Advocacy for Children in Tasmania Discussion pa

Submission to

Advocacy for Children in Tasmania

Discussion paper

11 July 2013

About TasCOSS

TasCOSS is the peak body for the Tasmanian community services sector. Its membership comprises individuals and organisations active in the provision of community services to low-income, vulnerable and disadvantaged Tasmanians.

TasCOSS represents the interests of its members and their clients to government, regulators, the media and the public. Through our advocacy and policy development, we draw attention to the causes of poverty and disadvantage and promote the adoption of effective solutions to address these issues.

phone 03 6231 0755 fax 03 6223 6136 postal PO Box 1126

Sandy Bay Tas 7006 www.tascoss.org.au

Authorised by Tony Reidy, Chief Executive For inquiries Meg Webb, Policy and Research Officer

TasCOSS Advocacy for Children in Tasmania July 2013

Introduction TasCOSS welcomes the opportunity to make a submission on the Advocacy for Children in Tasmania discussion paper.

TasCOSS strongly supports the improvement of advocacy services for children in State care and the establishment of an independent monitoring and investigation process for the out-of-home care system in Tasmania.

Further, TasCOSS believes that children, the most vulnerable people in the Tasmanian community, must be protected and supported by adequately resourced, best practice:  individual advocacy services,  systemic advocacy mechanisms,  monitoring and investigation of the child protection and youth justice systems, and  effective, accessible complaints mechanisms.

Many of these are not currently in place in Tasmania.

TasCOSS believes that it is a priority to fill these gaps to ensure that Tasmanian children and young people are provided with a level of protection considerably more robust and accountable than is currently in place. TasCOSS also regards it as essential that advocacy services and monitoring and investigation functions are independent of Government departments and that those invested with these functions have authority to initiate investigation processes.

In our view, there are two clear roles relevant to the advocacy and protection of children in Tasmania. Firstly, there is the role of a Children’s Guardian which would provide advocacy (potentially both individual and systemic) for children who are under the care of the State, such as in out-of-home care, residential care or the youth justice system. Secondly, there is the role of Children’s Commissioner which provides systemic advocacy on the rights and protection of all Tasmanian children, undertaking research and consultations to ensure that the voices of children are heard in the development of public policy and decision-making. TasCOSS regards both roles as important and necessary and argues that both should be established and adequately resourced as statutory authorities.

Comments on specific questions Please see below for comments from TasCOSS on specific questions posed in the Advocacy for Children in Tasmania discussion paper. For the purposes of these comments, questions one and two have been grouped together, as have questions five and six.

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TasCOSS Advocacy for Children in Tasmania July 2013

Q1: Do you consider the existing advocacy services for children and youth in Tasmania to be adequate? If not how can they be improved?

Q2: Are existing advocacy services for children and youth who are likely to be, are, or have had involvement with Child Protection Services adequate? If not how can they be improved?

In the first instance, TasCOSS asserts that Tasmania should not be aiming for ‘adequate’ protective and support services for children – we should be aiming for best practice services that provide the highest possible quality of support and protection for these vulnerable members of the Tasmanian community.

As described in the discussion paper, there are significant gaps in provision of advocacy services for children in this state. Systemic advocacy is undertaken on behalf of Tasmanian children in general by the current Commissioner for Children; and on behalf of those in the out-of-home care system by the CREATE Foundation.

The Commissioner also acts as a formal individual advocate for young people in detention at the Ashley Youth Detention Centre. This leaves a glaring omission in regards to individual advocacy for children and young people in the child protection/out-of-home care system, and in the associated services that they may encounter while involved with that system.

Individual advocacy services and support are distinct from legal representation and support within the court processes of the child protection system. Individual advocacy is about providing children and young people with an independent, disinterested person who can support them to speak up for themselves, make sure their opinions and wishes are heard, support them to raise and resolve problems and complaints, and provide them with information about rights and processes.

Individual advocacy services are funded and provided to cohorts of consumers that are regarded as vulnerable within many other service systems in Tasmania – including mental health, disability, dementia care, home and community care, and alcohol and drug services. It is broadly recognised that those accessing such services may experience particular vulnerabilities. They may need an independent avenue of support to help them to understand and assert their rights, to negotiate service systems, to raise issues of concern or make formal complaints, and/or to communicate their wishes and decisions.

TasCOSS contends that children within any form of bureaucratic or institutional system will be in a particularly vulnerable position and should therefore be provided with comprehensive protection and support, with advocacy services as a priority element of that protection and support.

Individual advocacy services established and funded in these systems that deal with highly vulnerable children have the potential to provide valuable outcomes at an individual and community level. On one hand, they support individual children to have their voice heard, to raise issues that are adversely affecting their lives and to

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TasCOSS Advocacy for Children in Tasmania July 2013

have those issues resolved,thereby alleviating the challenges faced by those children rather than having their trauma compounded.

Another valuable outcome of effective individual advocacy is that issues identified and raised can often indicate systemic issues that need to be addressed. The information and evidence gathered through individual advocacy makes an excellent platform for systemic advocacy with a view to improving the experience of all children within that system.

It may be that different individual advocacy processes are required to best accommodate the needs of children under the care of the State in different systems, or it may be that one process or mechanism can be designed to function across the out-of-home care, residential care and youth justice systems.

Possible options for providing individual advocacy services to children and young people in the Tasmanian under the care of the State include: 1. Establishing a Children’s Visitors Program with a key focus on individual advocacy. A Children’s Visitors Program would ensure that all children under the care of the State are connected to an independent person who will regularly engage with them about their experiences, concerns, views and wishes.

Typically this kind of program also fulfils a monitoring function in relation to the system accommodating the children, by which trained, independent visitors are proactively and regularly looking at the circumstances of each child in that system.

Other jurisdictions have established such programs within Children’s Commissions or associated with Children’s Guardians. TasCOSS notes the evaluation that was undertaken of a pilot Children’s Visitors Scheme in Tasmania in 2010 and its recommendation to establish such a scheme on a permanent basis and have it located in the Commissioner for Children’s office.1 Were a Children’s Guardian role to be established in Tasmania (discussed below), it might be most appropriate to locate a Children’s Visitors Scheme under the Children’s Guardian, fitting within the statutory remit of that role.

2. Another option would be to fund an individual children’s advocacy service within an independent, non-government organisation that specialises in such services for vulnerable cohorts in other service systems.

This model would ensure independence and would see childrens’ advocacy located within, and informed by, established advocacy practice and service systems.

Recommendation: That individual advocacy services for children and young people under the care of the State in Tasmania are established and funded.

http://www.childcomm.tas.gov.au/wp-content/uploads/2012/01/Childrens-Visitors-12Month-Evaulation-Final-Report.pdf, pg 6 1

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TasCOSS Advocacy for Children in Tasmania July 2013

Q5: Please comment on how you perceive the need or otherwise for the role of Commissioner for Children to include the capacity to respond to individual complaints relating to children and youth in care.

Q6: Do you think there needs to be a particular role of Guardian for the Children and youth in Tasmania?

According to the National Child Protection Clearinghouse, the primary role of Children’s Commissioners is to “advocate for children’s rights and to examine and review legislation, policy and practices that affect the health, welfare, care, protection and development of children”.2 Commissioners also provide recommendations and reports to state parliaments on issues affecting children and young people.

While a Commissioner’s role is to ensure the rights and protections available to all children, a Children’s Guardian is tasked with specifically working to help improve the services and care provided to children who are in the care of the State. In some Australian states the Children’s Commissioner also acts as the Children’s Guardian, while in other states the roles are separated.

Tasmania has a Commissioner for Children, but does not have any independent role that functions as a Children’s Guardian. In the past, the Commissioner for Children in Tasmania has carried out some functions that would fit under the role of a Children’s Guardian (eg auditing out-of-home care case files, piloting a Children’s Visitors Program for children in out-of-home care), but these do not technically fit within the legislated role of Commissioner and are no longer carried out independently of government and service providers.

This means that there is currently no independent monitoring of the out-of-home care system that is empowered to examine, report on, and provide recommendations on opportunities for improvement of that system, and of the wellbeing of the children within the system.

While the Commissioner for Children in Tasmania does play such a role in relation to young people in detention within the youth justice system, TasCOSS believes that it would make most sense to establish a Guardian role which would have responsibility for monitoring and investigation of all children under the care of the State (in child protection, out-of-home care, youth justice and residential care systems), as has been done in other jurisdictions such as Queensland.

The Commissioner for Children role could then remain focussed on ensuring that the voices of all Tasmanian children are heard, engaging in research and systemic advocacy, and promoting decision-making which is in the best interests of Tasmanian children.

Resource Sheet: Children’s commissioners and guardians, National Child Protection Clearinghouse, July 2011 2

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TasCOSS Advocacy for Children in Tasmania July 2013

Recommendation: That a Children’s Guardian position be created to fulfil the function of independent monitoring and investigation of all children under the care of the State.

Q7: Is there a need for the Commissioner for Children to initiate their own investigations, independent reviews and inquiries about particular children and circumstances and/or systemic issues?

In order to be truly independent and to most effectively fulfil the role of promoting the rights and well-being of Tasmanian children, the Commissioner for Children needs the authority to initiate its own investigations.

An essential part of engaging in systemic advocacy on behalf of Tasmanian children is for the Commissioner to undertake research and investigations into matters that arise as relevant, or are identified as pressing systemic issues to be addressed.

The UK model appears to capture this well by empowering the Commissioner for Children to initiate investigations into specific matters, even matters relating to particular children, if the issues involved have public policy relevance to other children.

Where the Children’s Commissioner considers that the case of an individual child in England raises issues of public policy of relevance to other children, he may hold an inquiry into that case for the purpose of investigating and making recommendations about those issues.3 It should be noted that in cases where inquiries or investigations were made relating to a particular child, the purpose of those investigations would be to identify and make recommendations on public policy and the improvement of systems and services, not to prosecute or resolve the particular circumstances of the individual case.

TasCOSS believes that the authority to undertake investigations of ‘own motion’ would be important in improving the effectiveness of the Commissioner for Children role. In addition, it would align with other statutory bodies such as the Ombudsman and Auditor General.

In regard to the potential role of Children’s Guardian in Tasmania, this role would certainly include investigations, review and inquiries in its functions. The Children’s Guardian would be an avenue for monitoring and investigation of particular circumstances and issues for children under the care of the State.

Recommendation: That the role of Commissioner for Children and that of Children’s Guardian (were it to be established in Tasmania) include the authority to initiate investigations as relevant to their statutory role.

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Children Act 2004 (UK), http://www.legislation.gov.uk/ukpga/2004/31/contents

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TasCOSS Advocacy for Children in Tasmania July 2013

Having previously called for the establishment of a Children’s Guardian role in Tasmania for children who are under the care of the State, TasCOSS is pleased to see the issues of advocacy, monitoring and investigation in regard to vulnerable children reviewed and, hopefully, addressed.

We look forward to further opportunities to discuss this important issue.

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