limited liability - which the minister seeks to further limit.
How can you trust an organisation that has absolutely no liability when they are caught doing the wrong thing? And this organisation is being trusted with our (allegedly) most vulnerable children.
Ideally, we suggest abandoning the requirement for the ADR unless :
- Caseworkers and their legal representatives are encumbered under laws that force them to act morally, and
- Clients are allowed to legally record all conversations including ADR that include caseworkers, the departments legal representatives and themselves, and
- Caseworkers will be held accountable for providing false and misleading information, surrounding any action taken that involves children’s court proceedings or the care and protection of children.
Court Procedures
25. Create a legal presumption of innocence for accused parents
Persons accused of a crime are presumed innocent, meaning that the prosecution has the burden of proving that the accused committed the crime. There is no such presumption in the children’s court. Falsely accused parents have to find a witness to acts that never happened.
26. Courts to determine access between parents and children
The current practice of courts relinquishing authority to determine the amount of access that a child will have with their parents is open to abuse by authorities.
Child protection workers are given the power to continually change access, or discontinue it without having to provide any decent reasons why they have.
This is a clear power imbalance, and if courts are prepared to determine how much time parents will have in family courts, then they should determine how much access is given in children’s courts. This is to prevent a disgruntled party cancelling contact without reasons or repercussion. It is also in the interest of the children.
If the child protection workers have a valid reason to cancel access then let them put it before a court to have it determined properly as do any other parent and or concerned party. Child protection workers are not above anybody when it comes to the truth, so why should they be afforded that opportunity.
This is to include Supreme Courts who continually make decisions about child protection matters, and then refer one of the most important decisions back to the agency who had the decision appealed against them in the first place.
Having child protection workers determine when and if contact between a family shall occur, is similar to having a police officer determine the sentence of his/her offender. It is not impartial, nor is it in interest of natural justice.
27. Lay adviser for unrepresented parents
Give automatic permission for parents who are refused legal aid to get a lay adviser to help them present their case.
28. Allow alternative defence witnesses
Children’s Courts generally hear only one expert witness, and parents cannot call on testimony from an expert with a different opinion. Often the so-called expert has only met the family for two-six hours, and their reports are designed to suit the department, where significant experts that have known the family, sometimes their entire life, are deemed non-expert and their reports are tossed out.
It is known that on occasion, court experts will rewrite a court report for DHS caseworkers at their request.[11]
29. Upgrading of microphone facilities in every NSW Children’s Court
Routinely parents in the NSW Children’s Courts are extremely green. They rely on their legal representation to argue on their behalf. And sometimes this does not happen. Many children’s courts have outdated speaker and microphone facilities, whereby it is impossible for parents and other family members to even hear what is being argued in court about them, and their capacity to be able to parent their children.
If parents cannot hear what is being said about them, they cannot determine whether their solicitor is working in their best interest. And unfortunately we receive complaint after complaint about solicitors not doing their job properly. You may say this is an issue for the NSW Law Society or even the NSW Office of Legal Services Commission, however these two authorities are funded by the legal representation they are being paid to investigate, and a virtually-statistically-impossible amount of investigations ever find fault with the legal practitioner.
It is not only fair and equitable that all parties to proceedings in the NSW Children’s Courts are able to hear their proceedings, it is also in the interest of natural justice, and affirms the clients belief in their legal practitioner.
30. Allow up to five supporters in court
[John Hemming] suggests allowing any participant to bring up to five supporters into the courtroom. In his words: "Attending the family court can be quite intimidating. If you have a young mother, for example, in her teens or early 20s then allowing her parent to attend as of right will make it less intimidating. Under The Family Proceedings (Amendment) (No.2) Rules 2009/857 parties can already pass information to close friends for advice. Allowing them to attend court reduces the level of stress without actually widening the number of people who have access to the details of court proceedings".
Also, it is quite common to see half a dozen non-testifying DHS caseworkers in the courtroom whom appear to be there than for no other reason than to bully the parents. If DHS are allowed multiple support persons, then so should parents.
Legal reforms
31. Do not seize babies or children until after establishment hearing
The law now in most jurisdictions requires judicial authorization before child removal, but it comes with an exception for children in immediate danger. For the caseworker, this means checking a box on a form. In practice, children are always picked up first on pretense of emergency, and court hearings are after-the-fact. The caseworkers enjoy immunity, so they cannot suffer from any misrepresentation.
The law could be changed to eliminate the exception, delaying child abduction until a judge has signed a warrant on probable cause.
By itself, this is unlikely to do much good, since child protection agencies with millions of dollars in revenue will find a way to induce friendly judges to rubber-stamp their requests.
A more meaningful reform is to first mandate an establishment hearing in which the parents can present evidence in opposition, and only then can the court issue a pickup order. This would at least protect innocent families able to hire competent counsel.
32. Open the process
In the spirit of free speech, this suggestion is to open as many stages as possible of the child protection process to public scrutiny. There is no prospect that subjecting child protection agencies themselves to open records will work — even if mandated by law, foot-dragging will soon render the reform meaningless. But applied to courts, the reform could work. Most courts dealing with criminal and civil matters are now open to public scrutiny, and family courts should be as well. This means that any person could walk in off the street and sit in the courtroom while a family court matter was being heard, and even more importantly, that anyone could examine the file full of documents that is where most of the legal action takes place. To be exact, any member of the public could read all of the documents presented to the judge. What about the objection that public scrutiny could be embarrassing to the child and the family? There is only one ordeal worse than a public trial, and that is a secret trial.
Such a reform could soon end many of the current abuses. An unjustly accused family could point to the court record as proof of their innocence. When a rogue child protection agency runs berserk, as in Wenatchee Washington, the full record would be available to reporters from the first day. And scholars could sample the files to measure the level of effectiveness of child protection agencies.
33. Eliminate risk assessments
Child protectors now use risk assessment tools to estimate the risk of future abuse or neglect. A high score can justify child removal, even when no abuse or neglect has already occurred. Scientific analysis and reports from caseworkers confirm that these are subjective tools that reflect only the will of the caseworker. Do we lock people up because they have the capacity to rob a bank, or commit any other crime?
34. Eliminate vagueness in definition of child abuse and neglect
Both child abuse and neglect are vaguely defined in the law. This might be tolerable if, as in other areas, the courts were open. In that case, examination of past decisions would eventually build up a body of common law that would inform parents of what they had to do to avoid a charge of abuse or neglect. But where the courts operate in secret, no parent can possibly know, until it is too late, what actions to take to be within the law.
The law should define child abuse and neglect with sufficient precision that parents can know their responsibilities. One example of this is the Georgia and Luke case where the Supreme Court Judge stated that if it is the departments view that use of cannibas, for example, is a reason for removing a child, then it should be made publicly known to parents. [12]
35. Eliminate junk science from therapists as evidence
Therapy for children is now rife with junk science theories.
A few years ago, there was a procedure called rebirthing, in which adopted children were compelled to struggle for hours confined in a bag to escape into the arms of their adopted parents. This was supposed to promote bonding with the new family. The procedure became discredited when Candace Newmaker died in Denver during her struggle. Sadly, this is not the only therapeutic fad, and lots of others just as silly are still in vogue. Therapists should not be giving expert testimony in child protection cases.
36. End collusion between child protectors and psychiatrists and similar expert witnesses.
When a family is examined by professionals, the family should select the professional. Allowing the child protectors to choose the professional allows for collusion between the professional and the agency.
37. Trial by jury before crown-wardship
Juries, not judges, should have the final word on removing parents from a child's life and turning them into crown wards.
38. Allow other family (grandparents) to get kids when parents are unfit
The law formally favours this now, but it is rarely done. John Hemming suggests that grandparents, aunts, uncles and older siblings of children in protection cases should have a right to participate in the court process as interested parties, and when children must be removed from their parents, the relative should get custody without supervision or the detailed scrutiny applied to strangers becoming fosters.
39. Limitation or elimination of immunity for caseworkers
Currently, child-protection workers are immune from all legal actions as long as they act in "good faith". This means they are above the law. This is no theoretical statement. In private meetings between caseworkers and parents, they regularly bully parents with their power.
One caseworker told a father: "Fathers have no rights". Another told a grandmother: "We have as much power as God". It was only a slight exaggeration.
When a case gets to court, immunity prevents the presentation of true evidence. Since caseworkers are immune, they cannot suffer even from intentional perjury.
Legal representation of parties
40. Legal representation of DHS Caseworkers
It seems common practise for the legal representation of Department of Community Service Officers, and Independent Children’s Representatives from both Family Court Systems and Child Protection to continually violate our fundamental human rights, by arguing that because a parent / grandparent has been on a certain website forum (not illegal) – that they are not a good person to be having contact with the child.
Relevant points of the International Covenant on Civil and Political Rights are Article 19, Article 22 and Article 25, and stated hereunder :
“Everyone shall have the right to hold opinions without interference”
“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”
“Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests”.
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions to take part in the conduct of public affairs, directly or through freely chosen representatives;
To have our Government Funded Legal Practitioners arguing away our basic human rights is not only despicable it is unconstitutional, criminal, and should be punished by law. At minimum, these lawyers / solicitors should have their licenses revoked.
41. Need for realistic representation of parents and children in court proceedings
There seems to be an exceptional difference when it comes to the type of representation received by the Department of Community Services, as compared to parents, carers and children. Unless of course, the department supports the applicable carer.
Despite the fact that our fundamental human rights (article 7 states : “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination” …
Parents are never informed what the Establishment Phase is - this needs to be mandated by legislation.
42. Equal Legal Aid funding all parties
Legal Aid funding must be automatically granted to all parties forced to be a part of child protection proceedings in Children's Courts and Family Courts. Government funding generally does pay for all parties, including Department of Community Services, Independent Child Legal Representation and Legal Aid funded parties, however the Legal Aid funded parties, mainly parents and grandparents are the only persons continually denied the same legal funding as both other parties - even when it can be proven that the department has used false and misleading information in the courts to adversely affect the parents.
Given that the Department of Community Services generally instigate these legal proceedings are always funded [even when the legal representative that the proceedings are frivolous and vexatious and against policy and procedure], parents have to fight tooth and nail with Legal Aid to get the same funding. This is quite often detrimental to the child.
It is therefore a gross breach of our basic human rights and freedoms not to automatically grant all other parties the same funding and respect, as International Covenant on Civil and Political Rights Article 14 and Article 23 state :
All persons shall be equal before the courts and tribunals", and
“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”. [13]
Article 26 of the International Covenant on Civil and Political Rights also states :
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." [14]
43. Automatic granting of retrial and automatic grant of Legal Aid where there has been use of false and misleading information and or perjury by DHS caseworkers
To ensure a fair and just decision making process there must be transparency and the courts must ensure that all evidence is untainted. Many cases of children being taken are caused by constant use of false and misleading evidence submitted by DoCS Officers to the courts, whereby Legal Aid will not continue to fund a case even if it can be proven that a DoCS Officer has lied and caused the unnecessary removal of a child.
Legal Aid must be applied to all parts of child protection proceedings to parents who are able to prove false and misleading evidence in any part of their proceedings that taints there case and cases must start from the beginning as if the child was still in the care of the parents and not the care of a foster carer. There is to be no mention of whether or not the child is settled, because this issue would not have arisen without removal in the first place.
44. Legal Aid representatives must be made available in every regional area
Obtaining legal representation in regional areas can be extremely difficult if not plain impossible. Clients may be given grants of Legal Aid funding but cannot get represented unless they travel some 8 hours to cities such as Sydney.
This is caused by Department of Community Services using every possible solicitor, and having independent legal representatives for the children appointed locally also. Everybody knows these solicitors will not give up DoCS jobs to represent a client, and this therefore – A LOT OF TIME – particularly in regional areas such as Cowra to Cootamundra, there is no legal representation available for the parents.
Legal Aid funding does not cover parents travel etc and puts any DoCS opposition at an automatic disadvantage in having their matter dealt with fairly and with procedural fairness.
The only solution to this matter is to have DoCS Solicitors working from the offices fulltime so DoCS cannot chop and change their legal representatives to prevent parents having a fair court hearing.
Also note that Legal Aid is very much aware of these common situations, yet refuse to provide any sort of assistance to parents, or any solution.
45. Addressing all allegations by child protection caseworkers in every single affidavit
All lawyers, including legal aid must be mandated to submit affidavits which address every single allegation / concern by child protection caseworkers listed in their affidavits. Unless this is done by lawyers there is an automatic presumption of innocence. Very few cases even submit affidavits at all, rendering the use of legal services potentially useless and a waste of government expenditure, not to mention it automatically places the parents / family with a much lower chance of winning in court.
46. Protection of children from economic exploitation by legal practitioners & foster care agencies
Article 32.1 of the International Covenant on Civil and Political Rights states :
“States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development”.
Any organisation that is employed by the government to provide both Intervention Services to Vulnerable Families and At Risk Children, and to receive Foster Placements of Children taken by Department of Community Services have a major conflict of interest in services that cannot be ignored.
By getting paid by the government, and consequently failing, to provide Family Intervention Services to the benefit of the family, these organisations profit again by gaining lucrative Foster Placements. State Parties must recognise and amend this immediately so that one organisation cannot be both the bat and the ball.
Independent Children’s Lawyer (ICL) obligations
47. Require child's guardian or lawyer to actually meet the child
Australian children are now appointed lawyers through the magistrate running the case. The most common complaint about these lawyers is that they have never spoken to their own clients. Parents recognize this when the lawyer makes arguments at variance with the child's true condition. An actual meeting with the client should be a requirement for representation of a child. More substantive reform requires proof that the child's guardian faithfully represent his client's interest.
48. Require child's presence in the courtroom
This procedure is followed now in criminal matters, though not in the more consequential custody cases. It would eliminate two current problems. First, the child may be out of the jurisdiction of the court, and impossible to bring into the courtroom, but as it is now, the court can continue to exercise jurisdiction based on some past condition. Two courts can even claim jurisdiction over the same child. Second, as long as the child is old enough to understand, he can witness the proceedings in his own case.
49. Solicitors who represent children / parents must be given formal warnings if they fail to ensure that care plans are created within six months for newborn babies.
Many clients of Alecomm had their babies removed at birth - prior to any investigation or intervention. And departmental staff often tick all the boxes to make it appear that the removal is justified when in fact it is not.
Solicitors being paid by the government to protect the baby’s interests continue to fail to advocate for what is in the best interest of the child and for the child’s basic rights. This must be stopped and establishment hearings in court must be designed to involve all parties, not just the departments word and the child really was in need of care and protection at the time of removal.
Law states that adjournments must be kept to a minimum, however judges routinely set forward mentions which is practically the same and nothing but a loophole for DHS to continue to adjourn the proceedings so they can build a case against the parents.
Newborn babies are routinely denied their colostrum. They are also denied their mothers breastmilk, and bonding and rooming in with them. Quite often, sometimes after twelve months, and no changes required by the mother, the child is returned home. By now, massive damage is done. Practically every organisation that deals with newborns know the detrimental effects of denying a baby colostrum and breastmilk.
Non-Government Organisations
50. Relinquishment of all religious organisations with previous child abuse / exploitation history from the child protection industry
Self explanatory.
51. Incomplete six and twelve month court ordered reviews by agencies
Non-government organisations are already failing to abide by court orders should have case management of that child and any siblings removed to another agency that is prepared to abide by the orders of the court.
52. Court ordered contact to be adhered to
Agencies routinely cancel contact between children and families - even when it is court ordered. It must be enforced that all contact is adhered to - whether or not the foster carer agrees. If the agency is unable or unwilling to provide the minimum amount of contact for the family, them the case management of the children should be removed to another agency who is prepared to abide by the orders of the court.
53. Foster carers not to be used for contact supervisors
Agencies are now using their own foster carers to supervise contact, increasing the amount of money they make. The problem with this however is the foster carer’s view on the parents is almost always tainted, and gives way to providing negative contact notes, that are then used against the parents in court.
Prejudiced reports on parents are unfair, and it is with biased information such a this, that community services then seeks to prevent contact between child and parents altogether.
54. Agencies to provide contact food schedule
Contact (access) workers from agencies to provide a list of what food is appropriate and what is not for parents to provide at access for their children.
This is because parents are constantly harassed about the food they provide. One example is a mother was told not to give her child a hot meal for each access, even though the day care centre the child attends provide hot lunch meals.
55. Eliminate payments from parents to agencies.
Parents in many places are required to pay the agency removing their children for the cost of necessities. Richard Wexler candidly calls these payments "ransom". In the most common cases, children taken because of poverty, this only serves to place the parents hopelessly in debt. In the case of middle class families, it reduces them to poverty, preventing them from making the efforts required to reunite their family. It also serves as an incentive for agencies to prey on families.
Foster Care
56. Children and young persons entitlement to know who biological parents are
Children placed into foster care are forced by caseworkers to call the foster carer “mum” and “dad”. Whilst this may seem favourable for young children, the long-term consequences of the child not knowing his true identity can negatively shape their future.
Agencies commonly defend the use of the word “mum” as referring to the child’s “psychological” mother, however this can get extremely confusing for a child who has six to eight “mum’s” over the period of a year.
It is argued that it is to assist with the bond between the carer and the child, however it is usually the preference of the carer and the caseworker, and it is more a boost to the carers ego than an assistance to the child.
57. Limit on amount of newborn babies foster carers may have in their care:
- Evidence shows that some foster carers have far too many children in their care and that there should be similar assessment requirements at Queen Elizabeth clinics to determine capability of these designated carers. EG : A current foster carer on the Central Coast NSW has in her care, 5 newborn babies, 3 toddlers under the age of 2, and 2+ more older children in her care.
- This equates to the preparation of 30+ meals per day, the changing of approximately 70 nappies per day, at least (possibly) 8 night feeds, bathing of 10 children per day, 8 of which need 24-7 supervision, transportation of at least (possibly) 3 children once or twice per week, whilst still ensuring that the carer has in their site the other 5 newborn babies.
- When exactly is there time for this carer to show any of those ten children who have already suffered the trauma of being taken from their family, any love? No child could possibly benefit from this, in fact the only person who could would be the carer receiving their extremely lucrative pay packet each week.
- Each visit to the parents of two of the children – for 5 MONTHS – one of the children have had extreme to sever nappy rash – INCLUDING THE BLEEDING OF THE TESTES.
- Each time the children have visited their parents – 2-3 times per week – the children have had faeces on them.
- Each visit to the parents – the children do not smell of newborn baby, but rather a sweaty smelly child – with constant cradle cap.
- The only time these children have appeared to be as newborn children should be is when they were in respite for a period of two weeks with an alternative carer.
- Each time DoCS caseworkers and managers were notified of these negligent actions by the carer, they stated (words to the effect) “all children get nappy rash”, and implied that if the parents made anything else of the matter, that there would be consequences.
- As a point of interest with the first two newborns being referred to in this case, evidence shows that should never have been removed in the first place. Only the most intrusive methods were ever used and there are orders for these children to be returned to theirRestoration Plans are in place and Restoration is all but finalised.
58. Amendment to Family Law Act 1975 - Section 60CD - How the views of a child are expressed:
The child must be allowed to speak at his / her court hearing if they so wish. This ensures that International Covenants on Children's Rights are being adhered to, imparticular Article 12 : “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”, and “2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
59. Amendment to Commonwealth of Australia - Administrative Order Part 7
The Department of Families, Housing, Community Services and Indigenous Affairs.
In legislation administered by the Minister insert “Children and Young Persons (Care and Protection) Act 1988”
Amendment to Commonwealth of Australia - Administrative Arrangements Order Part 6
The Department Of Education, Employment and Workplace Relations . In legislation administered by the Minister insert “Children and Young Persons (Care and Protection) Act 1988”.
60. Parents to receive all details immediately upon any injury / assault to any child in care
Regardless of whether that child is with the State Child Protection Authority or with an NGO - too many cases exist where children have been hospitalised, sexually assaulted, and even murdered in care- and it is not being made known by the agencies responsible, in an effort to cover up the amount of abuse going on in care. This is encouraged by the $40,000 per year that is paid for every child in the care of an NGO.
If parents are informed immediately upon any injury of child, this will help with accountability and keep an eye on the goings on in foster placements which are currently being covered up.
61. Eliminate foster care entirely
In this suggestion, adoptive parents would be pre-qualified, then when a child came into care, it would go to a pre-qualified adoptive parent immediately. This parent would have full parental authority, just like any other natural or adoptive parent. This would eliminate the current abuse in which a social worker has the rights of a parent, but the foster parent providing day-to-day care has no legal authority. This idea works best in conjunction with the proposal to delay child seizure until after an evidentiary hearing. It is of course impossible in the current political environment.
Adoption of children
62. No child to be adopted without written and signed consent of biological parents
Children must not be allowed to be adopted merely because the state has decided that the child must remain in care until they attain the age of 18. Adoption means adoption, care means care. If foster parents want to adopt children then they can find children that have parents that DO NOT WANT CUSTODY of those children - not children who have parents who love them - who are forced to continue to fight for custody for them in the courts due to the unfair power balance between parent and government.
Access to government records
63. Provide meaningful accounts
Currently, the published accounts do not answer the most basic questions about Community Services (DHS) operation: How much is spent on foster care? How much on group homes? How many child-days of care are provided? How many child-protection cases were opened? There are lots of numbers printed in the financial statements, but they do not answer the real questions.
64. Open adoption records
Persons who are adopted should by right be able to see the record in their own case. What purpose is served by preventing an adult from finding the names of his birth parents? NSW has enacted this legislation but former NGOs and adoption agencies still make it an extremely difficult task, and much more records have been destroyed - making them potentially criminal in their actions.
65. Let people see their own records
Adults ought to get copies of their own records from when they were in foster care. Now the disclosure of records is discretionary with Community Services, allowing them to conceal wrongdoing by social workers and foster parents.
66. Records open for scientific inquiry
Bona-fide scientists should have unrestricted access to all court records relating to child protection matters, or even unrestricted access to Community Services (DHS) internal records. This proposal must come with a legal definition of bona-fide scientist. Once implemented, failings of the child protection system could become known to the public through scientific inquiry without risk of damage to individuals through disclosure of their personal information. i
Caseworker compliance with legislation and procedures
67. Uniforms for social workers
The law grants child protectors (and animal protectors) the powers of police, and immunities often superior to the police. Yet they appear in civilian clothes, misleading clients. The law could require these workers to appear in uniform, alerting parents to the hazards.
68. Criminal Offences Committed by Department of Community Services Officers
Ombudsman must be forced to send all offences committed under the Crimes Act, Public Service Employees Act, and Child and Young Persons Care and Protection Act 1988, committed by Department of Community Service Officers to the Public Prosecutor for immediate prosecution.
We have annexed a draft copy of a SETONs (Self-enforcing Ticketable Office Notice System), type infringement notice for Officers who commit such offences - where it can be easily shown and proven that the officers have in fact committed an offence. This is very similar to a parking fine. It is plain and simple and has many benefits including:
69. Monetary penalties
– as applicable to the legislation – for officers not complying with legislation in place to protect our children. Allow parents / other concerned parties to enforce legislation with use of Public Anonymous Reporting Register and Penalty System.
70. Implementation of Public Anonymous Reporting Register & Penalty System
The design and implementation of an Anonymous Reporting Register to enable persons to file Infringement Notices of Department of Community Services Officers and / or their Legal Representation (refer Section C for details).
Suggested details that a register may retain:
i. NSW Children's Court Case Reference
ii. DOCs Case Reference
iii. Name of officer who has committed offence
iv. Offence type : ie False and Misleading Information under Crimes Act, Offence of Perjury under Crimes Act etc (tick a box)
v. Date Offence Committed
vi. Documentation Supporting Offence (upload file / files in jpg / pdf format)
Data to be directed one of the authorities to issue an automatic Infringement Notice after verification of data. Use of such systems would be extremely easy to implement, and generate funds for other purposes including family preservation - which must become the departments first priority.
71. Mandatory use of legislation for making false risk of harm reports, which are consequently used to justify removal of children
Use of relevant legislation in relevant acts must be implemented to ensure oversight of all persons involved in the "best interest of children". For example :
Crimes Act 1900 – Section 93Q States “Conveying false information that a person or property is in danger
- A person who conveys information:
- i. that the person knows to be false or misleading, and
- ii. that is likely to make the person to whom the information is conveyed fear for the safety of a person or of property, or both, is guilty of an offence.
Maximum penalty: Imprisonment for 5 years. - This section extends to conveying information by any means including making a statement, sending a document, or transmitting an electronic or other message.
- In this section, a reference to the safety of a person includes the safety of the person who conveys the information and the person to whom it is conveyed.
As it is an indictable offence of Kidnapping under the Crimes Act to remove a child Crimes Act 1900 – Section 307C False or misleading documents – also exists to further ensure that persons do not submit false and misleading information in documents produced in compliance or purported compliance with a law of the State.
72. Deterring officers from committing further offences by applying these penalties
Revenue created for the government by persons responsible for wasting government money on litigation bought before the children's courts based on false and malicious reporting, and false and misleading statements by officers of the department of community services.
All penalties must be applied under the Crimes Act 1900, including jail time for false and misleading statements for officers who have committed these offences which also constitute a breach of our fundamental human rights.
The penalties must be enforced by the relative authority, currently Department of Public Prosecutions, in order to comply with the International Covenant of Civil and Political Rights Article 17 which clearly states:
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” and
“2. Everyone has the right to the protection of the law against such interference or attacks”.
Without these penalties being applied, as is the current situation, there is no protection from such interference or attacks - as there are no repercussions for officers of the Department of Community Services breaking the law.
73. Protection from liability laws to be revoked
Xx
74. Repeal Division 3A of the Children (Criminal Proceedings) Act and Section 105
Division 3A of the Children (Criminal Proceedings) Act and Section 105 of the Children and Young Persons (Care and Protection) Act need to be amended so that parents or caregivers have the right publicly discuss the welfare of children in their care if they believe the Child protection System has caused harm to their children.
75. Children And Young Persons (Care And Protection) Act 1998 - Sect 245G Protection from liability for providing information states:
“(1) This section applies if a person, acting in good faith, provides any information in accordance with this Chapter.
(2) Any such person is not liable to any civil or criminal action, or any disciplinary action, for providing the information.
(3) In providing the information, the person cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct. “
This makes it impossible to determine whether or not a risk of harm is of actual value or has been provided for other reasons such as negligence, monetary value or inability to properly determine an issue.
Mothers are having newborns taken from the labour room after, for example, a mother, who has never had any dealings with authorities, told her newborn baby that her father wishes he was able to be there, and was “looking” over her etc, as the father had recently died of a brain tumour and was not able to see the birth of his daughter.
Alecomm is certain there would not be a parent out there who hasn’t referred to a deceased loved one to their children at one time or another, yet this nurse rang DoCS and reported the mother for multiple risk of harms stating that she was homicidal and suicidal. (Ref: Taylah Case). DoCS Workers then took the baby and are telling the mother she has to do a mountain of courses and may get her baby back in 12 months or so. Meanwhile untold damage is being done to both mother and child. Revoking Protection from Liability is necessary to prevent these extremely common actions.
This amendment ensures that all persons comply with Section 253 of the Child and Young Persons (Care and Protection) Act 1988.
This amendment further ensures complying with the Crimes Act 1900 Section 4B (Dishonesty), Section 4A (Recklessness), Section 44 Failure of persons to provide necessities of life, Section 61 Common assault prosecuted by indictment,93Q Conveying false information that a person or property is in danger (which carries a penalty of up to 5 years imprisonment), 192D Obtaining financial advantage or causing financial disadvantage, and Crimes Act 1900 – Section 307C False or misleading documents.
76. Amendment to Criminal Procedure Code Act 1986 - Sect 32 – Indemnities
This section needs to be repealed as it is discriminatory against all other parties involved in matters pertaining to public official corruption.
- The Attorney General may, if of the opinion that it is appropriate to do so, grant a person an indemnity from prosecution (whether on indictment or summarily):
- for a specified offence, or
- in respect of specified acts or omissions.
If the Attorney General grants such an indemnity, no proceedings may thereafter be instituted or continued against the person in respect of the offence or the acts or omissions.
- Such an indemnity may be granted conditionally or unconditionally.
- Such an indemnity may not be granted in respect of a summary offence that is not a prescribed summary offence, unless the Attorney General has consulted the Minister administering the enactment or instrument under which the offence is created.
Mandatory reporting
77. Eliminate hotlines
The child abuse hotline must be eliminated. In the year 2002 alone, reports were filed affecting 4.5 million children. After screening and investigating, less than 1 million children were found to be in need of services.
Clearly, the hotline is not an effective tool to prevent child abuse, but serves only to clutter up an already overburdened system with reports fuelled by overzealousness, hysteria and malice. — from congressional testimony by Julian Holderbaum, July 13, 2004.
78. Ignore anonymous reports
Anonymous reports of child abuse should be disregarded. Right now, an anonymous report is an easy way to sic Community Services (DHS) on a personal enemy. But anonymous reports have a more serious problem.
Parents who do not know the name of their accuser may suspect the wrong person. In June 2003 Marguerite Dias had her children taken by Children's Aid in Toronto. She did not know the identity of her accuser, but suspected a neighbour, Madeline Monast. The mother attacked her with a machete, cutting off both hands. Had the identity of the accuser been disclosed to the mother, the neighbour could have kept her hands.
79. Make malicious false reporting a felony
This is another popular suggestion among reformers, but may have no effect or make matters worse. Since a felony can only be prosecuted when a (political) prosecutor initiates a case, in practice no one will get prosecuted. And in any case, families need less legal intervention, not more.
80. Eliminate mandated reporting
Mandated reports by child care professionals, doctors, teachers, day-care operators, sound nice, but are a big problem. Parents now have to think carefully before taking an injured child to a professional, because they might lose their child as a result. Also, every child care professional knows of cases in which persons have been prosecuted for non-reporting, so they over-report, causing extra work for Community Services (DHS), and more fears for parents. Prosecution for non-reporting should be eliminated. Doctors will still be able to report suspected child-abuse, but will not have to do so in frivolous cases.
81. Governing boards should include parents who have children placed in care
Currently the governing boards of child protection agencies at all levels are staffed by functionaries of the child protection industry. There are no representatives of children who lived in foster care, or parents whose children have been taken into care. Including them on governing boards would alleviate many of the current abuses.
82. Citizen oversight board
Some reformers advocate an independent board to review Community Services (DHS) cases. But in practice, such boards would likely come under control of the same political machine running the child protection system, making them rubber stamps. A better reform might be to make the existing board of directors serve that purpose. Right now, boards of directors are puppets of management. They could become effective if their members were elected in the same manner that municipal officers are elected.
83. Investigate foster deaths
Deaths sometimes occur of children under the protection of children's aid societies. The public has no way now of learning even how many there are. Serious estimates are around 136 children per year. The argument of secrecy to protect the emotional development of the child does not apply to dead children, and these cases should be fully opened to public scrutiny.
Legislative reforms
84. Allow families to enforce Children and Young Persons (Care and Protection) Act.
There is nothing which forces NSW's children's aid societies and foster homes to obey all parts of their governing legislation (the Child and Family Services Act). Various persons' propose amending the act to allow citizens to press provincial offence charges against persons acting under authority of the act, and we think it would level the playing field and discourage caseworkers from committing the range of offences they currently do - including "use of false instruments", false and misleading information, causing an authority to believe that a persons / property is in danger, etc.
85. Amend Section 63 of Child and Young Persons (Care and Protection) Act 1988
Delete : “The Children's Court must not : (a) dismiss a care application in relation to a child or young person, or (b) discharge a child or young person who is in the care responsibility of the Director-General from that care responsibility, by reason only that the Children’s Court is of the opinion that an appropriate alternative action that could have been taken in relation to the child or young person was not considered or taken.”
Amend : “The Children's Court MUST(a) dismiss a care application in relation to a child or young person, or (b) discharge a child or young person who is in the care responsibility of the Director-General from that care responsibility, by reason only that the Children’s Court is of the opinion that an appropriate alternative action that could have been taken in relation to the child or young person was not considered or taken.”
Reason 1.
86. Section 106(a) of the Child and Young Persons Act to be deleted
Section 106(a) of the Child and Young Persons Act to be deleted as it is unconstitutional, illegal and violates our basic fundamental human rights including International Covenant On Civil And Political Rights listed and explained below :
Article 14.7 states “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”, and
Article 15.1 states “ No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.
87. Amend Section 22 of the Child and Young Persons Act - Director-General’s response to requests for assistance
DELETE : 22 (2) Subsection (1) does not, however, require the Director-General to take any action other than assessing the request for assistance.
This is to ensure that children are heard and listened to - something which is into almost every article in the International Covenant of Children's Rights, particularly Article 9, Article 15 and Article 16. [15].
88. Children must not to be taken from mothers whom are victims of domestic violence
It is common practise to remove children upon birth and to place them into foster care if a mother has been a victim of domestic violence, sometimes within 20 minutes of birth. The mother may still be haemorrhaging and have the placenta still intact when Midwives let Child Protection Workers into Delivery Suites.
Article 23.1 of the International Covenant on Civil and Political Rights states :
“ The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”. - this includes the mother too.
It is not only a gross breach of the role of Community Services to take children from victims of domestic violence, it is also a breach of our basic and fundamental human rights. This falls in line with the US Determinations that now prevent children from being removed from parents because of domestic violence.
89. Abolish statute of limitations for any child who was removed by the government or any other authority
Self explanatory. Same required for any parent who have been abused and or neglected by the systems failure to ensure such protection.
90. Abolish statute of limitations for any parent who had a child removed by the government or any other authority
Self explanatory. Same required for children who have been abused and or neglected by the systems failure to ensure such protection.
91. Interstate kidnapping by child protection agencies
Few cases we have involve child protection from another state keeping a child and placing them under orders in their state, knowing full well that the child / children belong to another state and that child protection agencies in that state are full aware.
Difficulty is that child protection caseworkers refuse to assist the parents, as they just cannot be bothered, completely disregarding the fact that they have approved placements of children with family members in their state prior. In some cases, the other state may be keeping a child against a Family Law Court order, meaning that the department is in contempt of the FLC of Australia. These actions must be addressed immediately, and rectified.
State child protection authorities must be compelled to provide paperwork, and to assist children in being returned to their natural family (or the court ordered carer) under these circumstances.
If the federal government is prepared to step in and spend tens of thousands of dollars to deport four Italian girls to a country they fear, then sure our own government can afford (and be bothered) to send children back to their legal carers.
92. Free Speech
Families should have the right to discuss their own case, in private and in public. Parents (and even children) in child protection cases are now muzzled, and may not plead their case in public. The exact measures used to silence parents vary from place to place.
In NSW, it is unlawful to publish the name of a parent or child involved in a child protection case. In some places, there is no blanket prohibition in the law, but judges routinely issue gag orders in protection cases. Many times orally and not in writing because the magistrate that this is an illegal order that they would be reprimanded for.
Child protectors plead that confidentiality is required to protect the fragile child from emotional harm, a plea that continues even after a child's death. Yet by their own actions, they inflict the same emotional damage on their wards. Children are hawked for adoption on the internet with a picture, the child's age and a biography disclosing his most significant problems.
About the Section 90 Application to Rescind / Vary Children’s Court Care Order
It was a government directive to save money to STOP leave being granted to proceed to a Sec 90 as explained in the matter of Troy vs DoCS, for a start - as too many parents wanted their children back. In making that judgment hardly anyone has even been granted leave to proceed anymore.
Also every Leave Hearing is a 2 hour in total Hearing by submission which is disgusting.
As solicitors from the bar table NOT under Oath talk crap for their half an hour - no evidence is considered and the Magistrate says NO.
The legal process is denied because they are making them submission Hearing’s.
So DoCS legal representatives can spend their half an hour telling lies - and they are not held accountable as they are NOT under oath - or subject to cross examination - and then the Magistrate makes up their mind on all the lies.
The result - DENIED.
Unless DOCS bring the Section 90 you have very little chance of success.
The case of Troy is about denying parents Leave to proceed to a Section 90 to save the government money.
It is not a legal judgment - they incorporate all that must be taken into account for a Section 90 to deny Leave to proceed.
Instead of only taking into consideration what is legally required to be considered for Leave to be granted.
In essence, they have virtually lifted the Bar so high and beyond the Law - to stop the expense of having to even grant a hearing for a Section 90 Hearing application.
What they have done is taken the law and then changed it by illegal case law - it is illegal because in the Case of Troy President Marian made that judgment against the law and used NO case law to do it - so basically he made up a law which is NOT legal.
Since then very few cases have even proceeded to a Section 90 Hearing as they use that [Troy] judgment to deny Leave to Proceed.
A solicitor once stated that 95% of cases were denied Leave to proceed - but as they do not publish Leave Hearing decisions, and as they are actually VERBAL judgments - it is not possible to prove.
Possibly harmful reforms
Here are a few reforms that may do more harm than good:
93. More caseworkers
This is a favourite of bureaucrats in the system. Since there is now far too much intervention in the lives of parents, this could only make the situation worse.
94. Have police do protection investigations
Investigations of abuse should be carried out by professional investigators, not professional social workers. This is a popular reform among some advocates of child protection reform, but it is hard to see how it will really improve things. However, as long as there is a financial gain from taking children from parents, the investigating agency, whether police or Community Services (DHS), will respond to the incentive.
95. Give foster parents a say in their case
This is suggested by some reformers, and foster parents, but it is difficult to see how it would help. It could even make matters worse when foster parents oppose the efforts of natural parents to retain their children.
96. Alter funding formula (let money be spent for non-foster care)
Another reform now popular in a few American states. Responding to the criticism that child protectors take children from parents just to get funding, some have proposed giving money to child protection agencies without regard to the number of children in their care. This will be no reform at all in the end. Child protection agencies will soon discover, as ministries have now, that children in their care are the one sure defence against political reform movements to reduce their funding.
97. License caseworkers
Professional licensing boards usually are dominated by the profession being licensed, making them a branch of the union. The social workers union cannot protect the rights of parents. In some places where licensing of social workers is in effect, child protection agencies have sidestepped the licensing requirement by changing titles from "social worker" to "case worker".
About the authors
Australian Charitable Institute, Australian Legislative Ethics Commission - Mary Moore
Australian Charitable Institute, Australian Legislative Ethics Commission - Marney MacDonald
Canada Court Watch -
John Hemming MP - UK -
Camilla Cavendish -
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx Sydney DHS lawyer John Meehan uses these tactics for the benefit of the department, and to the detriment of the child.http://www.legislation.nsw.gov.au/maintop/view/inforce/act+157+1998+ch.12-pt.4-sec.214+0+N?http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspxhttp://www.aic.gov.au/media_library/publications/rpp/118/rpp118.pdfCourt expert Oli Sharma has told clients that she has to make sure the department “okays” her report - or she will have to amend it, prior to handing out the report to the court and to clients.Re Georgia and Luke (No 2) [2008] NSWSC 1387 "What has happened in this case suggests that the particular DOCS officers took the view that they were entitled to require, as a condition of a Care “ that the parents refrain from any use whatsoever of cannabis, despite the fact that there was no evidence that their cannabis use in itself posed any direct risk of harm to the children. I repeat – if this is a view prevalent in the Department, it is important for the public to know about it. I do not pretend that the issues are simple."http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspxhttp://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspxhttp://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
