SUBMISSIONS ON CHILDREN, YOUNG PERSON, AND THEIR FAMILIES AMENDMENT BILL (NO 4)

New Zealand Law Society

SUBMISSIONS ON CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES AMENDMENT BILL (NO 4) – SUPPLEMENTARY ORDER PAPER

General Comments

The Society’s submissions on the Supplementary Order Paper (SOP) have been prepared with the assistance of its Family Law Section.

In principle the Society is supportive of the intention behind the amendments, which it presumes is the reduction or elimination of the delays that the Child, Youth and Family Services Department (CYFS), is currently experiencing in responding to and investigating reports of ill-treatment or neglect of children.

Having said this the Society has a concern about the consultation process on the SOP. The changes proposed in the SOP are of a very different nature to those in the Amendment Bill (No 4) (the Bill). The changes proposed by the SOP go to the essence of the role of CYFS in respect of the care and protection of children, whereas the Bill is concerned almost exclusively with the youth justice functions carried out by CYFS. The SOP will make major changes to a fundamental aspect of the Children, Young Persons and Their Families Act (the Act), and a core function of CYFS, that is the assessing of reports received of the ill-treatment or neglect of children or young persons, and whether or not any investigation of the reports will follow. The SOP is essentially privatising aspects of that function and instituting quite new processes for the assessment of children and families and the investigation of child abuse.

There has been insufficient time for the requisite detailed analysis and widespread consultation with individuals, groups and organisations in the community, that a legislative amendment of this magnitude needs.

The need for full public consultation on the SOP is supported by the fact that, as far as the Society is aware, this is the first time that these changes to the Act have been ‘publicly’ announced. There has been no previous indication from the Ministry or CYFS that there was any likelihood of devolution of the assessment and investigation of reports received under s15 of the Act outside of CYFS. In particular there has been no mention of this intention in The Report of the Department of Child, Youth and Family Services First Principles Baseline Review.

The Baseline Review

The Baseline Review is the most recent formal signal of developments in respect of CYFS. It includes several references to the lack of a strategy to prioritise clients’ needs and makes recommendations regarding this. For example,on page 4 :

"We propose that CYF be directed to develop explicit and formal strategies to ensure that its resources are prioritised to children with the greatest level of need, and that processes are put in place to monitor children who are assessed as not being an immediate priority for intervention. This also needs to be accompanied by tools that establish workloads for social workers and which allow for information on the use of social work time to be captured."

On page 118 under the heading of "Service Delivery Processes, Professional Requirements and Other Organisational Processes" it is stated:

"As a service delivery agency, the Department of Child Youth & Family Services should be focused on supporting the front line to deliver the most effective services they can to achieve the desired outcomes. The review will examine core elements of the Department’s delivery, professional and other organisational processes to determine whether these can be changed to improve the efficiency and effectiveness of services."

The Society acknowledges that there has always been a level of assessment and the provision of services by other individuals, organisations, groups and services (collectively referred to in this submission as NGOs), and social workers at preliminary stages not otherwise sanctioned by statute. If the SOP was to be a legal recognition of this the Society would endorse that, together with any related changes which ensured prompt and proper assessment of reports of a care and protection issue.

CLAUSE 5A – NEW SECTIONS 17 TO 17E SUBSTITUTED

Proposed section 17 - Preliminary assessment of matters contained in report of ill-treatment or neglect of child or young person

Proposed section 17(1)

In practice the social worker who receives a report under s15 of the Act is, in the majority of cases, likely to be based at the National Call Centre. Section 17(1) states that the social worker must personally undertake, or arrange for some other person to undertake, the initial assessment "As soon as practicable…". The section includes no time frame other than these words. In the Society’s view this is not adequate in a situation where a child or young person has suffered, or is possibly still suffering, harm.

The phrase is also unclear as to what is to be taken into account by the social worker in deciding when it is practicable to undertake the preliminary assessment. This may be interpreted as being dependent on the workload of the social worker who receives the report or on the apparent urgency of the matters contained in the report.

Recommendation

That a specific period be inserted in the SOP to make it clear that the referral for a preliminary assessment must be made within a specified time of it being received.

Section 17(3)

It is not clear exactly what arrangements are covered by s17(3)(c). This could lead to a confusion and a lack of action if, for example, a second report to CYFS is not assessed because it is a follow up call to an earlier report under s15 which has not been dealt with.

Recommendation

That s17(3)(c) be amended to refer to matters already reported and assessed as requiring no further action, or matters not requiring further action because they are already under assessment or investigation.

Proposed section 17A – Duty to take actions following preliminary assessment

Proposed section 17A(1)

This section also includes "As soon as practicable…" as the only time frame.

The same comments about s17(1) apply equally to s17A(1).

Recommendation

That a specific period be inserted in the SOP to make it clear that the social worker who received the report must take the appropriate action within a specified time of it being received.

Proposed section 17A(1)(a)

The nexus between this provision (relating to the undertaking of an ‘investigation’) and new s17C(1)(a) is unsatisfactory. The latter suggests that the investigation under s17A(1)(a) undertaken by a social worker may be undertaken in conjunction with others specified in s17A(1).

This would allow an investigation to be undertaken by a multi-disciplinary team if appropriate. This may be the intention. The Society notes the recent opening of the multi-disciplinary facility at the Starship involving CYFS, Police and Hospital staff in this respect. Such a facility would fall within the ambit of s17A(1)(c). However, reference may also have to be made to s4(e) of the Act:

Objects – The object of this Act is to promote the well-being of children, young persons, and their families and family groups by:...

"[P]roviding for the protection of children and young persons from harm, ill-treatment, abuse, neglect, and deprivation"

If so, that needs to be made clear, given the indication conveyed as to this occurring by s17C(1)(a). Organisations providing services in terms of s17A(1)(c), and their employees, may not have the requisite skills for conducting of investigations into child abuse (in contrast to the carrying out of a child and family assessment.)

The Society also discusses (in paragraphs 32 to 38 below), potential qualitative differences between child and family assessments undertaken by assessors who are social workers and those who are not.

Recommendation

That the nexus between proposed s17A(1)(a) and proposed s17(C)(1)(a) be clarified and, if necessary, s17A(1)(a) be amended to make it clear that the investigation to be undertaken may be by a social worker (as defined in s2 of the Act), and in conjunction with others referred to in s17A(1). This should also clarify whether the others who are involved are to be from the NGOs referred to in s17A(1)(b) and/or s17A(1)(c), as the skills required for an investigation may not be found in both types of organisation.

Proposed section 17A(1)(b)

Proposed section 17A(1)(b)gives an additional and substantive discretion to a social worker to take no further action if he or she considers that to be warranted after receipt of the preliminary assessment. No further guidance is given on how this discretion is to exercised. Proposed section 17(3) sets out parameters but these relate to preliminary assessments.

Recommendation

That the section explicitly set out the basis on which the social worker who receives the report of preliminary assessment may, in the exercise of his or her discretion, determine that no further action is required if that discretion is to be exercised on grounds other than those specified in s17(1)(3).

Proposed section 17 A(1)(c)

There are no guidelines (as to subsequent referrals to NGOs), for the social worker or member of the police who receives a report under s17(1), following the completion of a preliminary assessment, and who decides to refer the matter under s17A(1)(b). Such guidance should be included.

There is a concern about the impact that the legislation is likely to have on existing NGOs and it is unclear whether the present structure and availability of NGOs in all areas will be sufficient to provide the necessary services. This legislation is likely to create a huge increase in demand for the services of NGOs as they are called to address current unallocated referrals of child abuse. It is vital that NGOs are funded sufficiently to carry out the work they will be asked to do.

With regard to the NGOs the Society has the following questions:

What certainty is there that the NGOs will provide the same standard of service as CYFS in their provision of assessments and carrying out investigations?

How will the service provided by NGOs be monitored?

What qualifications will staff have?

Will staff have to be registered under the Social Workers Registration Act?

What ongoing training will the staff be expected to undertake in order to maintain appropriate professional standards?

In some cases NGOs may face a conflict of interest. At present they receive instructions and funding from CYFS to provide necessary services. The SOP will allow NGO staff to make decisions as to whether they will carry out work or whether it is more appropriate for another NGO to undertake the provision of services.

Recommendation

That the statute make it explicit that NGOs must employ staff who have the requisite qualifications (including registration), training and experience to undertake the child and family assessments. (This could employ language similar to s159 of the Act, (Appointment of barrister or solicitor to represent child or young person) – "…by reason of personality, cultural background, training, and experience, suitably qualified…", or language similar to that used in s435 (Designation of Youth Court Judges) – "…by virtue of that person's training, experience, and personality and understanding of the significance and importance of different cultural perspectives and values".)

That the Act require the Chief Executive (on the basis of explicit criteria), to establish policy so as to ensure that NGOs do not end up in a potential or real conflict of interest.

Proposed section 17A(1)(c) continued:

The Society understands that the groups referred to in s17A(1)(c) are groups other than the NGOs referred to in s17A(1)(b). Clarification is required with regard to the basis on which such referrals are to be made as well as the provision of protocols for the referrals and the acceptance of referrals.

Following referral by the social worker on receipt of the report of preliminary assessment, these groups are charged with the responsibility of providing "…any services referred to…" (and to help to attain the objects set out in section 4(a),(b) or (d) of the Act). An explanation or clarification as to what these other services are, is required.

The subsection is confusing and it should be amended for the sake of clarity as recommended below.

Recommendation

That the SOP specify, as far as possible, the basis on which referrals are to be made, and are to be accepted and/or rejected.

That the provision be re-drafted as follows:

"(c) refer the child or young person to some other person, body, organisation, or department for the purposes of providing, to any or all of the following:

that child or young person;
his or her parents or guardians;
any other persons for the time being having care of the child or young person;
any services referred to, or to help to attain the objects set out, in section 4(a) or (b) or (d), and that the preliminary assessment indicates may be necessary or desirable."

Proposed section 17A(2) & (3)

The comments made above (with reference to ss17(1) and 17A(1), as to the lack of a clear and appropriate timeframe, also apply here.

Recommendation

That a specific period be inserted in the SOP to make it clear that the social worker or member of the police must take the required action within a specified time.

Proposed section 17B – Matters social worker or member of police must have regard to in deciding actions under sections 17A and 17D

Proposed section 17B(e)

The section allows leeway for the social worker or member of the police to take into account other considerations apart from the matters specified. It is not desirable that relevant factors be left to the subjective discretion of the social worker or member of the police.

Recommendation

That, apart from subsections (a) to (d), the section state specifically what other relevant matters that the social worker or member of the police must have regard to, as opposed to leaving this to his or her otherwise relatively unfettered discretion. This will provide for greater transparency and accountability.

Proposed section 17C – Procedure if investigation under section 17A(1)(a) shows child or young person in need of care or protection

Proposed section 17C(1)(a)

This section refers back to the option of an investigation that may be instituted under s17A(1)(a). As previously discussed there needs to be greater clarity as to the nexus between the two.

Proposed section 17D – Child and family assessments under section 17A(1)(b)

Proposed section 17D(1)

The words "…in accordance with all requirements (if any) the chief executive has specified…" should be deleted as they are unnecessary. The phrase is too vague to have any useful meaning and will cause uncertainty.

The chief executive should specify the qualifications needed by an assessor as well as the requirements of the ‘child and family assessment’. The SOP only includes the latter (to some extent), and not the former. This is necessary for quality control.

Recommendation

The provision be amended by deleting the words "…in accordance with all requirements (if any) the chief executive has specified…".
The provision be further amended by requiring to the chief executive to specify additionally the qualifications required of those who are to undertake child and family assessments. This should not only confer upon the chief executive the power to do this but should also, either in the statute or by regulations made pursuant to it, specify with as much precision as possible what is required in terms of qualifications.

Proposed section 17D(2)

The SOP lacks the necessary details with regard to assessors and the parameters of a child and family assessment. For example it is silent on what services may be provided by the assessor; the extent of this power; whether it involves the obtaining of a psychological assessment for example, or the provision of counselling to address sexual or physical abuse. Direction is needed as to what extent the discretion of the assessor cuts across guardianship rights; to what extent the assessor can determine the provision of services etc, that are more properly are the forum of the Family Group Conference (FGC) Clarification is needed as to whether the provision of services in these circumstances is comparable to a ‘services order’ under s86 of the Act? It is necessary to know whether it is anticipated that by the authority of this provision an assessor may address in a substantive sense issues of child abuse that would come within s14(1) of the Act, particularly in cases of chronic neglect and/or deprivation, and the consequential impact of that on children.

Recommendation

That the exact ambit of what may be provided by way of services be clarified and precise limits prescribed to ensure that the assessor does not ‘stray’ into areas beyond his or her expertise or into areas more properly the function of either the FGC or the Family Court. (See for example, the limitations on the Family Court on obtaining a report from a psychologist or psychiatrist under s178(2).)

Proposed section 17D(5)

This confers on the social worker a discretion either to implement all or some of the powers conferred under s17A(1) or to take no action at all. There are no parameters as to the exercise of the discretion to take no steps at all. This provides for a relatively unfettered discretion. Parameters should be present, including whether they are they different from those set out in s17B.

Recommendation

That the parameters/factors to be taken into account as to the exercise of the discretion not to act be specified with particularity.

Proposed section 17E – Procedure after child and family assessment completed

Proposed section 17E(1)

After the completion of the child and family assessment by a non social worker, that assessor must give a copy of the assessment to a social worker. There is no time limit specified for the provision by an assessor of the report to the social worker. Good practice ought to require such notification to be within a specified time frame.

Recommendation

That a specific period be inserted in the SOP to make it clear that the assessment must be provided to the social worker within a specified time of it being completed.

Proposed section 17E(2)

If the assessor believes that there are care and protection issues he or she must "…as soon as practicable…" (again not otherwise defined), give notice of those matters either to a social worker or to a Care and Protection Co-ordinator under s19 of the Act. However, if the assessor takes the option of only providing the report to the social worker, then the child abuse issue may not be dealt with.

This is because the social worker then has a discretion as to whether or not to progress the case by referring the report to a Care and Protection Co-ordinator. If the social worker does not, then the issue will not be further addressed and the child or young person may be left at risk.

This is in contrast to the situation contemplated by s17E(4) where the assessor is a social worker. If the social worker determines, after completing the child and family assessment, that a care and protection issue exists the social worker must refer the matter to the Care and Protection Co-ordinator under s18(1) of the Act.

This provides for a differentiation based on ‘status’ or ‘quality’ between the assessments undertaken by an assessor who is not a social worker and one who is. The distinction is confirmed by the nature of the referrals to the Care and Protection Co-ordinator under ss18 and 19. Following a s18 referral (from a social worker), the Care and Protection Co-ordinator must refer the matter to a FGC. In contrast, a s19(2) referral (from non-social worker), allows the Care and Protection Co-ordinator a discretion as to the holding of a FGC.

If the qualitative distinction between assessments by social workers and non-social workers, that is implied by this outcome, is not intended then corrections are needed. This would require amending both the new s17E and s19 to remove the discretion given to the social worker and the Care and Protection Co-ordinator respectively.

If the qualitative distinction is intentional, then it ought to be made explicit.

However, the likelihood of there being a qualitative difference in the work being undertaken by social workers as opposed to employees of NGOs, reinforces for the Society the inappropriateness of any investigation into a child abuse allegation, arising from a preliminary assessment, being undertaken by a social worker referral to an NGO.

Recommendations

That a specific period be inserted in the SOP to make it clear that the assessor who is not a social worker must give notice of the matters to a social worker or refer the matter to a Care and Protection Co-ordinator within a specified time after completing the child and family assessment.

The provision be amended by making explicit whether it is intended that there is a perceived qualitative difference between reports of child and family assessments provided by assessors who are social workers and assessors who are not.

Margaret Bryson

Senior Director

13 October 2004