Care and protection is a significant area of work for community legal centres. A significant proportion of community legal centres assist clients with a range of matters relevant to the support of families and protection of children in New South Wales. The CCLCG submission made a number of recommendations:
Recommendation 1 - Legislative coherence
To ensure greater consistency between the legislative frameworks we recommend the Commission consider:
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The need for a national care and protection strategy to be developed in conjunction with other States and the Federal Government; and
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An evaluation of the Magellan Program in NSW.
Recommendation 2 - Administrative and judicial review and accountability of DoCS
We recommend the Commission consider means of increasing the accountability of DoCS decisions by:
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Amending the Act to expand the categories of reviewable decisions particularly relating to DoCS’ discretion or decision-making in exercise of parental responsibility and in relation to the removal of children; and
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Expanding section 9 of the Act to include a reference to the Court considering the psychological/harmful consequences of removal as opposed to the child remaining in the current situation
In relation to implementing the least intrusive principle we encourage the commission to consider the need for DoCS to:
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Develop clear guidelines for caseworkers on assessing what levels of support are required for parents to be able to keep their children, prior to removal options being considered;
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Ensure alternative least intrusive options are explored in a timely manner before the birth, where there is a risk of removal at birth;
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Communicate information and assistance available accurately to the community in any advertisements as well as to those contacting DoCS for assistance. This information should include reference to the fact that a request for assistance might in certain circumstances give rise to an inference by DoCS that a child is at risk of harm, and thus potentially subject to an emergency removal;
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Caseworkers to appropriately accommodate domestic violence, mental health and cultural issues in discussions and case conferences for assessing alternative placement options;
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Increase DoCS’ capacity to undertake preventative measures such as independent mediation, particularly in rural and regional areas;
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Formalise internal review procedures in DoCS, to allow for written requests for review of DoCS decisions and the appointment of an authorised review officer;
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Develop a systematic procedure to ensure section 82 reports are provided to the Court; and
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Develop mechanisms to ensure that all children placed in care have a periodic review of their treatment and all other circumstances relevant to their placement.
Recommendation 3 - Enforcement
We recommend the Commissioner consider the need for:
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Contact orders to be reviewed by the Children's Guardian;
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The Children’s Guardian be given powers and resources to review contact orders;
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The NSW Legal Aid Commission to be resourced to represent recipients of contact orders that are not met;
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DoCS to allocate distinct fund to support costs associated with contact visit, as a means of supporting the enforcement of contact orders.
Recommendation 4 - Enforcement
We recommend the Commission consider calling for the Act to be amended to:
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Allow the Court to draw on a range of procedures to enforce contact orders made by the Court (e.g. courses, alterations to orders including “make up” contact, and penalties including fines)
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Allow for the Courts to make ancillary orders that go towards achieving the primary contact order.
Recommendation 5 - Service provision to Indigenous children in need of care
We recommend the Commission consider the need for placing a positive obligation on DoCS to establish at first instance the cultural background of a child in need of care. This obligation can include:
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Requiring all out of home care placements for Indigenous children to be assessed and managed by Indigenous agencies that are adequately funded and resourced. We refer the Commissioner to the Victorian model for consideration, as referred to above.
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Indigenous foster carers and Indigenous family/kinship carers be provided with adequate support and resources.
In the event that placement of an Indigenous child continues to be overseen by DoCS then we recommend the Commission consider:
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DoCS being legally obliged to identify and contact members of the child’s family/kinship group to facilitate their participation in the assessment and court process;
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DoCS workers being provided with comprehensive cultural awareness training which includes the impact of past government removal polices on Indigenous communities;
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DoCS employing more Indigenous workers who are both internally and externally supported and supervised; and
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Making decisions to place an Indigenous child with a non-Indigenous carer independently reviewable by an independent body staffed by Indigenous child protection experts. We consider that this independent body should have the legislative power to request judicial review of a Children’s Court decision if it is of the view that the decision was not in the best interests of the child.
We further recommend that the Commission call for distinct funding to be allocated to implement the recommendations made in the Breaking the Silence Report.
Recommendation 6 - Service provision to Indigenous children in need of care
We recommend the Commission consider:
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Calling for amendments to the Act that would make it a requirement of the Court that contact orders must be made for contact with members of family/kinship group, unless there is a risk of harm, if an Indigenous child is placed in out of home care with a non-Indigenous carer.
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That the management and placement of an Indigenous child in need of out-of-home care be done by an appropriately funded and resourced Indigenous agency, which is best placed to understand and ensure that Indigenous children maintain contact with their families and communities.
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That DoCS provide distinct funding to cover the costs of contact visits and ensure there are sufficient resources to enforce them.
Where an Indigenous child’s placement is not being overseen by an Indigenous agency we recommend that:
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There be a positive obligation on DoCS to identify and contact members of the child’s family/kinship group and to facilitate their participation in the court process.
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Once a contact order is made there be a positive obligation on the out of home care agency overseeing the placement (whether it be an Indigenous agency or DoCS) to ensure that the foster carers and the family members are adequately resourced to enable contact to take place easily.
Recommendation 7 - Accommodation for youth
We urge the Commission to consider the following options to address this issue:
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That DoCS be mandated to assist in providing accommodation for all children and young people;
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That DoCS be mandated to assist children and young people to meet bail conditions for those who are in care or in need of care;
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That there be greater interagency cooperation between DJJ and DoCS regarding this issue e.g. liaison officers common to both DoCS and DJJ could be introduced to facilitate the crossover of jurisdictions;
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Adequate funding be provided to meet accommodation requirements of bail;
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Adequate funding be allocated to support a data system, which provides accurate and timely information to the Courts, Police and DJJ.
Recommendation 8 - Mandatory reporting
We recommend the Commission consider raising the threshold for mandatory reporting to children at “significant risk of harm”.
Recommendation 9 - DoCS staffing and resources
We recommend the Commission consider the following:
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Providing increased and regular training for all DoCS staff, particularly caseworkers, on recognising and dealing with domestic violence, cultural differences, disability and mental health issues. We suggest that external agencies who have expertise in these issues could be invited to participate in the design and delivery of the training.
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Implement the UN Committee on the Rights of the Child recommendation to:
[P]rioritise budgetary allocations to ensure implementation of the economic, social and cultural rights of children, in particular those belonging to disadvantaged groups, such as indigenous children, “to the maximum extent of ... available resources"
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