ALECOMM

"Children and Young Persons (Care and Protection) Amendment Bill 2010"

Details: Category: Legislation and Acts; Created: Tuesday, 23 November 2010 23:30; Written by Alecomm2

Page: 28209

Agreement in Principle

Debate resumed from an earlier hour.

Ms PRU GOWARD (Goulburn) [9.11 p.m.]: I lead for the Opposition on the Children and Young Persons (Care and Protection) Amendment Bill 2010. The Opposition does not oppose the bill but reserves the right to amend it in the other place should the information foreshadowed to be soon provided confirms that that is necessary. We join with others on our side of the House in lamenting the lateness of the introduction of a bill that appears to be, in a general sense, intended to clarify and reinforce existing aspects of the Act and does not have policy implications of any great significance. However, I certainly agree with the Minister's observation that the Wood inquiry recommendations and the legislative response to them was a complex process. Obviously some of these amendments tidy up the parts of the amending bill we passed earlier that have proven to be more uncertain than we had thought.

The bill deals with a number of issues, primarily the issue of voluntary out-of-home care when that care is provided for more than 90 days in the course of a year. This bill makes clear that it is not 90 consecutive days, which has been a way of, in a sense, getting around the intent of the original legislation. With regard to voluntary out-of-home care, I understand the bill is primarily intended to reflect arrangements for children with disabilities whose parents require respite care. When respite care occurs on more than 90 days a year it can no longer be viewed as an informal arrangement of no long-term consequence to the child.

Obviously, it is not about the kindly neighbour or relative who has the child stay for the occasional weekend. Ninety days a year is obviously a significant part of the child's life and respite care arrangements therefore need some regulation. Clearly, the provision is intended to apply not to children who are removed by statute but to arrangements where the custodians, usually parents, voluntarily relinquish care of their child for certain periods totally more than 90 days each year. Quite rightly, the bill reflects that more formal and ongoing arrangements have obvious implications for the child's wellbeing and safety from abuse or neglect during that time. I refer to the Minister's agreement in principle speech, in which she said:

The bill makes a number of amendments to improve the protections afforded to children and young people in voluntary out-of-home care. These changes are important not least because many of these children have disabilities, and so are particularly vulnerable.

That is a concern shared by the Opposition, and in that sense the bill is a welcome attempt to provide protections for these children while in voluntary care. I understand that some of the amendments were prompted by the concerns of the Children's Guardian, and I accept the word of the Government in advising that that is the case. If it proves to be otherwise, obviously that will reflect on our response to the bill in the other place. The Opposition supports the importance of ensuring that care providers in these circumstances are properly vetted and their organisations are sufficiently regulated to protect the child's interests. The Minister further said in her agreement in principle speech:

The Act currently only applies to care arranged between a parent and a designated agency or an agency registered by the Children's Guardian. The new definition will apply more broadly.

The amendment at clause 9 of the bill defines voluntary out-of-home care with reference to the nature of the care provided rather than to the accreditation or registration status of the care provider, ensuring that the definition extends to children in the care of organisations that are currently operating unlawfully. The bill also includes new provisions that make it an offence for unaccredited or unregistered organisations to provide or arrange voluntary care, so that any organisation that is operating unlawfully can now be dealt with. I understand that that was intended in the original bill, but it is now being made explicit. I am sure these changes will be welcomed by the parents of children with disabilities who from time to time seek respite care. I am sure those parents will also welcome the change at schedule 2.3, which repeals an uncommenced amendment that penalises a parent if a child is placed with an unaccredited agency.

The bill gives responsibility for voluntary care explicitly to the Children's Guardian. I understand that this change has been driven by the Children's Guardian. The exception to this is the supervision of children with disabilities. The Department of Ageing, Disability and Home Care will provide that supervision when a registered agency chooses not to contract with a designated non-government agency to take on that role. I presume it is intended that that will capture all the voluntary care of children covered by the Act. Overall, the bill appears to attempt to ensure that regular voluntary care—that is, respite care—is part of the same regulatory regime that applies to all other kinds of out-of-home care. I note that the exception to this is out-of-home care provided by the Department of Community Services—which, as we know, is not accredited. Despite this, the inclusion of respite care in this regime should provide a greater level of comfort to parents and children as well as deliver a better standard of care. The bill gives the accredited organisation the right to restrain the child when this is necessary for the safety of the child or that of others, again in line with the rights of other out-of-home care providers. Schedule 1 [17] of the bill makes it clear that financial assistance is available to carers of children or young people who have primary responsibility for that person or persons. It is well understood that foster carers are entitled to financial assistance, but the bill clarifies that entitlement explicitly for those providing emergency care, which may be only of a few days or weeks duration but nonetheless represents a financial cost to the carer. If the Minister needs to clarify that point, I would be grateful if she would do so in her reply.

Items [18] and [19] of schedule 1 will, I believe, be welcomed by adults who have left the foster care system. The provisions entitle an adult who has been in out-of-home care while he or she was a child or young person to free access to his or her personal information held by certain persons or bodies. I think that reflects the Government's graceful recognition that these people should no longer have to pay to access their own files. Indeed, allowing them free access to their files and information will ensure peace of mind for these adults, so many of whom are traumatised by the circumstances of their out-of-home care, as we have often acknowledged in this place. I believe schedule 1 [21] is a very welcome amendment. It enables the Children's Guardian to share information with others and to seek information from others. That is all part of recognising that for these children the best care can really only be ensured when there is a coordinated response, and a coordinated response very much relies on the sharing of information.

Schedule 1 [22] expands the current regulation making powers in relation to probity checks—another very welcome improvement to the bill. Schedule 1 [24] provides that decisions relating to the making and implementation of permanency plans for children and young people are not decisions reviewable by the Administrative Decisions Tribunal, which is very sensible. I ask the Minister to clarify in reply that the removal of a child can still be heard by the Administrative Decisions Tribunal but not the nature of the parental responsibility orders. I understand the distinction being made is that the Administrative Decisions Tribunal is still able to deal with that.

The Opposition welcomes schedule 1 [25] as we are increasingly aware of the close connection between the Family Court and the Children's Court and the way these cases often bounce between them. Schedule 1 [25] includes the Family Court of Australia as a Commonwealth agency for the purpose of the exchange of information and coordination of services. Centrelink was already included. I know from dealing with the cases that come to my office that the addition of the Family Court of Australia will be a very welcome inclusion. Finally, the overall intent of the Act is to finetune those aspects of the original response to the Wood report that time has proven were in need of either clarification or confirmation. As I said to the Minister's adviser when we were discussing this, some people might have inferred that these arrangements were as we understand them now from this bill. This makes it explicit. The Opposition does not oppose the bill.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [9.21 p.m.]: I am pleased to speak in support of the Children and Young Persons (Care and Protection) Amendment Bill 2010. I speak to a number of the amendments to be brought about by the bill, which seeks to bring clarity and in turn strengthen the relationship and role of police in child protection practice. Firstly, this bill will amend section 29(6) of Children and Young Persons Care and Protection Act 1998 to add definitions of "serious offence" and "reportable conduct". This will help clarify for both Community Services and law enforcement agencies those rare circumstances when the identity of a reporter may be disclosed to police. This disclosure is only permitted in connection with the investigation of a serious indictable offence or reportable conduct alleged to have been committed or done against a child or young person.

Currently, section 29(4A) permits Community Services to disclose to police the identity of a person who makes a risk of significant harm report so that they are able to investigate a serious offence committed upon a child or young person, where that might impact on a child or young person's safety, welfare or wellbeing. However, the Children and Young Persons Care and Protection Act is silent as to what constitutes a "serious offence", and both Community Services and law enforcement agencies need certainty about the types of offences that constitute a serious offence to ensure that reporters' identities are not disclosed unnecessarily. The definitions contained in the bill include "serious indictable offences" as defined in the New South Wales Crimes Act and "reportable conduct" as defined in the Commission for Children and Young People Act 1998. Serious indictable offences are those indictable offences punishable by imprisonment for life or for a term of five years or more—for example, murder, kidnapping and sexual assault.

Reportable conduct includes a range of serious offences against children and young people, such as sex and child pornography offences, offences or misconduct involving child abuse material, child-related personal violence offences, such as intentionally wounding a child, voyeurism and related offences, any assault, ill-treatment or neglect of a child, and any behaviour that causes psychological harm to a child. Inclusion of a definition in the legislation will streamline the decision-making process for Community Service officers and police, ensure that there is a consistent approach to the provision of information to police, and hopefully make for quick resolution of any issues.

The Children and Young Persons Care and Protection Act provides that the director general or a police officer may enter premises and remove a child or young person if they are satisfied on reasonable grounds that the child or young person is at immediate risk of serious harm, and the making of an apprehended violence order would not be sufficient to protect the child or young person. The immediate aim of this power is to remove a child or young person from danger. However, as is right and proper, the matter must then be brought before a court and the director general must establish to the satisfaction of the court that the child or young person was at risk of significant harm. The Children and Young Persons Care and Protection Act as presently drafted does not clearly allow the person removing the child or young person, usually a police officer, to gather evidence, including taking photographs, video or other recordings while removing the child or young person.

The proposed amendment to section 241 of the Children and Young Persons Care and Protection Act will allow evidence of the circumstances in which the child or young person came to be exposed to a risk of significant harm to be gathered at the time that the child is removed. This will provide the best evidence to the court so that the best decision about what is to happen to the child or young person can be made, and will lessen the probability that a child or young person will be returned to an unsafe situation. As we heard in the Minister's agreement in principle speech, the gathering of the best possible evidence is in everyone's interests, particularly those of the child or young person. I congratulate the Minister for Community Services on the bill. I have pleasure in commending the bill to the House.

Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [9.25 p.m.], in reply: I thank the member for Goulburn and the member for Miranda for their contributions to this debate. In my brief response I will clarify the two issues raised by the member for Goulburn. This bill clearly shows that the Government is committed to ensuring the safety of children and young people in New South Wales. The bill includes a number of legislative amendments to clarify and make more workable the operation of the Children and Young Persons Care and Protection Act 1998; the legislation that underpins the work of Community Services NSW.

These amendments will finetune changes brought about through the recommendations of the Special Commission of Inquiry into Child Protection Services in New South Wales, referred to by the member for Goulburn, and ensure that the implementation of the recommendations of the Special Commission of Inquiry are effective in keeping children and young people safe. Other amendments are also included, which will strengthen casework practice, clarify court procedures, and expand the regulation-making powers with respect to Children's Services.

I turn first to the recommendations arising from the special commission of inquiry. One of the most significant changes to child protection and out-of-home care services in New South Wales is the new scheme for the provision of voluntary out-of-home care. The amendments contained in this bill will make clear the oversight role of the Children's Guardian in ensuring the safety of children and young people in voluntary out-of-home care placements and clarify the operations of the new scheme. The member for Goulburn is absolutely correct that many of these clarifications and amendments have resulted from the views of the Children's Guardian.

In respect of the voluntary out-of-home care scheme, some of the key amendments contained in the bill include: making clear the definitions used in respect of voluntary out-of-home care; clarifying that the statutory time frames are to be calculated as cumulative days in a 12-month period and not a single continuous period; strengthening the penalty regime; enabling the Children's Guardian to register organisations providing voluntary out-of-home care, and having sufficient power to monitor those agencies; requiring the Children's Guardian to determine which breaches of statutory time frames must be reported to Community Services; and extending the provisions that apply in respect to physical restraint of a child or young person in statutory or supported out-of- home care to voluntary out-of-home care.

Another recommendation of the special commission of inquiry included the requirement that Community Services apply to the Children's Court no later than 72 hours after a child or young person has been removed or assumed into care. This bill clarifies the 72-hour time frame refers to working days and that in periods of extended holidays, such as Christmas and Easter, the application will be filed within five days or on the first working day thereafter. The bill also includes other amendments aimed at improving general casework practice and court procedures. These amendments include removing the prohibition on the admissibility of child protection reports in proceedings under the Commonwealth Family Law Act 1975, the Supreme Court, Coroner's Court, Administrative Decisions Tribunal, Victims Compensation Tribunal and Guardianship Tribunal matters.

A further amendment clarifies that the disclosure of the identity of the person who makes a report about a child or young person is not unlawful if it is disclosed in connection with the investigation of a serious indictable offence or reportable conduct alleged to have been committed or done against a child or young person. The bill makes clear that the Administrative Appeals Tribunal does not have the jurisdiction to review and make findings as to whether a permanency plan has been appropriately and adequately made. This jurisdiction lies with the Children's Court. Further amendments clarify those circumstances where the Children's Court may make an order to give effect to a care plan without the need for a care application, clarify that a person authorised under the care Act or regulations or by a search warrant issued under the care Act has the power to take photographs and other recordings during the removal of a child or young person from a premise or place, and ensure that adults who were in care of a child or young person are able to access their records free of charge.

In relation to the regulation of children's services, the bill extends the regulation-making power to enable regulations to be made in respect to probity checks on persons involved in the provision of children's services. The member for Goulburn raised an issue about the eligibility of carers for financial assistance. Carers who care for children will be eligible for financial assistance and relatives who have been given parental responsibility also will be eligible for financial assistance.

Ms Pru Goward: Is that in emergencies as well?

Ms LINDA BURNEY: Yes. The member for Goulburn also raised an issue about the Administrative Decisions Tribunal. Section 245 of the Act ensures that the Administrative Decisions Tribunal can renew the removal of a child. This bill clearly demonstrates the Government's commitment to building on the important measures aimed at strengthening the child protection system in New South Wales, which arose from the special commission of inquiry. In particular, the amendments to improve the protection afforded to children and young people in voluntary out of home care are welcomed because many of these children have disabilities and are particularly vulnerable. The other amendments in the bill are aimed at clarifying and improving the workability of the legislation, which underpins the important child protection work undertaken by Community Services and reflects the Government's continued commitment to improving child protection systems in New South Wales. I commend the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.