What tugs most at our heart strings – is it our children and wanting the best opportunity for them?
What happens if there are allegations of emotional harm or neglect or other harm to children?
Society needs a way of assisting those children – and in WA it is the Department of Communities who is contacted and intervenes.
When the Department considers a child is in need of protection it can act to remove that child from their family. After that – they must commence court proceedings in the Children’s Court of Western Australia to seek a Protection Order for the child – at most – to last until the child turns 18 years of age.
What would you hope for if you were responding to these court proceedings? The stakes are high – at worst the child may spend their childhood in out of home care.
We rightly provide legal representation to people charged with serious offences that could lead to long term removal of liberty. Should we provide the same to families when the state seeks to remove their child until 18 years of age?
Sadly, we don’t.
This area of Child Protection law is little known, funded or considered; and critically we do not recognise the importance of families’ inclusion in the process. Families are not able to participate effectively without legal representation – how is this a civil society? We do not provide a fair playing field and the consequences for children, families and their communities can be devastating and lifelong.
Do we not care about a child having an opportunity to grow up in their own family?
The reality is that families who have their children removed are suffering the effects of trauma themselves. The majority of removals are not based on physical or sexual harm to children – this is a minority of cases. The majority of children removed are due to emotional harm and neglect – often as a result of homelessness, drug or alcohol dependence, family violence and mental illness. These risk factors for parenting have a strong correlation with poverty and inequality and intervention is often felt as punitive. Structural, societal and institutional racism operates in these families lives. These factors are barriers to justice.
Aboriginal children are over-represented in the number of children removed. In the WA Budget Statement 2020 -21, the Government reported that ‘Aboriginal children comprise only 7% of the Western Australian youth population yet represented 56% of the children in the care of the Chief Executive Officer on 30 June 2020.’ At that point there were reported to be 5,498 children in care.
2020-21 Budget Statements. Budget Paper No. 2 - Volume 2 (ourstatebudget.wa.gov.au)
How can this be? Whilst from time immemorial Aboriginal and Torres Strait Islanders have cared for their children with the knowledge and wisdom passed down to meet the demands of life as it was, in more recent history there has been ongoing dispossession of Aboriginal people from their lands and cultures, without adequate care or provision and instead leaving them powerless and traumatised. Added to that, until relatively recently, there have been policies promoting and enabling children to be forcibly removed from strong families and cultures and placing them in missions, non-Aboriginal families and state controlled homes. The effects on Aboriginal families and communities have been devastating and it will take a long time to recover.
How should we then respond to this? Whilst the decision to remove a child is a complex and difficult one, families are thrust into a legal system that has the power to dissolve their parental rights – at best in the short term – at worst permanently (until 18 years) – and they do this without the culturally appropriate, or trauma informed resources to fully and actively participate in the system.
If we are serious about reducing the numbers of children in the care system, if we are serious about the best interests of children, if we are serious about valuing children and supporting their families, then legal representation for families and their full participation in the system cannot be ignored. Similarly, trauma informed and culturally appropriate supports and services must be available for children, families and communities along the continuum of early intervention and support.
We must do better – we can do better.
The Protection and Care Advocacy Network (PCAN), formed two years ago, is a collective of legal and community sector organisations aiming to elevate the need for appropriate legal representation to parents and family members when their children have been removed from their care.
PCAN successfully held its first symposium in 2019. In 2020 the second symposium was held with around 200 people in attendance. Professor Helen Milroy addressed the audience on trauma and its effects; and we heard about work being conducted that is trauma informed and culturally appropriate to meet the needs of families and providing hope for change.
That symposium ended with a call to action, including:
We call on government, the Department of Communities, the Department of Justice, the Children’s Court, LAWA and all legal and community service organisations involved in Child Protection:
- To address the systemic and structural barriers facing families involved in child protection including racism, homelessness and poverty;
- To allocate adequate and ongoing funding to Aboriginal Controlled Community Organisations for carriage of their right to self-determination, cultural identity and safety and to implement Aboriginal led decision making;
- Embed trauma informed and culturally secure and appropriate frameworks, policies and practices at all points along the child protection continuum from the Departmental intervention, to service provision, to the Court process, reunification and family involvement;
- To appropriately fund early intervention services and invert the funding paradigm so that families are supported early, and we do not lean on a forensic, interventionist approach to child protection;
- To appropriately fund legal representation so that every parent facing Protection proceedings is allowed real access to justice and procedural fairness;
- We call on the Court to put into place a relationship-based approach including each family having one judicial officer assigned to their case and ensuring equality of service provision to those in the city and regional areas;
- To appropriately fund independent facilitation of the pre-birth process, and for it to be rolled out across the state; and
- To use the voice of those with lived experience to inform a system that is responsive, inclusive and respectful - a system that does not demonise, nor terrorise, but one that is based on relationships and holds the humanity of people as central; where kindness is allowed.
Members of PCAN:
- Family Inclusion Network of WA (Fin WA) - lead
- Law Access
- Murdoch Law School
- Aboriginal Legal Service WA (ALSWA)
- Aboriginal Family Law Service (AFLS)
- Djinda Service
- Legal Aid WA (LAWA)
- Community Legal Centres Association WA
- Fremantle Community Legal Service WA
- Women’s Legal Service WA (WLSWA)
- Developmental Disabilities WA (DDWA)
- University of WA
- Private practitioners
‘If a society values its children it must cherish their parents’ – John Bowlby
[The views expressed in this article are attributed to the Family Inclusion Network of WA.]
