New child protection laws fail to put children's best interests first
06 July 2017
The Law Society is disappointed that the Children and Young People (Safety) Bill passed this morning without important amendments that would have addressed some serious shortcomings with the Bill.
While the Bill as passed is a dramatic improvement on the original version introduced by the Government, it still fails to make the best interests of the child the paramount consideration. In this regard it is fundamentally at odds with other legislation in this State and elsewhere and could result in children being wrongly removed from their families.
The Law Society and other stakeholders such as SACOSS and the AMA have had an active role in the evolution of the Bill from its initial version over a period of several months.
The Society acknowledges the desire of the Government and other political parties to engage with the Society and other stakeholders, which has resulted in widespread positive changes to the Bill. These include:
- Mandatory assessment of child protection notifications.
- Removal of civil liability provisions that would have given immunity to the Crown, Minister, Chief Executive and others.
- Explicit naming of the risk of removing a child from the state to perform female genital mutilation as an act that can trigger certain actions from the Department for Child Protection and orders by the Court.
- Amendment of onus of proof requirements, making it clear that the Department for Child Protection must prove why orders for a child’s removal should be made.
- Extension of the time to file an application to SACAT in relation to a reviewable decision to 28 days.
Nevertheless, the Society remains disappointed that, by slim majority, the Legislative Council has accepted the retention of the paramount consideration being the safety of the child, rather than the best interests of the child.
Law Society President Tony Rossi said: “The Law Society remains concerned that this new law will result in the removal of children from the family unit and Aboriginal children from their community where that is, in all the circumstances, not in the child’s best interest.”
In the absence of guidance as to how the legislation is to be applied in practice, it may result in the removal of children from a family unit where there is any risk of harm to a child, even if the alternative may be more damaging to the child. In this regard the law will not ensure the best outcomes for our children.”
“This new law will put departmental officers in a terrible position.”
“If any safety issue is identified and the child is removed from the family, unnecessary and serious harm may be caused to the development of that child. On the other hand, if the child is not removed and harm is caused by a parent then the Department will be subject to criticism of failing to have applied the paramount consideration of the safety of the child. There is no guidance in the Bill as to the criteria to be considered by departmental officers in determining how to apply the new law.”
“It remains unclear, for example, if a parent tests positive to an illicit substance, whether that will be considered sufficient to remove a child given the paramount consideration of safety. If that is to be the case then the Government will need to plan for a large increase in children in its care.”