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Where am I now? Lawlink > Law Reform Commission > Publications > 8. Children and Young People
Report 91 (1999) - Review of the Disability Services Act 1993 (NSW)
8. Children and Young People
INTRODUCTION
8.1 This chapter discusses whether the objects of the DSA are met in relation to children with a disability. It proposes strengthening the DSA provisions to ensure that they meet the objects of the Act more effectively so far as children are concerned.
HUMAN RIGHTS AND CHILDREN
Children require special protection
8.2 Human rights provisions recognise that children require special protection and treatment. The United Nations Convention on the Rights of the Child (“CROC”), to which Australia is a signatory, provides that:
the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection … 1
It recognises that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.2
8.3 Other recognised rights for children include the right:
- to be known and cared for by his or her parents;3
- when separated from one or both parents, to maintain personal relations and direct contact with both parents on a regular basis;4
- of a child who is capable of forming his or her own view, to express those views freely in all matters affecting the child, and the right for those views to be given due weight in accordance with the age and maturity of the child;5
- to the highest attainable standard of health;6
- when placed for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided, and all other circumstances relevant to his or her placement;7 and
- to participate fully in cultural and artistic life and to have equal opportunities for cultural, artistic, recreational and leisure activities.8
8.4 A child temporarily or permanently deprived of his or her family environment, or who, in his or her own best interests cannot be allowed to remain in that environment, is entitled to special protection and assistance provided by the State.9 When considering solutions, due regard must be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.10 CROC requires signatories to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment and exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has the care of the child.11
Children with a disability
8.5 CROC has provisions concerning children with a disability. It states that a child with a disability should:
enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.12
Signatories to CROC recognise the right of a child with a disability to special care, and shall encourage and ensure the extension of appropriate assistance to the child and those responsible for his or her care.13 Such assistance shall be designed:
to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.14
LEGISLATIVE PROTECTION FOR CHILDREN AND YOUNG PEOPLE
No specific DSA services for children
8.6 There are approximately 200 children under the age of 18 living in large residential centres in New South Wales.15 In addition, ADD funds respite care, early intervention services, therapy services, Outside School Hours Support and intensive family support services for children with a disability. However, there are no specific provisions in the DSA about children.16 The principles and applications of principles do not specifically mention children. They do not address the issue of the participation of children and their parents as consumers of services. There are no special standards for organisations that provide accommodation or other support for children with a disability.
New child welfare legislation
8.7 The Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”) will begin operation in or after January 2000.17 It will replace the Children (Care and Protection) Act 1987 (NSW). The new Act will strengthen the protection of children and young people in a number of areas of particular relevance to children with a disability, particularly those in voluntary out-of-home care, or at risk of being in out-of-home care for a long period.
Principles underpinning care and protection legislation
8.8 The Care and Protection Act will apply in situations where children and young people are in need of care and protection, for example, because their families are unable to care for them or because they are subject to abuse. The Care and Protection Act sets out the principles that should be followed in administering the Act, which reflect the principles contained in CROC. The Act states that:
in all actions and decisions made under this Act … concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration.18
8.9 Other principles require:
- the child or young person to be able to express his or her views and due weight to be given to them;
- consideration to be given to the culture, disability, language, religion and sexuality of the child or young person in actions and decisions under the Act;
- taking the least intrusive intervention in the life and family of the child or young person consistent with his or her protection; and
- special protection from the State, preservation of name, identity, language, cultural and religious ties, and maintenance of close relationships with people significant to the child or young person, should the child or young person be removed from his or her family environment.19
The Care and Protection Act also provides for principles governing the placement of Aboriginal and Torres Strait Islander children in out-of-home care.20
Voluntary out-of-home care arrangements
8.10 Out-of-home care means residential care and control (whether paid or not) at a place other than the child’s usual home by a person, other than a parent or relative, for a period of more than 28 days (consecutive, or aggregate in a 12 month period).21 This is of particular importance to children with a disability because they are more likely than other children to live in voluntary care arrangements. The Care and Protection Act sets out a framework for out-of-home care, which:
- provides that out-of-home carers must be authorised;22 and
- sets time limits on the amount of time a child may be in voluntary out-of-home care without intervention by a designated agency23 and notification to the Children’s Guardian.24
8.11 Where a child or young person has been in voluntary out-of-home care for longer than 21 days, the designated agency must, within seven days of the expiry of the 21 day period, prepare either a plan to restore the child to his or her family, or a care plan in relation to the child or young person. The Children’s Guardian must also be notified of the care arrangements.25 Where the out-of-home care period has exceeded three months in any 12 month period, a case conference must be arranged.26
Requirement to notify where a child is at risk of harm
8.12 The Care and Protection Act requires a person delivering or managing an organisation that provides health care, welfare, education, children’s services, residential services, or law enforcement, who has reasonable grounds to suspect that a child is at risk of harm, to report the name of the child and other details to the Director General of DOCS.27 A child or young person is at risk of harm if there are concerns for his or her safety, welfare or well-being due to:
- basic unmet psychological or physical needs (or a risk that they will not be met);
- the failure or inability of a parent or other carer to arrange necessary medical care;
- the child or young person suffering, or at risk of suffering, physical or sexual abuse or ill-treatment;
- domestic violence in the household; or
- the child suffering, or being at risk of suffering, serious psychological harm.28
FINDINGS OF THE CSC
DSA provisions are inadequate
8.13 The CSC informed the Commission that its inquiries have revealed that the DSA has failed “to recognise, let alone protect or promote, the rights and needs of children with disabilities”. Particular problems faced by children with disabilities identified by the CSC include:
- services not addressing universal childhood needs, including developmental needs, and relationships with family members;
- lack of services which promote and protect the ability of families to remain primary carers of children with disabilities;
- service providers not recognising the role of parents and guardians in decision-making for children with disabilities;
- gaps in the system which currently allow children with disabilities to be placed (and left) in residential care without any external safeguards; and
- inadequate recognition or application of care and protection principles and procedures by service providers and other professionals.29
Children with a disability in residential care
8.14 The CSC noted that many children with a disability are placed in residential care, by arrangement with the parents, outside of any processes that normally apply to out-of-home care placements:
This situation is exacerbated by the failure of DOCS and service providers to identify that these children may be in need of care even where there has been no significant contact between the child and the parents over a period of time following placement in residential care.30
Inquiries by the CSC into some residential services for children showed that, in some instances, children in these services were at risk of abuse and neglect, and did not have their developmental needs met.31
SUGGESTED CHANGES TO THE DSA
Specific recognition needed
8.15 The CSC suggested that there is a need for the DSA to recognise the particular needs of children with disabilities, and to ensure that these needs are addressed through appropriate service models and practices.32 There was support in other submissions and during consultations for this view.33
8.16 A number of submissions suggested that the DSA should specifically state that people with a disability include children. Some argued that this could be achieved by inserting a clause (possibly in the definitions section) noting that a reference to “persons with disabilities” throughout the DSA includes children with disabilities.34 Others suggested that the phrase “persons with disabilities” in the DSA should be replaced with “children and adults with disabilities”.35 This suggestion was opposed in some consultations on the grounds that it would be too cumbersome, and was reminiscent of past attitudes in which all people with a disability were regarded as being like children.
8.17 A number of submissions stated that the DSA should include specific provisions regarding children with disabilities, such as:
- the rights that children with disabilities have are the same as those held by other children;36
- the right of children to live with their families or in a family-like environment;37
- the right of a child with a disability to “a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community”;38
- the importance of a developmental and protective approach to service delivery;39
- recognition of the role of guardianship and parents in the lives of children (and adults) with disabilities, particularly concerning decision-making and consent;40
- the need for cultural sensitivity, especially for Aboriginal and Torres Strait Islander children and children from non-English speaking backgrounds;41 and
- the addition of a “placement principle” for children and young people with a disability.42
8.18 One submission was of the view that disability programs and services should:
recognise the special needs of children and young people with a disability and shall be designed to ensure that the child or young person has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreational opportunities in a manner conducive to the child or young person achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.43
Linking the DSA with child protection measures
8.19 There was support in submissions for linking the DSA to child protection legislation.44 The CSC considered that children with a disability would benefit from any amendments to the DSA which clearly identified the service provider’s obligations under care and protection legislation. Submissions stated that services providing accommodation support to children and young people with a disability should comply with standards applying to out-of-home accommodation provided under the Care and Protection Act.45
8.20 Other submissions suggested linking the DSA with:
- the new Commissioner for Children and Young People and Children’s Guardian;46
- CROC;47 and
- the Community Welfare Act 1987 (NSW).48
THE COMMISSION’S VIEW
Special provisions for children
8.21 CROC recognises that children generally require special safeguards and care, including appropriate legal protection. Within this framework, it recognises that children with a disability require special care. Making explicit reference to children and their special rights and needs in the DSA gives greater prominence to the provisions of CROC. It would help to ensure that service providers and the Government give greater priority and attention to the rights and needs of children receiving disability services and, in particular, those in large residential services.
8.22 The Commission does not favour amending the DSA to replace “persons with a disability” with “children and adults with a disability”. However, to emphasise that the DSA applies to children with a disability, the definition of “person with a disability” should be amended specifically to include children, young persons and adults with a disability. The Commission is of the view that a special part of the DSA should be devoted to children and young people. The new part should include special principles and applications of principles, together with provisions linking the DSA with other relevant child protection measures.
Principles
8.23 The principles for children should mirror the general principles in Schedule 1 to the DSA to state that children and young people with a disability have the same basic human and legal rights as other children and young people in Australian society. In addition, the principles should reflect the rights contained in CROC:
That children and young people with a disability should have the right to grow up in a family environment, in an atmosphere of happiness, love and understanding.
Children and young people with a disability have the right to a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.
Applications of principles
8.24 The applications of principles49 should also be amended to reflect CROC, and should include the following:
Links with child protection provisions
8.25 All service providers, particularly those providing accommodation for children and young people, should be aware of the provisions of the Care and Protection Act. Special attention should be given to:
- principles governing decisions and action in relation to children and young people at risk of harm;
- reporting provisions where a child or young person is at risk of harm;
- out-of-home care provisions;
- Aboriginal and Torres Strait Islander placement principles; and
- standards applying to children and young persons placed in out-of-home care.
It should be a condition of funding that service providers comply with the new Care and Protection Act,52 and ensure that the children and young people for whom they provide services receive the benefit of that legislation.
Hierarchy of support
8.26 As noted in paragraph 8.2 above, the DSA should recognise the principle contained in CROC that children have the right to grow up in a family environment. The new part in the DSA for children should include a hierarchy of preferred support and placement options for children with a disability. This should be:
- in-home support for the child or young person;
- in-home placement and support with other members of the child’s or young person’s extended family;
- support for the child or young person in a shared care arrangement between the child’s or young person’s parents and/or extended family and a foster carer;
- support for the child or young person in an adoption or long-term foster care placement; and
- support for the child or young person in an intimate residential care environment, with not more than three other children or young people, with consistent adult carers, and in close proximity to the child’s or young person’s parents and extended family.
8.27 Placing a child in a large institutional residential setting appears to be inconsistent with CROC. The Government should give the highest priority to providing funds for transitional services for children with a disability to enable them to reach full conformity with the requirements of the principles and applications of principles in the DSA. Target dates set for reaching conformity should be as short as possible and strictly enforced. In Chapter 6, the Commission recommends that the Minister for Disability Services should be required to prepare a plan stating how and when all transition services will be funded to reach full conformity.53 The Commission considers that the plan should provide for all children’s services to reach conformity within two years of the date the plan comes into effect.
Recommendation 32
The principles for children and young people should mirror the principles in Schedule 1 to the DSA to state that children and young people with a disability have the same basic human and legal rights as other children and young people in Australian society. In addition, the principles should reflect the rights contained in the UN Convention on the Rights of the Child (“CROC”). These include the following:
- That children and young people with a disability should have the right to grow up in a family environment, in an atmosphere of happiness, love and understanding.
- Children and young people with a disability have the right to a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate active participation in the community.
Recommendation 33
The applications of principles in the new Part relating to children and young people should also reflect CROC and should include the following:
Programs and services shall recognise the special needs of children and young persons with a disability and shall be designed to ensure that the child or young person with a disability has effective access to, and receives, education, training, health care services, rehabilitation services, preparation for employment and recreational opportunities in a manner conducive to the child or young person achieving the fullest possible participation in community life and fullest possible individual development, including his or her cultural and spiritual development.
An adapted version of Application(m) should be included to reflect CROC:
Programs and services must be designed and administered so as to recognise the importance to children and young persons with a disability of supporting family relationships and the cultural and linguistic environments of children and young persons with a disability.
FOOTNOTES
1. CROC, Preamble.
2. CROC, Preamble.
3. CROC, Art 7.1.
4. CROC, Art 9.3.
5. CROC, Art 12.1.
6. CROC, Art 24.1.
7. CROC, Art 25.
8. CROC, Art 31.2.
9. CROC, Art 20.1.
10. CROC, Art 20.3.
11. CROC, Art 19.1.
12. CROC, Art 23.1.
13. CROC, Art 23.2.
14. CROC, Art 23.3.
15. CSC and Audit Office Report at 7.
16. ADD is developing guidelines for children with a disability receiving services.
17. The commencement date is based on information supplied by DOCS (29 March 1999).
18. Care and Protection Act s 9(1).
19. Care and Protection Act s 9.
20. Care and Protection Act s 13.
21. Care and Protection Act s 135. This does not include daily care and control by a licensed provider of children’s services.
22. Care and Protection Act s 136.
23. A child or young person must not remain in voluntary out-of-home care (otherwise than under a temporary care arrangement) for a period in excess of 21 days, unless the designated agency with supervisory responsibility for that child or young person is satisfied, following appropriate assessment, that the child or young person is unable to remain with his or her parent or parents: Care and Protection Act s 155.
24. The office of Children’s Guardian has been established by the Care and Protection Act s 178. The functions are:
• to exercise, subject to any direction of the Minister, the parental responsibilities of the Minister for a child or young person for his or her benefit;
• to promote the best interests of all children and young persons in out-of-home care;
• to ensure that the rights of all children and young persons in out-of-home care are safeguarded and promoted;
• to examine a copy of the case plan for each child or young person in out-of-home care and a copy of each report made following the regular review of the case plan; and
• to accredit designated agencies and to monitor their responsibilities under the Care and Protection Act and regulations.
25. Care and Protection Act s 155.
26. Care and Protection Act s 156.
27. Care and Protection Act s 27.
28. Care and Protection Act s 23.
29. CSC, Submission at 2.
30. CSC, Submission at 3.
31. CSC, Submission at 3.
32. CSC, Submission at 2.
33. See, for example, Western Sydney Intellectual Disability Support Group Inc, Submission; Paraquad NSW, Submission; The Northcott Society, Submission; NCOSS, Submission; and Disability Information Service Inc, Submission.
34. Disability Safeguards Coalition, Submission; The Northcott Society, Submission; CSC, Submission; and Institute for Family Advocacy and Leadership Development Association Inc, Submission.
35. CSC, Submission; and People with Disabilities (NSW) Inc, Submission.
36. The Northcott Society, Submission; and Multicultural Disability Advocacy Association of NSW Inc, Submission.
37. DeafBlind Association NSW, Submission; Physical Disability Council of NSW Inc, Submission; D Newey, Submission; NCOSS, Submission; Citizen Advocacy NSW, Submission; The Northcott Society, Submission; Western Sydney Intellectual Disability Support Group Inc, Submission; ACROD Ltd NSW Division, Submission; H Seares, Submission; People with Disabilities (NSW) Inc, Submission; Disability Safeguards Coalition, Submission; and Institute for Family Advocacy and Leadership Development Association Inc, Submission.
38. People with Disabilities (NSW) Inc, Submission at 34.
39. CSC, Submission.
40. CSC, Submission.
41. Ethnic Childcare, Family and Community Services Co-operative Ltd, Submission; and NCOSS, Submission.
42. People with Disabilities (NSW) Inc, Submission.
43. People with Disabilities (NSW) Inc, Submission at 34.
44. Disability Safeguards Coalition, Submission; Ethnic Childcare, Family and Community Services Co-operative Ltd, Submission; DeafBlind Association NSW, Submission; Kurrajong-Waratah Industries, Submission; D Newey, Submission; M Bowles, Submission; NCOSS, Submission; Citizen Advocacy NSW, Submission; Crossroads Christian Fellowship with Disabled Persons in NSW Inc, Submission; The Northcott Society, Submission; Community Visitors, Submission; ACROD Ltd NSW Division, Submission; Multicultural Disability Advocacy Association of NSW Inc, Submission; Physical Disability Council of NSW Inc, Submission; NSW Council for Intellectual Disability, Submission; The Spastic Centre of NSW, Submission; People with Disabilities (NSW) Inc, Submission; and Institute for Family Advocacy and Leadership Development Association Inc, Submission.
45. Physical Disability Council of NSW Inc, Submission; and Multicultural Disability Advocacy Association of NSW Inc, Submission.
46. CSC, Submission; and People with Disabilities (NSW) Inc, Submission.
47. NCOSS, Submission; and ACROD Ltd NSW Division, Submission.
48. People with Disabilities (NSW) Inc, Submission.
49. In particular, the application contained in DSA Sch 1 cl 2(m).
50. People with Disabilities (NSW) Inc, Submission at 34. This proposal is based on the Preamble and Art 23 of CROC.
51. This proposal is based on the Preamble and Art 20.3 and 30 of CROC.
52. When it becomes operational. Otherwise, the condition should apply to the Children (Care and Protection) Act 1987 (NSW).
53. See Recommendation 19.
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