Lawyers, advocacy and child protection.

• Jurisdiction: Australia
• Author: Walsh, Tamara
• Date: 01 August 2011

[In child protection matters, parents and children interact with the legal system at a time of great vulnerability and distress. There are significant power imbalances between parents and children on the one hand, and child protection officers on the other This makes it difficult for parents and children to effectively advocate for themselves in child protection proceedings. This paper presents the results of empirical research undertaken with community service providers and lawyers regarding advocacy in child protection matters. In this study, both professional groups agreed that advocates are important for parents and children in child protection matters and improve court processes; however, there was no consensus regarding who should perform the advocacy work. Lawyers generally claimed that advocacy work should be undertaken by legally trained advocates, while community service providers tended to focus on the role that non-legal advocates can play in the overall process. It is concluded that both legal and non-legal advocates can make an important contribution towards ensuring that the best outcomes for children and families are achieved.]

CONTENTS I Introduction II The Studies III Child Protection Advocacy: Overview of Law and Practice in Australia IV Advocacy for Parents A Parental Distress B Admissions and Consent Orders C Strategy and Argument 1 Family Group Meeting 2 Courts and Tribunals V Lawyers Supporting Children Who Are the Subject of Child Protection Matters VI Lawyers Supporting Judicial Officers--System Benefits VII Non-Legal or Peer Advocates VIII Discussion IX Conclusion I INTRODUCTION

Throughout Australia, governments continue to struggle with how to best respond to the difficult and complex issues surrounding child protection. When the abuse and neglect of children ends tragically, it often makes the front page of newspapers and raises public calls for an explanation. (1) On the other side of this is the fundamental right to the protection of family life, the right of the child to remain with his or her parents, (2) and the recognition that removing a child from his or her family is generally a very traumatising event for all involved.

From a legal perspective, serious power imbalances exist between the parties in child protection matters. In most child protection cases that proceed to court, a government department has removed, or is seeking to remove, a child from his or her family unit because child protection officers believe the child is at risk of harm or otherwise in need of protection. Most parents are extremely distressed at the thought of losing their children and, in many cases, the parents will contest the intervention. Other parents will want to contest the intervention but will not know how, or feel too disempowered to do so. Even if the parents agree that their children should be in alternative care, they will often have strong preferences regarding who should care for their children and for how long. Children who are removed from their home against their will are subject to significant trauma. Those who are old enough to express their wishes often have firm views about who they would like to be responsible for their care. Those who are not yet mature enough to express their wishes may not have anyone available to make an independent assessment regarding their care needs. Parents and children involved in child protection matters are forced to interact with the legal system at a time of great distress and vulnerability.

Further to this, many parents and children involved in child protection matters experience multiple layers of disadvantage. (3) They are generally housed in lower socioeconomic areas, often in social housing; others are homeless. (4) Most are reliant on social security benefits as their main source of income, or are on low incomes. (5) Many of the children 'known' to child protection authorities have witnessed family violence, most often perpetrated against their mothers, while others may have been subjected to violence or abuse themselves. (6) Commonly, the parents suffer from mental illness or have an intellectual disability. (7)

Despite the 'protective' nature of the child protection jurisdiction, and the vulnerability of the parties, the legal processes involved are often highly adversarial in nature. While the rules of evidence and procedure may be relaxed in court proceedings and tribunal hearings, the focus remains on 'winning and losing' in child protection matters, rather than on collaboration and problem-solving. (8) This may, in part, be due to the heavy scrutiny that child protection officers are subject to, both internally and by the broader community. They are acutely aware that any 'failure' (9) on their part may be widely reported in the media. (10) This has understandably led to a culture of hyper-vigilance and over-cautiousness, as officers are under extraordinary pressure to ensure that their decisions guarantee the physical safety of children. In short, distressed parents and children are forced to engage in combative processes and proceedings 'against' a well-resourced, legalistic, emotionally detached government department with a vested interest in having its decisions vindicated. This is extremely difficult for families that are already significantly distressed and terrified.

There has been some debate regarding the role of lawyers and the legal system in other protective jurisdictions. (11) In legal proceedings, the existence of power imbalances between the parties often indicates that a lawyer may be needed to support the vulnerable party; criminal cases provide the best example. (12) However, in protective jurisdictions, lawyers' involvement is sometimes discouraged. (13) With respect to matters involving children, the belief is commonly expressed that children are reluctant, or practically unable, to interact with lawyers because, for example, they feel intimidated or confused by legal jargon. (14) Indeed, the appropriateness of the courtroom as the forum in which child protection disputes are resolved has itself been questioned. In 1997, the Australian Law Reform Commission noted in its Seen and Heard report that many of the submissions to its inquiry recommended that child protection matters be removed from the court system and determined instead by an expert multidisciplinary panel. (15)

In a system that is based on detailed legislation that involves questions of rights and interests, and that has serious consequences for children's and parents' lives, it is difficult to argue that there is no role for lawyers or a legalistic system of redress. However, the value of lawyers within the child protection system is, naturally, in the eye of the beholder.

We conducted two studies on the child protection system in Queensland. One involved focus groups with community service providers who assist mothers interacting with child protection authorities. The other involved interviews with child protection lawyers. In this paper, we examine respondents' reflections on the role of lawyers and advocates within the child protection system.

Somewhat predictably, the lawyers believed strongly in the importance of their own presence and in the unique skills and insights that they brought both to the decision-making process and to individual cases. The non-legal professionals we interviewed agreed that parents and children do require 'advocates' but they were less convinced that these advocacy tasks must necessarily be undertaken by lawyers. It will be seen that parents and children require specialist advocacy assistance in child protection matters if the best outcomes are to be achieved for each child. (16) What follows is an attempt to develop a model for child protection advocacy that draws on the skills of all professionals involved in child protection matters.

II THE STUDIES

This paper draws on research undertaken in two separate studies. In the first study, five focus groups involving 32 workers (hereafter referred to as 'community service providers') from a number of community organisations in Brisbane were held to discuss disadvantaged mothers' experiences with child protection interventions. (17) This research focused on mothers because mothers are more likely to have care responsibilities for children, particularly in those cases where there is child protection intervention; but it is acknowledged that the findings of the research may apply equally to men. (18) The community organisations that participated are all engaged in direct service delivery, and have a client base that consists, at least in part, of mothers of children either in the care of, or 'known' to, child protection authorities. A range of community organisations were selected so that the project could capture a diversity of views. The participant organisations service a wide range of female clients including young women, criminalised women, Aboriginal women and immigrant women.

Focus groups were selected as the data collection method for this study for a number of reasons. First, community service providers generally work as a team; often more than one worker is involved in assisting individual clients. The focus group methodology allowed for a broader, group-based assessment of cases and issues. Second, a key advantage of focus groups is that participants are encouraged to discuss their ideas and responses to problems with their peers, with whom they share a common frame of reference while the researcher facilitates and listens to these discussions. (19) Third, there is evidence that focus groups are of value when studying pre-existing groups to encourage 'collective remembering'. (20) However, there are also limitations associated with a focus group approach. Naturally, responses are likely to compound, and participants may modify or exaggerate their views depending on the views of the group. (21)

The second study involved 21 interviews with 26 lawyers...