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State Responsibility for Children in Care

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State Responsibility for Children in Care STATE RESPONSIBILITY FOR CHILDREN IN CARE ALLAN COOKE A thesis submitted for the degree of Doctor of Philosophy At the University of Otago, Dunedin, New Zealand 17 December 2013 1 DECLARATION CONCERNING THESIS PRESENTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY I, ……………………………………………………….. (full name) of ………………………………………………………………... (address) ………………………………………………………………… solemnly and sincerely declare, in relation to the thesis entitled: STATE RESPONSIBILITY FOR CHILDREN IN CARE (a) That work was done by me personally; and (b) The material has not previously been accepted in whole, or part, for any other degree or diploma. Signature ……………………………………………. Date: 2 ABSTRACT Children and young persons who have been removed from their families and who will not be returned to their families of birth following intervention by the State are amongst the most damaged and vulnerable children in society. They often present with a myriad of physical and especially psychological and emotional problems that originate from their biological history, in the reasons that led them to be taken into care, and, regrettably, also from their experiences while being parented when in the care of the State. This thesis explores the parameters of the ‘responsibility’ that the Chief Executive of the Ministry of Social Development assumes on behalf of the State in relation to those children who have been taken into its care and who will not be returned to their parents. What is meant by both ‘state,’ and ‘responsibility’ and what constitutes ‘permanency’ in this specific context, is explored. The history of state involvement in children’s lives is outlined, together with discrete themes that run through that history, including the development of the parens patriae and wardship jurisdictions from the 15th century to the present day. The statutory initiatives of the 19th and early 20th centuries that have their direct antecedents in the reaction of the enlightened state to the rigours of industrialisation, and of colonisation are also explored. Two hypothetical case studies of children in care are presented to illuminate the common issues and themes that permeate permanency cases. The experiences of these children are discussed in several chapters to illustrate and highlight matters pertinent to the welfare and best interests, not only of the permanently placed child, but also for his or her new ‘forever’ family. Particular attention is given to Māori children who are removed from their families and permanently placed because of the status Māori have in New Zealand society and the value they attribute to families and children. In one sense, the issues Māori children who must be permanently placed are precisely the same as those for non- Māori children – of securing the child in the new placement. However, this can be a more profound dynamic for Māori children because of the need to ensure that the necessary connections are made to the child’s culture and language. A comprehensive analysis of the applicable statutory framework is undertaken. This identifies that the effect of a custody order under s 101 of the Children, Young Persons and Their Families Act 1989 is, by virtue of the operation of s 104 of that Act, the same as if a parenting order had been made under the Care of Children Act 2004 in respect of the child. The consequence is that the Chief Executive has, as a matter of law, precisely the same responsibilities to that child as does any parent of their own child. However, the context has some significant differences in that the child who is removed from their birth family is likely to have been profoundly abused. This places an enhanced responsibility, both legal and moral, on the Chief Executive. Given the fact of removal, the thesis explores the desired outcome for these children who have been taken into state care. There are a number of outcomes that the State could reasonably be expected to attain for them. These include ensuring that the child is safely cared for and that the abuse or neglect previously experienced does not recur; that where the child has suffered demonstrable harm, ensuring that that the impact of that harm is remedied for the future well-being of that child; that the child is nurtured and cared for by a new family; that this occurs within an appropriate legal framework which enhances the well-being of the child; and having 3 regard to the child’s care and protection and care legacies, the child is as well prepared for independence as any other child in society. The legal framework quite clearly places the Chief Executive in the shoes of the person who would otherwise be the parent of the child. This gives rise to the creation of a social contract between the Chief Executive and those carers who assume the task of caring for the permanently placed child on behalf of society. They will be providing a home for that child through to the child becoming independent and entering adulthood. The thesis questions whether the State, through the office of the Chief Executive has succeeded in meeting the obligations under that social contract. In August 2013 the Minister of Social Development, the Hon. Paula Bennett, introduced the Vulnerable Children Bill into Parliament. If the Bill is enacted in the form it was introduced, then it is likely there will be significant changes to how children in permanent placements are supported. Reference is made to the Bill and its possible consequences in Chapter 14. The thesis concludes that the State has a responsibility to children in the care of the State which commences from the time a child is placed in the custody of the Chief Executive and that, in the case of children who cannot be returned to families, continues through to the time that the consequences of abuse/neglect suffered are remedied and/or the young person ages out of care. This is both a retrospective and prospective responsibility. The State has a duty to look to the child’s overall well-being of the child given the fact of intervention and removal of the child from his or her parents and their failure to safely parent their child. In respect of children who are permanently placed, the thesis proposes that a social contract exists between the caregivers of those children and the State. 4 PREFACE In 2007 I enrolled with the Children’s Issue Centre at the University of Otago to undertake the Postgraduate Diploma in Child Advocacy. That course of study ultimately led to the selection of my topic for this PhD which I commenced 2009. Completing both the Diploma and, particularly, this thesis has been a labour of love and I am indebted to my wife, Sue Alpass, for her forbearance and accepting that she would have to spend evenings, weekends and holidays on her own as I immersed myself in my studies. I am looking forward to reintroducing myself to her. I have been working fulltime as a barrister (specialising in family law) during the time of writing this thesis. This has merely emphasised my absences from family life. It has also meant a far greater burden fell on to the shoulders of my PA, Tania Brooker, who has vigilantly tried to ensure that I did not over burden myself with work and that I kept my Fridays free to work on the thesis. That I took on too much work at times and did not keep Fridays a work free space is no fault of hers. I owe Tania a tremendous debt. My supervisors are Professor Mark Henaghan and Associate Professor Nicola Taylor. Mark has provided me with the ‘big picture’ perspectives; Nicki, has immersed herself in the detail of the each sentence and paragraph as well as making sure that I kept on target in terms of the overall objective. I am grateful to both for their wisdom and support throughout my time at Otago University. As a student working in Auckland I have had to call on the services of the library and its distance service. The staff has been unfailing in their assistance to me and I record my thanks to them. I have also had occasion, usually once a year to spend a few days in Dunedin and have been able to work in the Law Library. Again, I offer my thanks to the assistance and kindness of the staff. Dr Suzanne Blackwell read a late draft of the thesis and offered me valuable critical comment from her perspective as a clinical psychologist well-versed in the Family Court and with the issues presented by and on behalf of children in care. Dr Sarah Calvert offered me useful insight into the Home for Life policy of the Chief Executive and its deficiencies, this coming from her perspective of many years working as a clinical psychologist with the Department of Child, Youth and Family Services and then in private practice writing reports for the Family 5 Court. Thanks are also due to many legal colleagues, of whom there are too many to name. However, I do want to acknowledge Tania Williams, Barrister of Hamilton, who read Chapter Eight and provided very helpful feedback on that chapter and sent me statistics relating to children in care that she had obtained from the Department of Child, Youth and Family Services. 6 Contents Abstract 3 Preface 5 Contents 7 Abbreviations, definitions and expressions used in this thesis 15 CHAPTER ONE: 20 Introduction 1.1 What this thesis is about 20 1.2 The research inquiry 21 1.3 The social contract 28 1.4 My experience and its relevance to this thesis 30 CHAPTER TWO: 34 The statutory inquiry, the ‘State” and the goal of intervention 2.1.
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