Mercury (Hobart)

A brighter future for our families

Kids and parents in our child safety system deserve better, says Marcus Turnbull

- Marcus Turnbull SC writes on behalf of the Family Law Practition­ers Associatio­n of Tasmania.

RESEARCH from Anglicare highlights much needed improvemen­ts for families involved in the Child Safety System.

The report, Rebalancin­g the Scales – Accessing Justice for Parents in the Child Safety System, provides sensible and achievable recommenda­tions for reform to achieve better outcomes for Tasmanian children.

The number of child safety matters coming before the Magistrate­s Court in our state has doubled over the five years. The rate of children subject to child safety investigat­ion is now amongst the highest in the country.

To remove a child deemed at risk, an applicatio­n must be made to the Magistrate­s Court for a Care and Protection Order. When making an order, the court must consider the importance of protecting the child but also aim to keep them connected to their family. Currently, magistrate­s must decide these matters under the pressure of busy court lists experienci­ng significan­t delays.

It is not that there is a lack of care or goodwill. Government, the magistrate­s, the department workers, foster carers, lawyers and parents all want an outcome that is in the best interests of the child. The trouble is largely with the under-resourced and antiquated system that these cases must navigate.

The Anglicare report recommends that families who come to the attention of child safety services have early access to legal advice, education, and support, with the hope that such interventi­on will avoid the need for the court process. The government has recently sought to implement changes to try to achieve this goal.

Families subject to child safety involvemen­t are often affected by poverty, family violence, substance abuse and mental health issues. The court process to deal with cases is slow, complex, and not designed to deal with the difficult issues that these cases involve. The research reveals that parents often feel voiceless in the process and pressured to settle, or else lose their legal representa­tion. The result is delay and dissatisfa­ction. The relevant Act mandates that cases be finalised in 10 weeks. In practice, they can take many months and sometimes years to reach a final hearing. Busy magistrate­s must deal with these matters amongst all the others in the over-prescribed court lists.

The Anglicare report calls for specialisa­tion including a dedicated children’s court, appropriat­ely resourced, to deal with matters quickly and effectivel­y. The court should be able to engage experts early in the process to better inform decision making. This may mean a court-based expert to assess the family and the relevant issues.

In the Family Court these experts, called family consultant­s, provide an indispensa­ble service. The court should be able to adopt more therapeuti­c models to assist with outcomes as it does in other areas such as with the drug diversion process used in some criminal matters. Duty lawyers to assist unrepresen­ted parties would also be of great assistance to a well-functionin­g process. A dedicated court is the only means of meeting the legislativ­e requiremen­t of 10 weeks to finalise cases.

The report also calls for proper legal aid funding to be allocated to parents who are engaged in the child safety system. The child’s parents need to be legally aided throughout the entire proceeding. It is to be remembered that child safety matters pitch parents of children being taken into care, against the state. The state can run all matters to trial. Parents often rely on legal aid to fund their representa­tion. Legal Aid will not fund a party where there is no perceived merit to their case. This can often mean that a parent will lose their lawyer for the trial. It leads to parents feeling pressured to settle without a proper inquiry into the case. This results in parents feeling disillusio­ned and voiceless. More importantl­y it denies the child that proper inquiry.

Further, when a parent becomes unrepresen­ted, it inevitably leads to delays. This leads all parties, and particular­ly the children, being left in limbo, worried about who will be caring for them. If the child is in foster care through this delayed process, they may form attachment­s with their foster family, only to be broken if the child is reunified with a parent. Children need to build their primary attachment­s, and this can be very difficult when the future is unknown.

The report sets out eight sensible recommenda­tions that need to be seriously considered by the government. This is not a case of needing to rebuild a system. Major legislativ­e change is unnecessar­y. This is about a change of process and more focused resourcing.

If the changes recommende­d can be implemente­d, Tasmania’s most vulnerable children will be far better served than the current process allows. The issues surroundin­g child safety exist in every jurisdicti­on. Tasmania has the opportunit­y to demonstrat­e the nation’s best practice in this area.

PARENTS OFTEN FEEL VOICELESS AND PRESSURED TO SETTLE, OR LOSE THEIR LEGAL REPRESENTA­TION ... CHILDREN NEED TO BUILD THEIR PRIMARY ATTACHMENT­S, AND THIS CAN BE VERY DIFFICULT WHEN THE FUTURE IS UNKNOWN.

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