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QFCC Summer Scholar Paper

Legislative and Practice Approaches to Improve Permanency for Children and Young People in Out-of-Home Care in NSW

By Ms Lisa Keegan – Summer Scholar 2016-17

Contents

Introduction

What is Permanency Planning?

Background to NSW reforms

Permanency Planning in NSW

When and how is permanency decided?

Legislated permanent placement principles

Reform objectives

Reform priorities

Predictors of Permanency Placement Success

Numbers of children receiving child protective services

The importance of placement stability

Children’s views

Social and health burden

Financial Burden

Conclusion

Appendix A: Decision making regarding placement of children and young people into OOHC

Appendix B – Permanent placement principles in the Act

APPENDIX C: Overview of NSW system reform outcomes approaches

Investment approach

Evidence based outcomes

Streamlined reporting and data management system

Outcomes framework

Single commissioning framework

Appendix D Quality Assurance framework (QAF)

Overarching Goals of QAF

Appendix E: Early intervention and prevention

Importance of early intervention and prevention

Indicators of need for early intervention in NSW

NSW reform approaches to early intervention and prevention

Table of Figures

Figure 1. Children receiving child protection services by new and repeat client status, 2014–15 Australia wide

Figure 2.Children in OOHC in NSW by length of time continuously in care

Figure 3. Comparison of numbers of children in child protection and OOHC in Australia and NSW 2014-2015

Figure 4 . Historical comparison of numbers of children in out of home care in NSW 2005-2015

Figure 5. The intergenerational consequences of out-of-home care.

Table of Tables

Table 1. Comparison of OOHC rates in NSW to other states and Territories

Legislative and practice approaches to improve permanency for children and young people in out of home care in New South Wales

Introduction

The Queensland Family and Child Commission (QFCC) is currently exploring the legislative and practice approaches being undertaken by other jurisdictions in Australia to improve permanency for children in out of home care (OOHC) for whom returning to the care of their birth parents is not an option.

This paper explores the out-of-home care system, and system reforms in New South Wales (NSW). It includes key statistics relating to children in out-of-home care in New South Wales, and outlines evidence supporting the importance of permanency.

This paper was written by student Ms Lisa Keegan from Griffith University as the part of a trial summer scholar program initiative between Griffith University and the QFCC.

What is Permanency Planning?

Permanency planning relates to the decision by authorising governing bodies to permanently place children and young people with a family that is deemed to be able to adequately provide for the child and young person’s education, health, safety and general wellbeingthat results in any unlikely future moves to other placements, giving children and young people in OOHC a greater sense of security and stability.

While there is some variability across different states and territories, permanency options generally include[1]:

  • reunification
  • third-party responsibility orders
  • long-term finalised guardianship/custody orders
  • adoption.

One aim of permanency planning for children in out-of-home care is to provide the child or young person with a stable home environment which offers long-term security and

adequately meets their needs.[2]Another aim of permanency placement is to reduce the number of children and young people in OOHC.

Permanency planning aims to avoid the instability and uncertainty arising from a series of different placements or temporary care arrangements.[3] It addresses the need for children and young people at risk of significant social, emotional, psychological, economic and physical harm to have access to a safe, nurturing and permanent home environment.[4]

The NSWChildren and Young Persons (Care and Protection) Act 1998(the Act) identifies that if a child or young person is placed in outofhome care, timely arrangements ensuring the provision of a safe, nurturing, stable and secure environment need to be made, with recognition given to the child’s or young person’s circumstances.[5] Within these considerations, priority must be given to the age of the child or young person as the younger the child, the earlier decisions need to be made regarding permanent placement.[6]

Background to NSW reforms

Anindependent review of OOHC in NSW[7] determined that the OOHC system in NSWwas delivering poor long term outcomes for children and young people and inadequately halting the effects of intergenerational abuse and neglect. This has led to generationally increased numbers of children in the child protection system[8] despite considerable increases in Government expenditure in child protection systems.

In 2015/16 the NSW government spent approximately $1.86 billion on intervention and prevention programs and has further committed $190 million over the next four years to improve outcomes for vulnerable children and families.

The Special Commission of Inquiry[9] into Child Protection Services in NSW and the independent review of the out of home care system in NSW[10] led to directional change in policy reform for those most vulnerable children and young people in the state of

NSW. NSW introduced changes to child protection and OOHC systems in response to these reviews.[11]

Permanency Planning in NSW

The goal of the NSW Government is restoration of children to their birth families, where the families have shown capacity to provide safety, wellbeing and appropriate care to their children. When this is not deemed achievable permanency arrangements for these children is the priority.[12]

The NSW Government prioritises placement with relatives or kin, where they are able to provide a permanent home or family support.

This places children in familiar and attached relationship settings which maintain connection to their familial and cultural identity and support. Children more readily develop a sense of belonging through these connections, leading to a healthy formation of identity, which improves their future outcomes.[13]

In the event family cannot be located, or are unable to care for the child or young person, open adoption is the next preferred option.

Open adoption allows the child or young person to have the opportunity of a relationship with their birth family, important for their sense of identity, while having the security and permanency of a stable home.[14]

NSW leads Australian states in adoption. Of the 196 adoptions that took place in 2015-16 in Australia, 107 (54.6%) took place in NSW.

When and how is permanency decided?

Determination of the best interest of the child occurs during preparation of a permanency plan for the child and young person.[15]

The NSW Family and Communities Secretary assesses the realistic likelihood of successful restoration of the child or young person to their parents.

Assessment considerations include the individual child or young person’s circumstances, and evidence, or otherwise, of the likelihood of the parents to be able to satisfactorily attend to the issues that have led to the need for their child or young person to be

placed in out of home care[16].

Children and young people’s rights and their birth parents parental responsibilities are the focus of the NSW reforms, ensuring proactive and timely decision-making occurs in the best interests of children. Thus, the focus is on providing children with improved lifelong opportunities to education, health, safety and general wellbeing[17].

The rights of the child or young personaregiven primary consideration with legislative focus on Safety, Permanency and Wellbeing.[18]

Legislated permanent placement principles

The Children and Young Persons (Care and Protection) Act 1998 NSWAct[19] defines permanent placement as “a long-term placement following the removal of a child or young person from the care of a parent or parents, pursuant to this Act, that provides a safe, nurturing, stable and secure environment for the child or young person”.[20]

When it is determined that a child or young person needs permanent placement this must occur in accordance with the permanent placement principles[21] as defined in the Act, Chapter 2, part 1, Section 9- See Appendix B for a more comprehensive overview of these placement principles.

Permanency plans may or may not include details as to the final placement in the long term, however prior to final orders being made the plan must be provided to the Children’s Court with sufficiently identified and addressed particulars that enable the Court to make a determination on the final order to be made.

If the Secretary determines restoration is possible, the Secretary prepares a permanency plan involving restoration and submits this for consideration by the Children’s Court.[22]

If the Secretary determines restoration is not realistically possible, the Secretary prepares a permanency plan for long term placement of the child or young person into a suitable out of home care environment for consideration by the Children’s Court.

This plan must give consideration to whether adoption is the preferred option for the child or young person. The exception to consideration for adoption is for Aboriginal or Torres Strait Islander children and young people unless it is impractical or not within the best interest of the child not to do so.[23]

The final decision as to whether or not restoration is a realistic possibility or permanent care is required is undertaken by the Children’s Court. A final care order cannot be made unless:

  • an appropriate and adequate permanency plan has been achieved
  • the realistic possibility for restoration has been exhausted
  • consideration has been given to circumstances of the child and the child has had input to this
  • the permanency plan clearly states how the plan meets the child or young person’s needs and how these needs will be met; and
  • the plan is approved by the Children’s Court.[24]

Enforcement of the plan is only possible if the provisions in the plan are embedded in an order of the Children’s Court or approved by the Children’s Court.

In the NSW context, an interim order for permanency must be made within six months of the initial order to remove the child from their parents for children under two years of age, and twelve months for all other children and young people[25]. This is significantly timelier than the two year national average of time frames for permanency[26].

Reform objectives

There are six key reform objectives.[27] These are:

  1. Reduce the number of children in OOHC and improve placement stability for children in care by investing in evidence based services.
  2. Align policy and practice ensuring the legislated child protection priorities, particularly permanency principles are applied to increase exits from OOHC.
  3. Improve outcomes for Aboriginal children and families through implementation of evidence based services to strengthen restoration and family preservation that are developed from partnerships with Aboriginal leaders to reduce the number of Aboriginal children and young people in care.
  4. Increase investment in specialist after care services and trauma treatment services for children in care to better support children and young people in care, and those leaving care, to improve their life outcomes.
  5. Enhance Government data analytics capability by building an investment approach and enhancing re-contracting capabilities of OOHC services.
  6. Implement and evaluate new programs to ensure their efficacy and build a comprehensive evidence base.

Appendix C provides a comprehensive overview of these reforms. The appendices also include information about the Department’s newly developed Quality Assurance Framework (Appendix D), and its new early intervention and prevention approaches (Appendix E).

The legislative focus is on a commitment to keeping children and families together, in circumstances where it would be safe for the child or young person to be reunified with their parents.[28] Where this is not possible new legislative frameworks include reform to limit the number of children in long term out of home care, under ministerial responsibility.[29]

Recognition of poor lifelong outcomes for children and young people, as a result of placement in OOHChas led to Legislative amendments within significant system reform in NSW.[30] Thesecentre on three key outcomes: Safety, Permanency and Wellbeing.[31]

Reform priorities

There are three reform priorities in NSW. These are:

1. Supporting parents to keep their children at home while working to strengthen the family unit. This includes preventing entry into the out of home care system by providing families with early intervention and support.

2. Providing children and young people with a safe and stable home environment. Priority of environment includes:

i) Reunification with the birth family where such reunification is safe for the child or young person.

ii) Placement with extended family, relatives or kin where reunification is not possible with the birth parents. This may include the option of guardianship.

iii) Open adoption for non-Aboriginal children and young people.

iv) The least preferred option is long term care with parental responsibility to the Minister.[32]

3. Providing an out of home care system that focuses on the child through efficient and timely legal and regulatory processes.

Additionally, an investment approach to child protection is prioritised encompassing evidence based outcomes, streamlined data and case management, and an outcomes focus. For a more comprehensive overview of these approaches see Appendix A: System reform outcomes approaches.

Predictors of Permanency Placement Success

Predictors for success of permanency placement are the age of the child or young person at placement, timely decision-making about the suitability of a child or young person remaining with their family, and the subsequent number of temporary placements experienced by the child and young person whilst awaiting this decision.[33]

Further, many children are placed in OOHC, reunified with their parents and returned to care on multiple occasions.

Data show 96% of children and young people in OOHC Australia wide consist of children whom are of repeat client status.[34]That is, they have been returned to care after unsuccessful attempts to restore them to their family, or were previously the subject of an investigation, or were discharged from a care and protection order or OOHC placement, or whose earliest order and/or placement is part of a preceding continuous episode of care[35] (see figure 1).

Figure 1. Children receiving child protection services by new and repeat client status, 2014–15 Australia wide

Source:Child Protection Australia 2014–15[36]

In 2014-2015, 73% of children in Australia receiving child protection services were repeat clients. Those in OOHC had substantially higher rates of repeat status at 96%.[37] Data also shows children are being placed in OOHC care at a younger age than historically, and remaining in OOHC for longer placement periods, many only leaving OOHC once they reach the age of 18 years.[38]

Nationally, 27% of children and young people have been in care for between two to five years and 41% of children and young people had been in OOHC for more than 5 years.[39]

NSW figures show almost 25% (4,127) ofchildren and young people are in OOHC for between two and five years and 47% (7, 934) children have been in care for five years or more.[40]

Figure 2.Children in OOHC in NSW by length of time continuously in care

Data Source: AIHW, 2016.[41]

Stability and a sense of belonging are necessary for healthy wellbeing and must be prioritised.[42] While it is difficult to predict the success of a permanent placement and subsequent disruption rates, permanency placement remains preferable to children experiencing multiple placements in the OOHC system.[43]

This has never been more important as unsustainable numbers of children are currently in statutory care- more than 20,000 children in NSW alone, an increase of 373.3% in the last twenty years.[44] More than half the children in OOHC in NSW are aged under 9 years (54.3%) with a further 31.3% of children aged between 10 and 14 years, which are formative years for children’s attachment and identity development.[45]

Numbers of children receiving child protective services

Australian Institute of Health and Welfare figures on child protection for 2014-15 show that almost 152,000Australian children received child protection services during the year, including almost 60,000 in NSW. Nationally, just over 54,000 children were in out-of-home care, with almost 22,000 of those children in NSW[46] (see figure 1).

Figure 3. Comparison of numbers of children in child protection and OOHC in Australia and NSW 2014-2015

Source: Australian Institute of Health and Welfare. (2016). Child protection Australia 2014-15.

Over the past five years,the rates of children and young people in OOHC has increased in all States and Territories[47]except NSW, where the rate has decreased. See Table 1: Comparison of OOHC rates in NSW to other States and Territories. NSW has the second highest rate of children in OOHC in Australia.[48]

Table 1. Comparison of OOHC rates in NSW to other states and Territories

Children aged 0-17 years in out of home care in Australia by State and Territory
Number
Year / NSW / VIC / QLD / WA / SA / TAS / ACT / NT / Total
2011 / 16,740 / 5678 / 7602 / 3120 / 2368 / 966 / 540 / 634 / 37,648
2015 / 16,843 / 8567 / 8448 / 3954 / 2838 / 1061 / 671 / 1017 / 43, 399
Number per 1,000 children
2011 / 10.2 / 4.6 / 7.1 / 5.7 / 6.7 / 8.3 / 6.7 / 10.2 / 7.4
2015 / 9.9 / 6.6 / 7.5 / 6.7 / 7.9 / 9.3 / 7.7 / 16.0 / 8.1

Data Source: AIHW, 2016.[49]

Although rates per thousand of children in OOHC are decreasing, actual numbers of children are increasing leading to exponentially higher numbers of children entering care generationally. In NSW there are double the number of children in OOHC compared to ten years ago (see figure 4).