Many in our community are concerned about the ongoing over-representation of Aboriginal and Torres Strait Islander children and young people in care. The ACT Court of Appeal recently overturned the decision of the Community Services Directorate to take into care a family of Aboriginal children five and a half years ago.
At the same time, there has been debate about the merit of changes to freedom of information laws concerning information held by CSD, about children and young people.
As independent office holders with key functions to oversight this system, we share many of those concerns. While some of this discussion has centred on privacy and information release, our view is that the focus for law reform should be transparency in decision making.
For a number of years, through several reviews, including most recently in submissions to the Our Booris, Our Way review we have advocated for more opportunities for external review of decisions made by CSD. These include decisions about whom a child or young person will spend time with, where the child or young person will live and arrangements for their education and health care. The Human Rights Act already requires that government agencies must act and make decisions consistently with human rights. These rights include the rights of the child, the right of family and the cultural rights of Aboriginal and Torres Strait Islander peoples. In addition, the Discrimination Act protects against unfavourable treatment due to a range of personal attributes including race. The Children and Young People Act also places obligations on how the ACT Government must exercise powers concerning children and young people, and their families.
We recognise that Child and Youth Protection Services works hard to provide better outcomes for children and young people in out of home care, and that there will be many people in the ACT who have had positive experiences with CYPS. We welcome the recent increased use of family group conferencing by CYPS, which seeks to bring family members together in a positive way to make a plan for a child or young person. We also support the Government's progress on implementing the initial recommendations from the Our Booris, Our Way review which will improve the cultural safety, knowledge and practice of CYPS.
We also acknowledge that decisions about the care of children and young people are complex and often require a balancing of rights.
However, further changes are required to give greater certainty that these decisions are made correctly, taking account of all relevant legal obligations.
Some of the complaints the Human Rights Commission has received are about decisions made by CYPS staff, and the difficulties that community members have in seeking genuine review of these decisions where there is no external, independent review process available. In our view, the lack of independent merits review for many CYPS decisions could be incompatible with the right to a fair hearing under the Human Rights Act.
The 2016 Review into the System Level Responses to Family Violence in the ACT by Laurie Glanfield recommended that Justice and Community Safety Directorate and CSD work together to review what CYPS decisions should be subject to either internal or external merits review. In light of this recommendation, the ACT Government recently released the Review of Children Protection Decisions in the ACT discussion paper, seeking feedback on the current decision making framework.
The lack of independent merits review for many Child and Youth Protection Services decisions could be incompatible with the right to a fair hearing under the Human Rights Act.
That community conversation is well overdue. There is arguably greater external review provided elsewhere in Australia for decisions made by care and protection agencies, including in equivalent Children's Courts and Administrative Tribunals. We must consider opening up decisions about the care of children and young people to greater scrutiny and transparency, which can only foster greater community trust and confidence in the system.
Other improvements to the system include the need to provide ongoing training to CYPS staff on culture and unconscious bias. More funding should also be provided to Aboriginal community-controlled organisations to provide early support to families. Further, we believe there should be consideration of clearer requirements for CSD to consult with Aboriginal and Torres Strait Islander people who have an interest in the wellbeing of a child or young person through kinship, family and cultural ties.
Questions about the care and protection of children and young people in our community are always going to be controversial and complex. Nonetheless, we believe there is sufficient evidence to show that transparency and quality of CYPS decision making processes in the ACT can and must be improved. Without such changes, the disquiet already voiced in our community will only grow.
- The ACT Human Rights Commission is an independent agency established to promote rights and resolve complaints in the ACT. More information about the roles it plays in independently oversighting government services is on the website.