About the changes to the Childrens Youth and Families Act

Colleen Pearce, Public Advocate

Childrens Matters Forum, Royal Childrens Hospital - 29 February 2016.

When the Office of the Public Advocate was set up in

1986 to promote the rights and interests of people with
disabilities, many people with disabilities were living in
institutions and many women were being sterilised
without their knowledge or consent.
A great deal has changed in almost thirty years. More
people with disabilities are living independently in the
community, forming relationships and founding their
own families. What has not changed is that parents with
disabilities are much more likely than other parents to
have their children removed from their care through child
protection involvement. We do not know exact numbers
but international studies put the rate at over 50%.
A diagnosis of disability does not mean that a person is
incapable of being a safe and loving parent. We know
from credible research that most parents with disabilities
can successfully raise their children when they are
provided with the right education and support when,
where and if it is needed.
It seems that children are being taken away from their
parents on an incorrect assumption that a diagnosis of
cognitive disability or mental illness means a permanent
incapacity to safely parent their children. This is
expressed as presenting an ongoing risk to the child and
an inability to respond to their changing needs. Other
reasons are embedded negative community attitudes and
a lack of suitable support and education services.
Let me share with you just two ways the changes to the
legislation are likely to affect parents with disabilities.
Because a parent with disability is identified as being a
risk to her baby, she comes under a much higher level of
scrutiny when she gives birth, and frequently while she is
pregnant.
Carolyn Frohmader from Women with
Disabilities Australia has observed that authorities stand
ready to pounce on mothers with disabilities at the first
sign of uncertainty or struggle.
The mother may find herself in the Childrens Court
within two days of giving birth.
An Interim
Accommodation Order may be made and the baby may
be placed in the care of the Department, either remaining
in hospital or going into foster care. Breastfeeding is
impossible and her opportunity to bond with her baby
will be very limited. Assessment of the parents with their
baby in a mother/baby Centre may be ordered but there
will almost certainly be a wait for this assessment. There
is already a serious lack of support for new mothers.
From tomorrow, the mother will be given 12 months to
prove that she is able to permanently resume the care of
her baby. With the lack of specialised assistance and
support, the relationship between mother and child can
effectively be severed from birth. The changes to the
legislation will streamline the processes for the
permanent removal of babies from their mothers.

Then there is the issue of guardianship. Currently a

parent officially remains the guardian of their child until
the Court makes a long-term or permanent order. From
tomorrow, the parent will lose guardianship (now called
parental responsibility) from the date a Family
Reunification Order is made. The Department says that
nothing will change in practice because the parent has to
be consulted and long-term decisions that the parents
oppose cannot be made. They say this is what they
already do. In that regard we have to agree. Parents are
already not being given their rights of guardianship in the
areas of health and education.
I am aware of one case in which a child was admitted to
intensive care with severe asthma, two months after being
removed from his mothers care where his asthma had
been fully controlled. The mother was told she had no
right to know whether her son had been taken to a doctor
during that time or whether he had been receiving his
prescribed medication. In another case, a young girl was
admitted to hospital with severe cystitis, nine months
after being taken into foster care. Requests by the mother
to investigate the possible cause were refused. The
Department treated the parents and their guardianship
rights with contempt.
Parents are regularly asked to sign medical consent forms
with the procedure being explained to them by a child
protection worker rather than the doctor, contrary to
medical law. We are seriously concerned about the
capacity of the Department to properly carry out its legal
responsibilities to the children in its care in relation to
medical procedures.
Parents are also being asked to sign enrolment forms for
school or kindergarten but allowed no real involvement
in their childs education, such as attending sports days,
school concerts or parent/teacher interviews. From
tomorrow all that will be perfectly legal. How can this be
justified as being necessary to keep children safe?
The best interests and rights of children and families are
not mutually exclusive and we need to stop acting as if
they are. The Stability and Permanency provisions are
draconian and exacerbate the extreme power imbalance
that already exists between families and child protection.
They are cruel to families and are at odds with many of
the Best Interests principles of the Act. They represent
an alarming example of executive and administrative
power creep.
And, finally, we consider that they are contrary to the
United Nations Conventions on the Rights of the Child
and the Rights of Persons with Disabilities.