New resources, available today, will give children and young people in residential care information about their right to make a complaint and be heard.
Developed by CREATE Foundation, in conjunction with Office of the Guardian, the resources provide information and tools to assist them raise issues that concern them.
Central to the new feedback process is the the Post Incident Reflection Form, developed with input from young people in residential care.
Also available is a set of posters, brochures and two videos which tell children and young people in residential care about their rights and ways to address issues.
The resources have been developed in response to a recommendation from Commissioner Margaret Nyland’s 2016 report The Life They Deserve. Recommendation 136 from that report proposed that the Guardian’s Office develop an educational program for children and young people in residential care to explain and promote their rights and give them encouragement and the means necessary to have their voices heard.
The live action video shares the stories of young people who relate some of the incidents they faced while living in residential care. It also advises young people in care why it’s important to understand their rights.
For younger people, an animated video describes the Post Incident Reflection Form and how a child in care has the ability to make a complaint at any time.
If resolving an issue with residential care staff does not work, children and young people are encouraged to fill in a complaints form or phone the Complaints Unit directly on 1800 003 305.
Printable files of the posters can be downloaded now from the Resources page of the Guardian’s website and printed copies of the posters and booklets will be available to be ordered from that page in February.
We would like to share with you some of our favorite artworks from young Aboriginal people in residential care that have come to our notice in the past year. Please click on the thumbnails to see a bigger version.
Children and young people in care will soon be able to seek an external review of decisions made by the Department for Child Protection (DCP) as to their placement, care, education and health.
On 22 October, the final sections of the Children and Young People (Safety) Act 2017 will come into operation.
This means the South Australian Civil and Administrative Tribunal (SACAT) will have the power to review certain decisions made by the DCP.
SACAT is designed to be an easy to access, low cost and user-friendly method of resolving civil claims or disputes and seeking review of government decisions.
Most decisions (those made under Chapter 7 of the Act and excluding decisions regarding contact arrangements) will be review-able. We discuss appeals about contact decisions below.
A child or young person must first request that DCP review the decision, and if they are not happy with DCP’s review, they can then apply for an review of that decision at SACAT. This application must be made within 28 days of receiving DCP’s review. SACAT may grant an extension if they are satisfied that special circumstances exist.
The legislation also provides that in these proceedings,
…a child or young person to whom the proceedings relate must be given a reasonable opportunity to personally present to the South Australian Civil and Administrative Tribunal their views related to their ongoing care and protection.
SACAT plans to be flexible in order to to support a young person’s participation and comfort. This might include taking their views off-site or separately and preventing contact and cross-examination by other parties.
SACAT will also be able to obtain information from DCP. This will include information such as the young person’s current situation, any history of abuse or trauma and the availability of an advocate for the young person.
In the end, the SACAT has the power to affirm the DCP’s decision, vary the decision, make its own decision or send the matter back to the DCP for reconsideration.
This is new territory for SACAT and DCP so there will be considerable work taking place to ensure that this process is as child-friendly as possible, and to ensure that the voice of the child or young person is at the centre of the decision-making.
How this will play out for children and young people in practice depends how we address these and other issues.
Delays in resolving issues. Under the arrangements as they seem today, it is possible that several months could elapse between an unsuitable decision being made by DCP and that decision being reversed by SACAT. Three months is a long time in the reality of a child in care. Unsuitable decisions on placement, education and health could cause irreversible damage and disruption to a young person during that time.
Who is to be the child’s advocate? The review process is complex so it is likely that few reviews will be mounted by a young person without the support of an adult advocate. Who will this be? The young person’s DCP social worker may lack the knowledge to advocate (as we have seen in some NDIS matters) or the will to oppose the views of colleagues and superiors. A child’s social worker could face a conflict of interest.
Other adults closely involved in the matter may not be able to separate their own emotional and material interests from those of the young person. Advocacy support may come from a body such as the Office of the Guardian or by the appointment of a duty solicitor to act for the young person.
What about Aboriginal children and families? How well will the process be able to manage the language, location and cultural barriers that might discourage Aboriginal children and their advocates seeking a review and being able to represent their position effectively if they do?
What is a review-able decision? What if a young person or their advocate believes a decision falls within scope, but the DCP doesn’t? There is some guidance. Decisions made under Chapter 7 of the Act (excluding decisions regarding contact arrangements) will be review-able. Section 84 of the Act sets out review-able decisions relating to the placement, care, education, and health of children and young people in care but deciding what is review-able may not be simple in practice.
Additionally, can a refusal to review be itself reviewed? Would this be referred to the DCP complaints unit, by appeal to the Ombudsman or by some other mechanism still to be devised?
Disputes over contact arrangements
Legislation recently passed through Parliament which means that, from 22 October, children and young people will be able to apply to the Contact Arrangements Review Panel which can affirm, change, or set aside contact decisions. The child or young person will have 14 days after the DCP’s decision to apply for review although there is provision for ‘special circumstances’ to extend that time. Right now, it is unclear if a decision made by the Contact Arrangements Review Panel can be appealed or reviewed.
For more information, check out the Internal reviews page on the DCP website and the SACAT website. SACAT have told us that they expect to be developing more materials explaining the review process in the next few month.
The ability to participate and have their voice heard is an important issue for Australia’s children and young people. This is a key principle of the UN Convention on the Rights of the Child and an important aspect of empowering children and young people.
It is also the key principle that underlies the recently released Australian Children’s Commissioners and Guardians Joint Participation Paper 2018.
Children and young people talk about this in their own words:
“All children have a voice and a right to do certain things. We all want out voice to be heard and our opinions to be taken seriously.”
“Talking is important.”
“I do need to talk with you. I need to let you know what is important to me, to get what I want and need and to be kept safe.”
[What makes you feel safe?] “Someone to talk to.”
“It’s important that young people have an opportunity to talk about this stuff but it has to be done safely so, you know, it doesn’t make life worse for them … But I think that even though adults are scared to talk about this stuff because it is uncomfortable, it has to be done if things are going to change.”
“[I] don’t want someone else making the decisions about what I want.”
“How do you know what I want if you don’t ask me? Or don’t listen when I tell you?”
“We have ‘equal thoughts’: don’t just think that adults have the big thoughts. Kids have big thoughts too.”
“A good society values the opinions of young people, even if they are inexperienced.”
“Not just popular kids get a say or participate – everybody is equal.”
“We should all listen respectfully. It does not matter if you are young or old. Your ideas may be very good and are worth listening to… They don’t always have to agree but at least let them be heard.”317
A number of children and young people also expressed concern that their opinions are not respected and their voices go unheard:
“Even if I can get my views out there, I’m not always listened to.”
“Parents don’t care about kids’ opinions because they think kids know nothing.”
“I think that adults think they know what kids need to be safe but I don’t think that they do. They base it on what they remember from when they were kids and the world is different now. So they need to talk to kids and find out what it means to them.”
‘[I] need to be able to communicate – no-one to talk to – need person to talk to.”
There is a treasure trove of comments from young people across Australia about the matters that concern them, from bullying to transport in the Australian Children’s Commissioners and Guardians Joint Participation Paper 2018 which you can download here.
An interview with Isabella Daziani from the Department for Child Protection Evaluation Unit
‘In evaluating programs for young people, we think it is fundamental to start with the young people themselves’, says Isabella.
‘If we really want to improve services for young people we must recognise they are the foremost experts in their lives – they know what is working for them and what isn’t.
‘And it must be done genuinely, more than a quick tick and flick to check off the “young people consulted” box.
‘But achieving a genuine, respectful and useful dialogue with young people is not always easy and can be made difficult by the circumstances of the young people. They have a lot of adults coming in and out of their lives and some are understandably reluctant and distrustful of yet another nosey adult. Others may have psychological, intellectual or physical disabilities that we need to acknowledge, and provide them with opportunity to contribute.
‘Some young people may be suspicious of the motives of adults or jaded by consultations that take up their time but produce no follow-up and no change.
‘To talk to young people, you may also need to navigate the attitudes of the adults who care for them. Some adults genuinely believe that young people should be protected from discussing challenging issues. Some believe that only adults can understand and legitimately speak on issues for young people.
‘We have found that many young people are very aware of their circumstances and capable of expressing their insights to a degree that would surprise many adults. They are the experts in their own lives. The young people we have spoken to always surprise and delight us with their insights and their directness.
This is part of a longer interview which includes the views of young people, Isabella’s top tips for consulting and some further reading.
Download the full version of Programs for young people should be evaluated – by them
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.’
In the imperative to move a young person into a more suitable care placement it is easy to forget the profound impact that the process of moving can have. In this video from the Guardian’s Moving in Care project three young people recall their experiences of placement change.
[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.
Following up from Commissioner Nyland’s recommendation #136 in her August 2016 report on child protection systems in South Australia, the Guardian asked CREATE to ask some young people in residential care what they knew about their rights and how they thought that they could be best protected.
Here are some of the things they said.