Rights concerns over Youth Treatment Order Bill

We know that substance misuse can have terrible consequences for children and young people.  Their developing brains can be seriously harmed by the use of legally available substances like alcohol and solvents, as well as cannabis and a growing array of other drugs.

Substance abuse can lead to reduced intellectual capacity, permanent behaviour changes and long-term, debilitating mental health problems. It can also exacerbate or be associated with other dangers, risky behaviour, criminal associations and vulnerability to exploitation.

Occasionally the consequences are very public and are reflected in tragic headlines. We want to protect children and young people and we want to protect the community.

My office and I give credit to the Government for acknowledging and trying to address this difficult issue, with the introduction of the Controlled Substances (Youth Treatment Orders) Amendment Bill into Parliament last year. However, in providing for the detention of young people for up to 12 months for compulsory treatment, the Bill raises many serious concerns.

Deprivation of liberty

Our community is rightly cautious about depriving anyone of liberty who has not been convicted of committing an offence.  Our legal system and international treaties to which we are a signatory protect the right of people, including young people, to their freedom.  We deprive people of their liberty only under exceptional, very specific circumstances and with the assumption that their rights will be protected in relevant legal processes.

There is a danger when the legal deprivation of liberty might be misused by a community to dispose of people who are inconvenient. So, as a community we must be wary about any solution that creates a ‘too hard basket’ into which inconvenient and hard to deal with young people can be relegated.

Human rights

These concerns are backed up in a submission from the Castan Centre for Human Rights Law at Monash University, which was released in February. It argues that the Bill poses a significant risk to a number of human rights and also reiterates that detention should only be used as a last resort and for the shortest period of time.

The submission raises further issues around international human rights laws concerning the protection of people with disability from forced medical intervention. The Bill, at present, has no specific protections for children and young people with disabilities.

Will this ‘solution’ work?

The second question about the proposed treatment orders is their efficacy.  The Bill was introduced with scant consultation with the many government and non-government agencies that have long     involvement and experience with young people affected by substance misuse.  It also seems to have been drafted with little regard for the experience of other similar jurisdictions in Australia and overseas and for the considerable body of research that points to the complexity of the problem but also provides some valuable ways forward.

A significant number of the young people who come into state care become involved in substance misuse.  The range of circumstances—physical, emotional and sexual abuse, and neglect—that bring them into state care also leave many deeply affected by trauma.  Self-medicating with legal and illegal substances can become for them a viable way to cope with the pain of that trauma in the absence of other treatments.  For others, deprived of secure family and community attachments, the community of drug users can provide a much-needed family and identity not provided elsewhere.

Young people in care and detention

This particular group of young people is well known to those of us at the Office of the Guardian.  They do not define the extent of the problem but do give an indication of the complex reasons why young people turn to substance abuse. Our experience shows the diversity and complexity of the solutions we need to offer if we are going to be effective.  There is already a serious shortfall in the provision of drug rehabilitation services for young people who actually want them. Government responses that assume ready access to non-existent services or new programs that are not properly planned and resourced, are doomed to fail.

If there is a case for the involuntary detention of some drug-affected young people for short periods, that evidence must be mustered. But informed opinion agrees that effective rehabilitation will be achieved only by long-term, evidence-based programs that address the individual causes and in conjunction with the family and community that surrounds them. Treatment needs to be health focussed, rather than treated as a legal issue.

The Youth Treatment Orders Bill, which is again due for debate in the Legislative Council this week, should be withdrawn in its current form. Let us make use of the knowledge and experience in our community, alongside the considerable body of research to craft a response, and voluntary services, that offer genuine hope of assisting children and young people with a substance abuse problem, while still safeguarding their freedom.

Some gaps closed but many remain for Aboriginal and Torres Strait Islander peoples

More than a decade on from the original report, the 2019 Closing the Gap report shows only two of the seven original targets are on track to be met.

Important targets around education, health and employment have expired before they were met, while other targets to halve the gap in life expectancy remain off track.

These shortfalls perpetuate Aboriginal disadvantage and contribute directly and indirectly to the high proportion of Aboriginal children and young people coming into state care and coming into contact with the youth justice system.

What’s been achieved?

The target to see 95 per cent of all Indigenous four year olds enrolled in early education by 2025 is on track to be met. In 2017, South Australia had education enrolments about the 95 per cent benchmark with universal enrolments.

Halving the gap in Year 12 attainment, or equivalent, by 2020 is on track to be met. Nationally, the gap has decreased from 36 percentage points in 2006 to 24 percentage points in 2016.

What’s remains to be done?

A number of the original targets expired last year, on the tenth anniversary of Closing the Gap. These included a target to halve the gap in child mortality. While the rate has declined by 10 per cent since 2008, the gap has widened because the non-Indigenous rate has declined faster.

The national school attendance rate was around 82 per cent for Indigenous students in 2018. There has been no improvement in school attendance rates for indigenous students in South Australia in the last four years. While there has been improvement, targets to close the gap in literacy and numeracy have also not been met.

Large gaps remain between the life expectancy of Indigenous and non-Indigenous Australians. The target to close the gap within a generation, by 2031, is also not on track to be met.

Targets to halve the gap in employment outcomes between Indigenous and non-Indigenous Australians within a decade have not been met. The gap has not only not narrowed, but it has widened.

After 11 years of Closing the Gap significant gaps remain. Ambitious targets were set but many observers have noted that the failure to work closely with the Aboriginal and Torres Strait Islander community and to make the necessary structural, systemic changes have led to a largely disappointing result.

What’s next?

The latest Closing the Gap report promises a new collaborative approach.

Last year, the council of Australian Governments (COAG) developed Closing the Gap Refresh. It commits the Commonwealth Government to creating a partnership with Aboriginal and Torres Strait Islander representatives to ensure the next phase is driven by principles of empowerment and self-determination.

Indigenous advocates have pushed for new targets to address the over-representation of Aboriginal and Torres Strait Islander young people in out-of-home care.

Nationally, Aboriginal and Torres Strait Islander young people are ten times more likely to enter out-of-home care than their non-Indigenous counterparts. It’s predicted the number of Aboriginal and Torres Strait Islander children in out-of-home care will more than triple over the next 20 years without intervention.

In South Australia, Aboriginal and Torres Strait Islander children and young people are seven times more likely to be in care than the same age group in the general population and Draft Closing the Gap Refresh Targets mandate targets that will see significant and sustained program to eliminate the over-representation of Aboriginal children in out-of-home care.

Aboriginal and Torres Strait Islander young people are still over-represented in the justice system, making up more than 50 per cent of young Australians in detention. Another state led target is to reduce the rate of young people in detention by 11 to 19 per cent by 2028.

Under the new framework, different levels of government are held accountable and responsible for different priorities. State and territory governments will also be required to make annual reports on its Closing the Gap strategies and progress.

The Productivity Commission’s Indigenous Commissioner will also independently review progress every three years.

There is still much of the new strategy that is uncertain as federal, state and territory governments finalise the draft targets and develop appropriate responses. For example, South Australian government released its Aboriginal education strategy late last year to increase outcomes for Aboriginal students but it remains to be seen how it will work to meet these targets to close the gap of young people in out-of-home care and youth justice.

Australia reports to the UN on child rights

The United Nations Convention on the Rights of the Child is one of the most important documents in preserving the rights of children around the world.

Every five years the Australian Government must report to the UN Committee on the Rights of the Child, a requirement of Australia as a signatory to the UN Convention on the Rights of the Child.

The Australian Government is currently preparing for its meeting with the Committee, following the release of its report in January 2018.

In this post, we look at two accompanying reports responding to Australia’s report to the UN Committee on the Rights of the Child.

The Australian Child Rights Taskforce is a peak body made up of more than 100 organisations advocating for the rights of Australian children. Convened by UNICEF Australia, the taskforce released its ‘alternative’ report, which includes the voices of 572 children and young people consulted in 30 locations around the country. It makes 191 recommendations to promote and protect the rights of children in Australia.

Similarly, the Australian Human Rights Commission (AHRC), an independent statutory organisation promoting and protecting human rights in Australia, released a report. It was written following consultations with approximately 450 children and a further 22,700 through an online national poll on child rights.

While the Government’s report is no longer available online, these two reports look exhaustively at matters relating to children in Australia. We are considering some of the areas relating specifically to children and young people in out-of-home care.

Since Australia last reported to the Committee, there have been 24 separate inquiries, which have each identified issues with the child protection sector. The AHRC report finds the number of children and young people in out-of-home care has increased by 18 per cent in the past five years. The alternative report identifies problems with inconsistency and a lack of emphasis on frameworks being child centred.

Concerns for care leavers

Both reports identify concerns with young people leaving out-of-home care, with the AHRC report finding nearly 35 per cent of young people who leave out-of-home care become homeless. Last year the South Australian Government committed to extending the age young people leave out-of-home care from 18 to 21 years of age.

However, this does not yet include the 11 per cent of children and young people in residential and emergency care. Both reports recommend the Australian Government increase, or consider increasing, the age children leave care and call on governments to implement policy to prepare young people transitioning to independence.

Over-representation of Aboriginal and Torres Strait Islander children and young people

The reports are both concerned with the over-representation of Aboriginal and Torres Strait Islander children and young people in child protection and out-of-home care. Indigenous children are almost ten times more likely to enter out-of-home care than non-Indigenous children.

The alternative report makes a number of recommendations in this area, including the implementation of nationally consistent standards to respect all five elements of the Aboriginal and Torres Strait Islander Placement Principle. It also calls on the Australian Government to commit to ‘Closing the Gap’ targets to reduce the rate of Aboriginal and Torres Strait Islander children in out-of-home care.

Transgender and gender diverse young people

Transgender and gender diverse children in Australia can now access Stage 2 medical treatment without requiring court authorisation, but this does not extend to include children and young people in the out-of-home care and juvenile justice systems. These children still require a court authorisation to begin treatment.

What’s next?

The UN Committee will consider the findings of these reports ahead of the formal meeting with Australia. At the end of this process, the UN Committee will provide the Australian Government with its Concluding Observations, which will include progress made by Australia and recommendations for improvement.

While the Committee cannot legally enforce its recommendations, it can provide guidance for the Australian Government to improve its practice and better protect the rights of children and young people. The process is also the opportunity to highlight specific issues, like those discussed above, and create interest for the public and other advocates to hold the Australian Government to account and to take action.

Doli incapax – an odd word with profound significance for South Australian children

The minimum age of criminal responsibility in South Australia is 10 years old. If you are a child under 10 years old in South Australia, you are deemed to be incapable of committing a crime – you are presumed not intellectually and morally developed enough to conceive of the difference between right and wrong.  If you are between 10 and 14 and are charged with an offence, it is up to the prosecution to prove that, at the time of the offence, you understood what you did was seriously wrong, and not just naughty.  If they can’t prove that, you are presumed to be doli incapax (from the Latin ‘incapable of evil’).

Such an obligation on the prosecution is designed to result in a graduated response across an age range where the court can take into account the considerable variation in intellectual and emotional maturity in the young people who appear before it.

Barrister Marie Shaw QC and lawyer Brittany Armstrong presented a paper on doli incapax at the Law Society in January. This was motivated by their experiences representing 10 to 14 year olds in the Youth Court and, in many cases, the protection of doli incapax was not being properly utilised. As young people in care, and particularly those in residential care, are so over-represented in our youth justice system, this particularly affects them.

In a number of cases known to advocates within the Guardian and Training Centre Visitor’s office, doli incapax was not presumed, and in at least one instance the defence was put to the task of proving doli incapax.

If this is to be a safeguard for children charged with criminal offences then it should be considered from the time of police interview, to bail applications, and if a 10 to 14 year-old comes before a court.  It is currently not. The reasons it is not are not entirely clear but could include a lack of knowledge by the child or their advocates of this presumption, the strong desire to ‘plead out’ by a child or their advocate in order to resolve the matter more quickly, or other interactions between the child protection and youth justice systems not yet understood.

By no means is this presumption of doli incapax a ‘get out of jail free card’. Each time a child or young person comes before the youth justice system, they are less likely to be presumed doli incapax.

The implications for children

Research shows that the younger a child is when they come into contact with the justice system, the more likely they are to have sustained contact.

The developmental maturity of children in this age group also means they are often insufficiently capable of engaging in youth justice processes. Children may be more likely to accept a plea offer, give false confessions or not keep up with court proceedings.

Keeping younger people out of the youth justice system would also mitigate the over representation of Aboriginal and Torres Strait islander children in youth justice.

International comparisons

Australia’s age of criminal responsibility is comparatively low compared with other countries around the world. The United Nations has proclaimed that the absolute minimum age should be 12 years old with that recommendation likely to increase to 14. The UN has called on Australia to raise the age of criminal responsibility, bringing it in line with its obligations under the Convention of the Rights of the Child.

In 1998, England and Wales abolished the principle of doli incapax. Like Australia, the age of criminal responsibility is 10 years old. In turn, any child over the age of nine can be arrested, interviewed by police, charged and then convicted of a crime and receive a criminal record. There are calls for both nations to raise the age of criminal responsibility.

In line with the Convention on the Rights of the Child, Canada raised the minimum age from 10 to 12 years, but also removed the presumption of doli incapax. This leaves children aged 12 and 13 vulnerable.

Similarly, Ireland raised the minimum aged from 10 to 12 years old, but it has also maintained the doctrine of doli incapax.

Other countries with the minimum age for criminal responsibility higher than 14 don’t recognise the presumption of doli incapax. For example, Luxembourg, Colombia, Ecuador and Uruguay has set the age of criminal responsibility at 18.

While many have argued that the age of criminal responsibility should be raised to at least 12, children aged 13 to 14 should still be protected by the principles of doli incapax.

Lolly Jar Circus

girl dancing with ribbonsDrop in to a typical Lolly Jar Circus class and you will see young people, aged four to twenty-six, tumbling, balancing, leaping and juggling.  There is laughter, concentration, effort, frequent failure and renewed effort.

Founder of Lolly Jar Circus, Judy Bowden, assures me that this is all safer than it looks.

‘Our trainers are very experienced, they do lots of warm-ups and progress the young people from simple circus skills to difficult ones, based on their capabilities.

‘The point of social circus is not the skills themselves but the participant’s growth in confidence, resilience and social skills as their strength and coordination grows and success comes.

‘I first saw this sort of thing in action when my own children were involved in Cirkidz and after that I wondered how learning circus skills might benefit young people with disabilities or from disadvantaged backgrounds.

‘Finally, we put together a board and, with some supporters, created Lolly Jar Circus.

‘Five years later, here we are.

‘In our classes are young people with a wide variety of backgrounds and abilities.  In many ways, that is the point, working together and understanding that our community contains many different sorts of people.

‘One of our trainers said recently “what keeps me going is the laughter”, and there’s plenty of that, but also we see the growth in our young participants and hear about positive changes from proud parents.

‘Recently, I was shown a video of a girl with a disability riding her bike for the first time and then there was the young man with cerebral palsy who could walk into school and hang his bag up unaided for the first time.

‘As well as the trainers who are paid, we are operated by a board, volunteers and myself.

‘We have to make a small charge to cover costs like hall-hire, but some of our donations are in the form of scholarships that we can provide to families who couldn’t otherwise afford their children to attend.

‘Some of our students are in state care and it is a good way for them to build skills, confidence and friendships in a safe environment.’

And the future?

‘We have some great supporters including the Department for Human Services and the Sisters of Charity.

‘Right now we have classes in Campbelltown, Glandore, Elizabeth and Windsor Gardens and we probably need to consolidate a bit, but in the future it would be good to have permanent premises of our own and, eventually, a paid manager.’

You can find out more about this great operation at the Lolly Jar Circus website.

 

Safety in residential care

graphic of residential care

When we take children[1] into the care of the state, a prime responsibility is their safety.

We have matched comments about safety given to the Office of the Guardian by children during our monitoring visits and advocacy with those from the December 2016 Royal Commission paper Safe and Sound.  There were overwhelming similarities.  In this article we blend the two sources to consider the questions ‘do children feel safe’, ‘when do they feel safe’ and ‘what would they suggest to make things safer?’

How safe do children feel in residential care?

Residents often feel unsafe in residential care. Bullying and harassment are common. Adolescents report that they are frequently worried by the threat of sexual harassment and assault. Older residents say that the impact of witnessing violence, self-harm and the abuse of fellow-residents, leaves them stressed and feeling unsafe.

Children generally think it is unlikely that they would be abused or harmed by a worker, although a small number report that they have encountered or heard about abusive staff. Some are concerned by the behaviours of ‘creepy adults’ and those who try to create inappropriate and overly-familiar relationships with them. Children assess how safe workers are based on their past experiences of abuse, by watching the adults’ behaviours and by how other residents act around them.

Many children describe residential care as feeling unsafe due to its instability and frequent changes of staff. Some relate times when they were moved to less safe residential care placements for no reason than that other young people could take their rooms.

A few adolescents report that adults outside of residential care take advantage of children in care, exploiting their need for a sense of belonging, accommodation and money. A few report that some children in residential care engage in prostitution.

When do children in residential care feel safe?

Children feel safe in a placement that is home-like and where young people feel welcome.  They like it where things feel ‘normal’ and where adults look out for them.

They want to see that organisations and workers take a resident’s safety seriously, that they are interested and take measures to protect them.

They feel safe when there are cordial relationships with their fellow-residents and workers, and that there are other supportive relationships, such as with a social worker or teacher, with people outside of the unit.

Really building relationships with kids works, because then they feel safer to come to you with pretty much any problem.  They’re not going to come to you with problems, even if it’s something as simple as being bullied, they’re not going to come talk to you if they think you don’t like them or don’t listen.

Safe and Sound, p 66

Stability and predictability are important.  Children need to know what is going to happen, and that any difficulties with fellow-residents can be resolved.  Routines, reasonable rules and an opportunity to have a say in decisions give them confidence and sense of control.

They believe that when they are safe, children and young people feel relaxed and calm and are less likely to be aggressive and to harm each other.

Younger residents tend to value security measures such as locks on doors, surveillance equipment and alarms.  In contrast, for older residents, these measures reinforce their sense that residential care is not home-like and is unsafe.

How could we make things safer?

Placements

Find more suitable care arrangements, particularly for those who are younger and more vulnerable and make better placement decisions that allow residents to have a say in how they are matched with other residents. Treat residential care as a long-term arrangement and make sure that changes are kept to a minimum.

Staffing

Train staff about the things that can harm children and their vulnerabilities, particularly their inexperience about sexual relationships and exploitation.  Have sufficient numbers of properly trained staff so that they have the time to develop relationships, are around and have the time to watch out for threats.

Cooperation

Train staff to take on parent-like responsibilities for protecting residents from harm.  Get staff to discuss with residents the risks and how to keep themselves safe. Get staff and residents to work together to identify safety risks and develop ways of dealing with them. Staff need to take the initiative in enquiring after residents’ safety because it is easier for staff to ask residents if they are being harmed rather than waiting for them to report it. Try to create an atmosphere where there are positive relationships between residents where young people can look out for each other.

Hearing the resident’s voice

Staff need to be prepared to listen when residents raise concerns and to be understanding and patient, even when the issues do not seem important at first.  Residents need to be informed that it is OK to raise an issue, what sorts of issues to raise and how to do it.  Make sure that it is safe to do so and that they will not suffer retribution.

A lot of the time it can feel like nothing happens [when an issues is raised] or it gets lost or stuck in the system… No matter what, [issues] should be followed up by someone and the young person should be kept in the loop with regular communication.

Young person in residential care

The Child and Young Person’s Visitor Scheme that is hosted in the Office of the Guardian is now well under way and we look forwards to presenting more of the views of children and the state of the system in future articles.

[1] We use the term ‘children’ to include children and young people up to the age of 18 years. We use terms such as ‘adolescent’ and ‘pre-teen’ to refer to specific age ranges within that group.

Care leavers need our support beyond 18

photo of Penny Wright

Penny Wright Guardian for Children and Young People in Care

A few weeks ago my office conducted a poll about extending support for children in care.  Our readership[1] of 1700 overwhelmingly supported the extension of assistance to young people in state care beyond the current deadline of their 18th birthday[2].  Many cited the very poor outcomes for care leavers under the current regime and others pointed out that most young adults in South Australia continue to need, and receive, support from their birth families well into their twenties.

In the light of this, I was very pleased when the Government announced its intention to fulfil an election promise to extend financial support for foster and relative-care families to allow young people exiting care to stay on in those placements.  There is no doubt that providing stability for those young people will make it more likely that they will be able to complete their education and make a more gradual and individualised transition into employment and housing.

However, it’s important to acknowledge that around ten percent of young people in care will not benefit from these changes. These are the approximately 500 young people who do not live in a family-based care but live in emergency or residential care accommodation. Sometimes they have not been able to be placed in a family because a suitable match is not available but, more commonly, there are simply not enough home-based placements to meet the need.

The experience of young people in residential care varies greatly.  Some live in smaller residential care properties which provide a more family-like environment, with a stable group of residents and a supportive and familiar team of carers creating a nurturing home.  For others, especially those in the larger buildings housing eight to twelve residents, their experience is one of instability, tension and danger where residents with a variety of needs are placed quite randomly, and frequently express their unhappiness by running away. These risks and conditions were clearly identified in Commissioner Margaret Nyland’s 2016 report, The Life They Deserve.

Children who have lived in residential care often have particularly pressing needs beyond the age of 18, reflecting the challenges they experienced before coming into care, and the acknowledged risks inherent in residential care environments. Trauma can delay development and affect a person’s ability to function fully and successfully. A number may be ‘technically’ 18 but significantly ‘younger’ in their understanding and maturity and ability to negotiate a complex world beyond the care system.

So, what kind of support can be built for these young people beyond their 18th birthdays?

Often children in residential care approach their 18th birthday with a mixture of excitement about their new independence and high anxiety about how they will manage outside a system they have relied on.

Just like young people in foster care, some young people in residential care would definitely benefit from being able to continue in the only home they know until they are 21, supported by workers with whom they have trusting and supportive relationships until they are mature enough to live independently. Many others would choose to leave, either because their experience has not been a safe or pleasant one or to escape the stigma of being in care or just to spread their wings.

Allowing young people to stay on beyond their 18th birthday, in a similar way to those in family-based care, would not be straightforward.   In residential care houses staff might find that accommodating the needs of adult late-teens at the same time as providing a safe and appropriate environment for younger children is challenging.

Fortunately, other jurisdictions and other services have models and lessons that can be learned.  In the UK, care leavers have the option of services from their local authority and a ‘personal adviser’ til age 25. For residential care leavers this Foyer model of transitional youth accommodation combined with support services would make an excellent starting point.  There is one operating today in Port Adelaide[3].  I expect colleagues in child protection could point me to a dozen other models that could be part of a solution, too.

The funding to support foster and kinship care beyond 18 is a welcome initiative and will provide significant benefits for young people who are comfortable in stable placements.  For those who choose to leave family-based care or for those in residential care who do not have this option the needs identified by our poll respondents remain un-addressed.

I will seek opportunities to engage with the government and other individuals and services in our community to ensure that the post-18 needs of young people in residential care are not underestimated or overlooked.

[1] Current subscribers to the Guardian’s Information Service.

[2] Should we extend the age of leaving state care beyond 18?

[3]Ladder Port Adelaide Foyer

What Youth Training Centre residents want from their community visitor

AYTC residents going for a football mark

Young footballers in the AYTC going for a mark at the Reconciliation Week game.

Community visits to the Adelaide Youth Training Centre will start this month.  Back in April we asked groups of residents about what they would like from the visits and what they hoped might result.

These are some of the things they said:

‘Why don’t you have a day when you are here each week – like a program?’

          ‘Speak to us as a group.  We might all have the same problem.’

‘Two weeks between visits is too long – you’ll miss all the lovely stories!’

          ‘There’s always stuff going on in the centre that we need more support on.’

‘[We need weekly visits because] anything could be happening in here.’

          ‘We ask the staff to contact you but then we have to wait a few days.’

‘Everyone should have your [phone] number as a pre-set when they come in.’

          ‘If I’m going through a rough patch or I’m not feeling confident, I won’t talk to you.’

‘Advocacy is making time easier.’

          ‘After you talk to the bosses, they treat us better.’

 

Community visitor programs – what we can learn from Oakden

[Oakden residents] lacked any voice themselves. They were entirely dependent upon others for their care and their safety”. – Commissioner Lander, p190 1

There are many lessons to be learned from the report by Commissioner Bruce Lander QC on the events at the Oakden nursing home, many of which can be applied to other facilities in our state.

Residents of the Oakden facility should have been protected from abuse and mistreatment by layers of overlapping protections which were the the domains of many different people at different levels of government, administration and service provision.

They, their families and the community, would have expected government and senior departmental officers to provide adequate resourcing and oversight and to have policies and procedures in place to ensure suitable levels of care, management and supervision. The training and professional standards of the staff working there should have provided another level of protection. Effective complaints procedures for residents and concerned others should have provided additional safeguards as should have accreditation inspections by external bodies.

Finally, the residents of Oakden relied on community visitors to bring an independent and critical eye to the conditions they experienced.

Commissioner Lander set out in forensic detail how each of these layers of protection failed and his report sounds a warning for any organisation that provides care for vulnerable people in a closed or secure environment.  Regarding the operation of the relevant community visitor scheme (CVS) –

…consideration needs to be given as to whether the CVS in its current form is an appropriate safeguard for those suffering mental illness who are housed or treated in treatment centres, limited treatment centres, or authorised community mental health facilities. [p307]

Commissioner Lander’s critique of aspects of community visiting at Oakden raised questions for all such schemes, not just those visiting mental health services. The Guardian’s Office is currently in the process of establishing two separate community visitor schemes, so the issues he described are instructive as we attempt to craft models for the protection and wellbeing of young people in residential care and in youth detention. These are some of the issues.

Should schemes use volunteers or paid visitors?

Volunteers are assumed to bring into the institution expectations and standards reflecting those of the broader community. Because volunteers are not paid, that could potentially mean larger numbers of visitors within a given budget allowing more frequent visits.  But is it reasonable to expect volunteers to accept the rigorous selection process, training and complex tasks required of a visitor? Commissioner Lander noted that some visitors to Oakden may not have had the necessary skills and support to identify problems, report them and intervene on behalf of residents. He favours a model in which visitors are paid, comprehensively trained, and operate within a rigorous model that has sound documentation and effective accountability mechanisms…


This is the first part of a longer paper which goes on to consider the use of volunteers as visitors, the concept of visiting versus inspection, unannounced visits, visitor independence and the place and value of visitor programs. For the full version, download Community visitor programs – what we can learn from Oakden.

1 Oakden: A shameful chapter in South Australia’s history.

Working together for children in care

photo of Penny Wright

Penny Wright Guardian for Children and Young People in Care

When the state takes over the parenting of a child, that parent has many faces, many hands and, hopefully, many hearts.

Pointing the way to a new and better child protection system, Commissioner Margaret Nyland wrote in her preface to The Life They Deserve

The new agency cannot operate in isolation. It should coordinate and collaborate with all other relevant departments and organisations, both government and non-government, to give children better outcomes.  It must also be proactive and engage the community to play its part in developing programs and systems…

Many of the good things we see happening for children in state care, and we do see many good things happening in our work, happen when the hearts and the hands of adults come together to recognise and understand a child’s needs and stay together to work through to a good outcome.  The joy for the child, but also for the adults, is palpable.  It is one of the reasons we do the work we do.

Sadly, some of the worst results we see for children are when people and organisations fail to work together closely and respectfully in the child’s interests.

Our recent survey of the state of cooperation and collaboration in child protection asked respondents to rate levels of cooperation and collaboration.   We chose 19 different relationships drawn from those identified in the work of Commissioner Nyland as being crucial to an effective child protection system.  In analysing the results, we applied the standard that cooperation and collaboration should occur either ‘frequently’ or ‘always’.  By that standard only one of those critical relationships was scored as achieving a pass mark by 30 percent of the respondents.  Most of the others were scored much lower and many were in single figures.   There were two areas that had improved since an identical survey conducted in June 2017 but it’s fair to say the improvements were small and were from a very low base.  Allowing for the limitations of the survey, it is clear that respondents thought that we are still far short of Commissioner Nyland’s ideal.

Just as useful for me, were many of the comments.  There were a few heartening stories of good and effective cooperation but there were many more of key stakeholders being omitted from case planning and decision making and important information remaining unshared.  Many attributed the failures to workload issues but others referred to organisational culture, policy and training.

My office observed a sample of the Annual Reviews of young people in state care over a period of ten years to 2017.  Annual reviews have been long mandated in the Department for Child Protection, and its earlier incarnations, in order to review the situation of each child and young person in state care.  It is a time to reflect and review and plan for the child’s future outside of the day to day pressures. It is a time to place a child at the very centre of thinking and caring. Annual Reviews occurred for up to 80 per cent of children in care in most years but attendance at the planning sessions by other than social workers and supervisors was rare.  In our report Office of the Guardian Audits of Annual Reviews 2007- 2017 we summarised:

Most offices have, over the 10 years of these audits, conducted annual reviews with only Department staff present with carers represented occasionally and birth parents and other professionals very much the exception.

If, as Margaret Nyland concluded, cooperation and collaboration are essential to an effective child protection system then major cultural and practice change is essential.  I look forward to supporting and contributing to such relationships, as my office grows into its new roles.