Child Protection Litigation Review 2024

Child Protection Litigation Project

Dear Departments,

1. Thank you for the opportunity to provide submissions in relation to the child protection litigation (CPL) project (Project) to deliver a permanent child protection litigation model in Queensland, and for your work to date on the Project.

2. We commend the Queensland Government's willingness to deliver a CPL model that is child-focused, family-centred, aligned with contemporary child protection practices, and culturally accessible.

3. This submission offers insights based on our experience as an organisation that runs programs for children in out-of-home care in Queensland. It is our hope these insights can be incorporated into the work of the Project.

Background – Little Star Foundation

4. Little Stars Foundation is committed to providing support to children and young people in South-East Queensland in out-of-home care through a variety of programs and initiatives. Little Stars Foundation’s mission is to raise community awareness of the challenges of children in out-of-home care and provide support to this cohort of children and young people. Since 2015, Little Stars Foundation has funded respite camps for over 200 children (with this program ceasing in 2020 during the COVID pandemic). Little Stars Foundation currently provides many scholarships for children to take part in our educational support program. Little Stars Foundation also supports children entering foster, kinship, and residential care by providing duffle bags which include essential and comfort items.

5. The Little Star Learners program run by our organisation is an education support program designed for young people living in foster, kinship, and residential care. This program also acts as a support to foster and kinship carers and residential care homes in that our mentors are regular visitors to the home and work to build a positive relationship with the child, carer, and all stakeholders involved in the child’s care. The impacts of the program include improving engagement with education through collaboration with the school, reducing suspensions and exclusions and thereby supporting the carers and improving placement stability and support for carers.

6. All of these initiatives are based around providing early intervention to improve outcomes for children and young people who are living in out of home care in South-East Queensland.

Summary of Submissions

7. Overall, Little Stars is concerned that currently:

• (a) The decisions and actions of the Department of Child Safety, Seniors and Disability Services (Department) and Director of Child Protection Litigation (Director) in relation to child protection matters lack sufficient levels of accountability. Workforce pressures mean outcomes for a child and their family can vary greatly depending on the competency and experience of the frontline practitioner/s and their line managers. Policies and procedures in relation to early intervention and planning from the time of removal are not universally followed, resulting in direct impacts for the children involved, and more intrusive interventions than required often being imposed on children. Increasing accountability mechanisms for Department and Director decisions will create better outcomes for all parties.
• (b) Policies and procedures of the Department and principles in the Child Protection Act 1999 (Qld) (Act), and/or the way those policies and procedures are followed or not followed in practice, are leading to more reliance on litigation than necessary and worse outcomes for children.
• (c) Insufficient independent information is obtained about the child’s views and wishes, and other matters relevant to their best interests. This is particularly the case when reviewing the child’s case plan which requires the child’s views and wishes to be obtained and included, so much as is possible based on age and development.
• (d) Insufficient steps are taken in relation to early family finding and parallel permanency planning, and decisions regarding reunification or alternative permanency are not made in a timely way. This results in too many multiple failed reunifications, multiple placement changes, attachment disorders, and poor outcomes leading to an inability to be placed in family-based care and an over-reliance on residential care.

8. In these submissions, we propose the following practical reforms that could contribute to addressing these concerns:

• (a) Increasing funding to allow parents, carers, and children involved in the CPL process to access legal assistance, advice, and representation from an early stage to increase rigour in the CPL process for all parties and increase accountability to ensure relevant policies, procedures, and laws are complied with by relevant stakeholders.
• (b) Implementing concurrent permanency planning processes more effectively at an early stage, incorporating comprehensive family finding processes, to ensure that decisions regarding reunification or alternative permanency are made in a timely way so that stability can be provided to children and young people, as already required by current policies and procedures.
• (c) Ensuring that family finding, concurrent permanency planning, and monitoring of goals set for the biological family are implemented in robust policies and procedures so that an early decision can be made within 12 months after removal regarding (a) reunification or (b) permanent alternative placement. This will result in a significant reduction in failed reunification attempts, litigation by biological and foster and kinship carers.
• (d) Introducing and/or improving training for all persons involved in the CPL process, including judicial officers, Department staff, and Director staff, which includes the impacts of trauma and disrupted attachment on short and long-term outcomes.
• (e) Introducing a program similar to the Court Appointed Special Advocates (CASA) program implemented in the United States of America.
• (f) Increasing the Department's stakeholder engagement with not-for-profit organisations and services that work with children and families in care.

The Need for Independent Funded Lawyers

9. We submit that there is an urgent need for increased funding for independent lawyers available to assist and represent parents, children, and foster and kinship carers involved in the CPL process. This includes funding for foster and kinship carers to challenge decisions to ensure that the Department is accountable, particularly in the case of placement breakdown and reunification at a late stage.

10. Currently:

• (a) Queensland Foster and Kinship Care provides information and advice to carers and children and young people in their care; however, due to funding and scope constraints, this does not include comprehensive legal advice.
• (b) Legal Aid Queensland provides grants of aid for some child protection matters to parties to a CPL proceeding and non-parties. However, in practice, based on our interactions with children, biological parents, and carers, these grants of aid are extremely hard to obtain, and even if granted, they are very limited in scope.
• (c) Children currently have access to a direct representative (to act on the child's instructions, as an advocate for their views and wishes) or a separate representative (to act in the child's best interests, regardless of the child's instructions) if appointed by the Children's Court. Often, this role is practically undertaken by Legal Aid Queensland. However, in practice, there are few lawyers who practise in this area due to the lack of funding, comparatively to international jurisdictions including the UK and USA. Given the lack of funding, often insufficient work is able to be completed on the budget provided, limiting the level to which these lawyers can effectively represent the voices and views of children.
• (d) There is a Legal Aid Queensland duty lawyer service for child protection matters. Given a duty lawyer service is limited in its application in terms of providing ad hoc advice on the day at Court, the current availability of this duty lawyer service is not adequate to fill gaps in access to ongoing legal advice as described above.

11. Possible options to increase access to independent lawyers include:

• (a) Increasing the funding for Legal Aid Queensland to provide parents, carers, and children with assistance in CPL matters, independent of the Department or the Director.
• (b) Increasing the funding of Queensland Foster and Kinship Care to allow them to engage lawyers to provide legal advice and assistance to carers.
• (c) Establishing a new government-funded entity with lawyers that can provide such assistance.

12. In our view, providing carers, biological parents, and children with access to such legal assistance would have the following benefits:

• (a) Allow carers, biological parents, and children to receive legal assistance and advice that is independent from the Department and Director, eliminating any conflicts of interest issues.
• (b) Assist carers, biological parents, and children to achieve the best care agreements in the relevant circumstances, ultimately helping the Department and Director to achieve its desired objectives.
• (c) Increase accountability in relation to the decisions and actions of the Department and Director at all points before, during, and after the CPL process, by ensuring that processes and goals for biological parents are set and appropriately monitored prior to a 12-month review period (for example) and that family finding and permanency planning is occurring concurrently. This compliance with policies and procedures is likely to reduce litigation in the long term.
• (d) Assist carers, biological parents, and children to have more comprehensive information about their rights and obligations throughout the process and how the process should be implemented. In terms of information about obligations, for biological parents, this should include drafting clear guidelines and monitoring frameworks at an early stage, and providing clear information about what is required for compliance with such obligations throughout the CPL process. This would ultimately result in a more rigorous, clear, and transparent process that is more efficient for all parties involved, including the Department, the Director, and the courts. It is also likely to reduce the likelihood of biological parents and carers litigating matters in the long-term.

Concurrent Planning

13. Currently, the Child Safety Practice Manual (Manual) outlines the practice of "concurrent planning". The below excerpt from the Manual summarises this approach:

When a decision is made that there will be ongoing intervention for a child in need of protection, a case plan is developed to address the child’s care and protection needs. Concurrent planning is the type of case planning undertaken when a child is in care and where more than one option for permanency is pursued in order to achieve a timely, stable long-term care arrangement.

If the goal for best achieving permanency is to return the child to the care of their parent, the case plan must also identify an alternative goal, in the event timely reunification is not possible. Identifying and planning for both primary and alternative permanency goals at the same time rather than sequentially, is central to concurrent planning.

The aim of concurrent planning is to expedite permanency for a child and requires actions to be developed and progressed simultaneously for both the primary and alternative permanency goals from the time a child comes into care, until a permanency decision is made. A useful way to describe this to families is that the concurrent plan is a ‘just in case plan’ - if reunification is unable to be achieved, the child needs to have a ‘just in case’ plan ready, that has been thought about and supported.

14. Notwithstanding this excerpt in the Manual, based on our interactions with families involved in the CPL process, concurrent planning is often inadequately implemented, possibly due to workforce challenges. This means that often, if reunification does not eventuate, there are delays in time in the Department progressing and identifying alternative care options with other family members.

15. In our view, more work should be undertaken by the Department in practice to ensure steps are taken to identify appropriate alternative family members and guardians (ideally biological or extended family or kin), so that there are no delays if reunification with the parent does not eventuate.

16. In addition to other mechanisms, this could be achieved by utilising the Family Group Meeting at an early point to identify supports in consultation with the biological parents and to commence the family finding service with a view to assessing family members as potential short or long-term carers.

17. While increasing permanency for all children involved in the CPL process, increasing the use of the concurrent planning approach would allow First Nations and culturally and linguistically diverse children to better maintain connection to their culture, by increasing the likelihood that they will be able to reside in the care of a family member with the same cultural background.

Reunification and Permanency

18. Under current practices, for a child on short-term custody or guardianship child protection orders or placed away from home on a child protection care agreement, the case plan will usually have reunification to parents as the primary permanency goal. This reflects the order of preference for progressing permanency, as outlined in the Child Protection Act 1999 (Qld).

19. In practice, based on our interactions with families involved in the CPL system, it is not uncommon for the following to occur:

• (a) Multiple failed reunification attempts and, as a result, multiple care placements through shorter-term orders. This is destabilising for children and ultimately exposes children to the likelihood of multiple placement breakdowns and the resulting necessity to move into residential care, during which they experience systemic abuse.
• (b) Attempted reunification years later, once the child has been put in a stable placement.

20. An alternative permanency plan if reunification with the biological parents is determined to not be appropriate after 12 months with reference to the clear goals and parameters set for them, the permanent, stable placement which has been part of the concurrent planning process should be pursued with input from the biological parent(s), to avoid the child experiencing further instability. Such a recommended time limit should only be a guide, rather than a rigid rule, to allow for flexibility depending on the circumstances. However, there should not be an indefinite time frame as is currently the case.

Training

21. Although we are aware of the Child Protection Litigation Benchbook, and we assume that officers in the Department and those involved in child protection matters receive training to some extent, based on experiences of the children and families who interact with the CPL system that we assist through our programs, current training offered does not appear to be sufficient.

22. We submit that improved, comprehensive training should be developed and rolled out as compulsory for all Department staff, judicial staff, and any lawyers working with the child protection system. Such training should be regular, ongoing, and comprehensive. Topics covered should include:

• (a) The legal and policy requirements in the CPL process.
• (b) Information about the impacts of trauma on the child’s cognitive, emotional, and social wellbeing.
• (c) Evidence around the importance of stable and permanent relationships and outcomes where attachment is disrupted.

23. At Little Stars, education support mentors registered for our Little Stars Learners program online are required to complete approximately 15 hours of online training modules before commencing mentoring. In our experience, this training is critical to the success of our programs. This type of online training could easily be adapted and expanded for court officers, enabling the views and voices of children to be better heard.

Enabling the Views and Voices of Children to be Better Heard

24. Little Star Foundation is aware of the Court Appointed Special Advocates (CASA) program in place in the United States of America. We would endorse a similar program being implemented in Queensland in order to allow courts and stakeholders to better hear and understand the views and voices of children in the CPL process.

25. In summary, the CASA program involves the following elements:

• (a) The CASA program is a system of court-appointed special advocates who are volunteers (who are provided with training, support, and supervision by a team of non-volunteer social workers) that provide independent information and advocacy for children in child protection proceedings.
• (b) CASA volunteers are appointed by the court once the equivalent of CPL proceedings begin.
• (c) CASA volunteers are trained to be the "eyes and ears" of the court. They visit the child once a month including at their home, liaise with the Department-equivalent, lawyers, the child’s parents, carers, school, and any health or other professionals involved in the child’s care, report to the court about their observations and views, advocate to the Department-equivalent on behalf of the child and continue to do so until a permanent outcome is reached.
• (d) The CASA program can provide additional evidence from the child's perspective, support the child's best interests, and give assistance to the court in making decisions.
• (e) The CASA program can also mitigate the impact on the child of frequent changes in case workers and placements by providing a consistent presence in the child's life who can advocate on their behalf.

26. This is broadly analogous to the way that mentors through our Little Stars Learners program can act as "eyes and ears" for a child in care and work with other stakeholders in the child's life. Through this program, we assign mentors to children. The mentors input and access relevant information about their assigned child and other stakeholders involved in the child's life through an online database which shares information regarding weekly visits with all stakeholders, which then facilitates their ability to effectively collaborate with other stakeholders. If a program analogous to CASA was implemented in Queensland, a similar database model could be utilised to allow assigned special advocates to input summaries of their visits into the database, the records of which could then be utilised as a basis for evidence in the CPL process to assist as voice of the child, subject to relevant considerations.

27. We submit that a model analogous to CASA should be implemented within the CPL process in Queensland, in addition to the review process in QCAT. In our view, implementing such a model would be a cost effective and independent way to ensure that the views and voices of children are heard. This would be separate and in addition to any separate representative or direct representative appointed by the court, noting that these representatives appointed often have very limited and short-term interaction with the child, which thereby limits the extent to which they can accurately understand and represent the child's views and wishes.

Stakeholder Engagement

28. Notwithstanding Little Star Foundation’s work with children in care in Queensland, the Department has not extensively engaged with our organisation, in relation to broader policy issues. This may suggest that currently the Department is not centrally engaging in adequate stakeholder engagement with, for example, not-for-profits and services that assist children, parents, and/or carers in Queensland that interact with the CPL system. We understand that some stakeholder engagement is done regionally, however, this results in a piecemeal approach that can vary significantly between regions.

29. In our view, the Department complementing existing regional stakeholder engagement with more centralised stakeholder engagement and collaboration would assist the Department to shape and interact with the CPL process more effectively. Stakeholders, like Little Star Foundation and many other important services, can provide the Department with information and insights based on on-the-ground interactions with parents, carers, and children, which may ultimately assist the Department to identify and find solutions for individual matters and/or ongoing issues.

Summary of Responses to Questions in Stakeholder Submission Guide

We look forward to engaging with the Department further on this important reform work.

Yours faithfully,

Little Stars Foundation