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CHILD CUSTODY AND PARENTING – FAMILY LAW IN CANBERRA – The Australian 11/4/15: Plan to remove newborns from convicted killers divides opinion

By April 11, 2015No Comments

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Verity Edwards and Sarah Elks write in the Australian, 11 April 2015:

To audible gasps in the gallery of the South Australian Coroner’s Court this week, Mark Johns made 21 powerful recommendations to protect children at risk, including removing infants at birth from parents convicted of child murder, manslaughter and fatal criminal neglect.

In handing down his findings into the 2012 neglectful death of Chloe Valentine, aged four, Johns has called for the overhaul of government department Families SA to prevent other children suffering, as Chloe did at the hands of her drug-addicted mother, Ashlee Polkinghorne.

Chloe died from severe head injuries after Polkinghorne and her boyfriend Benjamin McPartland repeatedly forced her to ride and crash a 50kg motorbike over three days. The pair are now serving four years’ jail for manslaughter.

Johns’s most startling recommendation is proving his most contentious. He wants the state’s law changed to ensure babies born to parents previously convicted of killing their children (by criminal neglect, murder or manslaughter) are immediately placed in government care.

Those parents will then have to prove to a court they are fit parents. If enacted, the law has the potential to set a national precedent.

Experts, advocates and practitioners at the coal face of Australia’s overworked state-based child-protection systems tell Inquirer that the issue is very complex. Some back Johns’s approach, some fear it goes too far, while others are pushing for even tougher measures to protect children.

National Children’s Commissioner Megan Mitchell says that while Chloe’s case is a “shocking and harrowing account of a tragic life cut short”, she has reservations about Johns’s blanket approach.

“We need to look at each individual situation on a case-by-case basis,” she says. “Families are complex. Things can change over time. The recommended law change assumes a person convicted is destined to repeat such behaviour. The research doesn’t tell us that.”

Mitchell says there’s a dearth of research on whether parents convicted of such offences can reform.

Johns is convinced Polkinghorne will not.

“I do not suggest that her next child will inevitably die as a result of her criminal neglect as Chloe did, but I am satisfied on the evidence I have seen that Ashlee Polkinghorne is not fit to be a parent,” he wrote in his findings.

Rather than a one-size-fits-all law change, Mitchell advocates increased early surveillance of at-risk parents, particularly those with previous convictions or those who have had children removed by authorities. If the baby is deemed to be in danger, then they should be removed, but it should not happen automatically.

“We know who these people are,” she says. “It’s rare that parents are involved in the deaths of their children.

“Between July 2010 and June 2012, 34 children died as a result of filicide, when a custodial or non-custodial parent, including a step-parent, kills a child. You’d be able to keep track of those parents.”

It’s worth noting that there are 43,000 children in care in Australia, and two-thirds have been in care for longer than two years. Johns’s report adds to the weight of evidence that the state-based child protection systems are under-resourced and overburdened.

Mitchell tells Inquirer that some parents may be unintentionally caught by Johns’s proposed law change. She raises the, admittedly rare, case of a parent convicted of manslaughter of a child after a car accident.

“The person might serve their time, get their act together, and several years later have another child,” she says.

“Despite the fact they might be a good and acceptable parent, the child would automatically be removed at birth, and if the parent seeks to have that child returned, in the interim they’d be washing around the child protection system with poor attachment and developmental trauma.”

Regardless, Mitchell agrees with Johns’s fundamental point: that the system needs to swing back in favour of the rights of the child.

“No child should ever go through what Chloe went through,” she says. “Her death could have been prevented. We need to do everything we can to ensure it doesn’t happen again. Her case highlights the need to put the rights of children before the rights of adults.”

Outspoken Bravehearts founder Hetty Johnston agrees nothing is more important than the protection of children. Johnston argues authorities should take Johns’s call one step further.

“Where are the convicted sex offenders in all of this?” Johnston asks Inquirer. “Does that mean they’ve got a right to have more children? Anybody who has demonstrated a capacity to harm children in any way needs to be on that list. Any person who poses a threat to the safety and wellbeing of children should be included in this piece of legislation. We’ve got to congratulate (Johns) on these findings. It appears to be a great report and it highlights the failure of the child protection system to protect children.”

Like Mitchell, Johnston strongly backs Johns’s observation that children’s rights are being gazumped by the rights of dysfunctional parents.

“The trouble is, we’ve got too many parents out there who are hurting their kids, (parents) who don’t deserve protection, who treat their children as if they’re chattels,” she says.

For Johnston, an Australian of the Year finalist this year, any change to the South Australian law should be replicated nationwide.

“What I’ve read in any report in the last 20 years (is that the) biggest thing is the lack of national consistency in how we address (child protection). Whatever is recommended here hopefully will be adopted nationally.”

University of South Australia emeritus professor Freda Briggs has spent the past 50 years trying to fix the “broken” child protection system.

“Child protection services are dysfunctional nationally; there isn’t one state that gets it right,” Briggs says. Yet this week Johns has taken major steps in a bid to fix the ailing system in South ­Australia.

Briggs supports Johns’s intent in removing children because it would mean early intervention could provide that child with a ­circuit-breaker to disrupt a potential life of dysfunction.

“You’ve got to have stability of care. You need to have a home where the child will become attached to the parent or carer and the parent bonds to the child. You need continuity of care,” she says.

That carer could be a grandparent, a family member, foster family or an innocent parent, but the hope would be that the child is given stability and protected from future neglect or harm.

University of NSW constitutional law professor George Williams supports legislation to remove children, as long as there are conditions on who has the power to remove the child.

He says if a law were introduced in South Australia, which would likely to be the first of its kind in Australia, there would be no legal impediments to challenge removal.

“Could they do it? Yes, I can’t see any constitutional constraints,” Williams says.

“If there was political will they could.”

The child would be removed under amendments to the Children’s Protection Act 1993, and placed under the custody of the minister responsible for child ­protection.

However, Williams has concerns about placing the decision-making responsibility for removing a child with a politician, rather than an expert in child welfare or a court.

“Power and politics come into play and it’s quite dangerous to vest those powers in a politician,” he says.

“You want to make sure those powers are vested in someone with expertise so the passions of the moment won’t interfere with child protection.”

Williams says there have been instances in Australia where children have been removed from parents at birth — including the Stolen Generations — but removing children from criminal parents is a different matter. The two cannot be compared, but he says it is relevant to consider past mistakes.

“It demonstrates the sensitivities and long-term damage that can be done, and equally the rights of the children need to be taken into consideration.”

In the wake of now Chief Justice Tim Carmody’s Child Protection Commission of Inquiry in Queensland in 2013, there has been a steady rise of specialist magistrates dealing with these complex matters. Brisbane Family Law Centre solicitor Clarissa Rayward has often acted as at-risk children’s specialist representative before these niche magistrates.

Rayward says that if Johns’s recommendation is adopted nationwide, specialist courts — such as the Family Court or these experienced magistrates — should be resourced properly to administer the law, particularly when parents apply to have their children returned.

“You can’t shut the door entirely,” she says. “If you’re going to do a significant thing such as removing children, parents need the right to show cause, to demonstrate they have the capacity to look after their children (again).”

Johns’s recommendations do allow for parents to prove they have been rehabilitated or could care for a child, and that an innocent parent not be disadvantaged in being able to care for that child.

Teresa Scott, president of the National Association for Prevention of Child Abuse and Neglect, is cautious about a one-size-fits-all model to remove children, and whether legislative changes would make a dramatic change to their wellbeing.

“Most state systems would be automatically removing children from a parent convicted of manslaughter. I don’t know if you have to create new legislation when it’s already part of policy,” says Scott, a trained social worker.

“In Queensland unborn children have notifications about them when their parents are users of drugs.”

Despite the coroner also recommending the increased use of adoption, Scott says it can have serious consequences. Removing children often leads to poor outcomes in terms of attachment, mental wellbeing and at school.

Scott says there also needs to be a greater focus on the cumulative effects of neglect, which was also a factor in Chloe’s case. Johns recommends a complete overhaul and retraining of Families SA staff, including recognising cumulative harm.

“It’s about training the staff. It’s about the need to recognise the cumulative effects of neglect or taking drugs and how people respond to their family,” she says.

“We need to make sure that staff are properly trained in recognising the growing dangers of drug use and growing problems in the care of children.”

Debbie Kilroy, chief executive of Sisters Inside, which advocates for the human rights of women and girls in the criminal justice system, says Johns’s recommendation is “extreme” and “over-reaching”.

“To say someone committed the offence of neglect previously, doesn’t mean they’re going to do the same thing again,” Kilroy tells Inquirer. “Life changes, more resources are put in place by the state, and the state should have these bodies to ensure children are protected.”

There have been several recent cases where children have been born to parents convicted of criminal neglect, murder or manslaughter, after being charged.

The nation was shocked in June 2008 when police were called to a squalid house in Adelaide’s northern suburbs to find 21 children living in filth. Five parents had tortured and abused many of the children, and each has since been jailed.

Ambulance officers attended the property after Karen Cunningham took her five-year-old son to hospital suffering from malnutrition and hypothermia. They found starving children with scabies. The floor of their house was littered with rubbish, including dirty nappies and faeces.

The South Australian Supreme Court heard the children had to fight for leftovers after the adults had eaten, their feet and hands were bound, they were beaten, choked and made to stand against a wall for hours at a time without moving — all because a second mother, Tania Marie Staker, felt threatened, because five of Cunningham’s children had been fathered by her current partner, Luke Armistead.

Cunningham was handed a six-year jail term with a non-parole period of three years and three months. Staker was jailed for 10 years with a non-parole period of six years and eight months.

When both women were charged, Staker was pregnant with twins — taking her brood to 14 — and Cunningham was pregnant with one child, her ninth. Both gave birth while in remand. Their babies are now in guardianship.

Belinda Valentine has been a vocal campaigner for protecting the rights of children since Chloe’s death, after having spent four years calling for social workers to notice her granddaughter’s mistreatment and neglect.

Her daughter, Polkinghorne is serving a four-year jail term for criminal neglect causing manslaughter. Polkinghorne is only 23, and Valentine’s greatest fear is her daughter having more children.

“For us, our worst nightmare was Ashlee having another child and not having the power to protect that child,” she says.

If legislation to remove any future children were to be introduced, Valentine could apply for custody of that child if Polkinghorne could not prove she would be a fit parent.

Child protection is a significant national issue, and while Johns’s recommendations would apply only to South Australia, there is merit in implementing some of his 21 suggestions nationwide.

There is no national framework for child protection, social work and allied health education to ensure best practice can be taught and implemented on the ground.

Flinders University is developing a suggested framework and best-practice care model, and submissions to the Royal Commission into Child Protection Systems have included recommendations for nationwide strategies.

One of the coroner’s recommendations — to establish a professional social worker register — has already been put to the royal commission, and it has received widespread support since Thursday’s findings.

What is becoming increasingly clear, however, is that the child protection system is in disarray and children are at risk because parents are being given too many chances to clean up their act.

The South Australian government has vowed to make changes to child protection laws, which could take months to pass through parliament.

It is too late for Chloe, but Valentine is hoping other families will not have to suffer as she has.

“Families SA is broken and it needs to be fixed,” she says. “That will take time and we as a family need to allow them some time to heal and retrain — but they need to show us they are doing it. It cannot be done behind closed doors.”

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