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ACT Government Response to The Report of the Public Advocate of the ACT Review of the Emergency Response Strategy for Children in Crisis in the ACT
November 2011
Background
On 13 September 2011, the Minister for Community Services wrote to the Director-General of the Community Services Directorate requesting that an independent review be undertaken of the residential care arrangements made with a non-government organisation, Northern Bridging Support Services.
On 14 September 2011, the Director-General wrote to Ms Anita Phillips, the Public Advocate of the ACT, requesting that she undertake a review with the following Terms of Reference:
- The emergency residential placement of children with Northern Bridging Support Services (the agency);
- The engagement and subsequent suspension of the agency;
- Compliance with the Children and Young People Act 2008 in relation to the above matters; and
- A review of the authorities and arrangements of children and young people currently in out of home care for whom the Director-General has parental responsibility.
On 16 September 2011, the Public Advocate agreed to undertake the review, which commenced on 19 September 2011.
On 21 September 2011, the Legislative Assembly asked that the Public Advocate submit any and all reports directly to the Legislative Assembly when completed.
The Public Advocate’s review was completed over a period of three weeks. It addressed service provision by the agency to a total of 24 children from 11 families. Twenty-two of the children were in the care of the Director-General. Two children were in the care of their parents and were provided with in-home intensive support.
The Public Advocate undertook her review by reviewing files of children who were known to have received residential care services provided by the agency, Client in Confidence briefs internal to the Directorate, and interviewing a number of Care and Protection Services staff and non-government agency staff. The Public Advocate also requested specific documents such as the Out of Home Care Standards, data and additional documentation pertaining to specific issues about the children and the residences where they were placed.
On 7 October 2011, the Public Advocate provided a draft report to the
Director-General for comment as required under the provisions of the Public Advocate Act 2005. The Director-General wrote to the Public Advocate on
13 October 2011, providing comment on the draft report, indicating that there were a number of issues which required detailed consideration.
The Public Advocate provided the Legislative Assembly and the Director-General with a copy of the Interim Report – A Review of the Emergency Response Strategy for Children in Crisis in the ACT (the Report) on 14 October 2011. The Interim Report addressed matters concerning the first three Terms of Reference.
The Public Advocate made a number of findings critical of the Community Services Directorate’s actions and made five recommendations, a number with multiple parts.
Response to the Public Advocate’s Findings and Recommendations
Our dedicated Care and Protection staff do an excellent job in balancing a range of difficult decisions on a daily basis in pursuit of the best interests of the child.
In the cases examined by the Public Advocate, caseworkers exercised their professional judgment as to what course of action, under the circumstances, served the best interests of the children concerned. The Government puts on record its thanks to those staff and also their colleagues in the non-government sector out of home care services and youth and family support services for their hard work on behalf of the most vulnerable and disadvantaged people in our community. The Government has taken a considered account of the views of care and protection workers.
The Government is also grateful to the foster carers and kinship carers of our community. By volunteering they enable children in care to have the precious experience of normal family life. The Government is also examining how to improve support services for carers. Since 2008, $800,000 has been made available for a variety of services to support grandparents and kinship carers and in the 2011-12 Budget provided a further $1.7 million over four years for up to four kinship care support workers. ACT foster carers also have the highest foster care subsidies in Australia.
Significant reforms have been undertaken in child protection in the ACT since the Territory as Parent Report (Vardon Report) in 2004. An outline of those reforms is at Attachment A. Nonetheless, there is always a need for continuous improvement of practices and processes to support the delivery of best practice child protection services.
The Public Advocate’s Report has pointed to a number of case studies and circumstances that demonstrate the difficult circumstances children experience before they are placed in care. While the full history of the intervention with these children has not been presented in this report, the Government agrees that there is a need for significant improvement in a number of areas.
This includes the need for facilities for children to ‘wait in’ while placements are being arranged, the fact that the condition of the Barton property discussed in the Public Advocate’s report was not acceptable, and that policies and processes for arranging ‘last resort’ emergency placements of children in out of home care, including the roles and responsibilities of Government and agencies when placing children, must be brought up to date and have greater clarity, strengthening early intervention and coordination across Care and Protection Services, Out of Home Care services and non-government organisations.
Breach of the Children and Young People Act 2008
Before detailing the Government’s response to the Report, it is important to settle an error of legal interpretation in the Report.
The Public Advocate stated that in placing children with the agency, the Community Services Directorate had breached the Children and Young People Act 2008. In light of this serious claim, the Director-General of the Community Services Directorate sought legal advice on the matter from the ACT Government Solicitor.
The ACT Solicitor-General’s advice makes it clear that the interpretation made by the Public Advocate that Care and Protection Services had breached the Children and Young People Act 2008 was incorrect. That is, there were no breaches of the Act by officers of the Community Services Directorate as alleged by Public Advocate. A copy of the Solicitor-General’s legal advice is at Attachment B.
Having regard to the extensive and comprehensive nature of the care and protection system established under the Children and Young People Act 2008 and the legislative requirements imposed on the Director-General by this and other Acts, the first position of the Director-General is to place a child or young person with an out of home carer (as defined in the Children and Young People Act 2008).
If the out of home carer options are not available, it is important that the Director-General retain the ability to place the child in other suitable care arrangements, whilst ensuring his duty of care towards the child is met. This is ensured through arranging an appropriate placement for the child, which is in their best interests and complies with the appropriate care standards.
System reforms
This response details the ACT Government’s response to each of the recommendations in the Report. The Government’s response goes beyond the specific detail of individual recommendations and details a number of important system reforms.
These wider-ranging responses go to the following issues:
- Management capability and oversight;
- Planning for out of home care services;
- Staff retention and recruitment in Care and Protection Services;
- Complaints handling procedures;
- Consultation and communication with foster carers and kinship carers; and
- Communication with the out of home care sector.
Management capacity and oversight
Like all organisations, there will be aspects of care and protection work that need improvement and issues that need to be addressed. Reviews provide an opportunity to reflect, learn and improve. A constructive and positive approach is also important to support the people who are the subject of the review and implement change.
To support improvements the Government has directed that there be a reorganisation of the structure and functions of the Office for Children, Youth and Family Support (OCYFS). The new structure will have a strong management focus on Care and Protection Services. Consultation with staff has commenced, and details of the new model will be agreed and implemented as a priority.
In addition, a Senior Director position within OCYFS will be tasked with specific oversight of the following:
- Monitoring and updating policies, processes, risk and compliance (e.g. ensuring procedures are in place and up to standard);
- The purchasing and planning of out of home care places for children on care orders;
- Coordination and improved delivery of effective out of home care services;
- Maintaining strong and transparent relationships with out of home care agencies and kinship carers and foster carers; and
- Coordination across Care and Protection Services, Youth, Aboriginal and Torres Strait Islander Services to strengthen service delivery to vulnerable families.
Bringing this work under the focus of a Senior Director will allow the Director of Care and Protection Services to have a greater focus on service delivery while providing direct input to the strategic development and response to issues in out of home care.
Staff retention and recruitment
The Government will step-up its current workforce development initiative, enhancing recruitment and retention strategies, including providing dedicated continuous resources for recruitment and introducing a retention bonus for frontline Care and Protection Services staff.
The Government has already undertaken significant initiatives to recruit staff to meet the significant shortfalls currently being experienced, including a commitment to an ongoing overseas recruitment strategy. The overseas campaign in March this year has resulted in the recruitment of more than 40 additional staff by March 2012.
However it is also vital that staff, once recruited, be retained in care and protection. To achieve this, Government will introduce a retention bonus for frontline care and protection staff who remain in the program for fixed periods of time. Consultation will occur with stakeholders as the details are finalised.
Complaints handling procedures and access to information
In the interests of increased transparency and accountability, the Office for Children Youth and Family Support will establish a complaints unit and a Decision Making Review panel to provide opportunities for the review of the integrity of significant decisions made about children and young people and services. Membership of the panel will include a mix of senior management and external independent representatives who have experience in a range of issues dealt with by the Office for Children Youth and Family Support, including out of home care, child protection and youth justice.
This panel will review decisions made by the Directorate that may be challenged. For example, decisions about:
- Use of an alternative therapy of a child;
- A child in care travelling overseas on a holiday; and
- Appropriate representation, decision meetings, participation and planning.
A full range of stakeholders including out of home care agencies, kinship and foster carers, and organisations representing the views of young people will be closely consulted on the development of this process.
Consulting and communicating with foster carers and kinship carers
Pivotal to the successful placement of children and young people in out of home care is the voluntary contribution of kinship and foster carers. The issue of attracting and retaining foster carers in the ACT continues to be a challenge (as in all jurisdictions). Foster and kinship care payment rates are the highest in Australia. Recruitment of foster carers is the responsibility of the funded out of home care agencies. However, the Directorate attempts to assist them to recruit in a range of ways, most recently through an advertisement and television campaign, and $1.7 million over four years in the 2011-12 budget for the establishment of a Service Model supporting kinship carers in the community.
The Government will put the following actions in place:
Regular meetings by government with the Foster Care Association and Kinship Care Association to discuss strategic and system issues. The Government will ensure a representative from the kinship and foster carers associations are represented on the Out Of Home Care Committee.
- Establishment of a Review of Decision Making panel in the Office for Children Youth and Family Support (see above) to ensure a clear process is in place for kinship and foster carers who experience difficulties resolving issues they may have. Foster and kinship carers will be able to make direct representation to the panel; and
- A commitment to enhance access to information and records.
Communication with the out of home care sector
There is room for improvement in communication with the sector.
The Government has already announced that it will hold an Out of Home Care Ministerial Roundtable on 1 December 2011, and at regular intervals, involving all key stakeholders in the out of home care sector.
The roundtable will be an opportunity for discussion on how government and the community can respond to the increasingly complex needs of children in out of home care and ways to reduce the number of children entering care.
Following the roundtable the Out of Home Care Committee and Practice Partnerships Group will develop a work plan for priorities in delivering Out of Home Care services.
Planning for out of home care services
The Government acknowledges that there are ongoing shortfalls in availability of suitable placement options particularly for children with complex needs and large sibling groups.
Discussion and planning with the out of home care agencies has commenced to deliver enough suitable placement options to meet the needs of children in care.
Planning in this area is ongoing and continues to develop. The Out of Home Care Framework was established in consultation with the sector in 2009-10. This framework included foster care; therapeutic foster care for children with high needs; residential care; individual support packages; a group home model; and special care arrangements. Not all of the services were successfully contracted (such as the group home) and some that were implemented have not reached capacity, as there have been difficulties engaging enough foster carers or workers with appropriate skills.
Further initiatives to meet out of home care needs include:
- Negotiations to purchase an additional 30 foster care placements;
- Working with the out of home care sector to identify both short and long term responses to the shortage of placements; and
- Exploration of the recruitment of professional foster carers.
Since the implementation of the framework there has been continuous monitoring, policy development and planning to provide alternative options and out of home care placements for all children’s needs including those who require emergency placements. This occurs in partnership with the community sector.
Response to the Public Advocate’s recommendations
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Recommendations for further review Recommendation 1. Urgently review the operations and management structure of the emergency response for children in crisis in the ACT. The Public Advocate should be engaged and resourced to immediately undertake stage two of this Review. Recommendations for investigation by Stage 2 of the Review (included in Recommendations 2-5) An inclusive review of the framework, provision and tendering process and the current practices in the non-government sector in relation to the current standards for Out of Home Care. Investigate the number and type of reception and other Out of Home Care facilities and other options for ‘places of care’ for children who do not fit into foster care, such as residential and other family group home placements so that inappropriate properties are never used in future. All support workers should be subject to stringent checks, including ‘Working with Children’ as well as trained and supervised, in whatever direct services they are providing to children. Whether all support workers should only be employed by ‘suitable entities’ or not, the CPS could develop a pool of support workers should also be investigated. This would be a small pool of Professional Crisis Foster Carers. These carers should be linked with the Response and Intervention team, trained to understand the needs of children who have been abused and in crisis and equipped to respond immediately to any situation in terms of children presenting in crisis. Establishment of a Family Support program to perform outreach work with individual families as part of the regional Response and Intervention network. The development of the caseworker’s role. The aim of this would be to support them to be more closely involved in decision making, including providing them with supports, clinical and casework supervision, tools and a review of the financial delegations that would assist them to do this. Detailed investigation of the issues surrounding allegations and serious concerns that led to the suspension of the agency from providing services. Investigation around service provision including the practice of negotiating individual placements without having available transparent costings for the type of services requested. Government response: Agreed in part |
The Government agrees that this work should take place.
Given the scope of the work proposed and its urgency, part should be conducted by the Public Advocate and part by the Auditor-General, who is already scheduled to review Care and Protection Services during 2012.
The immediate focus of the Public Advocate’s work in Stage 2 should be the final part of the original terms of reference:
A review of the authorities and arrangements of children and young people currently in out of home care for whom the Director-General has parental responsibility.
In particular, the work should focus on the emergency placement of children, the authorities used and arrangements and decisions made with regard to the placement of these children and young people, and should identify opportunities for improvement in practice.
Government understands that the Auditor General will take a range of matters into account when scoping her terms of reference, which may include issues of contracts, costs, legal responsibilities, compliance and funding within a financial and performance framework.
The Government will suggest that the Auditor-General work with the Public Advocate to develop and agree on terms of reference for the work that each will conduct, ensuring that there is no unnecessary duplication, that all areas of concern are covered, and that operational priorities are not compromised.
The Government will carefully consider any request from the Auditor General for assistance to resource the review, which could, for example, include funding for a senior consultant with experience in the provision of child protection services, and expects that the Public Advocate will be closely consulted by the Auditor-General during the review.
In addition, the following work is or will be carried out, notwithstanding the work being undertaken out by the Auditor-General and Public Advocate.
Out of home care facilities: Clear policy and procedures will be put in place to clarify the roles and responsibilities of Directorate staff and service providers to ensure that all properties meet established standards prior to placement of children.
Stringent checks for support workers: The Government supports the recommendation of stringent checks for those working with vulnerable people, including those working with children and young people. Systems are already in place that require people working with children in care to submit to Police checks, suitability information and child protection database checks. It is expected that access to training and supervision for support workers be a standard requirement of agencies that work with Care and Protection Services. The Government’s commitment to have people working with children, young people and vulnerable adults checked is reflected in the Working with Vulnerable People (Background Checking) Bill 2010, passed by the Legislative Assembly on 25 October 2011. These checks, in addition to the suitability information considered by the Office for Children, Youth and Family Support, provide a comprehensive checking mechanism that protects children and young people.
The Government agrees that all support workers should be employed by agencies that meet suitability criteria and are suitable entities. The Children and Young People Act 2008 provides for the process of suitability information and suitable entities. Legal advice confirms that Care and Protection are able to make decisions about placements with support workers who are not employed by suitable entities in exceptional circumstances, if it is in the best of interest of the child or young person. This should only occur if no other option is available.
Family Support: There are significant family support services in place which work closely with Care and Protection Services. Child and Family Centres, the Connecting Families Panel, and programs in the community sector link families to appropriate supports daily. The capacity of Care and Protection Services staff to extend the family support work they provide will also increase as staff arrive from the overseas recruitment process to fill vacancies and alleviate workload pressures. During periods of significant vacancies, Care and Protection Services have been required to prioritise immediate risk responses and activities.
The Community Services Directorate is finalising service purchasing which will realign Youth and Family Support services to ensure there is a range of intervention services available to meet family support needs. An outcome of this process will be the provision of specific services targeted for complex families involved in the statutory care and protection system.
Caseworker role: Further exploration of the use of structured decision making and other methods to augment and enhance systems in place to provide additional supports for caseworkers is supported.
Care and Protection Services make very significant decisions including the removal of a child from their family when they are at either imminent or likely to be at imminent risk. The making of such significant decisions requires a process of consultation with more experienced staff to ensure all options have been explored regarding the safety of the child and to ensure the evidence is sufficient to form the basis of such a decision. In most jurisdictions there has been a move to support case workers through a delegations structure which shares responsibility for key decisions with more senior staff.
Case workers have delegations under the Children and Young People Act 2008 to carry out their functions. Their supervisors, team leaders and other senior staff also exercise financial delegations and maintain accountability with expenditure as a budget management strategy and in compliance with the Financial Management Act 1997.
Negotiating individual placements: A schedule of service fees for the placement of children with providers outside of purchasing agreements will be developed to ensure that contractual certainty is provided.
Transport and supervision: The Government is reviewing the delivery model for transport and supervision services.
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Recommendation 2. Emergency Response Processes
Government response |
The Government agrees that this model of service requires urgent resources and implementation as a means of providing a suitable environment for children to remain until suitable placements have been arranged.
A suitable residential property has been identified and is currently being established.
This residence will be used as a Family Group Home and as a Reception Centre. It will accommodate sibling groups or young people with challenging behaviours (such as medical and behavioural issues) where immediate placement is required.
The Community Services Directorate will operate the residence as a reception facility, providing a place for children who have been removed from their home or another care placement and who require a supportive stable environment to stay in while longer term care arrangements are made.
There is also a clear need for a wider service response which is able to provide emergency and long term care for children with complex needs (in sibling groups). The Government has recognised this and implemented the therapeutic foster care model of intervention in the ACT called On Track. Consideration of the employment of professional carers is also being explored as part of the wider response considerations.
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Recommendation 2. Emergency Response Processes b) The Director-General, Community Services Directorate, authorises that an Operations Policy and Procedures Manual for caseworkers and direct care staff be finalised and implemented as a matter of priority. Government Response |
Work on finalising the policies and procedures concerning placements has been prioritised and will be completed in December.
The Public Advocate has been provided with the current Care and Protection Services Policy and Procedure Manual and the ongoing work plan for the review of policies and procedures.
The majority of policies and procedures for staff in Care and Protection Services have been reviewed and updated. Revised practices regarding placements have been updated to reflect changes to the current legislation. Staff are made aware of these procedures relating to placements by their supervisors and team leaders.
Foster carers who provide care receive information about ACT legislation and policies and procedures in foster care through the ‘Positive Futures Caring Together’ pre-service training they are required to complete before being issued with General Parenting Authority to care. The Directorate will require that NGO staff receive the necessary level of training and are meeting the out of home care standards.
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Recommendation 3. Monitoring and Provision of Placements The position of Children’s Guardian be resourced and formalised under the auspice of the Public Advocate of the ACT [to monitor out of home care placements]. Government Response |
The Public Advocate recommended that the position of Children’s Guardian be resourced and formalised under the auspice of the Public Advocate to monitor out of home care placements. These are already functions of the Public Advocate, as outlined in the Public Advocate Act 2005.
The Government supports more detailed consideration of this option in Stage 2 of the review by the Auditor-General.
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Recommendation 4. Early Intervention Response and Intervention Teams should be relocated out to the regions. Government Response |
Services to vulnerable families are provided regionally by Care and Protection Services through outreach work and home visits and in partnership with Child and Family Centres and community agencies who provide family support services. Consideration will be given to improving flexibility in the provision of outreach services where appropriate and resources permit.
The Territory as Parent Report (Vardon, 2004) recommended that Family Services (now Care and Protection Services) consolidate into one or two work sites (Recommendation 8.5). The Government agreed to this recommendation and this occurred on 26 July 2005. The objectives sought at the time this arrangement was made were to remove professional and organisational barriers and provide a coordinated and integrated service across services to children and young people. The Government continues to support these objectives.
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Recommendation 5. Specific Issues for Northern Bridging Support Services An independent mediator be engaged to conduct mediation between Northern Bridging Support Services and Care and Protection Services. In addition, immediate payment of outstanding monies must be arranged. Government Response |
Northern Bridging Support Services has been reinstated as a service for transport and contact supervision as of 18 October 2011. All outstanding invoices under dispute for services rendered have been paid. A number of receipts recently received are currently being processed. Regular contact has occurred between the Directorate and Northern Bridging Support Services throughout this process. A mediator will be engaged for any outstanding issues.
ATTACHMENT A
Reforms undertaken by the Office for Children, Youth and Family Support concerning children and young people
The Office for Children, Youth and Family Support was established following the Territory as Parents review undertaken by Cheryl Vardon in 2004. This review commenced a process of ongoing improvement and reform of past practices, new policies and processes to achieve improved outcomes for children, young people, carers and families. Reviews and audits have been conducted by external bodies or internal to the Directorate.
Some of the significant reviews and inquiries include:
- The Vardon Review – The Territory as Parent report (May 2004) – Review of the safety of Children in Care in the ACT and of the ACT Child Protection Management;
- The Murray Review – The Territory’s Children (July 2004) – Report on the Audit and Case Review;
- The Human Rights Commission Audit of Quamby (2005);
- The Murray, Mackie Review (July 2006) Independent Study of Interventions by the Office for Children, Youth and Family Support in matters concerning the death or near death of children in the Australian Capital Territory;
- The Privacy Review undertaken by the Commonwealth Government in 2010; and
- Internal reviews and audits into case planning (2008), drug and alcohol policies and practices(2010) and supervision(2009).
All reviews and audits provide recommendations for improvements to practice that are implemented over time. Some reviews include recommendations requiring legislative change and these are implemented and complemented by the development of revised policies and practices and additional training of staff and others impacted by such changes.
A significant review of policies and practices also occurred during the development of the new Children and Young People Act 2008, as this was required to reflect current best practice to improve outcomes for children. Additional amendments have occurred to the Act to ensure this has been maintained and further amendments are being prepared as part of the ongoing reform and improvement process.
The Territory as Parent report made recommendations impacting on systemic issues across ACT Government. The Territory’s Children report made recommendations principally impacting on Care and Protection Services. While many have been implemented, such as revised policies and procedures, this remains an ongoing process which was significantly impacted by the introduction of the new Children and Young People Act 2008. Improvements to policies and practices are an ongoing and never ending process which has been recognised and reflected in the work undertaken since 2004.
The Murray Mackie review made significant recommendations to practice across Directorates and within care and Protection Services. This work was progressed with the development of cooperative and joint programs being established with ACT health and other agencies.
The Human Rights Audit of Quamby, while principally addressing the needs of a detention centre, impacted on young people in care and in detention and brought about revised and improved policies and practices.
The privacy Review undertaken by the Commonwealth in 2010 reviewed the care and Protection Services compliance with the Privacy Act. The review was satisfied with the systems and processes that existed within Care and Protection Services to protect the privacy of information affecting individuals and made suggestions for improvement that have been implemented.
Internal audits have reviewed the detail of practices within the Office for Children, Youth and Family Support, providing evidence based comment to systems and recommendations for improvement that required implementation.
Significant changes in the provision of services by the Office for Children, Youth and Family Support since its establishment in 2004 includes:
- Revised policies and procedures – this commenced in 2004 and is an ongoing requirement , maintaining pace with research, best practice and changing needs. Significant policies and procedures developed most recently include the supervision policy, a neglect policy, case conferencing policies, case management policies, specific policies in working with police, health, procedures regarding the provision of information to the Public Advocate, safety visits and the differential response policies and procedures, records access and management, permanency planning and enduring parental responsibility processes etc.
- In addition, Memoranda of Understanding have been developed to support policies and procedures, most recently with ACT Health and Police.
- The relocation of the Office for Children, Youth and Family Support within a centrally located building in the city, a recommendation of The Territory as Parent report.
- The Children and Young People Act 2008 and the development of appropriate instruments, policies and procedures arising from this legislation such as information sharing policies, declared care team procedures, prenatal reporting processes and mandatory reporting, employment standards, official visitor guidelines etc. Amendments to the Act have also been progressed.
- The establishment of the Aboriginal and Torres Strait Islander Services Unit, the development of the Aboriginal Kinship and Foster Care program, the Aboriginal Family Support program, Narrabundah House and the Integrated Aboriginal and Torres Strait Islander Services program.
- The establishment of three Child and Family Centres and the provision of many services from the Centres to provide universal early intervention and prevention services to ACT families and targeted early intervention and prevention services to vulnerable families. In addition, this service established outreach Care and Protection staff who would undertake prevention roles and support to families not requiring a statutory intervention role. This service has been suspended as staff have been required to undertake acute child protection work.
- The development of specific services in conjunction with other agencies to address the needs of children and families with specific needs. Programs include IMPACT for families with mental health, drug or alcohol issues, services by the Child at Risk Assessment Unit in ACT Health to address the needs of children ion care, the use of the Clinical Review process to review child deaths of children at some time known to Care and Protection Services.
- The development of the ACT Children’s Plan and the Young People’s Plan and their review, providing a strategic and overall focus to the service provision to all children and young people in the ACT.
- The development and establishment of the Bimberi Youth Justice Centre and youth justice services.
- The establishment of the Carer Liaison Officer position to assist carers in their role and provide a focus point to raise issues of concern and have these addressed.
- The development and implementation of the Charter of Rights for Children and Young People in Out of Home Care and the establishment of the Charter Contact officer to address issues raised by children and young people in care.
- The development of the Out of Home Care Framework and the tender and funding process in accordance with this framework, ensuring services are engaged to support the statutory needs of children in care.
- The development of and revised tender process for the community based Youth and Family Support Services. This has changed the way services are delivered to ensure that these services target the needs of vulnerable and at risk children and families.
- The establishment with the Australian Catholic University of the Institute of Child Protection Studies to advise and promote research and best practice in the sector.
- The engagement with the Australian Childhood Foundation to assist in the development of a Therapeutic Foster Care program for children with high and complex needs. This service is being delivered in conjunction with Barnardo’s.
- Recruitment initiatives for the employment and retention of child protection staff.
- Development and implementation of the new national child care legislation and consequential amendments to the Children and Young People Act 2008.
In addition, work will continue managing the increasing day to day demands placed across the Office for Children, Youth and Family Support. Additionally, work will also continue in all areas that support the front line delivery of services to children, young people and families. Some of the project work to be completed includes:
Placement Planning
- The ongoing development of placement capacity for children and young people in care with Anglicare for children with complex needs and general placements.
- Discussions and dialogue with agencies concerning the possible development of a family group home model of service for children in care.
- Further consideration of in-home care opportunities for children and their families.
- Further work on the Out of Home Care Standards and the implementation of monitoring strategies to reflect compliance with matters outlined in the Service Partnership Agreements.
- The engagement with the out of home care sector in the development of the Out of Home Care 5 year plan to commence at the time the new tenders for the sector commence.
- The engagement of staff and implementation of the kinship carers outreach support service to support kinship carers in the community.
- The provision of additional and regular training to kinship carers.
- Ongoing work with the Department of Education and Training that improves the educational outcomes for children and young people in care.
- The establishment of the Aboriginal and Torres Strait Islander carer liaison position to support Aboriginal carers and carers of Aboriginal children.
- Updating of policies and procedures concerning placements, including emergency placements, placement transfers and permanency planning options.
Policies and Procedures
- As part of the ongoing improvement process, policies and procedures are updated every 2 to 3 years. This is to ensure they are current with best practice research and that legal issues impacting on the work are addressed.
- Significant work was completed most recently in May and June 2011 concerning case management, neglect policy, intake processes, risk assessment tools, prenatal assessments, voluntary care agreements, appraisals, family group conferencing, interstate liaison and transfer processes, emergency action.
- The introduction of transition planning processes in legislation will require the completion of policies and procedures and training of staff to implement these provisions.
- The development and implementation of a single case management model will assist children and young people and improve outcomes for the delivery of services.
Transport and Contact Supervision
- The Government is reviewing the delivery model for transport and supervision services to develop a better practice model for implementation.
Outreach Care and Protection Services workers
- The arrival of new staff during the new year will enable the consideration of outreach child protection staff, possible from Child and Family Centres as has occurred previously.
- Consideration of revised structures across the Office for Children, Youth and Family Support to ensure clarity of function and promote further cooperation across the Division, especially with shared clients.
Youth Justice Blueprint
- The development of the Youth Justice Blueprint is scheduled for December 2011, providing an overarching framework for the provision of youth justice services to young people that will include the implementation of the Human Rights Commission recommendations, the development of diversionary strategies such as the After Hours Bail Support Service and the provision of casework services by Community Youth Justice for young people requiring intervention in the youth justice system. The youth justice system involves young people in care and additional support services will require to integrate with the existing services and supports provided to the young person.
Youth and Family Support Services
- Completion of the Youth and Family Support tender process and the implementation of the service delivery framework for the Youth and Family Support program.
Centres
- Ongoing work towards the development of a Trauma Recovery and Research Centre to support children and young people experiencing trauma during their period in care.
- Ongoing work towards the establishment of a Reception Centre for children in care.
Recruitment and Retention of Staff
- Implementation of strategies that promote the recruitment and retention of staff need to be continually developed and implemented by the line areas. This will specifically assist Care and Protection Services and the Bimberi Youth Justice Centre.
November 2011
ATTACHMENT B
Your Reference
Our Reference
620607
AUSTRALIAN CAPITAL TERRITORY
SOLICITOR-GENERAL
Level 5
12 Moore Street CANBERRA CITY PO Box 260
CIVIC SQUARE ACT 2608
OX 5602 CANBERRA Tel: 612 6207 0666
Fax: 612 6207 0650 www.act.gov.au
Contact
Peter Garrisson
6207 0654 peter.garrisson@act.gov.au
26 October 2011
By email: martin.hehir@act.gov.au
Mr Martin Hehir
Director-General
Community Services Directorate
GPO Box 158
CANBERRA ACT 2601
Dear Mr Hehir
Interpretation of Part 15.4 of the Children and Young People Act 2008
My advice is sought regarding legal issues arising from the Interim Report of the ACT Public Advocate entitled "Emergency Response Strategy for Children in Crisis in the ACT" and dated October 2011 (Interim Report).
Specifically, you have sought advice on the finding contained at page 35 of the Interim Report, being that Care and Protection Services (CPS) was in breach of the Children and Young People Act 2008 (CYP Act) by engaging Northern Bridging Support Services (NBSS), which was not approved as a 'suitable entity' under section 63 of that Act, to provide residential care for children for whom the Director-General had parental responsibility.
A. Short Answer
1. The interpretation of the CYP Act contained at page 35 of the Interim Report, and upon which the finding is based, is incorrect.
2. The correct interpretation is that Part 15.4 of the CYP Act sets out a statutory regime for regulation of 'out of home care', a defined term, which is available to the Director-General in exercising daily care responsibility, but is neither mandatory nor excludes other care arrangements being made.
3. It follows that while the provisions of Part 15.4 of the Children and Young People Act 2008 were not utilised in the cases under review, this does not equate to a 'breach' ofthe legislation.
B. Background
1. On 14 September 2011 the Director General CSD wrote to the Public Advocate requesting she conduct a review of
October 2011. The Interim Report addresses the first three aspects of the reference. Chapter 4 of the Interim Report states that CPS was in breach of the CYP Act by engaging NBSS to provide daily care for children.(1) The emergency residential placement of children with NBSS.
(2) The engagement and subsequent suspension of NBSS.
(3) Compliance with the Children and Young People Act 2008 in relation to these matters.
(4) A review of the authorities and arrangements of children and young people currently in out of home care for whom the Director-General has parental responsibility.
C. Preferred Interpretation of the CYP Act
1. Page 35 of the Interim Report contains a paragraph outlining provisions of Part 15.4 of the CYP Act. The conclusion is then stated "NBSS were never approved as a suitable entity, and therefore CPS was in breach of the C&YP Act by engaging them to provide daily care for children."
2. The legal reasoning provided for this conclusion seems to be that Part 15.4 of the CYP Act sets out a mandatory regime for the placement of a child in 'out of home care', and that the Director General did not have the power to place a child other than in 'out of home care'.
3. This analysis is incorrect.
The responsibilities of the Director-General
4. The Director-General may come to have sole, or shared, parental responsibility for a child or young person as a result of various legal mechanisms under the CYP Act. The term 'parental responsibility' is discussed in Division 1.3.2 of the Act. Specifically, section 15 sets out that this term means:
5. Section 19 of the CYP Act outlines the kind of decisions that can be made by a person with 'daily care responsibility', commencing in subsection 19(1) with the broad statement thatall the duties, powers, responsibilities and authority parents have by law in relation to their children, including the following aspects of parental responsibility:
(a) daily care responsibility for the child or young person;
(b) long-term care responsibility for the child or young person.
A person who has daily care responsibility for a child or young person has responsibility for, and may make decisions about, the child's or person's daily care.
6. It is accepted law that these powers include the power to decide where and with whom a child may live, and with whom they may have contact. The examples to subsection 19(1) describe the following:
1 where and with whom the child or young person lives
2 people with whom the child or young person may, or must not, have contact
3 arrangements for temporary care of the child or young person by someone else
4 everyday decisions, including, for example, about the personal appearance of the child or young person
5 daily care decisions about education, training and employment
7. In other words, when the Director-General has daily care responsibility in relation to a child under the CYP Act, the Director-General has all of the duties, rights, responsibilities and powers in relation to daily care aspects that a parent would have. One can anticipate that there are a broad range of day to day decisions which a parent can be required to make in relation to their child such as planned activities, usual arrangements for where the child will reside and ad hoc arrangements for visiting and staying with friends. When the Director-General has 'daily care responsibility' under the CYP Act for a child or young person, the Director-General is empowered to make such decisions, unless this power is expressly limited by legislation or by Court order.
8. I am instructed that there were no Court orders limiting the Director-General's exercise of daily care responsibility in relation to where a child would reside, in relation to the cases the subject of the Interim Report.
Restrictions on the Director-General's exercise of responsibilities
9. Are there are any legislative restrictions upon the exercise of daily care responsibility by the Director-General?
10. It goes without saying that there are legal constraints on the Director-General's exercise of daily care responsibility that would not expressly apply to a parent. So, for example, the Director-General in making decisions under the CYP Act is required to have regard to the best interests of the child as the paramount consideration (section 8) and to have regard to the principles outlined in section 9 of the CYP Act. The Director-General also owes a duty of care to a child or young person in his or her care which is of more general application and to a higher standard than that applied to a parent. As a public authority, the Director-General also has responsibilities under the Human Rights Act
2004.
11. The application of these principles will not always be straightforward. It will depend upon the facts of the particular case. In matters of complexity there may be tensions between these sometimes competing principles and duties which will have to be resolved. Thus, circumstances of urgency, availability of providers, the particular needs of the child or young person, familial anangements and a host of other matters will have to be considered.
12. It is important to note, for the current matter, that these legal constraints do not operate to expressly limit the Director-General's power to make decisions in the exercise of daily care responsibility in relation to a particular child or young person. Rather, these constraints inform how the power is to be exercised in the context of a particular case.
13. Section 508 of the Act defines an 'out-of-home carer' to mean one of a kinship carer, a foster carer or a residential care service. Those three types of carer are
- themselves defined in sections 509, 510 and 511 respectively, relevantly, as being authorised as such under the CYP Act by the Director-General. In order to be so authorised, the Director-General must first have approved the applicant as a 'suitable entity' under s.63 of the CYP Act.
14. Section 512 of the Act provides that, where the Director-General has daily care responsibility for a child or young person, he or she may place the child or young person with an 'out-of-home carer'. The question that arises is: was it intended that this section means that placement with an authorised 'out-of home carer' is the only option available to the Director-General when vested with daily care responsibility?
15. Chapter 4 of the Interim Report is premised on a conclusion that section 512 provides an express statutory limitation upon the Director-General's exercise of daily care responsibility, by asserting that the Director-General may only arrange for daily care to be provided by a suitable entity.
Is placement with an 'out-of-home carer' mandatory?
16. The use of the word 'may' rather than 'must' in section 512 suggests that placement with an 'out-of-home carer' is not the only option available to the Director-General (see Legislation Act 2001 section 146).
17. Notwithstanding the use oftheword 'may' in section 512, the interpretation suggested in chapter 4 of the Interim Report is, in effect, that the word 'may' should be interpreted as meaning 'may only'. A departure from the ordinary words of the text is permissible where this is to achieve the intended purpose of the Act, as demonstrated by reference to intrinsic aids to interpretation (contained within the Act itself) or extrinsic material.18. There is no evidence either within the CYP Act, or in the extrinsic material, that section 512 was intended to operate as a limitation upon the range of powers otherwise available to the Director-General when exercising daily care responsibility. On the contrary, reference to the Explanatory Statement to the Children and Young People Bill 2008 (Bill), states, in relation to clause 511 of the Bill (now section 512 of the Act):
Clause 511 - Cltief Executive may place child or young person with out-of-home carerThis clause allows the Chief Executive to place the child or young person with an out-of-home carer if the Chief Executive has daily care responsibility for a child or young person.
This does not require the Chief Executive to place a child or young person with an out-of home carer and the Chief Executive may place the child or young person in any care arrangement that the Chief Executive considers suitable ... (my emphasis).
19. There can be no doubt that Part 15.4 of the CYP Act, and section 512 in particular, does not operate as asserted in the Interim Report. Section 512 does not operate to prevent the Director-General from exercising parental responsibility by making other care arrangements for a child where this is appropriate. To adopt the interpretation suggested by the Interim Report would lead to the consequence that the Director-General when exercising daily care responsibility could not make a range of decisions, such as those discussed in paragraph C6 above, without the proposed carer having first been approved as a suitable entity. Such a consequence is arguably absurd and clearly unintended.
20. In accordance with clear words of the CYP Act, and the express intention of the legislature, Part 15.4 must be interpreted as providing a legislative scheme for the placement of children in out of home care which is neither mandatory nor exclusive.
21. Although the scheme provided by Part 15.4 is not mandatory, having regard to the extensive and comprehensive nature of the care and protection regime established under the CYP Act, in the absence of particular circumstances or need, should be given first consideration whenever residential arrangements are required to be made for a child or young person.
22. Equally, the duty of care and governing principles of the CYP Act may well require an altemative care anangement to be preferred. Such decisions are to be made on a case by case basis. In discharging his duty of care for a child or young person, the Director-General may well utilise many of the steps or tools for assessing the suitability of a proposed placement which are otherwise required for the authorisation processes underpinning Part 15.4.
Yours sincerely
Peter Garrisson
Solicitor General
I trust that this advice is of assistance, please do not hesitate to contact me should you wish to discuss any aspects which may need clarification.
