Out of home care Submission 81 Committee Secretary Professor Valerie Braithwaite Ms Mary Ivec Senate Standing Committees on Community Affairs PO Box 6100 Regulatory Institutions Network Parliament House College of Asia and the Pacific Australian National University Canberra ACT 2600 Canberra ACT 2601 Australia Email: [email protected] www.anu.edu.au [email protected] +61 2 6125 4438 +61 2 6125 1507 [email protected] [email protected] Dear Sir/Madam We appreciate the opportunity to provide input into the Senate Standing Committee Inquiry into Out-Of-Home-Care. Our contribution is based on our own research findings at the Regulatory Institutions Network (RegNet) at the Australian National University where we have undertaken a series of studies on child protection through the Community Capacity Building in Child Protection Projects since 2007 (see https://ccb.anu.edu.au/index.html). RegNet is an internationally recognised academic centre, focused on the study of regulation and governance across many policy-relevant areas. Our work draws on interdisciplinary research and has local, national and global application in areas such as patient safety, worker health and safety, social services and aged care. These domains provide valuable and transferable lessons to your current area of investigation, out-of-home care and child safety and protection. We would be happy to expand on this brief submission in person, if requested by the Committee. Our submission addresses three of the ten terms of reference. These are: G. best practice in out of home care in Australia and internationally; H. consultation with individuals, families and communities affected by removal of children from the home; J. best practice solutions for supporting children in vulnerable family situations including early intervention. We can be contacted at [email protected] on 6125-4438 or [email protected] on 6125-4601. Kind regards Mary Ivec & Valerie Braithwaite Regulatory Institutions Network 14 November 2014 1 | R E G U L A T O R Y I N S T I T U T I O N S N ETWORK ANU COLLEGE OF ASIA AND THE PACIFIC Out of home care Submission 81 Attachments: A. Figure 1. A pyramid of intervention B. Braithwaite, V. (2006) Ten things you need to know about regulation and never wanted to ask. Law Librarian 14(3), 19-41. C. Braithwaite, V., Harris, N. & Ivec, M. (2009) Seeking to clarify child protection’s regulatory principles. Communities, Children and Families Australia, 4(1), 5-21. D. Braithwaite, J. (2011) The essence of responsive regulation, UBC Law Review 44(3), 475-520. E. Hamilton, S. and Braithwaite, V. (2014) Parents and Family Members Matter: A Charter of Rights and Responsibilities for Parents and Family Members with Children in the Care of Child Protection Services in Australia. Canberra: Regulatory Institutions Network, Australian National University. F. Hamilton, S. and Braithwaite, V. (2014) Complex Lives, Complex Needs, Complex Service Systems. Community worker perspectives on the needs of families involved with ACT Care and Protection Services. Canberra: Regulatory Institutions Network, Australian National University. G. Harris, N., Braithwaite, V. & Ivec, M. (2009) Rejoinder: A responsive approach to child protection. Communities, Children and Families Australia, 4(1), 69-75. H. Harris, N. & Gosnell, L. (2012). From the Perspective of Parents: Interviews Following a Child Protection Investigation. Regulatory Institutions Network (RegNet) Occasional Paper No. 18 Canberra: Australian National University. I. Ivec, M. & Braithwaite, V. (2010) Out of Home Care Standards submission to the KPMG/Department of Families, Housing, Community Services and Indigenous Affairs National Standards of Out-of-Home Care Development Process. J. Ivec, M., Braithwaite, V. & Harris, N. (2012) ‘Resetting the relationship’ in Indigenous child protection: Public hope and private reality. Law and Policy, 34(1), 80-103. K. Ivec, M. (2013) A necessary engagement. An international review of parent and family engagement in child protection. Social Action and Research Centre, Anglicare. Tasmania. 2 | R E G U L A T O R Y I N S T I T U T I O N S N ETWORK ANU COLLEGE OF ASIA AND THE PACIFIC Out of home care Submission 81 Comments • There is a well established and broad evidence base to show that OOHC outcomes for children and young people are poor (see Ivec & Braithwaite 2010 OOHC Standards Submission). • The challenges to the OOHC system include children being in care longer, having more complex needs, escalating costs and a falling number of placements available. Quality of care remains an ongoing challenge to child protection agencies who regulate out-of-home care providers and need to ensure that providers not only comply with minimum requirements of care, but that they aim to deliver quality services that go beyond compliance. • A regulatory pyramid concept can be applied to out-of-home care (see Figure 1) which positions out-of- home care on a continuum of support to children and their families where concerns exist about parenting capacity and/or child safety. A pyramid of intervention such as this from least to most intrusive should be shared with the public. We would argue that it is both in the interests of transparency and empowering families to take responsibility for the care of their children. • The pyramid of intervention is based on the Ayres & Braithwaite (1992) regulatory pyramid and responsive regulation theory. A detailed discussion on a responsive regulatory approach to child protection is provided by Braithwaite, Harris & Ivec in the Australian College for Child and Family Protection Practitioners (2009, pp. 7-23 and pp.71-77). • Key principles underlying a responsive regulatory approach include: active listening by engaging all stakeholders, being clear on what is expected, engaging fairly and respectfully, including stakeholders with dissenting voices whose experiences can often lead to improved ways of operating; embracing systemic approaches which bring multiple decision-makers and problem-solvers to the table; being collaborative in capacity building – shared responsibility requires shared decision-making; and to learn, evaluate and share what is learnt (Braithwaite 2012). • The on-going and seemingly intractable difficulties child protection authorities face stem from these key regulatory principles being ignored. Recurring themes in our research over the past 7 years are: the lack of trust that exists between parties, the lack of transparency, the failure of authorities to meaningfully engage with and actively listen to parents, communities, including Indigenous and refugee and migrant communities and other workers and third parties in the service system surrounding children and the widespread experiences of disempowerment by those interacting with the system (Loconcz 2014; Hamilton & Braithwaite 2014; Hinton 2013; Harris & Gosnell 2012; Ivec, Braithwaite and Harris 2102; Ivec, Braithwaite & Reinhart 2011). • In contrast, where program successes are seen (and this addresses term of reference G), the underlying principles that have been operationalised include: participation and inclusion in processes by all stakeholders; effective communication and active listening; respecting the rights of children, parents and families and this incorporates cultural rights; shared decision making for solutions and sustained support and allowing time for behavior change while not jeopardizing child safety (see Ivec 2013). These approaches are central to empowering parents, families and other workers and building commitment to what authorities are trying to achieve. Parents and families, together with others, find their own motivations to improve their behavior. Successful approaches communicated staying power and a belief that change is possible, authorities believed parents could parent well and provided the support to ensure this could happen (see Practice First, New South Wales Department of Community Services Pilot). • The regulatory pyramid (Figure 1) presents a framework for organizing the range of programs and approaches utilised by child protection authorities internationally (less so in Australia). The pyramid depicts six layers of possible intervention which sees escalation up the pyramid increasing statutory 3 | R E G U L A T O R Y I N S T I T U T I O N S N ETWORK ANU COLLEGE OF ASIA AND THE PACIFIC Out of home care Submission 81 and court involvement, costs and coercion. The various layers are not mutually exclusive and in practice the borders are blurred and a mix of possibilities exist. • What the pyramid does show, is that there are a number of various approaches, program models and strategies that child protection authorities can utilise, when child safety concerns exist. This suite of interventions opens up many more possibilities for more positive and engaging encounters with parents, families, the community and various third parties who can contribute to child safety and who can assist by bringing extra resources and ‘informal regulation’ to the issue of concern. Currently much State intervention sidelines the willingness, capacity and resource that others can bring to the site of concern, especially NGO community services (see Hamilton & Braithwaite 2014). Where child safety concerns exist, these need to be made explicit by authorities to those in the child’s care network. By sharing information and allowing shared decision making, child protection authorities can only strengthen the safety around a child.