Practical Issues in child protection

Catherine Moynihan – Youth Advocate LAQDamian Bartholomew- Youth Advocacy Centre

Our approach to this section

• Acknowledging varying levels of awareness and understanding in the room

• Purpose of our session is to add to the scene setting not detailed analysis

• Will provide a broad overview of:- LAQ’s current funding approach in child protection- Common issues for clients (parents, children and young people and

carers)- Options for advocacy- Give you contextual information and resources that you might find of

assistance in building your understanding of child protection

Current Priorities for LAQ child protection fundingLAQ Policy (August 2006) concerning available grants of aid in Child Protection matters list in order of priority, that legal assistance can be provided as follows:

Children’s Court is our priority

– The separate representation of children- when DChS applies for a child protection order

and the Children’s Court appoints a Separate Representative for the children under

section 110 of the Child Protection Act 1999.

– The representation of parents at FGM and court ordered conferences – as part of LAQ’s

early resolution policy these grants of aid will be subject to means testing and no merit

test will be applied.

Current Priorities for LAQ child protection funding– The representation of parents or carers in contested child protection hearings subject to the

following merit test:

– The parent or carer has reasonable prospects of challenging the type of child protection order sought, or

– Where there are special circumstances pertaining to the applicant or child for example, a parent or carer

has an intellectual disability, or the child is subject to the Child Placement Principle under Section 83 of

the Child Protection Act 1999.

– The direct representation of children in contested child protection proceedings. These

grants are subject to the existing funding guidelines for the direct representation of children

in family law matters.

Grants of aid are also provided in other jurisdictions such as the Guardianship and

Administration Tribunal (GAAT), Magistrates Court and the Children Services

Tribunal. Aid is made available in various stages in child protection matters.

Stages at which funding is available in the Children’s Court

Children Services Tribunal

• Evaluation of Family Group Meetings LAQ Policy has been completed the recommendations of which

are being considered

• LAQ has not received additional funding to do CST representation and in the past has covered work in

the CST from existing money

• Children’s Court makes the orders and therefore has been given the funding priority cf CST is supposed

to be a more user friendly, less lawyers and not an adversarial forum

• Currently there are significant costs being incurred by funding child protection matters

• Child protection competes against other State civil funding areas like domestic violence, victims of crime

etc

• Recently received additional funding but it is likely that will be directed to the Children’s Court matters

• Funding priorities may need to be revisited given how much is being spent

Children Services Tribunal

• There is very limited capacity for case by case funding

• The merits tests would be applied to all initial applications for aid,

extensions and appeals except as specified by the guidelines. The merits

test has three facets:

• legal and factual merits - the "reasonable prospects of success" test

• the " prudent self-funding litigant" test and

• the "appropriateness of spending limited public legal aid funds" test

http://www.legalaid.qld.gov.au/applications/grantshandbook/

Advising in child protection matters generally- who does what

Children’s Court makes decisions about whether or not the child is at risk of harm, whether there is a parent willing and able and what is the most appropriate order to ensure ongoing intervention on the least intrusive terms

Children Services Tribunal reviews certain decisions namely:• who the children or young people should live with • not telling the parents where they are living • the amount and type of contact between them and their parents

+CST does not have the power to return a child or young person to their parent or overturn the decision of the Children’s Court if the court decided they will not be living with their parents+Neither can “case manage” a matter

As a lawyer it is worth remembering…

• As we all know we are in the client’s life for a short period of time think about the relationships they will need to maintain

• In family group meetings and in the Children Services Tribunal (as you will hear in more detail later on) it will most likely be the case that your client will be called on to speak for themselves so you need to consider:

- How will you prepare them for this?- How will you handle when they are called on directly to speak?- Do you need to establish some ground rules about when you will

advocate for them?- Do you need to call time out to offer legal advice or talk through

options?/ What about warnings about self incrimination?- Will you need to debrief with them after?

Family Group Meetings and Case Planning

• Family Group Meetings are not confidential and admissions made in them can be used in other court proceedings

• Family Group Meetings are about discussing case planning and can be critical opportunities to advocate for your client’s interests

• What are the key issues for your client? What are they contesting? Pick your battles E.g. Do they concede harm but want to put evidence before the court about being able to parent because of changes they are making, services they have engaged with?

• What arrangements need to be in place to make things work for your client around key issues like placement, contact, decision making?

As a lawyer what can you offer?

• You can prepare and debrief with your client

• You can assist in managing your clients’ expectations

• You can assist in communication with your client

• You can help your client distill their issues of concern and help them formulate how they will talk about those concerns and consider options to address those concerns (eg are their placement options to be considered?)

Don’t forget….

• S5 Principles• S 6 and 83 for indigenous families and children• S 7 for Department’s responsibilities• Charter of Rights• Standards of Care

• Ultimately no matter who you act for the best interests of the child is paramount

What are the common issues for parents?

• Problems with the notifier or who told the Department

• Communication problems and conflict with the Department (including intergenerational involvement with child protection authorities)

• Contesting the Department’s treatment of them

• Contesting the harm alleged and how the Department become involved

• Contesting whether they are able parents

What are the common issues for parents?

• Confusion over what they need to do to show the Department they are able parents/ ‘changing goal posts’/ ‘Department didn’t do what it said it would’/ ‘why is the Department planning for long term out of home care when they are supposed to be working for the children to return to me?’

• Confusion over what is their responsibility/what is the Department’s?

• Focusing on the conflict and not always focussing on what is in the child or young person’s best interests or what they want or need like issues related to placement, contact, support services

• Difficulties reading, understanding and interpreting what is being said to them, required of them, documented about the goals

What are the common issues for children and young people?

• Getting information and being involved in decisions

• Communication difficulties and frustration with their CSO or the CSSC managing them

• Department making decisions about things they can do in a timely way

• Department coordinating, organising and paying for things that it says it will

• How do all their plans work together/relate to each other?

• Seeing their family (not just parents but others important to them)

• Placement

• School

• Health issues

• Cultural issues

• Who pays for what Department or carer?

What are the common issues for carers?

• Getting information and being involved in decisions• Communication difficulties and frustration with the Department’s

support of them in caring for the children• Wanting to be involved in proceedings involving children and young

people especially where it is a long term placement

• LAQ can offer legal advice to carers- legal representation would be limited

How do I improve my understanding of Department of Child Safety policies and

practices?• Structured Decision Making Tools

http://www.childsafety.qld.gov.au/practice-manual/general-procedures/sdm.html

• Child Safety Practice Manual

http://www.childsafety.qld.gov.au/practice-manual/introduction/index.html

Options to be considered when advising clients about dealing with Child Safety

• Ask for the paperwork

• Requesting a family group meeting and attending it as their advocate/lawyer

• Going up the chain (Child Safety Officer-Team Leader-Manager-Zonal Office) when you are having difficulties

• Negotiating with the Court Coordinator or Court Services on evidentiary matters/considering a conference with Crown Law in the lead up to a hearing

What is Child Safety’s Complaints Policy?

Stage 1 – Child safety service centre• Your complaint, enquiry or concern should be raised first with the

child safety service centre where you received the service. We will handle your complaint promptly, confidentially and fairly. It is the responsibility of every complaints officer to endeavour to resolve all matters as they arise during the daily performance of their duties.

• You can speak to your child safety officer, a team leader, or the manager of your local child safety service centre about your complaint, enquiry or concern.

Stage 2 – Child safety zonal office• If the matter is not satisfactorily resolved, you can speak to a

complaints officer (client relations officer) in your local child safety zonal office.

What is Child Safety’s Complaints Policy?

Stage 3 - Complaints, Case Review and Investigation Branch• If the matter is still not resolved satisfactorily, you can speak to an

officer in the Complaints, Case Review and Investigation Branch at central office.

Stage 4 – Departmental review• If you are still not satisfied, the department may consider conducting

a departmental review of your complaint. Alternatively, you can speak to one of the following external agencies:

• Children Services Tribunal • Commission for Children and Young People and Child Guardian • Queensland Ombudsman • Crime and Misconduct Commission.

External agencies/Other options

External Agencies

• Children Services Tribunal • Commission for Children and Young People and Child Guardian • Queensland Ombudsman • Crime and Misconduct Commission

• Appeals/Revocations/Variations

• Considering administrative law options

Which option?

Contextual information about LAQ’s involvement in the child protection system

LAQ’s website under policy- law reform has the following submissions which may be of

interest in for contextual understanding:

• LAQ Submission to Inquiry into Abuse of Children in Foster Care in Qld 29 Sept 2003

• LAQ Response to the Review of the implementation of the Foster Care Inquiry

Recommendations 29 Sept 2006

• LAQ Response to the Improving Permanency for Children in Care: A discussion paper

• Evaluation Report of LAQ’s Family Group Meeting Policy September 2007

Other Resources

South West Brisbane Community Legal Centrehttp://www.swbcls.org.au/childprotection.htm

Children’s Commissionwww.childcomm.qld.gov.au/

Createhttp://www.create.org.au/

National Child Protection Clearinghousehttp://www.aifs.gov.au/nch/

Nicky Davies CLE paper from the Vincent’s Symposium