Family inclusion in child protection: Law,courts and balancing risks

Abstract

Australian child protection systems are being challenged to find more effective ways of responding to the needs of children and families. This article describes legal processes that govern children’s removal from their families and queries whether we are doing enough to prioritise children’s relationships with their families. The court’s capacity to review the decisions of state welfare authorities and evaluate risks of children being removed is considered with reference to research with stakeholders and a recent case in the NSW Children’s Court. The authors argue that reforms which emphasise family inclusion and address power differentials could provide better outcomes for children.

Despite regular state and territory inquiries, and development of the National Framework for Protecting Australia’s Children, ¹ substantial numbers of children remain in out-of-home care (OOHC). ² While the rates of children in OOHC are gradually decreasing in New South Wales (NSW), ³ the reduction is slower for Aboriginal and Torres Strait Islander children who are 12 times more likely to be in OOHC. ⁴ The lifelong outcomes for children in care are poorer than for other children. ⁵ Despite broad agreement that we need to stem the flow of children going into care, there is minimal preventative work being done with families who experience poverty and a range of other disadvantages.

Children, parents and families often require a broad range of institutional supports, such as income support and healthcare, along with tailored preventative programs for drug and alcohol issues, mental health and domestic violence to reduce the risk of children being harmed while in the care of their families. However, a lack of appropriately targeted resources and fragmentation of support services do not facilitate such a multi-faceted approach. Funding for family preservation and family support services represents only 16 per cent nationally of the total funding devoted to child protection services, while investigation and OOHC consume 84 per cent. ⁶ Health, education, housing and other key institutional services remain insufficiently integrated into services that address the needs of families and children who have contact with child protection systems. ⁷

The Children’s Court and child protection: Role, transparency and balancing risks

The Children’s Court in NSW determines if a case has been made for children who have been removed from their family homes to remain in OOHC on an interim or permanent basis. In 99 per cent of cases, the Court is satisfied that there is enough evidence to support the child or children’s initial removal by the NSW statutory welfare authority – the Department of Communities and Justice (DCJ) – and overall 90 per cent of children removed are found to be in need of care and protection (at establishment). ⁸ Many children are assumed into care on an emergency basis before an application is made to the Court, although DCJ is obliged to offer alternative dispute resolution (ADR) prior to commencing proceedings. ⁹ Child protection legislation in Australian states and territories contains a hierarchy of preferred outcomes for children taken into OOHC, reflected in the NSW legislation. ¹⁰ The preferred first and second options are that children are restored to the parents’ or families’ care. The least preferred options are that they enter OOHC permanently, under the care of the relevant Minister, or are adopted. The low percentage of funding directed to family support and intensive family preservation in most states and territories contradicts these legislative goals. ¹¹ Two systems influence outcomes. Decisions made in the Children’s Court are important, but equally influential are decisions made in child protection processes like family group conferencing, case planning and reunification planning that occur before and following the Court’s involvement. ¹²

When the Children’s Court makes a decision to remove a child it often has access to large volumes of material, including information about any ‘prior alternative action’, such as support services. ¹³ DCJ has an obligation to be a model litigant, but the way this information is collected, presented and tested is problematic. ¹⁴ Despite s 93 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘the Act’) requiring proceedings to not be conducted in an adversarial manner, and because the rules of evidence do not apply, parents and families have little power to influence the type of information that comes before the court. DCJ leads information that supports its applications, focused on evidence about risk and parents’ deficits. ¹⁵ There is less focus on the underlying causes of the harmful or neglectful behaviour, or on the state’s responsibility to provide support to families. Material described by both parents and lawyers as factually inaccurate, misinterpreted, taken out of context, exaggerated, or even fabricated, still goes before the Court and often remains untested. ¹⁶

The Children’s Court reviews decisions made by DCJ about children being taken into care but has limited discretion to review or order services to support parents and families. ¹⁷ While it can review family time (contact) arrangements that are often included in care plans under s 78(2)(c) of the Act, and it has powers under s 86 to make contact orders, it is often difficult for families to enforce these arrangements. ¹⁸ This is despite findings that a lack of effort directed at children’s relationships with parents and families undermines the potential for children to be restored to parents. ¹⁹ While children, parents and DCJ all have legal representation in court, there have been claims that power differentials may inhibit the extent to which parents’ perspectives are put before the court. ²⁰ The information provided to the Court by DCJ about service availability or suitability of support services may be incomplete or inaccurate. ²¹ Children’s Courts are closed, and judgments rarely made public. ²² The small number of anonymised judgments published provide valuable insights into challenges for the Court when reviewing departmental decisions about children.

A key test for the Court in determining final orders about the permanent care of children is whether DCJ has made out that there is no ‘realistic possibility of restoration’ to parents. This test considers risks to children’s wellbeing from being restored to their parents. However, the extent to which risks associated with removal are considered is unclear, despite growing attention to issues such as abuse in OOHC. ²³ Unique issues for courts in reviewing all risks to children were highlighted in a recent case in the Children’s Court.

The case of Finn, Lincoln, Marina and Blake Hughes and the DCJ Summary Report

Courts provide important checks on government powers, particularly when the government is a litigant in proceedings. ²⁴ In the case of Finn, Lincoln, Marina and Blake Hughes – four young children, aged eight to eleven years – were removed from their mother’s care 15 months after their father’s death. ²⁵ Their mother, Ms Hughes, had a long history of involvement with DCJ. The family had received support from services in the two years before the children’s removal in May 2020. DCJ asserted that Ms Hughes had provided inconsistent care and inadequately engaged with services. She conceded she was drinking to excess due to grief and depression. Family support had ceased when the children’s father died. The judgment was handed down in October 2022. The case it was based on was the subject of an independent review by Megan Mitchell, commissioned and published in summary form by DCJ (DCJ Summary Report). ²⁶ The judgment noted: ‘The children have experienced, since removal from their mother in a police raid, multiple placements, multiple carers, separation from siblings, abuse in care, a lack of stability and ongoing uncertainty.’ ²⁷

Initially, the children were cared for by an adult sibling and their mother’s ex-husband. Each of these kinship care placements broke down after six months. It is not clear if support was provided to these carers, but research evidence suggests that kinship carers often do not receive the support they request. ²⁸ In October 2020, DCJ delegated case-management of the children to Life Without Barriers (LWB), a large, non-government organisation (NGO). LWB arranged for the four children to be put into a three-bedroom house with staff rostered to supervise them day and night. ²⁹ The youngest children, twins Marina and Blake, aged eight at removal, were placed here for seven months until transitioning to short-term foster care, where they remained. ³⁰ The older boys, Finn and Lincoln, aged nine and 11 years at removal, remained in the house for 14 months due to a lack of more appropriate foster care options, until transitioning to what was intended to be long-term foster care.

Serious allegations of psychological harm while in LWB’s care were substantiated, relating to workers pushing, screaming and swearing at the children, a constant rotating roster of workers, a lack of safe and positive relationships in the home, concerns about workers’ training and uncertainty about future arrangements. Serious self-harming and risk-taking behaviours, educational neglect, physical abuse, risk of physical harm and risks relating to sexual acts or exploitation were assessed as ‘reportable conduct’. ³¹

In December 2021, Finn and Lincoln, who exhibited significant declines in their mental health, transitioned to long-term foster care, case-managed by NGO Lifestyle Solutions (LS). In April 2022, this foster care placement broke down. The foster carers informed LS of the boys’ extreme behaviours but received no support and relinquished their care. There was no cogent explanation given to the court for LS’s failure to provide support. ³²

The older children then returned to a house managed by LS under DCJ contract. ³³ LS sub-contracted another service provider, Connecting Families, to provide the support worker care within the house. The judgment details neglect of the boys’ care under LS’s case-management, including lack of sibling contact and educational neglect. ³⁴ LS failed to buy the children winter school uniforms or provide adequate food. LS provided DCJ with a quote for $232,668.61 to care for the boys for 90 days: at a cost of $1,292.60 per day per child. ³⁵ However, Connecting Families informed DCJ that: ‘the allocated and approved budget by Lifestyle Solutions in relation to groceries and activities … for the children was $80 per child per week’. ³⁶

The Court contrasted the actions of DCJ case workers, who continually raised these issues, with the lack of action by DCJ senior management. From October 2020 until 1 August 2022, DCJ maintained, with the support of the Children’s Court clinician, that there was no realistic possibility of restoration to Ms Hughes and asked the Court to support long-term placement with LS. The Court noted that DCJ had filed extensive material about the boys’ abuse and neglect, unhappiness and deteriorating behaviours in the placements and concluded:

There is absolutely no basis for the statements made in the Amended Care Plan about the level of care Finn can be expected to receive from Lifestyle Solutions. The statements made by DCJ are disingenuous. It is alarming that these statements have been made by a department who should be a model litigant. ³⁷

Shortly after submitting the Amended Care Plan in August 2022, DCJ told the Court they would immediately take back case-management of Finn and Lincoln’s care from LS. ³⁸

The Court noted UK caselaw where the Court of Appeal, in judgments relating to adoption, stressed the need for the Courts to conduct a balancing exercise in which each of the realistic options for a child’s future is assessed. ³⁹ The Court then found, in relation to whether restoration was a realistic possibility, that s 83 of the Act required the Court to similarly weigh up ‘the positives and negatives for the children if they are restored to their mother and the positives and negatives for the children if they are to remain in care.’ ⁴⁰ This analysis led the Court to order a supplementary Children’s Court Clinic Report, to inform this weighing exercise. ⁴¹

This case raises questions about the nature of information available to courts regarding supports provided to parents, kinship carers and foster carers prior to, or after children come into care. It reveals the excessive cost of providing emergency care when other options are not supported. It highlights difficulties for courts weighing risks of abuse in care against risks of children remaining at home. The DCJ Summary Report emphasised the paucity of foster care, the need for effective regulation of emergency care, and said:

The continued emphasis on restoration or preservation as the first permanency priority is a critical component in stemming the flow of children into the care system. This, however, requires sound skills and capabilities in engaging with parents and families, willingness to invest in and availability of needed interventions (such as drug and alcohol and mental health services) and potentially more flexibility in permanency timeframes to allow parents time to address any personal, safety or parenting issues they have. The reality is that for many children, despite difficult and sometimes unsafe relationships with their parents, strong bonds often exist that are intimately tied to their sense of identity and belonging, and they will ultimately be very likely to return to this and other family relationships throughout their lives. ⁴²

‘Just work as a team’: Perspectives of parents, carers and practitioners on family inclusion

The DCJ Summary Report indicates the harm that can stem from failing to listen adequately to the voices of frontline practitioners, children and families in the child protection and OOHC system. ⁴³ Recent research in the Hunter Valley (‘Just work as a team’) reinforces these concerns, showing that parents and carers also often felt powerless and unheard, even though they held information critical to children’s wellbeing. ⁴⁴ Through focus groups and interviews, this qualitative research examined how practitioners (DCJ child protection, OOHC, family support and legal practitioners), parents, adoptive parents, foster carers and kinship carers had approached and understood family inclusion in child protection and OOHC processes. ⁴⁵

Family inclusion was defined as

the active and meaningful participation of parents, family, kinship networks and communities in the lives of children. It is a process and lived experience over time that helps ensure children’s family relationships are not lost. ⁴⁶

Evidence shows that children tend to have better health and welfare outcomes where their families have ongoing relationships with them and a recognised role in their care. ⁴⁷ Power and accountability issues revealed in the Hughes case were also raised by participant groups in this research. Participants described arbitrary and variable practices in a system that had limited accountability to children and families.

Within the same agencies, different practices. [Mums] can have exactly the same circumstances and it’s responded to in very different ways by the case workers, as in that particular mum who had restoration pulled, there was another mum who had relapsed several times and more support had been put in place. ⁴⁸ – Support Practitioner

Carers described themselves as disempowered in relation to practitioners, needing to advocate for themselves as well as the children and their parents.

I have a greater level of compassion and flexibility around [the parents’] lives, and non-judgementalness … this isn’t something the agency fosters. ⁴⁹

– Foster carer

I have fought very hard for my daughter to always be included and be informed… ⁵⁰

– Kinship carer

Carers’ attitudes to family inclusion could undermine or enhance parents’ and families’ relationships with children.

[S]omething that … helps with that process is when you've got carers who are really on board and open with family inclusion and really supportive of that and really welcoming of including the family in decision making. ⁵¹

– DCJ practitioner

Some DCJ practitioners were critical of their own power over families and mindful of difficulties this created for relational practice.

[T]he parents that are involved in the court process need an independent caseworker to go in and support them through the process. Often, we're not the right people to be having those conversations with the parents at that point of care application. They think, and rightfully so, that we've come in and stolen their children. ⁵²

– DCJ practitioner

Lawyers and other practitioners noted the paucity of services for parents at the point of removal including when they were grieving the removal of their children.

We've got these support services working with the family before the children are removed to try and help them and to hopefully not have to remove the children. Then once we remove the children, those support services just stop … nobody's helping them with their grief and loss and how to work through that. ⁵³

– DCJ practitioner

Lawyers described feeling powerless at times, in a system that rolled relentlessly on at a pace that did not allow families to participate. ⁵⁴ Lawyers felt parents were also traumatised by the court and legal process adding to a pre-existing trauma load:

… it’s an additional trauma, the process, the actual court process. ⁵⁵

– Lawyer

What might make a difference?

The Hughes case highlights the substantial risks associated with removal of children and the ‘Just work as a team’ research indicates the untapped potential for harnessing family inclusion as a process for addressing such risks. ⁵⁶ Family inclusive practice is key to a child protection system that prioritises the welfare of children. Family inclusion can have positive impacts across the spectrum of child protection, from family preservation through court proceedings and restoration, to when children are permanently placed in OOHC. Changes required are not exclusively the domain of courts – change across the whole system, including the system constituted by child protection processes, is necessary. The regulatory environment and sector culture needs to set a higher threshold for practice that embeds family inclusion. There is a need to focus on existing processes aimed at improving family inclusion, such as family group conferencing: these only work if properly resourced and implemented. ⁵⁷

Family inclusion initiatives

Addressing the issue of power and participation is central to developing family inclusive practice. Thorpe identified three areas of practice that achieve this. ⁵⁸ First, improved relationships between families, workers and carers; secondly, ensuring that families have access to information and resources to enable them to participate in processes; and, thirdly, support for families to participate in decisions through advocacy and mentoring.

Family inclusive practice must confront the social structural causes of harm to children, and adopt a trauma-informed approach that recognises parents and families as leaders and agents of change with a greater role in service design and service provision. ⁵⁹ Co-design of therapeutic and reunification practice models and peer-led approaches can enhance practitioners’ and carers’ capacity to collaborate with families. ⁶⁰ Child-centred family inclusive practice models can bring parents, carers and practitioners together as a team around common goals that strengthen children’s relationships. ⁶¹ Research that translates family inclusion into practice with carers will assist developments in this area. ⁶² Recent forms of innovative foster care with a focus on restoration, where both mothers and their young children are fostered, provide examples of family inclusive initiatives. ⁶³

Parent and family advocacy

Parent advocacy occurs when parents with previous experiences of child protection interventions provide advocacy and support to parents who are currently navigating child protection processes. ⁶⁴ International evidence shows that parent advocacy has positive implications for restoration and parent participation. ⁶⁵ Emerging programs such as the Parent Peer Support and Advocacy Service in Newcastle, run by the parent-led Family Inclusion Strategies in the Hunter (FISH) are now available, but need to be properly funded and evaluated. ⁶⁶ Advocacy by Grandmothers Against Removal NSW (‘GMAR NSW’) – Aboriginal grandmothers with experience of child protection processes – has been central in efforts to address issues facing Aboriginal and Torres Strait Islander people. ⁶⁷ Indigenous Community leaders and researchers have called for greater advocacy for family and community inclusion in child protection practices and systems, building on the foundations of advocacy groups such as these. ⁶⁸

Multi-disciplinary legal services

Evidence from the United States has highlighted the role of multidisciplinary legal services, including parent advocacy. ⁶⁹ Legal services are delivered by specialist lawyers, trained and experienced to represent families in the care jurisdiction, social workers and parent advocates. These services are linked to prevention, increased restoration, and increased kinship care. Specialist lawyers, social workers and peer advocates may play an important role in preventing children’s removal from families and in hastening restoration where they have been removed. ⁷⁰

‘Active efforts’ before and after children have been removed

Inclusion in the Act of s 9A – the requirement for DCJ to make ‘active efforts’ to maintain or unite a child with their family, and to report these efforts to the court under s 63 and s 83 – may improve the capacity of the court to scrutinise the early intervention efforts which might have been undertaken with parents and families prior to making decisions about children’s placement. ⁷¹ While this strengthens the law, its effective implementation will depend on adequate funding, improved family inclusion practice and making early intervention and support accessible to children, parents and families. The FIC report detailed gaps between the law, policy and practice, and demonstrated that more than legislative change is needed. ⁷²

Conclusion

The Hughes case illuminates challenges for courts to balance risks to children of leaving, or staying, in the care of their families. The ‘Just work as a Team’ research found broad support for the idea of family inclusion: stakeholders felt more could be done to ensure that parents, families and children are heard, and included in decision-making in the child protection and OOHC systems. If we want to improve outcomes for children by maintaining connections with their families and communities, there is a need to change law, policy and, in particular, practice. The lived experience of parents and families are rich sources of expertise that could help inform a child protection and OOHC system which authentically centred on the wellbeing of children.