Own motion investigation into the Department of Human Services Child Protection Program

 

Own motion investigation into the Department of Human Services Child Protection Program

November 2009

Ordered to be printed

Victorian government printer

Session 2006-09

P.P. No. 253

 
 

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LETTER TO THE LEGISLATIVE COUNCIL AND THE LEGISLATIVE ASSEMBLY

To

The Honourable the President of the Legislative Council and

The Honourable the Speaker of the Legislative Assembly

Pursuant to sections 25 and 25AA of the Ombudsman Act 1973, I present to Parliament a report of an investigation into the Department of Human Services Child Protection Program.

G E Brouwer

OMBUDSMAN

25 November 2009

letter to the legislative council and the legislative assembly

 

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CONTENTS

EXECUTIVE SUMMARY

8

Introduction

8

Responding to reports of abuse

8

Unallocated cases

9

Thresholds for acting upon reports

10

Responding to cumulative harm

11

Inadequate information technology

11

Legal processes

12

Inadequate supervision of staff

13

Inability to meet statutory obligations

13

Transparency and accountability

14

Role of independent expert review

15

Structure of the department

16

Privacy and information management

16

Unauthorised access to CRIS

17

Workforce issues

17

Recommendations

17

BACKGROUND

19

The current child protection system

19

Complaints to my office

20

OBJECTIVES AND METHODOLOGY

21

FAILURETO PROTECT CHILDREN

22

How many reports are received?

22

Timely responses to reports

23

Cases unable to be allocated to a child protection worker

24

Problems caused by deficient information technology

26

Difficulties tracking caseloads in CRIS

26

Administrative complications caused by CRIS functionality

28

Coordination between community service organisations and

30

child protection

 

Thresholds applied when deciding whether to investigate

32

The quality of investigations conducted

34

Inadequate follow up

34

Poorly executed investigations

36

Responding to child protection demand outside business hours

37

Responding to cumulative harm

38

Conclusions – protecting children

41

Recommendations – protecting children

45

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CHILD PROTECTION ANDTHE LEGAL SYSTEM

47

Introduction

47

Resources directed to forensic oversight

47

Implementing access arrangements

52

Administrative improvements to the legal process

54

The quality of the department’s legal representation

55

Negative experiences of the legal process by the child protection

56

workforce

 

The impact of a contested system

57

Impact of the new legislation

59

Patterns and histories of parents

60

Interaction with other statutory systems

60

Alternative approaches

62

Countries which promote family services

63

Scotland’s children’s hearings system

63

England: Child protection conferences and family proceedings

64

court panel

 

Conclusions – child protection and the legal system

64

Recommendations – child protection and the legal system

66

Failureto complywith statutory obligations and internal

68

practice standards

 

Introduction

68

Failure to adequately screen kinship carers

68

Non-compliance with supervision standards

74

Failure to comply with statutory best interests, stability and

76

cultural planning for children

 

Failure to enforce or comply with court ordered conditions

79

Conclusions – failure to comply with statutory obligations and

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internal practice standards

 

Recommendations - failure to comply with statutory obligations

82

and internal practice standards

 

Privacy and Information Management

84

Introduction

84

Information held by the department

84

A history of complaints – theVictorian Privacy Commissioner’s

85

experience

 

A history of complaints – theVictorian Ombudsman’s experience

85

Recent complaints and issues

85

The department’s privacy complaints structure

86

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Training and advice

88

Privacy materials

89

Internal reviews

89

Misunderstandings about privacy

90

Conclusions – privacy and information management

91

Recommendations - privacy and information management

92

Compliancewith privacy legislation

93

Removing client files from departmental offices

94

Inappropriate access to CRIS

95

Data quality

97

Notices about collection

98

Community service organisations

99

Criminal records

101

Conclusions – compliance with privacy legislation

101

Recommendations – compliance with privacy legislation

102

Workforce issues

104

Implications of vacancies and inexperience of the workforce

106

Conclusions – workforce issues

108

Accountability andtransparency inthe child

109

protection system

 

Introduction

109

The structure of the department

110

Data integrity

112

Cumulative harm reporting

113

Non-compliance with statutory obligations

113

Monitoring and reporting on system capacity

114

Inadequate analysis and reporting on incidents

115

Expert internal review mechanisms

117

Transparency and public accountability

118

Conflicts of interest

118

Lack of transparency

119

Limitations of the role of the Child Safety Commissioner

120

Limitations of the current child death review system

121

Conclusions – accountability and transparency in the child

125

protection system

 

Recommendations – accountability and transparency in the

127

child protection system

 

Summary of recommendations

129

Glossary & abbreviations

136

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FIGURES ANDTABLES

Figure 1:

New cases by phase of intervention (2000-09)

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Table 1:

Unallocated cases for 19 June 2009

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Table 2:

Ten highest unallocated caseloads as at 3 July 2009

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Table 3:

Outcome of applications made by the department to the

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Children’s Court (2004-09)

 

Figure 2:

New Orders made by the Children’s Court 2000-09

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Table 4:

Outcome of primary applications to the Children’s Court

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(2006-07)

 

Table 5:

Per cent of parents with concerning characteristics:

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cases first investigated in 1996-97 and 2001-02

 

Table 6:

Per cent of parents with concerning characteristics:

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cases first investigated, cases substantiated and cases

 

 

in which children were placed in out-of-home care

 

Table 7:

Supervision for January-March 2009

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Table 8:

Age breakdown of child protection workers

104

Figure 3:

Distribution of vacant Child ProtectionWorker FTE

105

Table 9:

CPW 2: Length of service with the department

106

Figure 4:

Line of reporting for metropolitan regions in child

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protection

 

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EXECUTIVE SUMMARY

Introduction

1.Child protection has been a significant source of complaints to my office over many years. Many of these complaints identified deficiencies in the Department of Human Services’ (the department) response to children at risk of harm. Almost every annual report from my office in the last decade has included such examples.

2.Given the concerns raised via complaints to my office, and the evidence gathered during my recent investigations into individual complaints, I decided to use my own motion power to investigate the department’s child protection program.

3.I commenced my investigation by writing to the Minister for Mental Health, Senior Victorians and Community Services (the Minister) and the Secretary of the Department of Human Services on 17 April 2009 advising that I had concerns regarding the department’s ability to discharge its statutory responsibilities to children at significant risk of harm.

4.My investigation involved: examining departmental client files; interviewing staff from the department, police and community service organisations; examining relevant research and policy documents; visiting regional areas; speaking to experts; collaboration with the Privacy

Commissioner and enquiries with relevant organisations.

5.In undertaking my investigation I was mindful that children are afforded special protections under the Charter of Human Rights and Responsibilities Act 2006 (the Charter).

6.The Charter reflects the understanding that children are particularly vulnerable members of our community and therefore should be afforded special attention. The Charter and the Children, Youth and Families Act 2005 both provide that the ‘best interests’ of the child should be the paramount consideration when the state takes any action which may affect or involve any child.

7.My investigators reviewed a number of cases where the best interests of children were not met and children subject to the department’s intervention were left at risk of harm.

8.In response to my preliminary concerns the department stated:

The Victorian government has recognised the urgent and pressing demand pressures facing the child protection program. New funding has been provided to alleviate the operational pressures that are compromising the delivery of quality services to vulnerable Victorian children and their families. The new funding of $77.2 million

over four years announced on the 19 September 2009 provides a concerted response to issues of capacity, quality of practice and compliance with standards.

Responding to reports of abuse

9.In relation to child protection, the principal objective of the department is to investigate allegations of child abuse and neglect and ensure the safety and wellbeing of children assessed to be at risk of significant harm.

10.My investigators received considerable positive feedback regarding many of the features of how Victoria’s child protection system is designed. It is apparent that Victoria is considered a leader in terms of its policy framework.

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11.During the course of my investigation it became apparent that the majority of child protection staff are highly committed to achieving positive outcomes for children. I believe that the current failures of the system should not be seen to reflect on the many dedicated staff working under difficult circumstances.

12.However my investigation has confirmed that the system is struggling to meet its operational responsibilities. While I have concerns about the operation of the system across the entire state, there are some regions in particular which seem to be operating under serious pressure.

13.For the financial period of 2008-09 the department received 42,905 significant wellbeing and protective intervention reports. Total reports have been increasing since 2003-04 with the rate of increase accelerating since the introduction of the Children, Youth and Families Act in April 2007.

14.My investigation has located statistical evidence, case examples and sworn statements which demonstrate that many allegations of child abuse and neglect do not receive a timely response.

15.Data prepared by the department for the period 1 July 2004 to 31 March 2009 shows that the department met the performance targets established for cases classified as requiring an immediate response. At no point has the department met the target for all other reports which were not classified as requiring an immediate response.

16.However I received sworn statements from witnesses that the immediate response indicator is at times manipulated to achieve targets. Senior departmental staff said this performance measure was often recorded as met despite the child not being sighted. Evidence was received that at times they had telephoned client families and recorded this measure as having been met, despite the child not having been sighted or visited as required to meet the standard. The department has advised that its procedures in relation to sighting of children are clear and if true, this practice is not condoned nor supported.

17.Even where the department meets its performance measures, it would appear that compliance does not necessarily equate to an effective response to a report.

18.My investigators reviewed a number of departmental files and rarely located evidence of thoroughly planned and comprehensive investigations in them beyond the initial visit. In some cases reviewed by my office the problem with the department’s investigation was simply that it was not executed with the degree of competence that would have been expected.

19.It was clear that the vast majority of staff interviewed by my officers wanted to follow best practice principles and conduct a thorough, well thought out investigation, but they found this impossible because of resource constraints. This resulted in poor quality of services being provided.

Unallocated cases

20.My investigation established that a large proportion of children subject to the department’s intervention are not allocated to a child protection worker.

21.As at 19 June 2009, 2197 cases, representing 22.6 per cent of all child protection cases, were not allocated to a case worker. This figure is also subject to a number of exclusions and I consider it likely that this data under represents the true number of children without a child protection worker.

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22.I am concerned about the high proportion of unallocated client cases in some regions. Failure to allocate cases means that there are a substantial number of vulnerable children without a child protection worker to respond to their needs.

23.Data examined during my investigation suggests that some regions have a level of demand for child protection services they could not meet even if fully staffed. For example, information provided by the department indicates the Gippsland region has the highest

percentage of unallocated client cases in the state. In April 2009 the region had approximately 52 per cent of client cases unallocated to a child protection worker. When my staff examined data from a regional manager in early June 2009 this number had increased to 56 per cent and when advice was provided by the department to my office in mid June this number had increased to 59.1 per cent.

24.The effect of a child protection system stretched beyond its capacity can manifest in poor case practice. I have outlined examples of this occurring in my report.

25.In response to my concerns the department stated:

As a direct result of having been made aware of these cases, both through your investigation, draft report and annual report, the Department has been able to take immediate actions to address some of the particular problems raised in the case studies including:

The review and, where necessary, the reopening of individual cases in order to ensure the safety and well being of the child.

Prioritising reviews of practice advice in relation to intake decision making and responding to concerns regarding a person on the sexual offender register.

Arranged practice labs for regional child protection staff to focus on regional consistency, compliance and clarity of advice including the ‘Person Responsible for Harm’ functionality.

Requiring all regions to confirm that CPW1s1 are not allocated cases.

Conducting a review of the criminal records check status of all carers.

Thresholds for acting upon reports

26.Evidence obtained during my investigation shows that the degree of tolerance of risk to children, referred to as the ‘threshold’, varies across the state according to the local departmental office’s ability to respond. I located many examples of cases where I consider that the risk of harm to children was unacceptable and the department had not intervened.

27.While the Children, Youth and Families Act requires protective intervention reports to be investigated, only about one quarter of protective intervention reports progress past initial consideration in the ‘Intake phase’. It should be noted that during the Intake phase the department may conduct preliminary enquiries to determine what action is required.

1 Child Protection Worker Grade 1 staff, also called case support workers, provide support to child protection workers with case management tasks. They should not be allocated cases.

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28.Departmental staff said during interview that they have at times been directed to close cases in the ‘Intake phase’ when they believed further enquiries or investigations were warranted. During the course of my investigation I have raised individual cases drawn to my attention with the Secretary of the department. I requested that the circumstances of these cases be reconsidered.

29.While any program has to balance issues of demand and capacity, the examples provided to my investigators and the evidence given by senior child protection workers demonstrate that the threshold of risk to children tolerated by the department varies across regions and according to the department’s capacity to respond.

30.In my opinion it is unacceptable that the geographic location of a child should dictate the degree of risk to their safety that is considered tolerable.

Responding to cumulative harm

31.The reforms implemented in accordance with the Children, Youth and Families Act have emphasised the need to move away from seeing incidents of abuse as an isolated event and toward considering the long term effect on children who are exposed to more than one undesirable event.

32.Throughout my investigation, it has been apparent that the department’s capacity to respond is so stretched that cumulative harm to children has not been given the priority and attention it should.

33.It also became apparent that, despite the extensive histories of some families demonstrating serious child protection concerns, the Children, Youth and Families Act requires that the

Children’s Court deal with the specific circumstances of each child.

Inadequate information technology

34.The department commenced rolling out the Client Relationship Information System (CRIS), a replacement information technology platform for the child protection program, in the Southern Metropolitan Region in 2005. The projected cost to implement CRIS across divisions of the department was $29 million, however the actual cost to date is $95 million and further expenditure is anticipated.

35.The implementation of CRIS was halted after its introduction into the first three regions of the state because it did not meet the needs of the child protection program and there were flaws in the functionality of the system. The implementation was interrupted for 10 months with the roll out being completed in 2007.

36.The evidence provided by senior departmental staff is that the introduction of CRIS has not only failed to provide the child protection system with a more effective tool than its predecessor, it has also impaired the department’s efficiency without providing adequate functionality. Many examples have been provided to my investigators of delays in processing reports arising from the introduction of CRIS.

37.These issues with CRIS have been compounded by inadequate planning and post implementation support. In my view the current situation requires urgent examination to establish whether the strategy of incremental improvements to CRIS will be successful in delivering a satisfactory case management system.

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38.The issues with CRIS have been recognised by the department and it has accepted my recommendation that a comprehensive and independent review be commissioned. I note enhancements to improve current issues with the functionality of CRIS are scheduled for implementation by July 2010.

Legal processes

39.Comments were made to my investigators about the contested nature of the child protection system compared to other jurisdictions. The current legal system involves the presentation of two competing arguments to the Magistrate or Judge. Some witnesses said such a system runs the risk of exacerbating a difficult situation or turning decision-making in relation to a child’s ‘best interests’ into a competition to present the best argument. It was suggested that the current legal system perversely encourages disputation rather than cooperation in the protection of children. This is in the context of a small proportion of matters leading to Protection Orders that affect the custody or guardianship of children.

40.Division 1 of the Children, Youth and Families Act states that the Children’s Court and the Secretary of the department must have regard to certain decision-making principles when making any decision or taking any action under the legislation. These principles are intended to provide guidance in the administration of the Children, Youth and Families Act. Section

10(1) of the Children, Youth and Families Act states:

For the purposes of this Act the best interests of the child must always be paramount.

41.Despite the clear intent of the legislation, I have learnt of examples where the outcome for children as a result of these intervention processes has been further abuse or where their needs have not been addressed. In my view the appropriateness of a legal system that generates such a degree of conflict ought to be reconsidered by government and an

assessment made as to whether better outcomes for children and families could be achieved through an improved model.

42.I have also identified concerns regarding the degree of resources currently required to service a model built on the premise of disputation and litigation.

43.Approximately 50 per cent of child protection worker time is spent servicing Children’s Court work and subsequent Protection Orders, even though only 7.3 per cent of the total number of reports made to the department result in legal intervention being initiated

in the Children’s Court. This significantly lessens the time in which child protection workers are available to respond to the needs of children under their care. This is a waste of scarce resources.

44.I have noted concerted efforts by both the Children’s Court and the department to reduce the administrative load created by the current arrangements. It is apparent that there is considerable goodwill in both organisations toward continuing these processes. The opening of a new Children’s Court in Moorabbin and the introduction of specialist regional court officers by the department are indicators in this regard.

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45.However it may be difficult for any government to adequately resource the child protection program whilst it expends so much of its resources responding to the forensic examination of this activity. Additional resources, without substantial systemic reform, is likely to merely lead to more families becoming caught up in a resource intensive and often counter-productive adversarial process. In my view the government ought

to carefully consider whether it is getting the best value for its investment in the child protection system.

46.I have considered alternative systems operating in other jurisdictions such as England and Scotland. These jurisdictions limit highly contested legal proceedings and instead operate a collaborative system with a focus on the best interests of children. Such alternative systems should be evaluated to establish whether the outcomes for vulnerable children in Victoria could be improved by taking a different approach to the regulation of this complex area.

47.There is significant overlap between the child protection jurisdiction and mental health, disability, drug and alcohol and domestic violence sectors. This not only emphasises the importance of a collaborative approach but also highlights the scope for public and community agencies to share responsibility for the protection of children.

48.In my view the current arrangements need to be reconsidered. I have recommended that the Attorney-General provide the Victorian Law Reform Commission with a reference to examine whether alternative legislative arrangements for child protection would reduce the degree of disputation and encourage a more collaborative approach for ensuring the best interests of children. The Attorney-General has accepted my recommendation.

Inadequate supervision of staff

49.In 2005 I made recommendations to the department following my investigation into the case of a seven month old child referred to by the media as ‘Baby Ben’. The child had been physically abused while in a foster care placement. One of my recommendations was that the department:

Develop systems to monitor the quality and availability of professional supervision to all child protection workers.

50.However data provided to my office by the department showed variable compliance with departmental supervision standards during the first quarter of 2009.

51.Compliance with the supervision standard is important on a number of fronts, including that the department relies on supervision as a primary means by which it monitors the service being provided to vulnerable children and monitors the quality of its interventions. If appropriate levels of supervision are not occurring the department’s fundamental quality assurance mechanism is compromised.

Inability to meet statutory obligations

52.My investigation identified instances where the department did not comply with statutory requirements and internal practice standards. These shortcomings were not restricted

to minor administrative matters but involved core processes for ensuring the safety and wellbeing of children reliant on the department.

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53.In my opinion, compliance with statutory obligations and practice standards must be a priority for the department if the safety and wellbeing of vulnerable children and young people is to be assured.

54.Examples include a number of instances where criminal records checks of carers were not conducted. In some instances this led to the children concerned being placed in the care of convicted sex offenders. Material on the department’s own electronic client files is also routinely not examined because of inadequate training of staff in how to use the department’s information technology system. Cumbersome record keeping practices also make it difficult for staff to readily access important information on CRIS.

55.My investigation also identified many instances where the department failed to comply with its statutory obligation to complete Best Interests Case Plans for children on Protection

Orders.

56.The purpose of the Best Interests Planning process is to develop a plan of action for the department, the child, the child’s carers and significant others.

57.Failure to develop such a plan creates ambiguity in how the department will progress with its involvement and how the child’s carers and significant others can assist in advancing the child’s safety and development.

58.The low level of compliance with practice standards relating to Best Interests Case Planning is concerning. In my view this reflects the current workload pressures on the system.

Substantial effort is required to ensure the legislative reforms, that were designed to improve planning for children’s best interests, are effectively implemented in practice.

59.The department has commissioned a review by KPMG to provide a comprehensive evaluation of the legislative and operational reforms which arose following the introduction of the Children, Youth and Families Act. The interim report notes that while good progress has been made in a number of areas, further work is required to fully embed the reforms in practice.

Transparency and accountability

60.During the course of my investigation the child protection program became the focus of significant media scrutiny in relation to fatal injuries sustained by a two-year-old girl, referred to as ‘Hayley’ in the media, who was the subject of a report to the department.

The case prompted a public statement from the mother of Daniel Valerio, a deceased two- year-old, described by the Herald Sun as ‘one of the most notorious child abuse cases in Australian history’.

61.In the years before and since the death of Daniel Valerio in September 1990, numerous reviews of the child protection system have occurred. Often these reviews are prompted by a high profile case, rather than as an element of proactive, ongoing reform. Both the Valerio case and the death of ‘Hayley’ have prompted such reviews.

62.Despite the intermittent media attention, it is clear that most child protection cases receive limited if any external scrutiny. My investigation revealed instances where children have died, been seriously injured or allegedly assaulted by their carers. In other cases professionals failed to agree on how to proceed in a child’s best interests. Yet, these cases have attracted little or no external scrutiny.

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Role of independent expert review

63.I consider that the accountability framework that has developed around the child protection system lacks sufficient rigour and transparency or the proactive elements required to ensure the state’s response to children meets community expectations.

64.However my investigation did find a number of examples of constructive reviews of the department’s involvement with children that were undertaken by the department’s Principal Child Protection Practitioner (Principal Practitioner). Many of the examples of poor case practice referred to in this report could also have contributed to improving the quality of the work undertaken by the child protection program had they been subject to the close examination evident in the Principal Practitioner’s reviews.

65.While I have commented positively on the quality of the reports completed by the Principal Practitioner, the role of the Principal Practitioner is not sufficient in itself to generate public confidence and inform debate regarding the effectiveness of the child protection system.

The Principal Practitioner’s reports are not public and the role cannot be considered to be independent. In my view the Principal Practitioner’s role is an important element of the department’s internal quality assurance system. However, it is not a substitute for an effective external review mechanism.

66.The key independent scrutineer of the child protection program is generally considered to be the Child Safety Commissioner. My investigation concluded that he does not have the ability to initiate investigations and has limited investigative powers. Also, the Child Safety

Commissioner has no coercive powers to investigate matters and relies on the cooperation of the department and other agencies to perform its functions.

67.The Minister has responded to my concerns about the Child Safety Commissioner’s reporting arrangements by committing to providing an annual charter letter to the Commissioner. The charter letter will ensure the Child Safety Commissioner is invited to raise any matter he sees fit in his annual report.

68.While measures can be taken to enhance the performance of the child protection system in the short and medium term, it is my view that greater transparency should be introduced into the child protection system to support a long term focus on maintaining standards acceptable to the community.

69.The work of the Principal Practitioner in particular can be built upon to produce a more robust system of accountability. The Secretary of the department has responded positively to my recommendations and has committed to ensuring the Principal Practitioner’s reviews are routinely provided to the Child Safety Commissioner.

70.This commitment will provide the Child Safety Commissioner with a greater number of information sources upon which he can monitor the child protection system. Combined with a greater capacity to report his assessment of this information to Parliament, the Child Safety

Commissioner would be better placed to perform his functions.

71.It is also my view that there should be a greater degree of public reporting by the department regarding the child protection system’s performance in meeting its statutory obligations and delivering on critical policy initiatives. The Secretary has accepted my recommendations in this regard.

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Structure of the department

72.The child protection program is governed by the Department of Human Services. The department funds most of the child protection service system, develops the legislative and policy frameworks within which it operates, regulates the providers and assumes statutory responsibilities for the children who rely upon it. I am concerned at inherent conflicts of interest within these arrangements and the lack of public scrutiny of its performance.

73.The department has responsibilities for many demanding public functions. In my view the current state of the child protection system requires these issues to be the focus of the public officer and organisation with statutory responsibility for its performance. The recent separation of health from the department will assist, however the department remains a complex and diverse organisation and consideration needs to be given to this issue.

74.A more direct alignment of management structures around the delivery of child protection services may enable the considerable variance in practices I have found between the eight regions to be addressed. In my view greater consistency in the threshold of tolerable risk to children should be applied across the state.

75.There are many circumstances in which children involved in the child protection system do not have parents who are able to advocate for their best interests. In such instances, the only voice that can provide advocacy on behalf of children are the professionals involved in their care. It is therefore important to ensure the department’s role of funding and regulating the community based sector does not impede staff in community organisations from articulating their views robustly.

Privacy and information management

76.Because of our shared concerns, my office has worked collaboratively with the Victorian Privacy Commissioner during my investigation to address privacy issues, and she seconded a member of her staff to my office to assist my investigation team.

77.My investigation has identified that there is a high level of awareness about the need to comply with the Information Privacy Act 2000 within child protection. However regional child protection managers were critical of how the department approaches privacy training.

78.My officers learned of a number of mistaken beliefs held by child protection staff about their responsibilities under the Information Privacy Act. Unfounded beliefs included that the department should not release the identity of reporters to Victoria Police when issues of physical and sexual abuse against children were alleged.

79.I consider the department’s current process for handling privacy complaints, including complaints about privacy in child protection, lacks transparency and accountability. The department has not provided child protection workers with sufficient training, advice or resources to ensure an appropriate level of privacy compliance.

80.There is a fundamental and widespread lack of understanding amongst departmental staff about their data security obligations under the Information Privacy Act.

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Unauthorised access to cris

81.The CRIS computer system contains information on child protection clients, carers, reports and external agencies. My investigation revealed many instances of departmental employees accessing CRIS inappropriately.

82.I consider that sufficient action is not being taken to prevent unauthorised accesses to CRIS. The department does not conduct random and frequent audits of CRIS and does not treat inappropriate accesses to CRIS as a privacy issue in all circumstances.

Workforce issues

83.The issue of recruiting and retaining staff in the child protection workforce appears to be a long standing one which Victoria has in common with many other jurisdictions. Low retention rates have resulted in a staff group lacking in experience.

84.Many reasons have been advanced for these low retention rates however the experience staff have in dealing with the legal system has figured prominently. The combination of vacancies and inexperienced staff was described by many witnesses as having a serious impact on the availability and quality of child protection responses. Many staff interviewed stated that there was often an inability to respond to matters because staff were not available.

85.In response the department stated that it is:

…acutely aware of the need to ensure that staff retention, an issue that is significant for child protection systems around the world, is at the centre of our workforce reforms. The Department’s existing retention activities for child protection workers are underway and the department recognises that there are challenges which will need to be addressed through a more focussed retention strategy, as this is critical to stabilising the workforce.

Recommendations

I have made a number of recommendations, including that:

The Attorney-General provide a reference to the Victorian Law Reform Commission to examine alternative models for child protection legislative arrangements that would reduce the degree of disputation and encourage a focus on the best interests of children.

The Attorney-General’s response

The Attorney-General has accepted this recommendation.

The department:

Establish arrangements for the ongoing independent scrutiny of the department’s decision-making regarding reports with particular attention to:

a.how the urgency of reports is categorised

b.the consistency of thresholds applied across the regions

c. the appropriateness of the thresholds applied by the department in its decision making.

Commission a review of the fitness for purpose of the Client Relationship Information System.

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Review current arrangements to ensure community service organisations are able to appropriately advocate for the best interests of children and present their professional opinions on matters under consideration.

Conduct a review of the department’s handling of reports concerning domestic violence issues.

Conduct a review of the department’s handling of reports concerning children who are exposed to known sex offenders.

Report on unallocated client case numbers in annual reports.

Conduct an audit of compliance with the Criminal Records Check Practice Advice for all open cases involving a kinship placement.

Review current arrangements for the management of privacy complaints and document formal processes.

Review its current data reporting practices and provide my office with a copy of the review within three months.

The department’s response

The department has accepted these recommendations.

Further recommendations outlined in my report have all been accepted by the department.

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BACKGROUND

The current child protection system

86.Child protection is a program funded and delivered by the Department of Human Services (the department). The program is divided into eight regions: Barwon – South Western, Gippsland, Grampians, Hume, Loddon Mallee, Eastern Metropolitan, North West Metropolitan and Southern Metropolitan. An After Hours Emergency Child Protection Service (AHECPS) also operates within the program.

87.The department can receive reports from any person concerning the welfare of children in Victoria and it has the responsibility of responding to or referring these reports to community service organisations. Reports can either relate to ‘a significant concern for the wellbeing of a child’ or a belief ‘…on reasonable grounds that a child is in need of protection’.

88.While any person can voluntarily make a report to the department, mandatory reporters such as medical practitioners, nurses, teachers and Victoria Police officers are obligated to make reports to the department. The Children, Youth and Families Act 2005 requires such professionals to make reports to the department when in the course of their employment they form ‘the belief on reasonable grounds that a child is in need of protection’ for the following reasons:

the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type

the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type.

89.The legislative reforms introduced under the Children, Youth and Families Act allows for reports concerning the welfare of children in Victoria to also be received by Child and Family Information Referral Support Teams (Child FIRST). Child FIRST is a community based provider which functions as a referral body. Child FIRST can refer reports to other

community service organisations or to the department. Once reports have been received by a community service organisation or the department, they are required to take action to ensure a child’s wellbeing and safety needs are met.

90.Each Child FIRST site has a community based child protection worker who is employed by the department to assist Child FIRST in assessing and responding to reports that it receives. If Child FIRST receives a referral and it considers that the child may be in need of protection, it must report the matter to the department.

91.When the department receives a report in the Intake phase, it is required to assess whether there are wellbeing and/or safety concerns for the child and the level of risk posed to the child. The assessment by departmental Intake staff may involve:

a detailed discussion with the reporter

a search of the department’s client database to determine if there has been any prior departmental involvement with the child

contact with relevant professionals such as doctors, teachers and maternal and child health nurses

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consultation and case conferences with senior departmental workers and relevant professionals.

92.If the department assesses that the report identifies significant concerns for wellbeing rather than safety concerns, the department may refer the report to Child FIRST. This arrangement has been put in place because the department at times receives reports where the risk to the child is assessed as not significant enough to warrant its intervention.

93.If the department assesses that a report is a protective intervention report because a child’s safety is at risk, it must conduct an investigation ‘as soon as practicable’ as outlined in section

205 of the Children, Youth and Families Act.

94.An investigation may lead to the department making a Protection Application to the Children’s Court because the department has determined that a child is in need of protection. The Children’s Court can issue a range of Protection Orders. Some Protection Orders transfer the custody or guardianship of children from the parent to the department. Other Protection Orders allow the department to monitor children while they remain in their parents’ care.

95.To assist with the implementation of the Children, Youth and Families Act, the department produces internal practice ‘advice’ which is contained in Protecting Victoria’s Children – Child Protection Practice Manual (the manual). The advice covers each of the different phases of the department’s intervention (Intake, Investigation, Protective Intervention and Protection Order). It explains the department’s statutory obligations and internal requirements for each stage of intervention.

Complaints to my office

96.Child protection has been a significant source of complaints to my office over many years. Many of these complaints have led to investigations which have identified deficiencies in the department’s response to children at risk of harm. Almost every annual report from my office in the last decade has included such examples.

97.Investigations in recent years combined with the number of complaints received by my office have increasingly supported my view that the department’s child protection program has problems which extend beyond errors in judgement in respect to individual cases.

98.For instance my 2006 Annual Report discussed concerns with the functioning of a rural child protection region based on extensive interviews with senior staff and the examination of 34 cases involving 57 children where I was concerned that the department may not have responded appropriately to their circumstances.

99.In another investigation that received considerable public attention, a case concerning a child referred to by the media as ‘Baby Ben’, I established gaps in child protection practice in relation to an infant who was admitted to hospital on three separate occasions with increasingly serious injuries.

100.While the department responded quickly to the concerns identified in each of these investigations, evidence has continued to demonstrate that the child protection program is operating under stress.

101.The number of complaints to my office regarding the child protection program remains high. I received 838 complaints between 1 July 2007 and 30 June 2009.

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102.The types of issues raised by complainants are broadly classified into those relating to:

reports of risks to children that were not acted upon; warnings of abuse and neglect not heeded by the department; allegations of abuse at home or in out-of-home care not responded to

lack of timely investigations by child protection staff; inadequate assessments of abuse; unallocated client cases

family members challenging decisions made by the department, particularly around access and custody arrangements

inadequate or lack of implementation of decisions regarding the placement of children, including inappropriate placements, inadequate case plans; and the best interests of children being ignored

poor performance by child protection staff, including: allegations of conflict of interest; failure to allocate cases; work overload; poor record keeping; inexperienced or unsuitable staff; use of coercion; breaches of privacy; withholding information; provision of incorrect advice; failure to respond to queries and failure to acknowledge facts or obtain evidence.

103.Cases recently investigated by my office revealed deficiencies. These were:

failure to take timely action to protect children at risk of harm

failure to comply with statutory obligations and internal practice standards

poor management of sensitive and delicate information

lack of transparency, insufficient scrutiny of the system and inadequate focus on outcomes for children

failure to effectively manage staff decisions and conduct thorough investigations.

104.Given the concerns raised via complaints to my office, and the evidence gathered during my recent investigations into individual complaints, I decided to use my own motion powers to investigate systemic issues associated with the child protection program.

OBJECTIVES AND METHODOLOGY

105.I commenced my investigation by writing to the Minister for Mental Health, Senior Victorians and Community Services and the Secretary of the Department of Human Services on 17 April 2009 advising that I had concerns regarding the department’s ability to discharge its statutory responsibilities to children at significant risk of harm.

106.I sought to ascertain the systemic issues in the child protection system which undermine an effective response to children at risk.

107.My investigation involved:

review of 80 child protection client files

review of 20 privacy complaints from the department

review a number of Child FIRST files

interviews with a number of departmental team leaders, unit managers, head office staff, community based child protection workers and one former regional manager

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interviews with all eight regional managers and the After Hours Child Protection

Emergency Service manager

attendance at briefings provided by the department

review of information provided by the department in response to enquiries

interviews with the Child Safety Commissioner, the Principal Child Protection Practitioner, the President of the Children’s Court, the Director of Child Abuse Prevention Research at Monash University, and the Medical Director of the Victorian

Forensic Paediatric Medical Service

interviews with a number of Child FIRST staff, officers from the Victoria Police Sexual Offences and Child Abuse Unit and Sexual Crimes Squad and staff from the Department of Education and Early Childhood Development

enquiries with the Victorian Aboriginal Child Care Agency, community service organisations, Victoria Legal Aid and WorkSafe

review of a submission provided by the Community and Public Sector Union

a regional visit

collaboration with the Victorian Privacy Commissioner

review of a number of complaint, enquiry and breach notification files from the Office of the Victorian Privacy Commissioner

review of outcomes from previous complaints to my office

review of the department’s good practice publications for 2008 and 2009.

FAILURE TO PROTECT CHILDREN

How many reports are received?

108.In 2007-08 the department received a total of 41,473 significant wellbeing and protective intervention reports. For the financial period of 2008-09 the department received 42,905 reports.

109.The following figure sourced from the department includes both significant wellbeing and protective intervention reports. Prior to the commencement of the Children, Youth and

Families Act there was a single category of report made to the department which related to section 64(1) of the Children and Young Persons Act 1989 that:

Any person who believes on reasonable grounds that a child is in need of protection may notify a protective intervener of that belief and of the reasonable grounds for it.

110.When significant wellbeing and protective intervention reports are considered, the data shows total reports have been increasing since 2003-04 with the rate of increase accelerating since the introduction of the Children, Youth and Families Act in April 2007.

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Figure 1: New cases by phase of intervention (2000-09)

Intakes

Investigations

Protective interventions

Protective orders

CYFA starts

50,000

 

 

 

 

 

 

 

 

45,000

 

 

 

 

 

 

 

 

40,000

 

 

 

 

 

 

 

 

35,000

 

 

 

 

 

 

 

 

30,000

 

 

 

 

 

 

 

 

25,000

 

 

 

 

 

 

 

 

20,000

 

 

 

 

 

 

 

 

15,000

 

 

 

 

 

 

 

 

10,000

 

 

 

 

 

 

 

 

5,000

 

 

 

 

 

 

 

 

-

 

 

 

 

 

 

 

 

2000-2001

2001-2002

2002-2003

2003-2004

2004-2005

2005-2006

2006-2007

2007-2008

2008-

 

 

 

 

 

 

 

 

2009(proj)

Timely responses to reports

111.My investigation has located statistical evidence, case examples and sworn statements which demonstrate many reports do not receive a timely response. Also, my investigators were told by several senior departmental staff from across the state that delays in completing investigations are worse than official data suggests as cases are shuffled between staff in order to meet departmental performance targets. It is of concern that such data is vulnerable to manipulation. I will discuss this in a later chapter of my report titled ‘Accountability and transparency in the child protection system’.

112.The department has performance standards for the timeliness of responses to reports. The performance standards for each report are determined by the classification assigned to a protective intervention report when it is received. These classifications are:

the department must visit 97 per cent of children who are the subject of protective intervention reports that are classified as urgent within 48 hours of receiving the report

the department must visit 90 per cent of children who are the subject of protective intervention reports that are not classified as urgent within 14 days of receiving the report.

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113.Data prepared by the department for the period 1 July 2004 to 31 March 2009 shows the department met the performance targets established for cases classified as requiring an immediate response. However it did not meet the target for reports which were not classified as requiring an immediate response. The data for the most recent quarter during this period shows an investigation was begun within 14 days in only 71.7 per cent of cases not requiring immediate investigation.

114.The following case demonstrates the serious consequences that may arise when the department fails to classify or investigate reports and does not meet performance measures.

Case study 1

In November 2008 I received a complaint regarding the failure of the department to intervene when it became aware that two children were living with their grandfather who was a convicted child sex offender.

The department did not refer the matter to its Response Unit for investigation until 18 days after it received the report. The Response Unit failed to immediately act on the information available and the children were subsequently moved by their father to an unknown location 22 days after the department received the report. The

department was unable to ensure the safety and wellbeing of the children during this time. A Recovery Order was issued by the Family Law Court and the children were eventually located at their grandfather’s home, a convicted sex offender, 48 days after the report.

115.During my investigation I also identified a number of cases where children were at imminent and significant risk of harm. Although the department initiated a response in accordance with its 48 hour performance measure its response was not immediate.

Cases unable to be allocated to a child protection worker

116.Approximately three-quarters of all reports to the department are not investigated. It could reasonably be assumed that the remaining matters after this degree of screening warrant careful attention. However, my investigation established that a large proportion of children subject to the department’s investigation are not allocated to a child protection worker.

117.In response to my preliminary concerns, the department advised that team leaders manage their unallocated client case list through task allocation to team members. However, the department acknowledged that unallocated cases do not receive a full case management service.

118.The state-wide figures for unallocated child protection client cases on 19 June 2009 are presented in the table on the following page.

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Table 1: Unallocated cases for 19 June 2009

Region

Allocated

Unallocated

Total

%Unallocated

 

 

 

 

 

Barwon – SouthWestern

875

54

929

5.8

 

 

 

 

 

Gippsland

521

754

1275

59.1

 

 

 

 

 

Grampians

364

164

528

31.1

 

 

 

 

 

Hume

621

188

809

23.2

 

 

 

 

 

Loddon Mallee

856

177

1033

17.1

 

 

 

 

 

Eastern Metropolitan

1062

79

1141

6.9

 

 

 

 

 

NorthWest Metropolitan

1976

576

2552

22.6

 

 

 

 

 

Southern Metropolitan

1236

205

1441

14.2

 

 

 

 

 

Total

7511

2197

9708

22.6

 

 

 

 

 

119.It is likely that this data under represents the true number of cases without a child protection worker who is available to respond to the circumstances of the child. Several factors may contribute to the inaccuracy of this data. For instance, the data represented in the above table does not include:

cases in Intake because the department considers such cases are task driven therefore individual case worker allocation is not always necessary

cases not allocated for less than four days because the department considers this a reasonable period to transfer a case between teams.

120.Information provided by the department indicates the Gippsland region has the highest percentage of unallocated client cases in the state. In April 2009 the region had approximately 52 per cent of client cases unallocated to a child protection worker. When my staff spoke with the regional manager in early June 2009 this number had increased to 56 per cent and when advice was provided by the department to my office in mid June this number had increased to 59.1 per cent. This contrasts with the state’s lowest level of unallocated cases in the Barwon – South Western region at 5.8 per cent.

121.Data provided for one rural region indicates that in one of its offices the ratio of all clients to a child protection worker was one child protection worker to 85 clients. I have significant reservations regarding the department’s ability to meet its statutory obligation to protect children at risk of harm given the ratio of children to available child protection workers.

122.Other regions also have high unallocated client case numbers such as Grampians with 31 per cent, Hume with 23 per cent and the North West Metropolitan region with 22 per cent.

123.As a result of my concerns, the department has informed my office that:

The Gippsland region, which has the highest rate of unallocated cases, has been assigned a team of experienced child protection workers and managers from Head

Office and regional staff. They will specifically deal with the backlog of cases and then develop a set of sustainable workload management processes and structures in the region. The Department has a comprehensive strategy in place to address the

immediate and ongoing issues of the Gippsland child protection program – to impact on allocation levels, recruitment to vacant positions and overall system sustainability.

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124.The department further advised that a new Specialist Intervention Team will be deployed in regional areas to:

… provide immediate assistance in addressing operational pressures and to assist in the development of more systemic responses to these pressures.

125.Filling vacant positions for child protection workers may not be sufficient to resolve this issue. One child protection manager stated that were they to be fully staffed they would still not be able to reach the allocated client case performance measure of 95 per cent. The manager stated that even if all vacant child protection worker positions were filled within their metropolitan region at least 25 per cent of client cases would remain unallocated.

126.The child protection manager further stated that in order to allocate all client cases staff would be required to carry ‘unacceptable’ numbers of client cases. In addition, this manager reported that the department would need to reduce the number of cases it investigates to meet the allocation performance measure.

Problems caused by deficient information technology

127.The allocation of client cases is further complicated by the Client Relationship Information System (CRIS). In 2005 the department piloted CRIS in the Southern Metropolitan Region and then decided to implement CRIS in all regions across the state. The department’s decision was based on the need to replace the previous client database system (CASIS) because of the belief that it would not ‘meet the business needs into the future’.

128.The Manager of CRIS Business Development Support was interviewed regarding the implementation of CRIS which took two-and-a-half years to complete state-wide. The manager described the implementation as fraught with difficulties. The implementation was halted after the first three regions of the state because there were ‘just too many issues in the system’. The implementation was interrupted for 10 months.

129.The department has acknowledged the functionality issues with CRIS and agreed to commission a comprehensive and independent review. I note enhancements to improve current issues with the functionality of CRIS are scheduled to be implemented by July 2010.

130.The department informed my office that the projected cost to implement CRIS across divisions of the department, including the child protection program, had been $29 million. The department advised the actual cost to do so was $95 million and further expenditure is anticipated.

Difficulties tracking caseloads in cris

131.The department uses CRIS to generate data on the number of allocated and unallocated client cases. However, I did not find the CRIS data to be reliable.

132.For example, I requested a list of the ten highest caseloads across the state allocated to departmental staff as at 27 February 2009 and 3 July 2009. Data provided by the department for 27 February 2009 showed the highest allocated caseload was to a base grade child protection worker in a rural office who had a caseload of 47 individual children.

133.During my investigation I interviewed a team leader in a rural office who reported that in February 2009 they had a caseload of 158 children and by June 2009 this had risen to 212 children. My investigators were provided with copies of the relevant client lists which confirmed that the team leader’s name was assigned as the ‘worker’ on CRIS.

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134.When I questioned the integrity of the data previously provided to my office, the department informed my office that:

The CRIS system automatically assigns all cases to a worker, as a system requirement. This automatic assignment of cases to a worker is termed ‘allocation’ within the CRIS system, however this type of ‘allocation’ has no direct bearing on case management allocation, which is a deliberate process managed by a Team Leader / CPW-4.

… cases awaiting allocation are only found on the CRIS client list of a CPW-4 / Team Leader. Team Leaders manage their unallocated list through task allocation to team members to address current or emerging issues. Unallocated cases do not receive a full case management service.

135.The department subsequently advised that when the ‘counting rules’ were applied to the team leader’s caseload allocation for 27 February 2009 they had 154 individual children on their client list, all but five of whom were awaiting allocation. As at 3 July 2009 the same team leader had 151 individual children on their client list, all of whom were waiting allocation.

136.I requested a list of the ten highest ‘unallocated’ client caseloads as at 3 July 2009. The department provided the following:

Table 2:Ten highest unallocated caseloads as at 3 July 2009

Worker

Region

CPW Level

Number of Clients

 

 

 

 

1

Gippsland

CPW-5

177

 

 

 

 

2

Gippsland

CPW-3

151

 

 

 

 

3

Gippsland

CPW-4

131

 

 

 

 

4

Barwon – SouthWestern

CPW-3

114

 

 

 

 

5

Barwon – SouthWestern

CPW-2

108

 

 

 

 

6

Southern Metropolitan

CPW-4

105

 

 

 

 

7

Hume

CPW-4

78

 

 

 

 

8

Grampians

CPW-3

71

 

 

 

 

9

Barwon – SouthWestern

CPW-2

69

 

 

 

 

10

Gippsland

CPW-4

66

 

 

 

 

137.The above information appears to contradict the department’s explanation that only staff at a CPW-4 team leader level are responsible for ‘unallocated’ client lists.

138.In response to my draft report, the department stated that CPW-3 staff acting on higher duties at the CPW-4 level may carry unallocated caseloads. In addition, CPW-5 staff may also carry unallocated case lists when acting temporarily as a CPW-4 team leader. While I note the department’s response, it does not account for CPW-2 level staff holding unallocated cases.

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139.My office also requested information as to whether any staff employed at the CPW-1 level were the primary allocated workers for client cases on CRIS. Staff employed at the CPW-1 level are not employed as ‘protective interveners’ under the Children, Youth and Families Act and therefore should not be the primary allocated worker. My office was informed that nine staff with a classification of CPW-1 were holding client allocations. While two of the nine were on higher duties at the CPW-2 level, the department informed my office that the other seven had been allocated client cases because they had:

… inadvertently been assigned as the primary worker instead of the secondary worker on CRIS … this administrative error has been addressed.

140.The Community and Public Sector Union also informed me that it was concerned about the inconsistency in the ‘number of cases allocated to workers in different regions or teams’.

Administrative complications caused by cris functionality

141.Many examples have been provided to my investigators of delays in processing reports arising from the progressive introduction of CRIS from 2005 onwards.

142.The decision to implement CRIS coincided with the introduction of the Children, Youth and Families Act in 2007. Also, the overall number of open cases increased by around 60 per cent in early 2006. The department acknowledged there was a ‘possibility’ that the implementation of CRIS had increased the administrative burden for child protection workers during this period.

143.It became apparent through my interviews with senior child protection program staff that the implementation of CRIS with its inadequate functionality substantially increased the time taken to meet the administrative requirements of child protection work.

144.Regional managers were asked to comment on the impact of CRIS on the child protection program. One said:

the amount of time that people who have an expertise in being able to assess a family or a child, spend in administrative requirements of that task, is absolutely onerous.

145.Another regional manager stated that CRIS was so complicated that it caused many issues within their region, in particular for staff moving to different teams within the program.

They stated that recording information in CRIS took a long time and it was something that ‘a stretched workforce doesn’t really need’.

146.Another manager stated that child protection workers were required to have ‘shadow systems’ in order to keep track of the progress of their cases and important dates such as when the matter was next due in the Children’s Court. The manager said that there did not seem to be a way to get that information ‘onto one screen easily’ using CRIS.

147.A rural regional manager expressed concerns for their staff because CRIS had:

both increased the workload for child protection staff as well as increased the

frustration and stress levels for staff, because just nothing is easy on CRIS.

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148.The Community and Public Sector Union informed my office that staff had reported concerns regarding CRIS since its introduction. The Community and Public Sector Union’s submission to me stated:

Staff report that since the introduction of the CRIS system, workload has increased threefold. Staff find CRIS time consuming and often unreliable. There have been reports of CRIS losing case notes, problems logging in and time delays in generating reports. CRIS adds to the workload pressures already felt by staff. Staff feel that the time resources that need to be allocated to keeping CRIS up to date detracts from the time been able to be spent face to face with clients, ensuring children’s safety.

149.One regional child protection manager said staff found that the search function available on

CRIS was not as reliable as it was on CASIS. The manager said the deficiency in the search function compromised the ability to accurately locate a child’s details. The consequence of this problem is that staff ‘don’t find the information’ in relation to a child’s history and therefore fail to consider relevant information when undertaking their risk assessment.

150.My investigators queried whether there had been any analysis regarding the impact of CRIS on workload. The Manager of CRIS Business Development Support, said ‘…there was no targeted study’.

151.However, some regions have undertaken their own examination of the impact of CRIS. One team leader in an Intake area stated:

We’ve done time and motion studies, and it’s gone from one click to 200 clicks. To that extent … we worked out it takes an hour and a half and close to two hours just to put up a report and get the file ready.

152.In the Intake phase when a report is received the worker will create a document called the

‘Intake Record’. This document details the time and date the report was received, the client’s previous history and any follow-up calls undertaken by the child protection worker.

153.The Manager of CRIS Business Development Support stated that since the introduction of CRIS there have been ‘enhancements’ to the Intake Record that have reduced the number of computer clicks by 64 per cent. Further, the manager informed my officers that the length of time taken to create the Intake Record was ‘subjective’ as it was dependent on the child protection worker’s ‘proficiency’ with the system.

154.The department commissioned The Nous Group to conduct a review of the impact on the workload on child protection program Intake staff in 2006. The findings of the review were consistent with the staff experience relayed to my investigators that:

CRIS required additional effort to register an Intake notification [report]

response times in CRIS are slower

there are additional administrative steps in the CRIS Intake process.

155.Witnesses have told my officers that the training for CRIS was not adequate and continues to be inadequate because there are too many phases of the system to learn. The Manager of CRIS Business Development Support told my officers that the Integrated Client Applications Management Centre (the Centre), an internal support unit jointly funded by Children, Youth

and Families and Disability Services programs of the department, was responsible for training in CRIS. The manager said when staff approached the Centre to raise concerns about aspects of the training, the Centre had no way to incorporate the concerns into the current training.

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Coordination between community service organisations and child protection

156.In my report of March 2006 titled Improving Responses to Allegations Involving Sexual Assault, I concluded that inter-agency collaboration is essential during an investigation and the degree to which agencies communicate effectively may have significant implications for a child’s wellbeing.

157.Under the Children, Youth and Families Act, coordination between the department and community service organisations is critical. Reports can be received by the department or Child FIRST and referred for action to the department, Child FIRST or another community service organisation. There is a clear need to ensure children do not fall between the responsibilities of these service systems.

158.Inevitably these arrangements will bring Child FIRST into contact with children who should be referred to the department through protective intervention reports. In many ways Child FIRST is well placed to identify children at risk and ensure that they are brought to the attention of the department in a timely manner.

159.The department and community service organisations have a protocol called the Shell Agreement which details the procedures and requirements for each service and the core functions of Child FIRST. During interview, witnesses from Child FIRST sites expressed frustration regarding these protocols. Child FIRST staff interpreted this agreement to limit their capacity to make a report direct to the department. While the agreement states that a report from Child FIRST ‘…can be made at any time…’ it also makes reference to ‘If a

child protection report is agreed…’ the community based child protection worker will refer the matter to the department. Community based child protection workers are located at each Child FIRST site. The department states the protocols contain clear dispute resolution processes and that Child FIRST can make a protective intervention report at any time.

160.An example of a case which Child FIRST considered required departmental involvement but was not referred to the department is as follows:

Case study 2

A community service organisation informed my investigators that an individual contacted the department in relation to a child who was allegedly malnourished and physically abused. The department had received six previous reports in relation to the same child and the parents’ alleged inability to care for her and the use of physical discipline. One previous report to the department had been substantiated. The community service organisation told my investigators that the department advised the reporter to contact Child FIRST.

Under section 38 of the Children, Youth and Families Act, a community service organisation may consult with the department. The community service organisation informed my officers that it assessed the child was in need of protection and undertook a consultation with the department. While the ‘Shell Agreement’ states that a community service organisation can make a report to the department at any time, as the department determined during the consultation that its intervention was not required, the community service organisation did not pursue making a report to the department.

After my office made enquiries regarding this case, the department reviewed its assessment and acknowledged that it had not considered the history of the child’s welfare in the context of the most recently received report.

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161.I note that in the above case the most recent report was not recorded by the department on the child’s departmental file because the community based child protection worker and his or her manager decided that the report did not warrant departmental involvement.

162.The senior Child FIRST manager who described the above case at interview also said Child FIRST was pressured to manage high risk cases when the department was experiencing high levels of demand.

163.A departmental manager in an Intake area confirmed this was the case. They stated:

Many of the referrals being made to community agencies are not appropriate and should not be considered for a variety of reasons, but this occurs as a way of managing workloads.

164.Several witnesses stated that Child FIRST is suffering the same demand and capacity issues as the department. A senior Child FIRST manager in one region said that ‘…over the last six to eight months Family Services [Child FIRST] has just not been able to cope with taking more cases’. The Child FIRST site which this senior manager is placed at has had up to 40 cases that cannot be allocated to support services for the provision of assistance to families.

165.The Community and Public Sector Union advised my officers that a lack of funding for community service agencies has resulted in:

community service agencies who are meant to manage the family caseloads of child protection referrals are closing their books and not taking any further referrals. As a result, the cases are remaining with DHS [the department] placing further work on already overworked child protection workers.

166.Rather than the Child FIRST initiatives reducing the department’s workload, as some departmental managers said they had expected, there was a view that ‘… what we’re seeing from Child FIRST is that…they’re just meeting a community need that’s been unmet for quite some time’. As a consequence Child FIRST has declined to assist families it had been expected to be able to support because the demand for its services is too great.

167.The department commissioned a report from KPMG to review the implementation of new initiatives arising from the introduction of the Children, Youth and Families Act. A copy of the report provided by the department states:

as Family Services [community service organisations] increasingly manage more complex cases, their capacity to provide their former preventative intervention services is being reduced. This potentially creates the risk that family issues may escalate, resulting in them coming to the attention of Child FIRST or Child Protection [the department] at a later point.

168.Senior workers in both the department and Child FIRST said that some serious cases of child abuse which they considered should be managed by the department were left with Child FIRST. One witness stated that when Child FIRST raised the issue of risk and case management with the department, the department would ‘become incredibly defensive’ and reports were left with Child FIRST which is ‘not adequately equipped’ to handle high risk to children’s safety and welfare.

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169.Conflicting opinions between Child FIRST and the department can lead to the unsatisfactory handling of cases for which they share responsibility. The case study below provides an example.

Case study 3

I received a complaint from a Chief Executive Officer (CEO) of a community service organisation. The CEO made a complaint about the department’s failure to intervene and protect a young teenage mother and her five-month-old infant.

The CEO reported that their organisation was providing the mother with parenting support, but that the service had serious concerns about the safety of the young mother and her infant. The CEO advised that the department had not investigated protective concerns the community service organisation reported to it.

There was disagreement between the community service organisation and departmental staff regarding the appropriate intervention in this case. The department said there was no reason for protective intervention because the family was voluntarily working with community service organisations. The community service organisation, however, maintained that there was significant risk and the department had not assessed the risk adequately.

There was an initial agreement between all services for the mother and infant to undertake a residential parenting assessment, but this assessment had not taken place.

I recommended further strategies be explored by the department and the community service organisation to ensure the mother’s parenting capacity was thoroughly assessed, bearing in mind her age and circumstances. The department accepted my recommendations. The assessment unfortunately did not take place because the mother took her infant interstate.

Thresholds applied when deciding whether to investigate

170.Evidence obtained during my investigation shows that the degree of tolerance of risk to children, referred to as the ‘threshold’, varies across the state according to the local office’s ability to respond. I located many examples of cases where I consider that the risk of harm to children was unacceptable and the department had not intervened.

171.Whilst the Children, Youth and Families Act requires protective intervention reports to be investigated, administratively only about one-quarter of protective intervention reports progress past initial consideration in the Intake phase2. This figure needs to be considered in the context of the department having to target its responses and resources to matters that require its intervention. Further, it is important to recognise that section 10(3)(a) of the

Children, Youth and Families Act requires that the department limit its intervention to that necessary to secure the safety and wellbeing of the child.

172.The Intake phase is the initial point of contact with the department for most professionals and concerned members of the public. Each region has a dedicated Intake team to determine which cases require further child protection program intervention. The Intake phase may involve child protection workers making preliminary telephone enquiries with other professionals to gather information.

2 Australian Institute of Health and Welfare, Child Protection Australia 2007-08, Child Welfare Series, No. 45, Canberra, 2009.

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173.Departmental staff said in interview that they had at times been directed to close cases in the ‘Intake phase’ when they believed further enquires or investigations were warranted. The following is an example of a report being prematurely closed when protective concerns were apparent.

Case study 4

The department received nine reports concerning two siblings over a six-year period. Initial reports were in relation to the children’s exposure to domestic violence. More recent reports concerned the alleged physical abuse of the children. Several reports about alleged physical abuse were closed by the department on the basis that: a referral to Child FIRST had been provided; a general practitioner did not determine abuse to be the cause of the children’s injuries and the children did not disclose abuse.

When investigations were conducted by the department, several shortcomings were apparent. Departmental staff failed to interview the children without the mother or step-father present when it became aware of physical abuse allegations. I also note that the department failed to appropriately act after workers noticed inconsistencies provided in the children’s accounts about how their injuries were sustained.

In addition, the department referred the children to a general practitioner for initial assessments of their injuries, rather than seeking an assessment by the Victorian Forensic Paediatric Medical Service. A further assessment in October 2008 identified serious injuries.

As the reports involved allegations of physical abuse of children, the Victoria Police Sexual Offences and Child Abuse Unit conducted a criminal investigation into allegations made against the step-father. A police officer interviewed by my investigators about this case stated:

I was highly concerned that this child [referring to the older child] had been presented to the DHS [the department] and occasionally to the police with all these injuries and nothing had been done about it.

Although the department concluded that the step-father was abusing the children, it failed to initiate proceedings in the Children’s Court until some months later. In the interim, the children continued to suffer abuse.

174.Senior child protection staff, police and medical professionals told my investigators that the threshold for investigation varies between regions and in line with changes in workload. The

Medical Director of the Victorian Forensic Paediatric Medical Service stated:

There are some regions where for example a notification [report] will be made about a child with bruising and that particular region will say, ‘Well we’re not considering bruising to be particularly worrying in children anymore or at the moment or whatever, and therefore we’re not going to rate that highly, we’re not going to go out‘.

175.A former senior child protection manager described these variations in acceptable risk thresholds as balancing the need to investigate against allowing their staff to become

‘absolutely overloaded’ or ‘… pull(ing) back on the threshold to try and see the ones that need to be sticking out’. The result was described as a service system focussed on case closure rather than the best interests of children.

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176.Several of the senior staff members interviewed in my investigation spoke about the pressure to prematurely close cases. A team leader from the Intake phase stated:

last year we had managers telling us … try and close them at Intake … because the Response team has got … 400 children with no child protection worker …

177.These sentiments were supported by a unit manager from a different region who described the pressures placed on them to reduce the number of reports which they determined required follow up and investigation:

My role as Intake Manager is to ensure that effective and timely decision making is made. However, if the conversion rate [from report to investigation] is anything more than 24 per cent the Program cannot cope and it is made abundantly clear that I need to ‘do better’.

178.During the course of my investigation I have raised individual cases drawn to my attention with the Secretary of the department. I requested the circumstances of these cases be reconsidered.

179.At interview, a Senior Sergeant from Victoria Police Sexual Offences and Child Abuse Unit said their unit was also experiencing a significant and unexpected increase in its workload.

The Senior Sergeant stated that he believed the increase could be attributed to several factors, including the department:

… not attending joint visits, and I can understand why, and they’re throwing it off onto us because they know we’ll attend, we’ll make an assessment and then we’ll pass it onto them. So it’s basically just managing their resources I would say.

The quality of investigations conducted

180.When the department decides that a case requires investigation, it is often commenced by child protection workers conducting a visit to the family home.

181.The department’s practice advice contained in Protecting Victoria’s Children – Child Protection Practice Manual (the manual) emphasises ‘best practice expectations’ when conducting first visits to families and provides advice regarding the ongoing investigation of allegations.

182.There is evidence that departmental staff conduct the initial visit to families well. However, there is also evidence that further investigation following the initial visit is sometimes poorly planned and executed. This is reported to arise from the department’s constant shuffling of resources in order to respond to new matters and meet performance measures.

Inadequate follow up

183.Departmental managers expressed concerns about inadequate follow up of protective intervention reports. My examination of case files also identified deficiencies in how investigations conducted by the department were planned.

184.The following case demonstrates the safety and protection that can be provided to vulnerable children when a report is thoroughly investigated and handled professionally.

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Case study 5

The department received a report in relation to two young persons who were believed to be at risk of sexual assault from their step-father3. The step-father’s biological daughter had disclosed that she was sexually abused by her father during her childhood.

The department consulted with professionals who specialised in sexual abuse counselling to determine the best approach for investigating the report. The department received permission to talk with the biological daughter in order to obtain insight into the alleged offender’s ‘grooming’ behaviour. This information was used when conducting the interviews with the young persons.

The department met with the mother who was deeply distressed by the report, however responded protectively. A crisis session with the Centre Against Sexual

Assault was arranged for the mother.

The department and the police spent a considerable amount of time planning the interviews with the young persons. During interview, the young persons disclosed that their step-father had sexually abused them. Following the disclosures, the police charged the step-father and he was bailed to an alternative address.

Specialist counselling was arranged immediately for the young persons and the department intensively supported the mother over the following weeks. The mother experienced a number of financial and social difficulties after her husband moved out, however she was able to continue to ensure her children’s safety with the support of the department.

185.My investigators reviewed a number of departmental files and rarely located evidence in them of thoroughly planned and comprehensive investigations beyond the initial visit. In many cases obvious lines of enquiry were not followed through and investigations seemed to cease once enough evidence had been gathered to justify a decision.

186.At interview, senior departmental staff said cases were regularly allocated for the sole purpose of attempting a first visit to the family. Once a visit has been attempted, the department has met its performance target, and the case may then be de-allocated and staff redeployed to other matters where similar action is required to comply with the performance measure.

187.The following case study emphasises the significant harm which children can experience when the department’s investigation is deficient.

Case study 6

During my investigation, my officers identified a region that is struggling to meet the demand it is experiencing. The region was involved with a child who was hospitalised following significant physical abuse perpetrated by her mother.

The department had previously been involved with the child after it received reports about the child’s alleged malnutrition, physical abuse and exposure to domestic violence. Despite the department’s knowledge of the ongoing abuse and neglect experienced by the child, it failed to apply to the Children’s Court for a Protection

Application until after the child was hospitalised.

3 Victorian Government Department of Human Services, Good Practice: A Statewide Snapshot 2009, September 2009.

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An internal department review undertaken by the Principal Practitioner concluded that the department’s assessment of the mother was inadequate. The department did not consider the pattern and history of abuse to the child, there was a lack of consultation with community service organisations and avoidance of taking the matter to the Children’s Court. The Principal Practitioner further established that there was an overall lack of case direction and coordination.

Poorly executed investigations

188.Well conducted investigations are crucial to ensuring protective intervention reports are dealt with effectively by the department. The following case demonstrates the safety and protection that can be provided to vulnerable children when strategic planning results in well conducted intervention.

Case study 7

The department received a report in relation to six children who were frequently absent from school. The children were described as dirty and unkempt with reports that the home environment was uninhabitable. Staff from the children’s school had been unable to engage the family and described the father as highly aggressive and hostile.4

Prior to commencing the investigation, the department conducted an interstate check on the family and discovered that four children had been removed from their parents’ care due to concerns about sexual abuse, environmental neglect, domestic violence and verbal abuse.

Given the pattern of abuse and neglect, the department undertook steps to develop the best response to the family. The decision was made to interview the children at school prior to meeting with the parents, given the children’s reported reservation to talk about their circumstances.

The children did not make any disclosures of abuse and the family agreed to work with the department on a voluntary basis. The child protection worker conducted frequent visits to the home and the father agreed to attend a men’s behaviour change program. The children also became increasingly open to talking with the child protection worker.

The family agreed to a range of assessments and services such as speech therapy and disability support for the children. The school noticed an improvement in attendance and an improvement in the condition of the home environment. While some violence and secrecy still remains within the family, the department continues to be actively involved to ensure that genuine change occurs.

189.However my investigators reviewed some cases where the department’s investigation was simply not executed with the degree of competence that would have been expected.

4 Victorian Government Department of Human Services, Good Practice: A Statewide Snapshot 2008, August 2008.

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190.Several senior managers expressed concern about the level of skill and experience within the workforce and the consequence for investigations. Whilst it was apparent that the workforce is highly committed to obtaining good outcomes for children, high workload combined with inexperience was a commonly reported concern. For instance a former senior manager said that they often felt like attending interviews with staff because:

… you really didn’t think that they knew the questions that they needed to ask or that they were going to be forceful enough and ask some of the very difficult questions you need to ask in the lounge room of someone who’s the potential perpetrator of abuse …

191.A poorly conceived approach to investigating serious sexual abuse allegations is demonstrated in the following case study:

Case study 8

A family of six children was reported to the department. The children’s father and paternal grandfather had been convicted of sexual abuse offences against the children when they lived interstate.

Two child protection workers interviewed the children in the home, with the father and grandfather present. As the children did not make disclosures of abuse the case was closed.

The department reopened this case for investigation after an internal review by the regional office.

192.During my investigation I also became aware of the management of serious allegations through written correspondence with parents. This can be particularly problematic when a report concerns allegations against a parent. I was concerned to find examples of such

practices occurring in relation to cases involving family violence and the exposure of children to convicted sex offenders.

193.Several cases reviewed by my investigators involved contact between known child sex offenders and children where very little action was taken to ensure the safety of the child concerned. I have not included their details as the facts are too disturbing.

Responding to child protection demand outside business hours

194.A structural issue with the child protection system that was raised by several witnesses was the requirement for regional staff to work excessive hours caused by the inability of the department’s After Hours Child Protection Emergency Service to take responsibility for matters that commence during business hours.

195.The After Hours Child Protection Emergency Service is a state-wide service that operates outside of 8.45am – 5.00pm on weekdays as well as weekends and public holidays. The service is responsible for matters where a child may be at risk and the concerns for the child cannot wait to be addressed the following day. According to the After Hours Child Protection Emergency Service protocol it ‘does not constitute an extension of the regional child protection service and responds only to emergencies’.

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196.The metropolitan based After Hours Child Protection Emergency Service provides a centrally managed state-wide service. However, certain rural regions also operate a separate after hours program which is staffed by child protection workers who are on call to respond

to matters the After Hours Child Protection Emergency Service deem to be urgent. The Grampians and Loddon Mallee regions operate a ‘hybrid’ system with dedicated staff specifically employed to work after hours and rostered staff employed to work additional shifts as part of their full-time employment. The Hume and Barwon – South Western regions, however, do not have a separate after hours program and rely instead on business hours staff to also be ‘on-call’ in the evening and weekends. There are obvious health and safety implications with this practice particularly if staff are called to an urgent visit after already having worked a full day.

197.The After Hours Child Protection Emergency Service does not accept the transfer of cases from the metropolitan regions if the region has already commenced a response. For example, if regional staff have been conducting an emergency response since 2.00pm and it is progressing into the evening, then the regional child protection staff must continue with the response. One unit manager stated that the extended hours spent responding to urgent child protection matters ‘really impacts on a person’s ability to do their job’.

198.According to the Victorian government Better Health website5, the health and safety consequences relating to the stress of working extended hours are feeling unable to cope, anxiety, fatigue, sleeping difficulties and other physical symptoms which impact on productivity in the workplace. In the department’s 2008 discussion paper called Putting a Focus on Retention it is reported that the volume of work currently undertaken in child protection is a factor in retaining staff.

199.Many senior staff expressed concerns about extended work hours and the risk this can pose to staff and clients in terms of their health and wellbeing.

200.Some metropolitan regional managers expressed frustration with what they perceived to be a lack of responsiveness from the After Hours Child Protection Emergency Service which results in their staff having to investigate matters after hours.

201.I proposed that the department commission an independent review of its capacity to service child protection activity outside business hours and the feasibility of creating specific after hours regional response capability. The department’s response stated:

The department’s first priority is to focus resources and attention on the EMR [Eastern Metropolitan region] pilot of the new Operating Model for Child Protection and to apply the learning from this significant change effort. The magnitude of this work is considerable and the department is keen not to over-extend the change capacity of the child protection program. The evaluation of the Operating Model may also identify improvement opportunities for child protection activity outside business hours and regional after hours capacity.

Responding to cumulative harm

202.The reforms implemented in accordance with the Children, Youth and Families Act have emphasised the need to move away from seeing incidents of abuse as an isolated event and toward considering the long term effect on children who are exposed to more than one undesirable event.

5 Better Health Channel, Work-related Stress, Victorian Government, 2009. Available at: <http://www.betterhealth.vic.give.au>.

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203.In her second reading speech for the Children, Youth and Families Act, the then Minister for

Children, Ms Sherryl Garbutt summarised the purpose of the Act:

The act translates the science of childhood development into law by making children’s best interests paramount in all service delivery and decision making and by enabling and promoting earlier intervention, stronger responses to cumulative harm and greater emphasis on children’s stability, development and cultural identity.

204.Section 10 of the Children, Youth and Families Act sets out the principles that are to be followed in the administration of the Act. Section 10(3)(e) reinforces that consideration must be given to, amongst other principles:

the effects of cumulative patterns of harm on a child’s safety and development.

205.The department defines ‘cumulative harm’ as:

the effects of patterns of circumstances and events in a child’s life, which diminish a child’s sense of safety, stability and wellbeing. Cumulative harm is the existence of compounded experiences of multiple episodes of abuse or ‘layers’ of neglect.

206.The following case study demonstrates poor risk analysis with insufficient consideration given to cumulative harm:

Case study 9

A young child was originally reported to the department in 2007 via an interstate child protection system. The reporter had concerns regarding the child’s mother’s mental health and alleged that the child’s needs were being neglected. The child suffered from cerebral palsy and required feeding through a tube. The department visited the family after receiving the report. The department accepted the mother’s views regarding her own mental health.

The department did not consult with interstate mental health or child protection services and having assessed that there was no immediate risk of harm the department closed the case. The case notes show the case was closed because the mother stated that she would cooperate with community service organisations.

In 2008 the department received a further report. A paediatrician recommended that the child be hospitalised. However, the child’s mother refused to agree to the admission. The department conducted a home visit and according to the case notes again accepted the mother’s assertions regarding her mental health. A report drafted

by the Principal Practitioner indicated that the mother had previously been diagnosed with schizophrenia and paranoid behaviours. The department did not close the case but failed to undertake any further work with the family for a further 10 months.

In May 2009 a dietician contacted the department to report that the child was the same weight as in December 2007 and there was no medical reason for him not to have gained weight. The dietician recommended an immediate hospital admission. However, no further action was taken by the department until a further report in late May 2009.

The child was consequently hospitalised and a review of the department’s practice by the Principal Practitioner stated:

Given the degree of concern in relation to [the child], and the severe environmental neglect and inadequate nourishment of this child, it is simply unacceptable that the system failed him in this way …

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207.The following case example provided by the department demonstrates the level of safety and protection that can be provided to vulnerable children when services work collaboratively to effectively address cumulative harm and achieve change.

Case study 10

The department received a report in relation to nine children all under the age of 11 years old. Community service organisations had been unable to engage the family and there was a significant history of chronic environmental neglect, parental substance misuse and parental failure to ensure the children’s safety. The department’s history of involvement with the family indicated that the concerns remained unchanged over the previous eight years.6

The department assessed a new approach to engaging the family was necessary. The department decided that an intensive community based approach would be appropriate.

When community service and departmental workers visited the family, the parents presented as lethargic and disinterested in the children. The home was in a poor condition and the parents passively agreed to accept support. The workers identified that all family members had scabies which had been infectious for months. A general practitioner stated that the parents had refused to take his advice regarding treatment.

The Office of Housing provided alternative accommodation for the family and the department’s infectious disease staff provided treatment for the scabies infection.

Child Protection staff found alternative clothing and furniture to refurnish the home after it was professionally cleaned.

The intensive involvement of community service organisations and the department helped the parents to change their behaviour. The children’s health, schooling and routines all improved and professionals were happy with the positive changes.

208.Throughout my investigation, it has been apparent that the department’s capacity to respond is so stretched that cumulative harm to children has not been given the priority and attention it should.

209.A case review conducted by the Principal Practitioner identified several barriers for the department when recognising and responding to cumulative harm:

an event-oriented approach to child protection can result in practitioners [child protection workers] failing to observe or be able to act in response to a pattern of maltreatment

information is not carried over from one notification [report] to the next and therefore information is lost over time

assumptions are made that the problems presented in previous notifications [reports] are resolved at closure

risk frameworks consider pattern and history with the aim of predicting future behaviour of carers and likelihood of harm rather than establishing the cumulative harm suffered

IT systems summarise and categorise previous contact, and since workloads in child protection are demanding the assumption is made that reading case files is neither necessary nor a priority.

6 Victorian Government Department of Human Services, Good Practice: A Statewide Snapshot 2008, August 2008.

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210.As I understand it, because the department and Child FIRST separately receive reports in relation to children, there may be times when the pattern of reports is not captured and therefore cumulative harm is not properly assessed.

211.My investigators identified several cases where insufficient consideration had been given to the issue of cumulative harm.

212.The following case is an example of the department referring a matter to Child FIRST with little evidence that the history of concern about the family was properly considered.

Case study 11

The department received a report in relation to two children of primary school age who resided with their parents. The reporter stated that the children did not attend school regularly and the eldest child only ate one meal a day and had significant behavioural problems. The reporter raised concerns that the parents might also have been abusing alcohol and refused to accept professional assistance.

The department had a history of involvement with the family, including several previous reports relating to domestic violence, substance misuse, sexual abuse, lack of supervision and neglect issues. Two older siblings had been subject to departmental involvements and Protective Orders. However, the department’s records for the younger children did not include any historical information regarding the older siblings.

The department tried to telephone the parents at the Intake phase and could not contact them. The department contacted the children’s previous school and school staff confirmed that the children had behavioural issues.

The decision was made to refer the family to Child FIRST. However Child FIRST did not accept the referral given that the department had not conducted an assessment of the significant child protection history. The department closed the case according to case notes, because it considered the information too ‘vague’ to further investigate.

213.The department has a performance measure requiring a unit manager to review a case if there have been more than two reports within a 12-month period. The review is intended to determine whether further investigation is required on the basis of cumulative harm. In

2008 the department conducted a survey for the purpose of evaluating compliance with this performance measure and found only 52 per cent compliance state-wide with this

requirement. It was noted that there were ‘significant variations between the regions’ and the process had ‘not yet become consistently embedded in practice across the state’. I have given further attention to the performance measure for cumulative harm in a later chapter titled

‘Accountability and transparency in the child protection system’.

Conclusions – protecting children

214.The principal objective of the department is to investigate allegations of child abuse and neglect and ensure the safety and wellbeing of children assessed to be at risk of significant harm. My investigation has found a system that is struggling to meet this objective. While I have concerns about the operation of the system across the entire state, there are some regions in particular which seem to be operating under stress.

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215.The proportion of unallocated client cases in some regions is of concern. For the reasons outlined in this chapter I consider that the department’s statistics for unallocated client cases under represent the true picture. There are a substantial number of vulnerable children without a child protection worker and it is likely that some of these children are at risk of abuse while their case remains unallocated.

216.The department has acknowledged that unallocated cases do not receive a full case management service. It further stated:

The child protection program has been operating in the context of serious workload pressures for some time, as is reflected in the numbers of unallocated cases … this has been a key factor in the concerns identified. The recent funding package is expected to create additional capacity that will support improved case practice in the conduct of investigations.

217.A fundamental tool underpinning the department’s response to children at risk is the capacity to gather, store, access and analyse information. Incorrect, inaccessible or incomplete information compromises the department’s capacity to effectively respond to reports and supervise the children to whom it is responsible. It is also crucial that the department

has an information system that is user-friendly and allows information to be accessed and interpreted quickly in order to support critical decision-making in a crisis-driven environment.

218.The evidence provided to my investigators is that the introduction of CRIS has not only failed to provide the child protection system with a more effective tool than its predecessor, it has impaired the department’s efficiency without providing adequate functionality. Experienced child protection managers assert that CRIS is a significant contributor to the system’s lack of responsiveness.

219.The issues with CRIS have been compounded by inadequate planning and post implementation support. In my view the current situation requires urgent examination to establish whether the current strategy of incremental improvements to CRIS will be successful in delivering a satisfactory case management system.

220.I note enhancements to improve the functionality of CRIS are scheduled to occur by July 2010.

221.The Child FIRST program has received positive feedback as a progressive reform within the service system for vulnerable children. However, it appears pressure from the department has prevented Child FIRST from focusing on the legitimate diversion of children from the formal child protection system. Overflow of demand for the department’s services has instead positioned Child FIRST as a de-facto child protection program. Child FIRST is also experiencing a level of demand that it cannot satisfy.

222.While any program has to balance issues of demand and capacity, the examples provided to me and the evidence given by senior child protection program staff, demonstrate that the threshold of risk to children tolerated by the department varies across regions due to their variable capacity to respond. In my opinion it is unacceptable that the geographic location of a child should dictate the degree of risk to their safety that is considered tolerable.

223.In order to measure the department’s performance and response to child abuse allegations, it has several performance measures that apply to the child protection program. I understand the importance of these measures. However, there is considerable emphasis placed on the performance measure relating to the initial visit to the detriment of investigative activity beyond that initial response.

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224.It appears that the drive to meet performance measures influences the risk threshold tolerated by the department. The cases examined in my investigation highlight a tendency toward minimal intervention based on superficial risk assessments. This practice is dangerous and in my opinion there is a risk of poor outcomes for children.

225.In my view, the performance measures used by the department require reconsideration to ensure that they measure effectiveness more broadly and encourage a more comprehensive approach to investigating reports.

226.I also question the appropriateness of a 48-hour ‘immediate’ response performance measure in a field such as child protection. In my opinion, the department has an obligation to ensure the immediate safety of children within a timeframe that is appropriate to the nature of

the case concerned. In many instances this should involve a response much sooner than 48 hours.

227.Departmental staff interviewed during my investigation agreed that child protection cases reported to the department have become increasingly complex. In my view this complexity makes continuity in assessment even more critical in obtaining good outcomes for children. However, it is clear that many cases are shuffled from child protection worker

to child protection worker due to competing demands. My staff located several examples of extremely complex cases which demanded continuity and leadership from the department and unfortunately there was little evidence of this occurring.

228.In this regard the department responded:

The crisis nature of much child protection work involves daily assessment of new cases or changed circumstances, often leading to reprioritisation to attend to the most urgent cases. This can be considered to be the best use of available resources … and is a feature of most emergency and crisis response services, however efforts will be made to improve continuity in investigations.

229.Of particular concern in some complex matters was evidence of child protection workers accepting parents’ assertions regarding their substance misuse or mental health issues with insufficient consultation with treating professionals. This can result in poor assessments of the risk posed to children and an inadequate response by the department to meet the children’s needs.

230.It was apparent that the vast majority of staff interviewed by my officers wanted to conduct thorough, well thought-out investigations, but they found this impossible. Some staff were visibly distressed when talking to my investigators about the poor quality of service being provided.

231.The department has informed me that:

As a direct result of having been made aware of these cases, both through your investigation, draft report and annual report, the Department has been able to take immediate actions to address some of the particular problems raised in the case studies including:

The review and, where necessary, the reopening of individual cases in order to ensure the safety and well being of the child.

Prioritising reviews of practice advice in relation to intake decision making and responding to concerns regarding a person on the sexual offender register.

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Arranged practice labs for regional child protection staff to focus on regional consistency compliance and clarity of advice including the ‘Person Responsible for Harm’ functionality.

Requiring all regions to confirm that CPW1s are not allocated cases.

Conducting a review of the criminal records check status of all carers.

232.I also consider the design of the child protection program needs to be reconsidered to deal more effectively with matters requiring attention outside business hours. Staff are employed on a 9.00am to 5.00pm basis whereas there is considerable evidence that much critical activity occurs outside these hours. The inability of the After Hours Child Protection Emergency Service to accept overflow from regional business hours activity is a significant contributor to stress experienced by staff. It also represents a risk to children as a result of reports not being actioned promptly.

233.In my opinion the department should review its operating model and consider adapting its regional structures to develop a capacity within regions to respond outside business hours. This could be achieved by rostering staff across a wider spread of hours so that reports received during the afternoon can be responded to by staff commencing their working day rather than requiring staff to work additional hours into the evenings.

234.This issue is particularly problematic in rural regions where child protection workers are also required to respond to new matters arising outside business hours. Several senior staff reported that the requirement for rural staff to undertake these responsibilities not only leads to unrealistic and unsustainable hours of work undertaken but also compromises business hours capacity. When staff are required to respond to an after hours emergency this will often lead to the cancellation of planned activities the next day. It is another disruption to the continuity and good management of existing client cases.

235.The cumulative harm to a child that flows from repeated exposure to abusive circumstances was a key element that the new legislative arrangements intended to address. The effect of the above pressures is that the intention of these reforms is not being achieved.

236.In response to my draft report the department referred to the KPMG review commissioned to consider the new initiatives following the introduction of the Children, Youth and Families

Act. The KPMG report described positive progress in a number of areas, including:

improved working relationships between family services and child protection

generally consistent standards of intake

noticeable changes in the active engagement of children and families

increasing capacity of early intervention

consistent improvements in practice across all services and across a range of factors reflective of a focus on children’s best interests

improved engagement with Aboriginal Community Controlled Organisations and an increase in the number of Aboriginal families accessing mainstream services.

237.The KPMG report identified a number of areas that require greater focus, including:

emerging pressure demands

continued promotion of strategies to develop common understandings of Best Interests

joint education strategy to promote understanding of the new information sharing provisions

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cultural responsiveness of all mainstream services requiring considerable improvement

ongoing monitoring of the impact of the new registration requirements on smaller organisations.

238.The KPMG report identified:

a number of opportunities to further progress and embed the reforms and the Department will be considering these proposals in detail over the coming months.

Recommendations – protecting children

I recommend that the department:

Recommendation 1

Establish arrangements for the ongoing independent scrutiny of the department’s decision- making regarding reports with particular attention to:

a.how the urgency of reports is categorised

b.the consistency of thresholds applied across the regions

c.the appropriateness of the thresholds applied by the department in its decision-making.

The department’s response

The department has accepted this recommendation.

Recommendation 2

Commission a review of the fitness for purpose of the Client Relationship Information System.

The department’s response

The department has accepted this recommendation.

Recommendation 3

Review its suite of performance measures to ensure that a focus on comprehensive investigation of reports is encouraged.

The department’s response

The department has accepted this recommendation.

Recommendation 4

Review the current standards in relation to response times.

The department’s response

The department has accepted this recommendation.

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Recommendation 5

Assign responsibility for monitoring regional performance to a senior executive who has responsibility to implement a corporate response when regional performance does not meet minimum state-wide standards.

The department’s response

The department has accepted this recommendation.

Recommendation 6

Develop a comprehensive strategy for enhancing greater understanding between its staff and Child FIRST workers regarding respective roles and agreed processes.

The department’s response

The department has accepted this recommendation.

Recommendation 7

Facilitate regular meetings with the Victorian Forensic Paediatric Medical Service to improve practice in relation to forensic medical assessments of children.

The department’s response

The department has accepted this recommendation.

Recommendation 8

Conduct a review of the department’s handling of reports concerning domestic violence issues.

The department’s response

The department has accepted this recommendation.

Recommendation 9

Conduct a review of the department’s handling of reports concerning children who are exposed to known sex offenders.

The department’s response

The department has accepted this recommendation.

Recommendation 10

Revise its practice standards to require an investigation plan to be documented during the course of each investigation.

The department’s response

The department has accepted this recommendation.

Recommendation 11

Report on unallocated client case numbers in annual reports.

The department’s response

The department has accepted this recommendation.

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CHILD PROTECTION AND THE LEGAL SYSTEM

Introduction

239.The Ombudsman Act 1973 provides that my investigations may conclude ‘…that any law in accordance with which or on the basis of which the action was taken should be reconsidered‘.

240.During the course of my investigation many witnesses raised concerns whether the current legislative arrangements are the most appropriate for the protection of children. The case studies and other evidence obtained during my investigation canvass issues regarding the current statutory arrangements including:

substantial resources being absorbed by legal processes

access arrangements the department has difficulty implementing

the quality of the department’s legal representation

negative experiences of the legal system by the child protection program workforce

the impact of a highly contested system

delays in facilitating the best interests of children

child protection worker perceptions about how the concept of cumulative harm is interpreted and applied

potential for better interaction between the child protection program and other statutory service systems.

241.Division One of the Children, Youth and Families Act states that the Children’s Court and the Secretary of the department must have regard to certain decision-making principles when making any decision or taking any action under the legislation. These principles are intended to provide guidance in the administration of the Act. Section 10(1) of the Act states:

For the purposes of this Act the best interests of the child must always be paramount.

242.Despite the clear intent of the legislation, I have learnt of examples where the outcome for children as a result of these intervention processes has been further abuse or that their needs have not been met. In my view the appropriateness of a legal system involving such

a contested approach ought to be reconsidered by government and an assessment made as to whether better outcomes for children and families could be achieved through a different model.

243.For this purpose I have also considered alternative systems operating in other jurisdictions. These systems operate in a more collaborative manner with oversight that takes a less contested approach to ensure that children’s best interests are met. In my view such alternatives should be evaluated to establish whether the outcomes for vulnerable children in

Victoria could be improved by taking a different approach to the regulation of this complex area.

Resources directed to forensic oversight

244.My investigation revealed that a substantial proportion of the department’s resources go towards serving the department’s obligations to the Children’s Court.

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245.If a child is considered to be at significant risk of harm, the department may initiate legal action by issuing a Protection Application to ensure the safety and wellbeing of the child. In the 2008-09 year, the department received 42,905 reports. For the same period the department issued 3,140 Protection Applications, 7.3 per cent of the total number of reports. At the end of the 2008-09 financial year, the total number of children on Protection Orders in Victoria was

5,478.

246.The following table illustrates the outcomes of applications made by the department to the Children’s Court over the last five years.

Table 3: Outcome of applications made by the department to the Children’s Court (2004-09)

 

Financial

App

App not

App

App

IAO

Matter

No

 

 

recorded

Total

 

Year

cancelled

proven

proven7

withdrawn

extended

dismissed

 

outcome

 

 

2004-05

16

27

1,914

315

 

281

3

2,556

 

 

 

 

 

 

 

 

 

 

 

2005-06

35

43

2,137

365

2

291

66

2,939

 

 

 

 

 

 

 

 

 

 

 

2006-07

56

120

2,223

356

 

192

201

3,148

 

 

 

 

 

 

 

 

 

 

 

2007-08

58

180

2,297

283

 

182

409

3,409

 

 

 

 

 

 

 

 

 

 

 

2008-09

50

94

1,607

172

 

33

1,184

3,184

 

 

 

 

 

 

 

 

 

 

247.The figure below shows significant growth in the volume and complexity of cases heard in the Children’s Court, as demonstrated by the need for the Children’s Court to make a

Protection Order. The increase coincided with the lead up to, and implementation of, the Children, Youth and Families Act in April 2007.7

Figure 2: New Orders made by the Children’s Court 2000-09

Protective orders

3,000

 

 

 

 

 

CYFA starts

 

 

 

 

 

 

 

 

 

 

2,500

 

 

 

 

 

 

 

 

 

2,000

 

 

 

 

 

 

 

 

 

1,500

 

 

 

 

 

 

 

 

 

1,000

 

 

 

 

 

 

 

 

 

500

 

 

 

 

 

 

 

 

 

-

 

 

4

6

 

 

8

 

-2001

-2002

-2003

-2007

 

oj)

-200

-2005

-200

-200

 

2000

2001

2002

2003

2004

2005

2006

2007

-2009(pr

 

 

 

 

 

 

 

 

 

2008

 

7 An application is proven when a Children’s Court finds that the child concerned is in need of protection.

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248.One regional manager referred to an increase in demand in their region and noted that the number of Protection Applications issued had increased by 30 per cent.

249.The department informed my office that its resources in applying for and supervising

Protection Orders consumes over 50 per cent of available child protection worker time.

However, it is notable the Children’s Court issued final Protection Orders resulting in the transfer of custody or guardianship from a parent to the state in a minority of instances in primary applications.

250.Approximately 30 per cent of final outcomes as a result of legal intervention did not mandate any formal supervisory role for the department as detailed below. Just over 40 per cent

of the final Protection Orders made in 2006-07 were Supervision Orders, which allow the department to monitor a child’s circumstances with reference to specific conditions.8

Table 4: Outcome of primary applications to the Children’s Court (2006-07)8

Finalised primary applications by outcome, 2006/07

Number

%

 

 

 

Dismissed

11

0.4

 

 

 

Struck Out

314

11.3

 

 

 

Refusal to make Protection Order

112

4.0

 

 

 

Undertaking – Application Proved

127

4.6

 

 

 

Undertaking – Dismissed

5

0.2

 

 

 

Undertaking – Refusal to make Protection Order

25

0.9

 

 

 

Undertaking – Struck Out

126

4.5

 

 

 

FreeText Order

112

4.0

 

 

 

Supervision Order

1,146

41.3

 

 

 

Custody toThird Party Order

3

0.1

 

 

 

Supervised Custody Order

27

1.0

 

 

 

Custody to Secretary Order

663

23.9

 

 

 

Guardianship to Secretary Order

98

3.5

 

 

 

Permanent Care Order

4

0.1

 

 

 

Extension to Custody to Secretary Order

0

0.0

 

 

 

Extension to Guardianship to Secretary Order

0

0.0

 

 

 

Total

2773

~100.0

251.The Assistant Director, Child Protection, described the department as having an ‘elevated duty of care’ once children were placed on Children’s Court Orders. The Assistant Director stated that an increase in the number of Protection Orders impacted on the department’s capacity to deliver a quality service to all children in all phases.

8 Adapted from: Children’s Court, Table 5: Number of Orders Made in Children’s Court of Victoria Annual Report 2006-2007, Melbourne.

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252.One departmental regional manager stated during interview that the new initiatives under the Children, Youth and Families Act were not matched by resources. They said it soon became apparent that:

… there’d been a lack of due regard to the resources that it was going to take to enable the legislation, and I think some short sightedness in relation to the impact that some of the new provisions would have on regional operations.

253.Many senior child protection workers interviewed during my investigation referred to the demands upon the department’s resources to oversee matters relating to the Children’s Court. They reported that departmental staff spent substantial periods of time in Children’s Court and preparing for contested hearings that were ultimately settled out of court and attending for hearings that were adjourned. These were reported to significantly interrupt caseload management and investigations into reports.

254.The Children’s Court advised that the department is the applicant in over 70 per cent of the adjournments in the Melbourne Children’s Court and 47 per cent of those applications were because the department was not ready to proceed.

255.A departmental manager noted that matters being dealt with were ‘more complex’ which was in turn likely to lead to more ‘breach’ applications by the department. Breach applications are made when there is a failure to comply with conditions on an existing Children’s Court Order.

256.Another departmental unit manager said when interviewed that, because of demands on child protection workers, staff were unable to undertake preventative work with families.

As a result they expected protective concerns in these families would grow over time. Consequently legal intervention would ultimately become necessary. The unit manager said:

I honestly don’t believe we had the capacity to do the work with families to prevent it from going to Court …

257.When interviewed, one metropolitan regional manager identified practical difficulties associated with the current practice whereby all parties are required to attend Children’s

Court at 10.00am. The manager explained that, at times, departmental staff attended the

Children’s Court at 10.00am, only to be informed later in the day that there was no time to hear their matter, it would be adjourned and they would need to attend the following day.

258.The Community and Public Sector Union stated:

Workers report that often they are required to be at Court for days at a time waiting for a case to be heard. This impacts [on] their ability to fulfil other workload commitments.

259.The Children’s Court has reported considerable difficulties caused by increasing demand in recent years. It advised that in 2006-07 there was an average of 17.6 weeks between an Alternative Dispute Resolution Conference and a final contested hearing9. Nevertheless in 2007-08 the Children’s Court finalised 50.6 per cent of applications within three months of the first hearing and 95.5 per cent of cases within twelve months10.

9 Children’s Court, Children’s Court of Victoria Annual Report 2006-2007, Melbourne.

10 Children’s Court, Children’s Court of Victoria Annual Report 2007-2008, Melbourne.

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260.According to the Children’s Court an Alternative Dispute Resolution Conference aims to ‘provide an opportunity for the parties to agree on what should happen without resorting to a contested court hearing’11.

261.A regional manager referred to the practice of multiple contested hearings being listed in anticipation of some settling. She stated:

you’d be preparing for contested hearings, which takes a lot of work and then it would get adjourned on the day, because you’re maybe one of a list of ten on standby and other matters get up with priority. So what you would find is the workers would be doing a lot of the same work in preparation multiple times …

262.Another regional manager said that at times the department would contribute to delays:

because of work demands where we go along [to Court] and seek adjournments, or are not as well prepared as we should be for Court …

263.The department advised that the Children, Youth and Families Act allows for two types of Alternative Dispute Resolution Conferences; facilitative and advisory. A facilitative conference involves a third party identifying the issue in dispute, considering alternatives and trying to reach agreement over the action to be taken in the child’s best interest. The advisory model involves a third party who investigates the dispute, provides advice on the facts and possible outcomes to the Children’s Court, in the child’s best interests. The department stated that the advisory model was yet to be implemented and that it:

could be considered as part of any approach to achieving a less adversarial model

for Children’s Court proceedings.

264.In response to my draft report the Attorney-General advised that a working party was established in December 2008. He noted that the working party’s terms of reference include:

1.To review the current approach to ADR [Alternative Dispute Resolution] in the Children’s Court and assess how this approach could be enhanced or improved.

2.To develop ADR models in the child protection system within the Children’s Court.

3.To provide a forum for the key stakeholders involved in the child protection system to raise systemic issues in relation to the resolution of matters in the Children’s Court.

265.The Attorney-General further stated:

The project team has developed a draft model for a mediation pilot in the Children’s

Court. It is proposed that the pilot be conducted over a 12 month period … The pilot will be assessed and this will give an indication of the ongoing resources required.

The aim of the pilot is to change the culture of the Children’s Court away from its adversarial nature to a more collaborative approach. A more collaborative approach should lead to more durable Court orders.

266.The Attorney-General also noted that Parliament recently passed the Courts Legislation Amendment (Judicial Resolution Conference)Act 2009 which ensures that immunities and protections afforded to judicial officers continue when they preside over a range of confidential dispute resolution processes such as mediation. The Attorney-General also stated that he will recommend to the President of the Children’s Court that he consider how to implement judicial mediation in the Children’s Court.

11 Children’s Court website is at: <http://www.childrenscourt.vic.gov.au>.

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267.The following case study is an example of the Children’s Court’s involvement in a case where the parents of an injured baby were cooperative with the department’s inquiries. It is arguable that in this scenario the same outcome, which involved the department monitoring the family for a period of time, could have been achieved without the matter being subject to proceedings in the Children’s Court.

Case study 12

The department received a report in relation to baby who was brought to hospital with a brain haemorrhage. The baby’s parents could not explain how the baby had sustained the injuries, thereby raising concerns that the injuries may have been non- accidental.

The department issued a Protection Application by safe custody and brought the matter before the Children’s Court.

The Children’s Court issued an Interim Accommodation Order with a condition that the baby and parents attend a residential parenting assessment. The assessment identified no concerns in relation to the parents’ direct care of the baby. The parents were also agreeable to a Best Interests Plan which was developed by the department.

Following the parenting assessment, the department recommended to the Children’s

Court that the Protection Application be found proven and a three month Interim Protection Order be issued to enable the department to continue to monitor the family situation. The parents did not agree and therefore the department settled for an extension of the Interim Accommodation Order for three months, which did not require the application to be proven.

To date, the department has appeared in the Children’s Court on three occasions for this application, with a further mention listed in three months time at which point the department will decide whether to withdraw the application. A detailed report has also been completed by the department.

Implementing access arrangements

268.At times significant risk issues may prevent a child from residing in his or her family home. In such cases, the Best Interests Principles under section 10(k) of the Children, Youth and Families Act require that consideration be given to:

… access arrangements between the child and the child’s parents, siblings, family members and other persons significant to the child;

269.The department may also be required as a condition on a Protection Order to supervise access between children and their family members. Such a need may arise when the department has assessed that significant concerns would exist for the child’s safety and wellbeing if supervision were not provided.

270.In practice the level of supervision required and provided by the department varies on a case by case basis. In some instances supervision may be limited to a departmental staff member assessing a parent’s condition when they attend for access to ensure the parent is not substance affected. The degree of supervision may also decrease when the department is in the process of moving towards reunification between a child and their parents.

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271.At other times the department is required as a condition on a Protection Order to provide a high level of supervision. For example, in the case of a child having access with a parent who has perpetrated sexual abuse, child protection program staff must be able to see and hear everything that occurs.

272.The location and duration of access visits is sometimes prescribed in the conditions of Orders made by the Children’s Court. At other times they are at the discretion of the department.

The department is also often required to make arrangements for the transport of children to and from the access location.

273.A former senior manager referred to the impact on staff of facilitating high levels of supervised access ordered by the Children’s Court. They said it:

… has a significant flow-on effect for the good functioning of the child protection system.

274.The issue of access between a child and their family can be a contentious issue which may result in a contested hearing before the Children’s Court and considerable time and effort to resolve.

275.By their very nature, resolving these issues through the legal process is complex and time consuming. The following case study illustrates how changing circumstances can lead to multiple Children’s Court hearings before a matter can be concluded.

Case study 13

A report was received by the department in relation to four young children who had all been assessed as having intellectual disabilities and/or developmental delays. There had also previously been extensive involvement by an interstate protective service.

The matter came to the department’s attention when an adult male was observed to slap the eldest child to the face, take photos of her from a car while she played netball and cuddle her in a ‘suggestive’ manner. The man was reported to collect the children from school and was observed to have taken on a parenting role for the children.

The department undertook an investigation and established that the man, reported by the mother to be a ‘family friend,’ had at times shared a bed with the eldest child. Neither the mother nor the father had any concerns regarding this arrangement or the children’s general contact with the man.

The department issued a Protection Application by safe custody and an Interim

Accommodation Order was granted to the parents with a condition that the children not have any contact with the man. Despite this condition, the parents and the children were observed with the man. The department issued an application to breach the Interim Accommodation Order and the children were placed in out-of-home care with a community service organisation.

The parents subsequently separated however the mother continued to support the man even after one of the children made disclosures to police that he had abused her.

During subsequent access visits the man was observed to drive the mother to the access location and remain in the car outside the access location. At other times when the mother and children visited a local park, the man hid in bushes. The department repeatedly terminated access visits because of the man’s presence.

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An independent clinical assessment was undertaken to consider the risks and benefits of the mother having access with the children. The clinician recommended it was

in the best interests of the children for them to have access with their mother. The department accepted the clinician’s recommendations to allow access to occur.

In a period of 10 months there were 16 Children’s Court hearings and nine court reports were completed by the department in relation to the family.

276.The following case study demonstrates the challenging circumstances confronting the child protection system when trying to balance the desirability of facilitating access between children and their parents when dealing with adults who are uncooperative or even threatening to staff.

Case study 14

The department was required to facilitate supervised access visits between a mother, a father and their infant twins. During visits the parents had on a number of occasions made threats to harm departmental staff providing the supervision. On the basis of the threats the department issued a breach application of the existing Protection Order and returned the matter to the Children’s Court.

The department argued that it had attempted to ensure the children’s access with their parents was a positive and safe experience. However, the department stated that while a security guard had monitored the access visits through a window, following the review of these arrangements and an escalation in the threats made towards staff, the department believed a security guard should be present in the room during access and during all meetings.

The Acting Director of Child Protection, Placement and Family Services also wrote to the Children’s Court stating:

… as an organisation we are not able to provide supervision in these circumstances. The level of risk to our staff, both physical and emotional, is unworkable. We are not able to comply with our obligations to keep departmental staff safe and without risk to health, pursuant to s.21 of the

Occupation Health and Safety Act 2004 …

Administrative improvements to the legal process

277.There has been considerable effort by the department and the Children’s Court to address those issues that are within their control.

278.In 2007 the Department of Justice, at the request of the Children’s Court, commissioned the Boston Consulting Group to undertake a review of the capacity and demand issues associated with the Children’s Court system and develop a new operating model.

279.The Boston Consulting Group’s review led to several positive reforms, including the opening of a new Children’s Court in Moorabbin. It was expected that the new Court would ease congestion in the Melbourne Children’s Court and move approximately 23 per cent of the demand from the Southern Metropolitan Region.

280.The Boston Consulting Group also recommended a pilot of a ‘Regional Court Liaison Officer’ (Court officer) model. The Court officer model was designed to assist child protection workers by reducing their need to attend the Children’s Court and have an experienced

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officer attend in lieu. The Court officer position was also intended to support new staff and provide an educative function. Some regions have been trialling these positions.

281.Staff interviewed during my investigation commented favourably on this initiative. The role the Court officer played was reported to have freed up the time of child protection workers by allowing them to liaise with the Court officer rather than attend the Children’s Court themselves.

282.A special mention Children’s Court has also been established to manage safe custody applications. Two additional Magistrates were employed in the Melbourne Children’s Court. The department and the Children’s Court have reported that since the introduction of the special mention Court, there has been a significant reduction in the number of hearings extending into the late afternoon and evening. The President of the Children’s Court has informed my investigators that all court users have provided positive feedback on this initiative.

283.The Children’s Court has also instigated several initiatives in relation to its listing practices including booking prehearing conferences for 9.30am, 11.30am and 1.30pm daily and offering a specified time for uncontested permanent care applications.

284.The Attorney-General advised that in the 2008 budget the Victorian government allocated an additional $2.28 million and $1.1 million recurrent funding to the Children’s Court. This funding was to employ the two additional Magistrates and support staff and modify the Moorabbin Court to cater for Children’s Court cases.

285.The Attorney-General further stated:

Some of BCG’s [Boston Consulting Group] recommendations such as the transfer of cases to the Moorabbin Court have been relatively straightforward to implement. The aspects of the BCG recommendations that have been more difficult to implement have been those recommendations focussed on the adversarial nature of the Children’s Court and the culture at the Children’s Court.

The BCG report also identified that the review of the Children’s Court dispute resolution process was one of the key challenges for the Children’s Court. The

Government agrees with this view. The Government and the Court are working together to change the dispute resolution process. The aim here is that by changing the process for dispute resolution, we can also change the adversarial culture at the Court.

The quality of the department’s legal representation

286.The outcome of matters taken before the Children’s Court is dependent on the strength of the case presented by the department. During my investigation, several witnesses expressed concern as to whether sufficient legal support was provided by the department to enable child protection workers to present cases to the best of their ability.

287.In metropolitan Melbourne the department has a Court Advocacy Unit which consists of solicitors, barristers and non-legally qualified court officers. The Court Advocacy Unit

provides legal representation and advice to child protection workers within the department’s metropolitan regions.

288.In contrast, in rural regions child protection workers have historically been required to appear on behalf of the department in consent matters. Where rural regions did have access to legal officers it was reported that the numbers of these specialists was insufficient.

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289.One rural regional manager told my investigators that their region had only one legal officer who had to travel distances of over two hours between sub-offices within the region.

290.Despite metropolitan staff having an apparent advantage of being represented in all matters at the Children’s Court, issues were raised during my investigation regarding the quality of the representation. The Medical Director, Victorian Forensic Paediatric Medical Service suggested that given legal intervention only occurs in a small number of cases, the department paying for lawyers with appropriate expertise was ‘worth every cent’. The Medical Director made observations regarding her experience of the Children’s Court process and stated:

at times the advice they [child protection workers] get from the legal unit is not the highest quality advice they might otherwise be able to access and it can vary.

291.I note that the department is undertaking work to improve the quality of representation provided by the Court Advocacy Unit by proposing a case management model which would involve solicitors being allocated the legal management of matters before the Children’s

Court for the life of the case. As it stands, child protection workers often have a different solicitor at each hearing. The Assistant Director, Child Protection commented on the benefits of the proposed system as follows:

one of the real stresses for workers [child protection workers] is that they roll up in

Court - different solicitor. They have to re-tell the story, and often they get a different reaction from the solicitor based on their level of experience and knowledge. So it can be quite unsettling for a worker to go through that process each time they go back to

Court.

292.Some witnesses also reported reluctance on the part of the department to appeal decisions made by the Children’s Court.

Negative experiences of the legal process by the child protection workforce

293.The experience of the legal system is one of the most commonly cited reasons provided by child protection workers as to why they leave their employment with the department.

294.In 2008, one metropolitan region commissioned work by Atkinson Consulting to understand the ‘cultural influences in the Region’. Some key themes which emerged regarding the Children’s Court included that child protection workers:

felt ill equipped or trained to present matters to the Children’s Court

had to wait for extended periods of time at the Children’s Court as there were no scheduled hearing times for cases

were often unable to undertake other work owing to a lack of resources, such as limited computers in the department’s room at the Children’s Court

experienced a lack of appropriate and child friendly spaces when required to care for children

had to be at the Children’s Court after being up all night when involved in applications made by ‘safe custody’ where the child is taken into departmental care

perceived a lack of consistency in the advice provided by departmental legal representatives.

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295.Several witnesses interviewed expressed concern regarding the Children’s Court process and the experience of child protection workers:

workers are actually being abused by family members, and fairly bullied by other legal reps.

296.One regional manager explained that over half of their staffing group had less than two years experience and so they not only struggled with the role of a child protection worker but also how to write court reports and give competent evidence in the Children’s Court.

297.The Medical Director of the Victorian Forensic Paediatric Medical Service commented on the inexperience of the workforce and expectations placed on them:

I worry that fairly junior people have a lot of responsibility to take cases to the

Children’s Court … I really worry about the training and the expertise of some of the child protection workers in handing matters up … I think it’s most unfair on the workers to expect them to take on this role.

298.The Children’s Court is also assisting the department in training its young workforce. A retired Magistrate conducts workshops for staff. In addition, the Children’s Court makes a Magistrate available every month to talk with new workers about the court experience.

299.In response to my draft report the Attorney-General stated:

The level of resourcing is important to the delivery of any service and the Government has worked closely with the Court to improve its resources. In the Children’s Court (perhaps more than any other jurisdiction), it is not just resourcing but judicial and practitioner culture that plays a significant part in the way that matters are handled and in the types of orders that are made.

300.The Attorney-General further stated:

Court is a stressful experience for most witnesses. The contested cases in the

Children’s Court are more bitterly fought and emotional than all other jurisdictions because the decision the Court has to make is whether to remove the child from his/ her family. These cases are traumatic for all involved, including the Magistrates and staff at the Children’s Court.

The impact of a contested system

301.Comments were made to my investigators regarding the contested nature of the child protection system compared to other jurisdictions.

302.The nature of the current system involves the presentation of two competing arguments to the Magistrate or Judge. Some witnesses said such a system runs the risk of turning decision- making in relation to a child’s ‘best interests’ into a competition to present the best argument. It was argued by witnesses that the current legal system perversely encourages disputation rather than cooperation in the protection of children.

303.The Attorney-General responded that:

Child Protection cases often involve judgments where evidence is not clear but where the State has an onerous responsibility to act prudently in the interests of the child.

The Court must balance this with the right of parents to challenge the exercise of this judgment.

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304.The Principal Practitioner concluded in one of her case reviews that heavily contested legal processes had drawn the department’s attention away from pursuing children’s best interests. She said the experiences of child protection workers in the Children’s Court is:

dominating the work culture and at times shaping critical decision making through the lens of ‘what would get through or be accepted by the Court’.

305.Judgements by the Children’s Court have also highlighted the inefficiencies created by the current approach to resolving disputes. In one case the Magistrate commented on the department calling 30 witnesses in relation to what was described as ‘…the narrow issue of

the appropriate level of access between the children and their parents’. The Magistrate said:

The end result was that a significant part of the evidence adduced during the 15 days of this contested hearing was not of any real assistance to me in the determination of this narrow issue. I say this without intending any criticism of counsel. They, like I, are prisoners of the grossly wasteful processes of the adversarial system with their concomitant negative impact on the efficient, timely and economical disposition of proceedings in the Family Division of this Court.

306.The contested nature of proceedings within the current system cannot in itself guarantee children’s safety. The evidence in child protection cases often consists of opinion and suspicion rather than proven facts. Cases such as the following demonstrate how readily undesirable outcomes can occur despite intensive scrutiny and careful consideration.

Case study 15

Following the murder of the children’s mother, the department issued a Protection Application by safe custody and brought the matter before the Children’s Court. At the first mention hearing, the Children’s Court granted the department’s initial

application for the children to be placed on an Interim Accommodation Order with a community service organisation.

An uncle subsequently proposed himself and his partner as caregivers for the children. The Children’s Court allowed the department a period of three weeks to complete an assessment of the uncle.

The children concerned were Aboriginal and an Aboriginal agency was involved in the proceedings. The Victorian agency was concerned that the children were placed in a non-Aboriginal placement and raised its concerns with the department during the adjournment period regarding the lack of progress in assessing the uncle before the matter returned to court.

At the next hearing the Aboriginal agency advocated that the placement process should proceed while the department sought an adjournment for six to eight weeks for a Family Group Conference to be conducted and an assessment of extended family members completed. The Children’s Court adjourned the case for three days for the Aboriginal agency and the department to assess the uncle.

When the matter returned to court, the department opposed the children’s placement with the uncle while the Aboriginal agency recommended that the placement proceed as soon as possible. The Children’s Court received a report from the Aboriginal agency regarding its assessment of the risk presented to the children if the placement proceeded.

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The children were in the placement with their uncle and his partner for 25 days when one of the children was found unconscious and admitted to hospital with ‘extensive and life threatening’ injuries.

Impact of the new legislation

307.A review by the Boston Consulting Group suggested that specific new provisions under the Children, Youth and Families Act may be contributing to the growth of demand for the services of the Children’s Court. Specific reference was made to timeframes for Stability

Planning.

308.Under sections 169 and 170 of the Children, Youth and Families Act the department is required to prepare a Stability Plan, within determined timeframes, for each child in out- of-home care as a result of an Interim Order or a Protection Order. The timeframes for completing a Stability Plan depend on the age of the child at the time the Court Order was made and the duration of time the child has been in out-of-home care.

309.For example, in the case of a child under two years of age at the time the Court Order was made, a Stability Plan is required once that child has been in out-of-home care for one or more periods totalling 12 months. According to the department’s practice advice, these provisions reflect that:

The developmental stage and needs of children, especially younger children, do not allow them to wait indefinitely for their parents to make the level of change necessary to enable reunification to proceed. Although parental change may be possible, it needs to occur with sufficient pace and timeliness as to best meet the child’s developmental needs.

310.Child protection staff said that because these timeframes are calculated from the time of the first Children’s Court Order that placed a child in out-of-home care, parents’ legal

representatives were more likely to advise their clients to contest such an Order being made.

311.In response to my draft report the Attorney-General stated:

in the period 2005 to 2007, protective workers were facing longer IAO [Interim Accommodation Order] contested hearings as well as longer final contested hearings.

This would mean that sometimes a protective worker would face Court for a contested IAO hearing, to be followed up by a contested final hearing.

312.Another case identified about delay owing to contested proceedings involved a baby who had been removed from his parents’ care with head injuries and had subsequently been in out-of-home care for ‘three to four years’. The regional manager responsible stated that the department had been seeking to convert the child’s foster care placement to a permanent care placement and this process took 12 months to complete in the Children’s Court.

313.In relation to the Children’s Court’s workload, the Attorney-General advised that:

In the period between 2005 and 2007 the Children’s Court experienced an increase of 50% in the number of final contested hearings, from an average of 47 contested hearings per month prior to October 2005, to an average of 72 contested hearings per month after April 2007.

BCG [Boston Consulting Group] also found that in 2005 the average contested hearing took 2.7 days compared with 5.2 days in 2007.

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Patterns and histories of parents

314.Despite the extensive histories of some families demonstrating serious child protection concerns, the Children, Youth and Families Act requires that the Children’s Court deal with the specific circumstances of each child.

315.The following is an example where there is an extensive history of departmental involvement with older siblings who are unable to reside in parental care. Intervention to protect the youngest child now appears to be following the same path.

Case study 16

A report was received by the department concerning an unborn child. The unborn child’s mother was not attending all antenatal appointments and the reporter raised concerns about the mother’s substance use, mental health issues and criminal behaviour.

The mother had five older children, all of whom were the subject of reports to the department which identified the same risk factors and had resulted in their not residing in her care. The father also had a child who was subject to a Permanent Care Order.

It was also reported that the parents’ relationship was characterised by domestic violence and they had not cooperated with community services because of their transience. During pregnancy the mother slept on the floor of a boarding house.

A safety plan was developed by the department whereby the mother and baby would reside with an extended family member upon their discharge from hospital. The mother and father agreed to this voluntary arrangement. The department initiated legal action when the parents failed to abide by the safety plan and the baby’s whereabouts were unknown for a period of time.

During the initial mention the department applied for the baby to be placed with a community service organisation. The matter went to a contested hearing by submissions and the Magistrate ruled that the child’s needs would be met by the parents, providing a family member inform the department of any protective concerns.

One month later the department sought a Supervision Order for six months. Agreement was not reached and the matter was adjourned for an Alternative Dispute

Resolution Conference. The department issued a breach application by notice as the mother’s urine drug screens returned with positive results for amphetamines and both parents tested positive with high levels of cannabis. The matter was again adjourned for an Alternative Dispute Resolution Conference.

Interaction with other statutory systems

316.Another factor to be considered in relation to the existing legal framework for child protection is the degree of overlap between child protection systems, including the department’s child protection program and other social service and legal systems.

317.The September 2003 report Protecting Children: The Child Protection Outcomes Project12 analysed cases first investigated by the department in 2001-02 and compared the results with a similar group first investigated in 1996-97. The analysis demonstrated that the complexity of cases being dealt with by the department had increased over that period of time. Anecdotally, departmental staff interviewed during my investigation considered that the trend toward greater complexity continues today.

12 Allen Consulting Group, Protecting Children: The Child Protection Outcomes Project, Melbourne, 2003.

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318.The following table is taken from the report and shows the increasing prevalence of factors such as psychiatric illness, alcohol abuse and domestic violence for parents who have children subject to departmental intervention.

Table 5: Per cent of parents with concerning characteristics: cases first investigated in 1996-97 and 2001-02

Characteristic

1996-97

2001-02

 

 

 

Psychiatric illness

7.5

14.7

 

 

 

Intellectual disability

1.4

2.2

 

 

 

Physical disability

2.1

2.9

 

 

 

Alcohol abuse

12.5

21.3

 

 

 

Substance abuse

12.5

25.2

 

 

 

Domestic violence

24.1

40.3

 

 

 

Total number

8018

6591

 

 

 

319.The following table expands on this data for the group first investigated in 2001-02 to demonstrate the correlations between these characteristics, the substantiation of abuse or neglect and the placement of children in out-of-home care.

Table 6: Per cent of parents with concerning characteristics: cases first investigated, cases substantiated and cases in which children were placed in out-of-home care

Characteristic

Investigated(1)

Substantiated(2)

Child placed in care(3)

Psychiatric illness

15

19

32

 

 

 

 

Intellectual disability

2

3

3

 

 

 

 

Physical disability

3

4

4

 

 

 

 

Alcohol abuse

21

31

37

 

 

 

 

Substance abuse

25

33

43

 

 

 

 

Domestic violence

40

52

56

 

 

 

 

Notes: (1) Data for 2001-02 of cases first investigated.

(2)Data for 2001-02

(3)Data for clients whose children were first placed in home-based care in 2001-02. Source: Unpublished DHS data.

320.The data indicates a likelihood that families where children are not safe are also involved in other social service or legal systems. There is significant overlap between the child protection jurisdiction and mental health, disability, drug and alcohol and domestic violence sectors. This not only emphasises the importance of a collaborative approach but also highlights the scope for various public and community agencies to share responsibility for the protection of children.

321.Much of that overlap is with sectors which also have statutory elements and have been subject to ongoing reform in recent years. There are therefore opportunities to ensure these systems contribute to the protection of children.

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322.For example, at present provisions exist under the Mental Health Act 1986 whereby patients can be directed to undergo treatment for mental health conditions. Where a patient has care of a child there are opportunities for clinicians to consider how their mental health may be impacting upon their parenting capacity and address this in their treatment. Further, a range of provisions are provided under the Domestic Violence Act 2008 which, for example, allow Victoria Police to detain alleged perpetrators of violence and direct them to leave premises.

323.In summary, there are opportunities for various public sector agencies to take a greater level of responsibility for the protection of children.

324.The department responded:

The Children’s Services Coordination Board (CSCB) was established by the CWSA [Child Wellbeing and Safety Act 2005] and its membership comprises all relevant

Victorian Departmental Secretaries … it is proposed that the CSCB take a stronger lead in ensuring a whole of government approach to the protection of children.

Alternative approaches

325.In the following examination of alternative approaches to child protection it is apparent that there is a focus on coordinated responses to child abuse across various statutory systems.

326.In 2003 a report on child protection was prepared by the Allen Consulting Group. The government established a Panel to undertake a consultation process regarding the report and its recommendations.

327.The Report of the Panel to Oversee the Consultation on Protecting Children: The Child Protection Outcomes Project13 discussed the widespread community support for a range of ‘intermediate responses’ which can assist in keeping children safe while ‘avoiding unnecessary statutory intervention and Court proceedings’.

328.The following is a submission by MacKillop Family Services which was included in the Panel’s report to demonstrate support for intermediate responses.

Services should be designed to improve outcomes for children rather than just prevent the use of tertiary services. The Intermediate Level responses such as Scottish Panels and the English Child Protection Conferences and Registers have been found to be much more effective than the Court processes characterised by excessive litigation and disempowerment for all parties. We strongly support much greater investment in family support services.

329.I consider that international models provide a comparison to Victoria’s response to protecting children. I note that an ideal system which reflects exemplary practice on all levels has not been established in any jurisdiction. The nature of child protection work and the complexity of cases means a flawless system is unlikely. Despite this, ongoing evaluation and assessment of legislative arrangements for child protection is necessary to deliver continued improvement.

330.There are various characteristics of international systems which may be instructive. Below I refer to an international model that promotes family services, followed by the Scottish and English systems.

13 A. Freiberg, P. Kirby and L. Ward. The Report of the Panel to Oversee the Consultation on Protecting Children: The Child Protection Outcomes Project, Department of Human Services, April 2004.

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Countries which promote family services

331.It is important to note that ‘child abuse’ does not have a universally accepted definition.

In accordance with this, how countries frame the problem of child abuse can differ. For instance, Australia, the United Kingdom and the United States of America view child abuse as requiring the protection of children from alleged abusers.14

332.Alternatively, countries such as Belgium, Netherlands, Finland, Sweden, Italy and Germany see child abuse predominantly as an issue concerning familial and societal dysfunction which requires amelioration. Within this framework, family support services are highly promoted and therapeutic and mutually negotiated arrangements are characteristic. While a family service approach, as opposed to a child protection approach, can result in vulnerable children being overlooked by the system, it can also result in families being helped who would otherwise be overlooked:15

Families are encouraged to come when something goes wrong with their child, when the situation grows worse, when they are worried about the child’s development, when they quarrel about the child, when the child upsets them, and when they think they need advice or support.16

Scotland’s children’s hearings system

333.Scotland’s children’s hearings system was implemented because it was recognised that courts did not always make decisions on the basis of a child’s welfare. When the Scottish government or non-government agencies make an assessment that a child is in need of supervision due to protective concerns, the matter is referred to ‘the Reporter’. The Reporter is an employee of the Scottish Children’s Reporter Administration and can make the decision to arrange a children’s hearing if he/she considers that supervision of the child may be necessary.

334.The children’s hearing is made up of a Panel of three volunteer lay members (members). Members are recommended by Children’s Panel Advisory Committees and selected by

Ministers. Panel members must be a mix of male and female and of different ages and expertise. Panel members sit on hearings on a rotating basis and receive training prior to their involvement at a hearing. The hearing does not operate like a court, where the facts of a case can be disputed, but operates on the following principles:

the interests of the child are paramount

children who have offended and children in need of care and protection are dealt with in the same system

the views of children and parents play an important role in determining the child’s situation and best interests

inter-agency cooperation and partnership is imperative.17

14 Allen Consulting Group, Protecting Children: The Child Protection Outcomes Project, Melbourne, 2003.

15Ibid.

16C. Marneffe and P. Broos, ‘Belgium: An Alternative Approach to Child Abuse Reporting and Treatment’, in N. Gilbert (ed), Combatting Child Abuse: International Perspectives and Trends, Oxford University Press, New York, 1997, p. 184.

17Children’s Hearings, The Foundations of the Children’s Hearings System, Scotland, 2009. Available at: www.childrens-hearings.co.uk.

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335.Parents, carers and other relevant individuals attend the hearing. If a child’s guardians do not consent to the hearing, an application is made to ‘the sheriff’. Where the sheriff considers that grounds for the hearing are sufficient, the hearing will proceed. The hearing has the power to make supervision requirements. Specifically, the hearing can decide whether the child should be placed in the care of local authorities, whom the child should have contact with and compliance with various conditions which will assist in meeting the health and safety needs of the child.18

England: child protection conferences and family proceedings court panel

336.In England a child protection conference is held to determine what the needs of the child are and the actions necessary to meet these needs.

337.Attendees of the conference include child protection workers, relevant professions from various agencies, family members of the child and the child where appropriate (or a representative for the child). The conference is chaired by a person who is not responsible for managing the child’s case but accountable to the Director of Children’s Services. A protection plan may be agreed upon at the conference. The plan will outline the responsibility of each person or agency in attendance at the meeting in relation to the protection and development needs of the child. Child protection review conferences are held to ensure compliance with the plan and improvements or identify ongoing concerns about the child’s wellbeing and safety. The child will remain subject to the protection plan until the agencies involved in the conferences are satisfied that the child is safe.19

338.The majority of cases that progress to the Courts in England go to the Family Proceedings Court. The Family Proceedings Court has a bench of three Magistrates who may not be legally qualified. The role of the Magistrates is to oversee decisions made within the court.20

Conclusions – child protection and the legal system

339.The evidence gathered during my investigation raises fundamental questions regarding the design of the legal framework around the child protection system in Victoria.

340.Currently, substantial resources are expended by the department on its interaction with the legal system. Approximately 50 per cent of child protection worker time is spent servicing Children’s Court related work, although only 7.3 per cent of the total number of reports made to the department result in legal intervention being initiated in the Children’s Court. Therefore, the oversight by the Children’s Court, while only relevant to a minority of the reports received by the department, consumes a significant amount of the department’s total resources. It is also notable that approximately 27 per cent of cases where the Children’s

Court is required to adjudicate a matter result in an Order that changes the guardianship or custody of the child concerned.

341.In my view the current arrangements need to be reconsidered. It is apparent that the child protection program is functioning under significant stress. Whilst additional resources and administrative reform can improve the effectiveness of the system, I am concerned that even substantial investment in these areas will not resolve these issues.

18 Scottish Executive, ‘It’s Everyone’s Job To Make Sure I’m Alright’: Report of the Child Protection Audit and Review, Scotland, 2002.

19 HM Government, Working Together to Safeguard Children: A Guide to Inter-Agency Working to Safeguard and Promote the Welfare of Children,

United Kingdom, 2006.

20 National Society for the Prevention of Cruelty to Children, A Introduction to the Child Protection System in the UK, United Kingdom, 2006. Available at: www.nspcc.org.uk.

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342.My investigation has revealed that the child protection program is currently struggling to meet demand and provide an appropriate level of service to vulnerable children reported to it. Senior departmental staff have reported that the growth in the number of children on

Children’s Court Orders has implications for the entire child protection program.

343.It is also clear that despite diversionary strategies the department is struggling to service increasing numbers of matters heard in the Children’s Court.

344.It may be difficult for any government to adequately resource the child protection program whilst it expends so much of its resources responding to the forensic examination of its activity. Additional resources, without substantial systemic reform, is likely to merely lead to more families becoming ensnared in resource intensive and often counterproductive contested processes.

345.The legislative reforms that were implemented in 2007 have highlighted the need to move away from seeing incidents of abuse in isolation. However the pressure of demand and the lack of alternative options in the legislation are undermining this reform.

346.The development of the Child FIRST system is a valuable step in encouraging a collaborative approach to protecting children while minimising the need for legal intervention. There

is significant overlap between child protection and other sectors such as mental health, disability, drug and alcohol and domestic violence. I therefore consider that there is further scope for a more collaborative approach between these various systems and for other agencies to share responsibility for protecting children.

347.The Report of the Panel to Oversee the Consultation on Protecting Children: The Child Protection Outcomes Project made what I consider to be significant observations regarding ‘intermediate responses’ that fall between an entirely voluntary approach and legal intervention. I consider there is considerable opportunity for reform of the system around this missing element.

348.It is appropriate that the department should be required to prove sufficient grounds to interfere with the custody or guardianship of a child. However, I consider the current ‘one size fits all’ model of child protection activity requires reconsideration. Better outcomes may be achieved if the department was given more administrative discretion to monitor the wellbeing of children without the need for a Children’s Court Order.

349.In response to my draft report, the Attorney-General stated:

I read with interest your commentary on some alternatives to the Victorian framework for the determination of child protection applications. One of the fundamental questions that I would like to consider is whether the framework needs to be changed in terms of those matters that are decided judicially compared with those matters that ought to be decided administratively …

As you are aware, once a protection application is lodged, all custody and access decisions are made by the Court. In light of your report it would be worthwhile to explore whether this should necessarily always be the case. It may be appropriate for access decisions to be made administratively rather than by a Court … I will refer this matter to the Victorian Law Reform Commission …

350.Opportunities to reduce the degree of statutory intervention by the department may also arise from better integration of the legal and service responses that already surround many of the more serious cases of child abuse. The consultative focus and shared responsibility emphasised in other jurisdictions are worth considering further in this regard.

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351.Fewer Children’s Court proceedings would reduce the department’s resources being devoted to legal processes. Those resources could then be spent on supporting families, investigating reports and supervising a smaller number of Children’s Court Orders made in respect to the more complex circumstances.

352.Fewer contested proceedings may also assist the child welfare system to better support those families where a child can be made safe in their care. The department could be better positioned to provide assistance without needing to ‘prove’ in a contested forum that parents cannot properly care for their children.

353.In response the Secretary of the department stated:

I therefore welcome your detailed commentary on the Children’s Court, and in particular I welcome your observations regarding child protection and the legal system include [sic]:

the substantial resources absorbed by legal processes;

difficulty implementing court ordered access arrangements;

negative experiences of the legal system by child protection;

the workloads created for child protection practitioners;

delays in achieving outcomes in the best interests of children; and

the complex nature of the cases child protection deal with require those cases to be dealt with as part of an interactive system with other statutory services, such as those in the sectors of drug and alcohol, mental health, disability and domestic violence.

Recommendations – child protection and the legal system

I recommend that:

Recommendation 12

The Attorney-General provide a reference to the Victorian Law Reform Commission to examine alternative models for child protection legislative arrangements that would reduce the degree of disputation and encourage a focus on the best interests of children.

The Attorney-General’s response

The Attorney-General has accepted this recommendation. He stated:

I endorse the recommendation that a reference be provided to the Victorian Law Reform Commission (VLRC) to examine alternative models for child protection legislative arrangements that would reduce the degree of disputation and encourage a focus on the best interests of children. I will ask that the VLRC consider the Scottish model and those models interstate that take a more administrative case management approach to issues such as access.

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As a part of this reference I will ask the VLRC to review the lessons learned from previous reviews of child protection and the legal system, particularly in relation to models for the Children’s Court (this would include consideration of the BCG [Boston Consulting Group] Report). I will include in the reference to the VLRC a request that the VLRC consider alternatives to the current model of hearings in the Children’s Court and whether there are certain types of matters that ought to be decided administratively rather than judicially.

Recommendation 13

Review opportunities for other public sector agencies to take more responsibility to assist the department in providing protection for vulnerable children.

The department’s response

The department has accepted this recommendation.

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FAILURE TO COMPLY WITH STATUTORY OBLIGATIONS AND INTERNAL PRACTICE STANDARDS

Introduction

354.The Children, Youth and Families Act provides the legislative basis for the department’s work with abused and neglected children. The legislation defines:

when a child is in need of protection

the legal basis for making a report about a child or unborn child

a mandatory reporter

who is a protective intervener

the responses available to the Secretary following a report being made

the legal basis for making a Protection Application to the Children’s Court

Protection Orders available to the Children’s Court

the responsibilities of the Secretary.

355.To assist with the implementation of the Children, Youth and Families Act, the department produces internal practice ‘advice’ which is contained in Protecting Victoria’s Children – Child Protection Practice Manual (the manual). The advice covers each of the different phases of the department’s intervention. It explains the department’s statutory obligations and internal requirements for each stage. For example, there is practice advice which supports the Intake phase and consultation with Child FIRST, undertaking criminal record checks, substantiating risk of harm, initiating legal intervention in the Children’s Court and consulting with

Victoria Police.

356.The practice advice makes reference to the relevant sections of the Children, Youth and

Families Act and contains ‘standards’ to which departmental staff must comply. The practice advice also contains considerations for good practice, references to other relevant practice advice, protocols and policy advice and referral information. As at July 2009 the manual contained 283 standards within 86 pieces of advice.

357.For the purpose of this investigation, I have focussed on a number of what I consider to be core statutory responsibilities and practice standards. The public should be able to have confidence that the department meets these expectations. Examples have come to my attention where there has been a lack of compliance with the department’s statutory obligations and internal practice standards as detailed below.

Failure to adequately screen kinship carers

358.Kinship care involves relatives or members of a child’s social network being approved to provide accommodation and care for a child when the child’s parents are not considered suitable carers. It is the preferred placement for a child who is removed from their parents’ care because a pre-existing relationship is expected to allow for a less traumatic experience for the child and their family.

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359.The following case demonstrates how, with extensive support, kinship placements can lead to good outcomes for children unable to remain in the care of their parents.

Case study 17

Two siblings had a significant history of departmental involvement over an eight year period21. The children had lived with various extended family members as well as in foster care. The youngest child was previously residing with his father but was removed from his care due to drug and alcohol misuse. Both children were placed with the paternal grandmother but the youngest child was difficult for the grandmother to care for as he was aggressive, destructive and would often leave the home and not return until 9.00pm.

The paternal grandmother was emotionally and physically exhausted and uncertain that she would be able to continue caring for the youngest child. The department referred the family to family support services who were able to assist the paternal grandmother establish routines and consistency for the youngest child.

The child protection worker suggested positive activities to build relationships.

Regular care team meetings were held with professionals such as the school, family services and the department to support the paternal grandmother. The youngest child commenced individual counselling and an education support worker was funded to support him during school hours. Both children remain in the care of their paternal grandmother with ongoing support services in place.

360.In cases where the department deems an out-of-home care placement necessary, it can bring the matter before the Children’s Court for a determination. During the Children’s Court process, the department may propose that a child enter a kinship placement mandated by a Children’s Court Order. On other occasions a kinship placement may be arranged on a voluntary basis without the need for legal intervention.

361.Regardless of whether a kinship placement arises from voluntary negotiations or through a Children’s Court Order, the department is required to assess the appropriateness of the proposed placement.

362.In assessing a kinship placement, departmental staff are guided by the practice advice contained in the manual. Child protection workers are instructed to discuss with the potential carers whether the child will be safe living in their care and to ascertain whether they are willing to cooperate with the department to assist the child and the child’s parents.

363.Child protection workers are also required to obtain a national criminal records check or, in urgent situations, an operational criminal records check on all persons aged 17 years and older who reside or stay overnight at the potential placement. Criminal records checks should be conducted prior to a child entering a kinship placement. I note that the Criminal Records Check Practice Advice has been under review by the department since October 2008 but that child protection workers are advised by the department that the ‘…standards and procedures still apply’.

21 Victorian Government Department of Human Services, Good Practice: A Statewide Snapshot 2008, August 2008.

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364.Child protection workers must obtain consent to conduct a criminal records check from each eligible individual in the household which is being considered for a child’s kinship placement. Consent may be provided orally for the purposes of an operational check, which only considers readily accessible information and may exclude archived and interstate records. For a national check a consent form must be completed and signed. If the proposed caregiver or any other person within their household over the age of 17 years refuses to give consent to a national criminal records check, the placement cannot proceed.

365.The advice instructs child protection workers to inform the regional director when a criminal record check returns disclosable court outcomes (which include all findings of guilt), outstanding charges or ‘other matters’. The regional director is the final decision-maker as to whether the kinship placement can proceed.

366.The department’s practice advice notes that child protection workers must:

… only transcribe onto the client information system disclosable Court outcomes for a police records check as it relates to: the safety and wellbeing of the child and worker safety concerns.

367.I note that the practice advice does not state that child protection workers must also record outstanding charges or ‘other matters’ on the department’s Client Relationship Information System (CRIS).

368.Child protection workers are also required to undertake ‘a person responsible for harm’ check on CRIS before proceeding with the placement. CRIS enables the department to record the identity of an individual it has assessed has placed a child at risk of significant harm. If a proposed carer is recorded as ‘a person responsible for harm’ then the child protection worker must discuss this outcome with his or her team leader or supervisor before proceeding with the placement.

369.During my investigation I found several examples where staff did not have adequate knowledge of the department’s practice advice or failed to comply with standards set out in this advice.

370.The case study below illustrates a situation where departmental staff failed to comply with standards regarding criminal records checks and the ‘person responsible for harm’ check.

Case study 18

I investigated a complaint from a grandparent who was granted care of her grandchild in accordance with a Children’s Court ordered kinship placement. The grandparent complained that the department had required her friend who was also living with her to leave the home months after the placement commenced.

The grandparent’s friend had a conviction for a sexual offence. The child had identified this individual as the perpetrator of sexual abuse against her during a previous departmental involvement. At that time the department substantiated that the child was at risk of harm from this individual.

My investigation located Intake documents and court reports which incorrectly recorded allegations previously substantiated by the department as not substantiated. I also established that pertinent information from the department’s previous involvement was overlooked a number of times. This included several case notes placed on the child’s file about the friend’s criminal conviction for a sexual offence.

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During its earlier involvement, the department conducted a criminal records check on the friend but misspelt his name. This meant that the department did not have a record of the friend’s criminal offences. I confirmed there was no record of any further assessment by the department prior to the child entering the care of the grandparent and friend on multiple occasions.

These repeated oversights led to the child being regularly exposed to a convicted sex offender.

When my staff interviewed the relevant child protection worker, they confirmed that, in placing the child with the grandparent, they had relied on the incorrect information contained in case notes. The child protection worker stated that because of their workload, they were simply unable to review an entire client file and therefore relied on significant case notes such as case transfer summaries, Intake documents and court reports to provide a case history.

I was also concerned to discover during my investigation that staff were not aware of key aspects of the practice standards relating to criminal records checks. They also did not know how to conduct a ‘person responsible for harm’ check on CRIS to ascertain whether a person was known to the department for having caused harm to children.

This mandatory step in the assessment of proposed placements should have been routinely conducted by staff in this instance.

I made the following recommendations which the department accepted:

review caseloads carried by team leaders in the region particularly in relation to their capacity to provide quality and consistent supervision to staff

undertake training for all regional staff regarding the Criminal Records Check Practice Advice

audit compliance with the Criminal Records Check Practice Advice for all open cases in the region

provide all staff with clear advice on where criminal records check results should be retained

review current knowledge and training needs of regional staff in relation to the assessment of risk and response to risks posed to children from their contact with sexual offenders.

371.This case demonstrates the need to ensure that child protection staff have adequate knowledge of the required practices and procedures for undertaking criminal records checks when considering the appropriateness of kinship placements.

372.During the course of my investigation my officers reviewed departmental client files for several children. There was no simple means of establishing whether a criminal records check had been undertaken, other than reviewing the file page by page. In some instances, after reviewing large amounts of documentation, my investigators established that there was no evidence of a criminal records check having been undertaken.

373.Many staff interviewed during my investigation had limited knowledge of the department’s requirements regarding the management of criminal records checks while the ’person responsible for harm’ function available on CRIS was almost unheard of. The following statements by senior child protection staff and managers regarding their knowledge of the ‘person responsible for harm’ function underscore my concerns:

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… it’s news to me … I don’t know what you are talking about. No, I’m not aware of that function.

I believe there is but I’m not aware of how to use it.

374.Senior managers provided explanations as to why the function may not be utilised:

my understanding previously was that it was a grey area legally …

there was actually a [Victorian] Privacy Commissioner restriction placed on it.

375.I confirmed with the Victorian Privacy Commissioner that she has not been approached by the department in relation to the ‘person responsible for harm’ function and has in no way restricted its use.

376.According to practice advice number 1435 Kinship Care and Assessment the department is required to:

undertake and complete a comprehensive assessment for all planned kinship placements that are likely to exceed three weeks. This assessment must be completed within six weeks of the commencement of the placement.

377.Despite the above practice advice, the following case studies illustrate that comprehensive assessments are not always completed.

Case study 19

I received a complaint from a grandparent who had been providing care to her grandchild who was subject to a Custody to the Secretary Order. The grandparent had been assessed prior to the grandchild entering her care and had been approved to provide a kinship placement. The grandparent complained that some time later the grandchild was removed from her care as she was on the Sex Offender Register. The grandparent stated that she had previously informed departmental staff who undertook an assessment of her criminal history.

My office made enquiries of the department and established that during the three month assessment the ‘Kinship Care Placement Assessment’ proforma document had not been used but that the department had undertaken a criminal records check of the grandparent. The result revealed that the grandparent had a conviction for a sexual offence against a child.

My office also confirmed that the grandparent was placed on the Sex Offender Register in accordance with the Sex Offenders Registration Act 2004.

The department acknowledged that regional director approval had not been sought when the child was placed with the grandparent as required by the practice standard. Nor had a full assessment occurred of the grandparent and any possible risk that her offending behaviour may have had for the grandchild.

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378.In accordance with the Family Law Act 1975 the department may be requested to undertake assessments and provide advice to the Family Law Court. The following case example concerns a situation in which the department was asked to provide information and / or advice to the Family Law Court. I concluded that in the circumstances the department should have undertaken criminal records checks of the proposed kinship carers before providing advice to the Family Law Court.

Case study 20

I received a complaint from a father who alleged that his son was being exposed to drug and alcohol abuse by his mother and her partner and the department had failed to take appropriate action.

I made enquiries of the department and was informed that the department had investigated the report and found that the mother had voluntarily placed the child with the maternal grandparents, prior to the initial visit by the department. The department also advised that it had undertaken an assessment of the maternal grandparents and in response to a request from the Family Law Court, stated that there ‘was no identified protective concern…whilst he [the child] remained in the care of his maternal grandparents’.

The department informed my office that as the placement was voluntary and arranged by the family:

… there was no requirement for the department to undertake criminal records checks.

I advised the Secretary that I considered that the department should have undertaken criminal records checks as part of its assessment of the grandparents, particularly given the department’s advice to the Family Law Court that it was an appropriate placement.

I made the following recommendations which were accepted by the department:

conduct criminal records checks of the grandparents and any persons over the age of 17 years who sleep overnight at the residence

undertake further investigation should there be any adverse results for the criminal records checks and take appropriate action.

379.The importance of undertaking adequate assessments of proposed kinship carers was reinforced to my investigators by the Medical Director of the Victorian Forensic Paediatric Medical Service. The Medical Director stated:

often elderly people [are] looking after young children and [they] have their own

health and other matters to deal with, so it’s often a far from ideal situation … without even considering all the emotional things that are involved with kinship carers and their loyalties to - or allegiances to not only the child they’re caring for but to … the other family member who’s no longer caring for the child. So that’s very difficult. And they’re not always kin who have provided high quality parenting in the first place … so … they’re available but are they a good parent?

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380.The Medical Director also expressed concern that the criteria applied when assessing the suitability of other care arrangements is not always applied with the same rigor when kinship carers are being assessed.

381.A regional manager described the dilemma presented by kinship placements which may initially be considered in response to an immediate crisis yet develop into long term arrangements:

I have no placement option. Grandma, on the face of things, you know it’s a reasonable placement. I think then what we’ve seen is that what might have been reasonable for short-term, three months … three years down the track might not have actually been that reasonable.

382.At interview a team leader described the practical difficulties posed by the legal process when assessing kinship placements. The team leader explained that they were required to undertake an assessment of a proposed caregiver during the Children’s Court’s adjournment for lunch. The team leader described the request as ‘ludicrous’ and perceived the attitude of participants in the hearing as ‘Oh well, you can just have a bit of a chat with them and do an IBR [criminal records check] isn’t that what you do?’

383.Similar difficulties assessing kinship placements outside business hours were reported by a team leader. The process undertaken by the After Hours Child Protection Emergency Service was described as less rigorous than that undertaken during business hours.

Non-compliance with supervision standards

384.The department’s Professional Supervision advice states that it was created to ensure:

the best possible service is provided to child protection clients and their families

the child protection program remains accountable in the performance of its statutory responsibilities

child protection staff receive the support and development they require to fulfil their demanding roles.

385.The department’s Child Protection Supervision Standards document defines supervision as:

a process by which a child protection practitioner is given responsibility by the department to work with another practitioner(s) in order to meet the department’s objective to ensure the safety and wellbeing of children at risk of significant harm.

386.In 2005 I made recommendations to the department following my investigation into the situation of a seven-month-old child referred to in the media as ‘Baby Ben’. ‘Baby Ben’ had been physically abused while in a foster care placement. One of my recommendations was that the department:

Develop systems to monitor the quality and availability of professional supervision to all child protection workers.

387.In August 2006 the department provided my office with a progress report on the implementation of my recommendations. The Secretary informed my office that following my recommendations the government had announced $226 million in new funding for the child protection program. The Secretary also advised that the department had revised its supervision standards and that regional compliance with the standards was monitored centrally on a quarterly basis.

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388.In order to monitor compliance with the supervision standards, departmental staff are required to submit a signed record of supervision times and dates. Child protection staff employed in direct service roles (CPW-2 and CPW-3 classifications) are expected to receive the equivalent of two hours of supervision per fortnight. At least one of these two hours

is to be uninterrupted one-to-one supervision. However, it is apparent that supervision requirements are not always met.

389.I recently finalised an investigation in which I concluded that the child protection worker involved had not been provided with adequate supervision. It was evident from

interviewing the child protection worker that a lack of supervision had a negative effect on their handling of the case and led to their ‘burn out’.

390.During interview many staff indicated that supervision was often sacrificed for the immediate tasks of day-to-day service delivery.

391.Data provided to my office by the department showed that only 56 per cent of staff across the state were receiving ‘full supervision’ during the first quarter of 2009. There were wide variations in regional compliance, with regions ranging from 18 to 83 per cent.

392.The department also provided data regarding staff receiving what is described as ‘regular supervision’ which allows for staff to miss one of the required supervision sessions in each quarter. At this lower level the state-wide average was still only 81 per cent with regional performance ranging between 51 per cent and 99 per cent for the period.

Table 7: Supervision for January - March 2009

Region

Full supervision received (%)

Staffreceiving‘regularsupervision’(%)

 

 

 

Barwon-SouthWestern

82

99

 

 

 

Gippsland

36

63

 

 

 

Grampians

57

87

 

 

 

Hume

55

93

 

 

 

Loddon Mallee

18

51

 

 

 

Eastern Metropolitan

83

93

 

 

 

NorthWest Metropolitan

66

92

 

 

 

Southern Metropolitan

52

69

 

 

 

Average

56

81

 

 

 

393.In response to my draft report the department stated that:

‘Regular supervision’ is defined in the Operations Division supervision compliance report that states ‘Compliance is defined as staff who received regular supervision. Regular supervision is supervision in accordance with the standard or staff that missed only one session within the quarter’.

394.However, I note that neither ‘regular supervision’ nor ‘full supervision’ are defined in the department’s Child Protection Supervision Standards.

395.In response to my draft report the department acknowledged that ‘The low levels of compliance in three particular regions are however of immediate concern’.

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396.The department also responded that:

Several aspects of the new funding package announced by the Government should support improvements to the quality of child protection case practice and supervision, including the new required training package for all staff with 2 years experience, the appointment of two additional Principal Practitioners to provide expert consultancy on complex cases, and the new Specialist Intervention Team.

Failure to comply with statutory best interests, stability and cultural planning for children

397.The ‘Best Interests Principles’ outlined in section 10 of the Children, Youth and Families Act advocate safety, health, education and social development, while promoting stability for the child. For certain cases, the department has a statutory obligation in accordance with the Children, Youth and Families Act to develop a ‘Best Interests Plan’ which addresses these principles. Section 167 of the Children, Youth and Families Act states:

(1)The Secretary must ensure that a case plan is prepared in respect of a child within 6 weeks after the making by the Court of-

(a)a supervision order; or

(b)a supervised custody order; or

(c)a custody to Secretary order; or

(d)a guardianship to Secretary order; or

(e)a long-term guardianship to Secretary order; or

(f)a therapeutic treatment (placement) order.

(2)The Secretary must ensure that a copy of the case plan is given to the child and his or her parent within 14 days after its preparation.

398.Best Interests Plans must be developed and incorporate the needs of the child, goals which promote these needs and tasks designed to accomplish the goals. Best Interests Plans should be evaluated and reviewed by the department on a regular basis to ensure that the child’s needs are met and goals and tasks are being fulfilled. It is therefore imperative that tasks are specific, of a measurable nature, achievable and timely.

399.The following case demonstrates the importance of reviewing previous decisions and plans, in light of a child’s best interests.

Case study 21

A child born in a refugee camp fled to Australia when he was nine years old due to war and deprivation in his country22. The child was traumatised due to his experience in the refugee camp, he disliked the limits of city life in Australia and his family was faced with considerable social adjustment in Australia.

The child became subject to departmental intervention when he was 11 years of age due to challenging behaviour. He was removed from the care of his parents and placed in a residential unit where he had trouble relating to other children and staff.

He was particularly unsettled at night and he continued to present with significant behavioural challenges in the residential unit.

22 Victorian Government Department of Human Services, Good Practice: A Statewide Snapshot 2008, August 2008.

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During a period in secure welfare, the department decided to review the child’s circumstances and look at ways in which he could return home. A youth worker who knew the child from the residential unit was employed to work intensively with the child and his family for three to four months and then less intensively after this period.

The youth worker was culturally sensitive and had a good relationship with the child’s family. Additional supports were provided to the family including a tutor and mental health worker for the child. The family embraced the plan and it was regularly reviewed to make improvements. The child has now been home for seven months and while continuing to struggle socially and emotionally, he has responded well to structured routines. There is hope that this action will enable the family to remain living together despite the ongoing challenges they face.

400.The department is also required to complete a ‘Cultural Plan’ in certain circumstances as part of the Best Interests Planning process. Under section 176 (1):

The Secretary must prepare a cultural plan for each Aboriginal child placed in out of home care under a guardianship to Secretary order or long-term guardianship to Secretary order.

401.The Children, Youth and Families Act describes a Cultural Plan as addressing:

how the Aboriginal child placed in out of home care is to remain connected to his or her Aboriginal community and to his or her Aboriginal culture.

402.The Victorian Aboriginal Child Care Agency informed my office that only 20 per cent of

Aboriginal children considered to require a Cultural Plan had one developed. The Victorian

Aboriginal Child Care Agency commented:

The lack of compliance around the development of Cultural Support Plans has been a major concern …

403.A ‘Stability Plan’ is required as part of Best Interests Case Planning under certain circumstances for children who are placed in stable, long term out-of-home care. Specific timeframes are provided in the legislation as to when Stability Plans are required to be completed, depending on the age of the child and the total time that they have been placed in out-of-home care.

404.My investigation identified numerous instances from across the state where the statutory obligation to prepare a Best Interests Plan had not been met. Comments from senior staff in three different regions illustrate how widespread the problem is:

… best guess I would probably say that we would probably be somewhere around 60 to 70 per cent compliant.

I’d say probably about 50 per cent are done …

… there’s been times where, just due to the demand, that stuff is overlooked. And sometimes that can be from workers not actually realising that it’s a statutory responsibility.

405.Witnesses said during interview that CRIS contributed to the problem because it is complicated administratively to create Best Interests Case Plans.

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406.Senior child protection staff were also concerned that the process for developing the Best Interests Case Plans was not given the time and effort required to obtain good outcomes for children and families.

407.More specifically my investigation located several Best Interests Plans that, in my opinion, placed too much emphasis on general objectives rather than actionable tasks. I also came across several cases where actionable tasks had been recorded in the plans, but no individual was responsible for fulfilling those tasks. In other cases there were numerous persons assigned as responsible for one task.

Case study 22

I received a complaint regarding the department’s failure to review a statutory Best Interests Case Plan in a timely manner after lengthy involvement with a child subject to a Custody to the Secretary Order. Six months had transpired since the mother and grandparents had requested a review of the Best Interests Case Plan.

I conducted enquiries of the department about the length of time taken to review the plan. As part of my enquiries my office obtained a copy of a Best Interests Case Plan that was drafted approximately 10 months earlier. A number of tasks listed in the draft were not assigned to specific staff members. The plan also lacked information about proposed measurement and monitoring activities by the department.

As a result of my enquiries I recommended the department review the Best Interests Case Plan, apologise to the complainants and reaffirm with departmental staff the importance of ensuring that statutory case plans are completed in full and all tasks are assigned to a specific individual.

The department’s response stated that the complexity of the case was the reason for delay in reviewing the plan; however, the department noted that future reviews were to be completed in a timely manner. The department acknowledged that its failure to assign tasks in the case plan was an administrative error and regional staff were reminded to complete statutory planning in full. The department also sent a formal letter of apology to the complainants.

408.As part of my investigation I requested documented evidence from the department in relation to its compliance with statutory obligations such as Best Interests Case Planning. In response, the department has acknowledged that:

Currently the CRIS database does not provide good data on compliance … There are many instances where the case plan, while made, is not entered into the correct fields in CRIS. It is therefore not possible to query CRIS and get accurate data about compliance.

409.At interview, witnesses also referred to problems with monitoring the implementation of

Best Interests Case Plans and reviewing them as required by the legislation and practice standards.

410.The following case was one of the matters that prompted my own motion investigation. In this case the department failed to adequately monitor and review the Best Interests Case

Planning requirements for a child subject to a Protection Order. The failure resulted in a

Children’s Court Order lapsing because of an oversight by the department.

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Case study 23

I received a complaint from a mother who was concerned that she was not receiving adequate access to her child in accordance with a Supervision Order.

My enquiries established that the department had failed to identify a Children’s Court error in which the child was recorded as being subject to a Supervision Order rather than a Custody to the Secretary Order. The department was not aware of this error until enquiries were made by my office. Enquiries by my office also established that the department had not completed a statutory Best Interests Case Plan for the child.

The department acknowledged that it had breached a legislative requirement in terms of Best Interests Case Planning and other administrative processes. The department informed my office that it would undertake an audit of all cases in the regional office to ensure that it had met its legislative responsibilities.

The department provided my office with a copy of the audit outcomes from the region. The audit revealed that 11 per cent of children in the region did not have a

Best Interests Case Plan in place. The department advised my office that it would ensure full compliance with the legislative requirement by the end of April 2009. The region also reported that it would implement a reporting system to advise staff when a Best Interests Case Plan was due for completion.

411.In response the department stated:

The draft report outlines areas of concern in relation to the department’s fulfilment of its statutory obligations … In particular … non-compliance with some of the newer obligations such as the cumulative harm provisions, enactment on the ‘best interests’ principles, cultural support plans, and stability plans … the Department acknowledges that implementation has been part way progressed, and that there is a need for increased attention to deliver the considerable benefits intended by these reform elements.

412.The department also informed my office that:

It is proposed to establish a new Child Protection Practice Standards and Compliance Committee, with an independent chair person. It will comprise a range of external professionals with child protection, legal, academic and performance audit expertise, as well as [a] senior departmental representative. The core function of the committee will be to provide advice and recommendations through the Secretary to the Minister on compliance with practice standards and key statutory requirements …

The outcomes of the work undertaken by the Child Protection Practice Standards and Compliance Committee will be provided to the Secretary of DHS [the department] so that it can be included in the DHS annual report.

Failure to enforce or comply with court ordered conditions

413.I have found cases where the department has not complied with or sought to enforce

Children’s Court ordered conditions. In the following case study the department did not comply either with the Children’s Court’s Order or its statutory obligations regarding Best

Interests Planning.

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Case study 24

I received a complaint from a father who stated that the department had failed to enforce a condition on a Protection Order issued by the Melbourne Children’s Court. The condition on the Order stated:

Mother must submit to random supervised alcohol and drug testing once per week for six months and thereafter as directed by DoHS [the department] and must allow reports to be given to DoHS [the department].

I made enquiries of the department and queried why it had not issued a breach application given non-compliance with the Order in the absence of urine drug screens being provided. In response the department stated that if a parent fails to comply with a condition on an Order:

… the department may, but is not obligated to, seek to breach or vary the order … Whilst child protection could have breached the children’s Supervision Order … there was no evidence that this was necessary or that it would have been in the best interests of the children.

Given the department’s reference to the ‘best interests’ of the children my office subsequently requested a copy of the Best Interests Case Plan. The department informed my office that no Best Interests Case Plan was completed and that it:

… acknowledges that child protection has not fulfilled the administrative statutory obligations in relation to best interest planning in this case.

The department informed my office that in view of this failure, the child protection manager had requested that all unit managers ensure all existing cases of children on Protection Orders have a current Best Interests Case Plan.

414.The department asserted that the best interests of the child were the reason for the decision not to implement the Children’s Court Order. However, during interview my investigators were informed that the same region had reduced the frequency of drug testing of parents because of the cost to the department for a test rising from $26.00 to $45.00.

Conclusions – failure to comply with statutory obligations and internal practice standards

415.My investigation found instances where the department did not comply with statutory requirements and internal practice standards. These shortcomings were not restricted to minor administrative matters but involved core processes for ensuring the safety and wellbeing of children reliant on the department.

416.In my opinion such levels of non-compliance require urgent attention by the department if the safety and wellbeing of vulnerable children and young people is to be assured.

417.In response the department stated:

A new Child Protection Quality Assurance Branch is proposed to be established within the Department that concentrates on performance monitoring with a focus on quality and compliance.

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418.In circumstances where a child cannot remain in parental care, the Children, Youth and

Families Act requires that the department consider kinship placements with extended family or friends. While I do not dispute the merits of this requirement, it brings with it a range of issues, which if not carefully considered, can place a child at further risk of harm.

419.I consider that the department should therefore assess and conduct criminal record checks for kinship placements regardless of whether the child has been placed with a kinship carer prior to the department’s involvement.

420.Departmental staff have inadequate knowledge of the Criminal Records Check Practice Advice. As the case studies demonstrate, this lack of knowledge results in checks not being undertaken which place children at risk of harm.

421.Interviews with departmental staff revealed inconsistency regarding how the results of criminal record checks are recorded. It was also cumbersome and time-consuming to establish whether checks had been undertaken and their results if they had. The need to review such large amounts of documentation to determine whether a check has been

undertaken is inefficient and can lead to oversights. In my opinion there is an urgent need to address this lack of functionality in CRIS.

422.CRIS does have the useful capacity to allow searches to identify individuals who have previously been found to have harmed a child. However, my investigation revealed widespread ignorance of the ‘person responsible for harm function’ on CRIS. Despite numerous interviews my investigators did not find one instance where an officer was familiar with the function and had used it.

423.The lack of knowledge about the ‘person responsible for harm function’ is accompanied by a misunderstanding as to why it is not being used.

424.Information contained in the department’s own records regarding adults who present a risk to children should be used for the benefit of children reported to the department.

425.The cases examined during my investigation generally highlighted that the department needs to further develop the capacity of its workforce to adequately assess kinship placements. I consider the assessment of kinship carers to be an area of high risk for the department and an area which requires further attention.

426.In 2005 I made recommendations that the department develop systems to monitor the quality and availability of supervision to child protection workers to which the department agreed.

427.Compliance with the supervision standard is important on a number of fronts, including that the department relies on supervision as a primary means by which it monitors the quality of its interventions. If appropriate levels of supervision are not occurring the department’s most fundamental quality assurance mechanism is compromised. A range of other issues go hand-in-hand with compliance with this standard, including the need to educate and retain a resilient workforce and ensure staff are provided with an adequate level of support and monitoring to perform what is without a doubt a complex and difficult role.

428.My investigation identified that the department frequently failed to comply with its statutory obligation to complete Best Interests Case Plans for children on Protection Orders.

The purpose of the Best Interests Planning process is to develop a plan of action for the department, the child, the child’s carers and significant others. Failure to develop such a plan creates ambiguity in how the department will progress with its involvement and how the child’s carers and significant others will aid in advancing the child’s safety and development.

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429.In my opinion it is problematic that Best Interests Case Plans emphasise generalised statements, such as ‘maintaining positive relationships’ without being accompanied by specific tasks. This approach does not allow the department to adequately monitor the implementation of Best Interests Plans. I would also expect it would be confusing for the child’s carers and others involved in their lives because the department’s expectations of them, and what support they can expect, is not made clear.

430.Tasks should be assigned to specific individuals in Best Interests Case Plans to improve compliance with the plan. My investigation has identified instances where tasks on the plan have not been completed. A discrepancy between planning and practice can obviously have significant implications for meeting the needs of children.

431.The lack of sufficient attention provided to planning for children reflects, in my view, the strain on the child protection program to meet its basic obligations. The legislative reforms designed to increase planning for children’s best interests should be more effectively implemented in practice.

432.I have concluded that the department is at times not meeting its statutory responsibilities to children at significant risk of harm. I must in turn conclude that the department is also not meeting its responsibilities to children under the Charter of Human Rights and Responsibilities Act.

Recommendations – failure to comply with statutory obligations and internal practice standards

I recommend that the department:

Recommendation 14

Establish arrangements to ensure compliance with practice standards and key statutory obligations such as Best Interests Case Plans, Stability Plans and Cultural Support Plans. Ensure compliance is subject to independent scrutiny and regular auditing by an independent body and the outcomes of these audits are reported to Parliament.

The department’s response

The department has accepted this recommendation.

Recommendation 15

Complete its review of its Criminal Records Check Practice Advice and provide my office with a copy of the review within three months.

The department’s response

The department has accepted this recommendation.

Recommendation 16

Conduct an audit of compliance with the Criminal Records Check Practice Advice for all open cases involving a kinship placement.

The department’s response

The department has accepted this recommendation.

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Recommendation 17

Provide training to all relevant staff in relation to the Criminal Records Check Practice Advice.

The department’s response

The department has accepted this recommendation.

Recommendation 18

Resolve any outstanding issues regarding the ‘person responsible for harm function’ currently available on the Client Relationship Information System and provide updated advice and training to all staff regarding its use.

The department’s response

The department has accepted this recommendation.

Recommendation 19

Provide training to staff in the assessment and documentation of kinship placements.

The department’s response

The department has accepted this recommendation.

Recommendation 20

Report compliance with supervision standards in its annual report.

The department’s response

The department has accepted this recommendation.

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PRIVACY AND INFORMATION MANAGEMENT

Introduction

433.Complaints have been made to my office and the Victorian Privacy Commissioner about how the department has handled the personal information23 of child protection clients and their families.

434.The Victorian Privacy Commissioner is an independent statutory office created by the Information Privacy Act 2000 (Information Privacy Act). It administers the Information Privacy Act and plays a key role in regulating the way Victorian government agencies and local councils collect and handle personal information. Individuals who believe their personal information has been inappropriately handled by a Victorian public sector organisation can make a complaint to the Victorian Privacy Commissioner.

435.Because of our shared concerns, my office has worked collaboratively with the Victorian Privacy Commissioner during my investigation to explore privacy issues, and she seconded a member of her staff to my office to join my investigation team.

436.Public sector organisations hold information about people that is often delicate and/ or sensitive24 in nature and people generally do not have a choice about providing their

personal information to the government. The public sector therefore has a responsibility to protect personal information and ensure it is used for the right purpose.

437.The Information Privacy Act sets the minimum standards for information handling by the Victorian public sector. The ten Information Privacy Principles in the Information Privacy Act cover the whole life-cycle of information handling from collection to use, disclosure, access, security, accuracy, retention and destruction.

438.The Information Privacy Act seeks to balance the public interest in the free flow of information with the public interest in protecting the privacy of personal information.25

Information held by the department

439.The department holds information about individuals that if lost or misused, can have significant consequences. Child protection case files may contain information about:

a person’s mental, psychological or physical state of health

history of physical or sexual abuse

criminal history

family history or parentage

race or sexuality

occupation

the identity of witnesses or reporters

23Personal information under section 3 of the Information Privacy Act is ‘information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion’.

24‘Sensitive Information’ is defined by schedule 1 of the Information Privacy Act to include racial or ethnic origin; political opinions; membership of a political association; religious.

25Section 5(a) of the Information Privacy Act.

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involvement in court proceedings

financial information or bank details

contact details and personal addresses

details concerning individuals who are not aware that information has been collected about them.

A history of complaints – the Victorian Privacy Commissioner’s experience

440.From November 2005 to February 2007, the Victorian Privacy Commissioner investigated 12 formal complaints relating to inappropriate releases of information by the child protection program. Most were serious in nature, and placed complainants and clients of the department at particular risk of harm by releasing details of their whereabouts. The number of formal complaints about the child protection program have since diminished, however the

Victorian Privacy Commissioner has continued to receive enquiries, most of which relate to the following issues:

inappropriate accessing of client files by child protection workers

inappropriate release of address information

disclosure of reporter’s information

inappropriate release of information about behaviours exhibited by minors.

A history of complaints – the Victorian Ombudsman’s experience

441.Privacy complaints to my office against the department have raised concerns about privacy breaches and departmental staff’s lack of understanding about the Information Privacy Principles. In particular, complaints to my office have demonstrated that at times the department has withheld information which was in the best interests of the child to release.

442.Annual reports from my office have at times discussed privacy matters, including child protection cases with serious consequences for the individuals whose personal information has been improperly disclosed. For example, in my 2008 annual report I highlighted a case where an employee of the department inappropriately supplied private information to a family member who was also an employee of the department.

Recent complaints and issues

443.Subsequent to 2007 the department has demonstrated a willingness to work with the

Victorian Privacy Commissioner to address privacy issues.

444.For example, on 23 April 2007 the department introduced practice advice number 1498

Use of Private Information Regarding Family Members in Court Reports which counsels against including address details in Children’s Court reports in cases of violence. The Client Relationship Information System (CRIS) was also altered to prevent the automatic generation of client addresses into document templates.

445.Despite the above example, the Victorian Privacy Commissioner has seen little indication of other ways that the department has been addressing privacy concerns within child protection. The following case study shows that the Victorian Privacy Commissioner still receives enquiries about inappropriate handling of personal information by the department, including the release of client addresses. I note that my office has received similar complaints.

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Case study 25

The Victorian Privacy Commissioner received an enquiry from a person who had been granted permanent care of her older sibling’s two children. The department provided the enquirer’s address to the older sibling in a court report. The older sibling had a history of violence and drug abuse, and prior to the release of address details, was not aware of the children or the enquirer’s whereabouts. As a result, the older sibling contacted one of the children in the enquirer’s care and convinced the child to leave the enquirer’s home. The enquirer was concerned about the safety of the children and herself because of the sibling’s history of violence.

Case study 26

My office made enquires in relation to a complaint from a grandfather who was concerned about the department’s failure to issue a Protection Application for his grandchildren. The department’s response to my office included an admission that a child protection worker had informed the children’s parents about the grandfather writing several letters to the department to report safety concerns for the children.

The department stated that the purpose of this was to ascertain if the grandfather’s concerns were ‘valid’.

This action constituted a clear privacy breach for the reporter and a breach of section

191 of the Children, Youth and Families Act. The Children, Youth and Families Act states that the name of the person who made the report or any information likely to lead to the identification of the reporter must not be disclosed to any person other than a protective intervener or a community service organisation in some circumstances.

The department’s privacy complaints structure

446.During my investigation it became apparent that while the department has attempted to address the inappropriate release of client address information, its general approach to privacy has become less proactive in recent years.

447.In 2006 the Corporate Integrity Information Resolutions unit (CIIRu) was formed. This amalgamated several program areas within the department, including Ombudsman and

Privacy Commissioner complaints, Whistleblower matters, and Freedom of Information and Disability Services Commissioner issues. It is CIIRu’s role to coordinate responses to complaints about the department made in these areas. It has one senior privacy advisor who services the entire department, and is responsible for liaising with regulators including the Victorian Privacy Commissioner. While CIIRu has executive responsibility for privacy matters, the department does not have a privacy unit.

448.During interview, a senior child protection employee described the establishment of CIIRu:

… the department had a privacy unit that had three or four staff, and then probably I think three or four years ago with the amalgamation of a number of central units into what is now known as CIIRu, that the focus on privacy sort of diminished somewhat. And in my view - and I know it’s a view that’s shared across a number of other program areas - is that was to our detriment.

449.Staff from the department provided conflicting information about whether there is a recognised process for investigating privacy complaints against the child protection program.

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450.During interview my investigators were informed by staff with responsibilities in relation to privacy that privacy complaints are investigated by the relevant region with oversight from the child protection program’s Quality and Compliance Unit or from CIIRu if a complaint has been made externally to the Victorian Privacy Commissioner. The Quality and Compliance Unit manages its investigations based on the Privacy Complaints Guidelines 2004. However, the guidelines refer to the former privacy unit and the complaints process that was in place prior to the establishment of CIIRu. Departmental staff were unable to inform my investigators of, or provide a current finalised document setting out, the department’s accepted process for addressing privacy complaints.

451.Departmental staff said that the current system for privacy complaints does not have clear reporting requirements and is not sufficiently promoted throughout the department.

452.My investigators were also told that CIIRu is currently not informed about all privacy complaints regarding the child protection program. My investigators were told by a senior child protection employee that staff ‘should’ advise the Quality and Compliance Unit about privacy complaints.

453.During interviews, my staff were informed that child protection workers do not receive sufficient education from the department on privacy compliance and it appears that the current system relies on staff and managers identifying privacy issues.

454.The following case study illustrates the detriment that a lack of formal consultation can cause for individuals whose information is misused.

Case study 27

The department received a complaint from a relative who cared for a family member’s child. On numerous occasions she requested that her home address, telephone number and other details about the child remain private. The complainant was concerned about the child’s parents’ criminal history, violence and drug use. The complainant’s address details were included in documentation and sent to the child’s parents by the department. As a result, the complainant moved house because of safety concerns. She complained to the department which provided her with some financial assistance as a result of the move. The complainant requested that her new address be recorded as ‘withheld’ by the department. However, the department failed to comply with this request.

The department subsequently sent documentation to the child’s parents which included the complainant’s new address details as well details concerning the child. The complainant requested compensation to cover the cost of insurance and security measures for her home, as well as increased rental costs.

When assessing the complainant’s request, regional staff briefed CIIRu about the complaint but did not involve CIIRu in initial discussions about compensation. As a result, the unit manager for kinship care only considered a nominal payment to the complainant. The senior privacy officer from CIIRu contacted the region and informed the region that the complainant could be awarded a substantially higher sum if she escalated her complaint to the Victorian Privacy Commissioner. The complainant’s payout was then reassessed and she was provided with a higher level of compensation.

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Training and advice

455.My officers were informed that since the former privacy unit was disbanded there is no longer a scheduled, centralised approach to privacy training. CIIRu’s commitment to privacy awareness has been described as having a reactive complaints focus.

456.My investigation has identified that there is a high level of awareness about the need to comply with the Information Privacy Act within the child protection program. However regional child protection managers were critical of how the department approaches privacy training.

457.Privacy training is primarily provided to child protection team leaders and during the department’s child protection induction program, referred to as ‘Beginning Practice’. Initiatives have also been introduced to provide privacy training by incorporating it into other training programs for child protection workers.

458.A fundamental concern for employees with privacy responsibilities in the department is the lack of coordination across the department to ensure consistent privacy training and advice is provided to staff. A senior child protection employee stated:

we did have quite a well-functioning privacy contact officers network and that was managed through the privacy unit. And so that involved everyone in every region in every program area having a designated contact person. And they would meet

regularly with the privacy unit, so that was quite a good model … Now with the serial amalgamation [of CIIRu], that seemed to have dropped away.

459.Despite requests from the regions for network meetings and a desire from within the child protection program for greater support, these have not occurred. A senior departmental worker said that CIIRu network meetings have a greater focus on staff development and fail to adequately consider emerging privacy concerns.

460.In 2009 CIIRu engaged a contractor to produce privacy training and awareness materials.

The contractor produced A Manual for Building Privacy Principles into our Human Services about the Information Privacy Principles for department managers to implement appropriate privacy practices in their own units. It also produced a workbook titled Awareness Training for Senior and Middle Managers. The purpose of the work book is not clear, as it does not contain guidance on the Information Privacy Principles. It instead focuses on reflection and self analysis, stating:

Recall your best ever experience you have had handling a privacy awareness issue. Really put yourself into that experience … Describe the moment: How did you feel? What did you see? What did you hear?

461.The training program for senior and middle managers also contains little guidance on the

Information Privacy Principles. The training program states:

We have a proud track record on privacy – being one of the first departments to institute a privacy unit and conduct training for all staff on the issue. However, in recent years our performance has slipped and there have been some breaches …

462.The child protection program does not have its own privacy policy or a specialist privacy officer to provide advice to staff. This has been described by a senior employee as a position that ‘would be quite useful‘.

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Privacy materials

463.The main instructional resource for child protection workers is the Protecting Victoria’s Children - Child Protection Practice Manual (the manual) which contains specific privacy advice as well as privacy advice that is imbedded in guidance on general practice issues. On reviewing the manual, my investigators identified some comprehensive practice advice concerning information sharing and handling. However, some practice advice has been under review for long periods of time, or provides inaccurate or insufficient advice on privacy compliance. I discuss this further in my chapter ‘Compliance with privacy legislation’.

464.A senior child protection employee said that when breaches of privacy occur within the child protection program, the department sends emails to staff to describe new policies on personal information handling to prevent breaches from reoccurring. On review of these emails, I consider that they provide insufficient advice to prevent privacy breaches from reoccurring and it is likely that some workers may not read the emails. In addition to this, the manual is not promptly updated to reflect the guidance communicated in such emails. The result is dual and sometimes conflicting advice.

465.In April 2008 the child protection program began a major review of the manual as part of the Protecting Children - Best Interests and Privacy project. The aim of the project is to ensure that it contains appropriate levels of privacy advice. The project also aims to review existing privacy complaints, complaint handling processes and to produce new resources and training materials for child protection staff. The project is not yet complete. I also identified aspects of the new materials that contradict advice provided elsewhere in the manual.

466.Another document drafted as part of the project directs workers to five different sections within the department for privacy advice. My officers were told that while there is some liaising on privacy issues between these sections, there is no formal requirement to liaise or meet regularly to ensure there is consistency in the provision of privacy advice. There is

also a lack of formal consultation between CIIRu and the child protection program about the redrafts to the manual, or in producing privacy materials.

467.There is little material on the department’s intranet to provide guidance for staff on general privacy queries. My investigators were told that over thirty documents which provided privacy guidance to staff were removed from the intranet in 2008.

468.During interview my officers were informed that staff who provide privacy advice within the department do not necessarily have a background in privacy or substantial privacy training.

Internal reviews

469.In April 2009 an auditor was engaged by the department to conduct an audit of the department’s interpretation of the Information Privacy Act. In relation to the child protection program, the audit identified the following issues:

1.the senior privacy advisor in CIIRu does not have oversight of all privacy incidents and complaints across the surveyed regions

2.a lack of formalised roles, responsibilities and expectations of the senior privacy officer and privacy contact officers

3.a lack of a formal privacy team structure

4.no formal privacy training calendar

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5.no privacy forum for the senior privacy officer and contact officers to learn from one another’s experiences which may result in inconsistent privacy training and advice

6.the department relies too heavily on one senior privacy advisor and has an increased risk of losing valuable information through change of employment with only one senior privacy advisor.

470.In June 2009 CIIRu stated that it would address the first four points. In relation to the first point, it stated ‘clear reporting standards have been incorporated in the revised Privacy Guidelines and training materials currently under development’ by its contractor. I have reviewed the document titled A Manual for Building Privacy Principles into our Human Services, and it contains a requirement that now, after a privacy officer has investigated a privacy complaint, CIIRu be advised of the outcome.

471.However, CIIRu disagreed with the auditor’s finding that there was a lack of a privacy forum for the senior privacy officer and privacy contact officers. CIIRu stated that it held ‘a formal network with quarterly seminars on all matters associated with the work of CIIRu‘. It suggested that these meetings be ‘revamped’, but that a specific forum limited to privacy concerns would ‘limit the learning that could be applied from CIIRu’s engagement with other external agencies such as the Ombudsman, Health Services Commissioner and

Disability Services Commissioner’.

472.In 2008 the department began reviewing 40 complaints received between 2003 and 2007 in relation to the child protection program. To date the review has identified 67 alleged

breaches of the Information Privacy Act and/or the Health Records Act 2001 (Vic). The review is currently in draft form.

Misunderstandings about privacy

473.My officers learned of a number of mistaken beliefs held by child protection staff about what privacy law requires, including that they should not release the identity of reporters to Victoria Police when issues of physical and sexual abuse against children were alleged.

474.My investigators were also informed that the ‘person responsible for harm check’ on CRIS has not been properly utilised by child protection staff because of a belief that it breaches privacy. I have discussed this erroneous belief in the ‘Failure to comply with statutory obligations and internal practice standards’ chapter.

475.I also encountered the unfounded belief held by some staff that the department is exempt from compliance with the Information Privacy Act because it is a law enforcement body.

476.Section 13 of the Information Privacy Act allows organisations that are exercising law enforcement functions to not comply with certain Information Privacy Principles. Information Privacy Principle 2.1(g) also allows particular types of uses and disclosures of information in relation to law enforcement agencies. While the department has some law enforcement functions under Part 6.1 of the Children, Youth and Families Act, many of its activities are not ‘law enforcement functions’. The department’s status as a law enforcement agency operates only to the extent to which it is performing its law enforcement functions. The department is therefore not completely exempt from compliance with the Information Privacy Principles.

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477.My officers have learnt that some departmental employees have viewed section 13 or Information Privacy Principle 2.1(g) as providing ‘exemptions’ in relation to some of the department’s information handling practices. In 2009 nine complaints against the department were investigated by the Victorian Privacy Commissioner. In response to the complaints, the department stated that information included in court reports that allegedly identified the whereabouts of the complainants were justified as being disclosures for law enforcement purposes under Information Privacy Principle 2.1(g). This argument was rejected by the Victorian Privacy Commissioner.

Conclusions – privacy and information management

478.I consider the department’s current process for handling privacy complaints, including complaints about privacy in child protection matters, lacks transparency and accountability. The department has not provided child protection workers with sufficient training, advice or resources to ensure an appropriate level of privacy compliance. Guidance on privacy issues within the department is often contradictory, inaccurate or insufficient.

479.While some of the new materials drafted as part of the Protecting Children – Best Interests and Privacy project provide insightful case studies and guidance around privacy issues, other materials do not provide sufficient direction on compliance with the Information Privacy Principles. Materials encouraging ‘self-reflection’ on the importance of privacy matters should not be at the expense of clear guidance.

480.There is a lack of formal communication regarding privacy training and advice. Specifically, CIIRu does not provide sufficient leadership in privacy training or establishing support networks. There is also a lack of specialist knowledge held by departmental staff who provide privacy training and advice to child protection workers. These factors have been damaging to the department’s understanding of its privacy obligations.

481.The department’s reliance on one senior privacy officer within CIIRu to provide advice to staff on privacy issues creates a significant succession risk and is inadequate for a large department which handles an extensive array of highly delicate and sensitive personal

information. In my view the lack of a privacy unit has been detrimental to the department’s privacy compliance.

482.When organisations fail to provide sufficient leadership and training on privacy issues, myths about privacy can become pervasive and have a damaging effect on proper information flows.

483.I acknowledge that child protection workers have heavy and demanding workloads and do not have time to become intimately familiar with the Information Privacy Act or its interaction with the Children Youth and Families Act. Therefore, it is important that workers can rely on accurate materials and advice, and a well-functioning privacy unit and network to answer specific queries, or provide direction on privacy and information-sharing matters when required.

484.In response to my draft report the Attorney-General stated that the Department of Justice has responsibility for privacy coordination across government. The Attorney-General proposed that:

… the Department of Justice work with the Department of Human Services to develop a straight forward privacy training package for all child protection and Children’s Court staff that could be implemented quickly across all regions.

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Recommendations – privacy and information management

I recommend that the department:

Recommendation 21

Establish arrangements for a central privacy unit which has a complaint, educative and training function.

The department’s response

The department has accepted this recommendation.

Recommendation 22

Review current arrangements for the management of privacy complaints and document formal processes.

The department’s response

The department has accepted this recommendation.

Recommendation 23

Establish a privacy officer position that is specific to the child protection program to provide specialist advice.

The department’s response

The department has accepted this recommendation.

Recommendation 24

Establish arrangements for privacy network meetings between the privacy unit, child protection staff and community service organisations.

The department’s response

The department has accepted this recommendation.

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COMPLIANCE WITH PRIVACY LEGISLATION

485.Information Privacy Principle 4.1 (Data Security) requires the department to take reasonable steps to protect the personal information it holds from misuse, loss, unauthorised access, modification or disclosure.

486.The most important aspect of complying with Information Privacy Principle 4.1 is for an organisation to understand what constitutes ‘reasonable steps’ to protect personal

information. Under Information Privacy Principle 4.1, it is not sufficient to simply ensure that personal information is secured once removed from the department’s office. An appropriate justification for removing the type of information from the office must exist.

487.Failure to provide direct guidance on data security can result in practices where personal information is placed at risk, as is evident in the following case study:

Case study 28

The Victorian Privacy Commissioner was contacted by the department about an employee of a contracted service provider. The employee had parked her car

overnight outside her home. The vehicle had been broken into and a bag was stolen.

It contained between 25 and 30 files of ‘high order’ child protection clients. It also contained ‘on-call contact numbers’, possibly of workers or emergency carers and spare keys for seven residential care units.

The department notified Victoria Police, the Secretary and the Minister. The Victorian Privacy Commissioner suggested that the department determine whether keys could be matched to addresses, and consider urgent action to secure the premises. It was also suggested that the department consider whether individuals identified within the files should be notified in order to reduce the impact of the loss and address any security concerns.

The following day the department informed the Victorian Privacy Commissioner that all locks to the residential units were in the process of being changed and affected child protection clients and families were being notified. Assistance to relocate would also be provided to affected individuals.

The department advised that it considered the matter to be very serious and would change its practices and those of its contractor to minimise future risks.

Several days later, the Victorian Privacy Commissioner received a phone call from an employee of the contracted service provider who was working on matters associated with the loss of the bag. The employee advised that when they first contacted senior management at the contracted service provider’s head office about the stolen bag, head office failed to understand the seriousness of the matter. The employee further advised that it took some convincing for senior management to appreciate the significance of the incident.

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Removing client files from departmental offices

488.The Protecting Victoria’s Children – Child Protection Practice Manual (the manual) provides the main source of guidance on privacy and security matters for child protection workers. Advice number 1091 Security in Child Protection Practice is the most relevant. It covers several security aspects, including the security of hardcopy files within the office, inappropriately discussing client cases in public, and ensuring that addresses are correct before sending correspondence.

In relation to removing client files from the office, practice advice 1091 states:

They must remain in the possession of a practitioner [child protection worker] at all times, or be locked in a car boot or home filing cabinet.

489.The practice advice does not currently contain guidance about when it is appropriate for child protection workers to remove hardcopy or electronic client files from the office or what information can be removed if removal is appropriate.

490.The practice advice also fails to address privacy issues concerning the use of portable storage devices by child protection workers such as compact discs or memory sticks.

491.In the view of the Victorian Privacy Commissioner, the department’s practice advice 1091 does not provide sufficient guidance to child protection program staff about compliance with Information Privacy Principle 4.1.

492.I note that the department is currently in the process of reviewing advice 1091. However, revised drafts provided to the Victorian Privacy Commissioner still fail to address shortcomings in the existing manual. For instance, the advice in relation to storing client files in cars and home filing cabinets is unchanged. In relation to electronic client files, the new draft advice states:

Portable electronic data storage devices such as CDs [compact discs] and memory sticks are only to be used to carry client related information outside the office where there are no other options.

493.During interview departmental staff with privacy responsibilities stated that child protection workers will need to remove client files from the departmental offices on some occasions. Despite this, my officers were not provided with information to suggest that there have been formal discussions within the department about when it is appropriate for workers to remove child protection client information from its offices.

494.There was uncertainty amongst senior child protection staff interviewed about whether it is acceptable to remove client files from the office. Child protection staff also said at interview that in some regions workers are routinely required to work on client files at home because of extreme workload pressures.

495.The following is a recent case study involving the loss of client data by the department.

Case study 29

In 2009 a youth justice worker lost a portable storage device in a local supermarket when purchasing groceries on the way to work. The worker had used the personally owned portable storage device since 2007 to store information about clients and

to work on reports. The portable storage device was not encrypted or password protected and held information on approximately 32 clients, some of whom were also child protection clients. The department and Victoria Police were informed of the loss.

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Individuals affected were notified about the loss of information. An email was sent to all regions with an immediate instruction that all child protection and youth justice staff transfer client information from portable storage devices to the secure department environment. All portable storage devices were ordered to be returned to program managers. Staff who could demonstrate a business requirement to use a portable storage device could only use an encrypted one issued by the department.

496.In regard to the above case study the department’s response took the form of issuing emails and memorandums to child protection program staff offering amended guidance about security of client information. These emails largely focused on technical aspects of security, as has the department’s new draft policy on the use of portable storage devices. I note that emails, policies and draft advice have not included guidance about what child protection client information can be removed from the office and when this may be appropriate.

497.In June 2009 an email from the Secretary advised staff to:

Seek managerial approval for any PSD [portable storage device] you use to store any departmental files, confidential or non-confidential.

498.A memorandum dated 8 August 2008 from the Director of Child Protection, Placement and

Family Services added to the guidance in advice 1091 of the manual that information must ‘remain in the possession of a practitioner [child protection worker] at all times, or be locked in a car boot or home filing cabinet’. The memorandum stated:

If it is necessary for the information to be out of the office overnight, it must be kept in a secure setting. Confidential information must not be left unattended in a vehicle overnight.

499.During interview, a senior departmental worker commented on the issue of portable storage devices and privacy, stating:

I think there needed to have been a bit more of an analysis about whether or not people in the first place need them.

500.The Victorian Privacy Commissioner recently surveyed the use of portable storage devices and concluded the department performed poorly. The department did not have technical controls on its computers to prevent personal portable storage devices being used and prior to the above instruction from the Secretary, allowed widespread use of personally owned portable storage devices.

501.My investigation has also raised questions about the security of the department’s new encrypted portable storage devices. A senior child protection regional manager stated:

… and they funded each of the regions for a certain number of USB discs [portable storage devices] … the discs actually don’t work, because you can actually overwrite the encryption …

Inappropriate access to cris

502.The Client Relationship Information System (CRIS) contains information on child protection clients, carers, reports and external agencies. My investigation revealed many instances of departmental employees accessing CRIS inappropriately. The following are typical examples

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Case study 30

A part time administrative worker was observed to access child protection client files by a senior administrative worker. The staff member in question had worked in the child protection program but had been moved to the corporate services unit pending a possible renewal of her contract and her access to CRIS had not been disconnected. An audit of the system showed that the worker had inappropriately accessed nine client files, including files relating to her own two children.

The individual who made a report about the administrative worker’s children contacted the department with concerns that her identity had been disclosed. She informed the department that the administrative worker had told other people that she had ‘proof’ of who had reported her children to the department.

Case study 31

The Victorian Privacy Commissioner received an enquiry concerning an employee of the department. The enquirer alleged her former step-mother had been accessing her child protection file which contained information about her being sexually abused by her step-father. The enquirer alleged her former step-mother raised issues with her about the abuse and informed a relative about the abuse.

503.CRIS has security mechanisms that include user audit functions, system warnings about lawful uses and processes for locking and reallocating files where clients are known personally to child protection program staff or have received media attention. However, there do not appear to be role-based access controls to prevent inappropriate access.

504.There is also little evidence of the user audit function being used to conduct random audits.

Audits only appear to be undertaken in response to allegations of misuse. Workers are advised that they may access CRIS client files if they have a ‘business related reason’. There is little guidance in the manual or elsewhere as to what constitutes an appropriate ‘business related reason’ for accessing client files. I have reviewed several departmental complaint files and I identified that incidents of staff inappropriately accessing CRIS were often not viewed as privacy issues by senior child protection staff.

505.In April 2009 a contractor was engaged by the department to conduct an internal audit of the department’s interpretation of the Information Privacy Act. The audit related to four regions and identified the following issues in relation to CRIS and data security in the child protection program:

access to CRIS is not adequately reviewed for appropriateness, resulting in staff no longer employed by the department still having access to it, or staff having greater access than their role requires

client files are not always kept in a secure location overnight

child protection client information is not always transmitted securely.

506.In response, CIIRu has agreed to address the second and third issues via training for staff. It is yet to respond to the first issue.

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Data quality

507.Information Privacy Principle 3 (Data Quality) requires the department to take reasonable steps to make sure that the personal information it collects uses or discloses is accurate, complete and up to date.

508.Whenever important information relating to a child is incorrect, incomplete or outdated on a child protection file, or when inaccurate information is used or disclosed by child protection program staff, the department has likely breached Information Privacy Principle 3.

509.The data quality principle emphasises the importance of government organisations using the best quality information in order to achieve good outcomes for Victorians. As demonstrated in the following case studies, the use of incorrect information by the department can have serious consequences for individuals involved with departmental intervention.

Case study 32

The department sent a letter intended for a reporter to the mother of the child who was the subject of the report. The letter did not specifically identify the reporter however the reporter was concerned about the potential risk of being identified. In the past, associates of the mother had attended the reporter’s house and created disturbances causing her to be fearful.

The regional manager conducted an investigation and discovered that Intake staff had incorrectly recorded the reporter’s address as that of the child’s mother.

Case study 33

The complainant attended a child protection meeting in relation to her niece. As a potential carer for the child, she supplied the department with a postal address, her name and birth date for the purposes of a criminal records check.

A child protection worker visited the complainant’s aunt’s address to serve a subpoena on the complainant. The complainant had never lived at this address, nor had the complainant ever requested it be used as her contact address. As a result, the complainant’s aunt and parents became aware that the she had involvement with the child protection program.

Following this incident, the complainant twice provided the department with her correct contact details. However, the department sent correspondence intended for the complainant to the aunt’s address, who had since moved. The correspondence included information about the complainant’s family situation, where the child’s parents were incarcerated and the name and contact details for the child’s doctor.

510.My investigators located numerous incomplete and inaccurate child protection client files, including:

hardcopy documents missing from files

incorrect client names and dates of birth

details of reporters being confused with contact details of other individuals

client information recorded on the wrong files

inaccurate medical information

a failure to update case notes.

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511.During interviews, my investigators were told that inaccuracies in client files have placed the identity of reporters at risk. My investigators were also told that inaccuracies can have consequences for organisations such as Victoria Police, who may include incorrect information collected from the department on its Law Enforcement Assistance Program (LEAP) or in briefs of evidence. A witness has also stated that it may mean that when searching for children on its LEAP system, important incidents relevant to investigations about child abuse are not found.

512.As outlined in case study 18 in the ‘Failure to comply with statutory obligations and internal practice standards’ chapter, inaccurate information used by the department can have serious and immediate consequences for vulnerable children. Case study 18 also indicates that time constraints and heavy workloads of child protection employees may affect their ability to familiarise themselves with client files, and result in recording and using inaccurate data when making decisions about the best interests of children.

513.A hardcopy and an electronic file exist for every child subject to departmental intervention and workers are expected to read both files when allocated a new client file. Interviews with many senior child protection workers revealed that child protection employees do not have enough time to familiarise themselves with client files.

514.Witnesses also said that the complexity involved in using the CRIS system has contributed to workers failing to easily navigate through client files and glean important information. While I note that the department has attempted to improve the usability of CRIS, there has been an ongoing lack of understanding about how to use CRIS and this has led to information handling problems for workers. For example, at interview the Manager of CRIS Business Development Support said that many child protection staff believe that CRIS has ‘lost’ information they have spent time inputting, when the information still exists and can be located with assistance from technical support staff.

Notices about collection

515.Information Privacy Principle 1.3 (Collection) requires that at or before the time (or if that is not practicable, as soon as practicable after) a Victorian public sector organisation collects personal information from an individual, the organisation must take reasonable steps to ensure that the individual is aware of the purposes for which their information is collected and to whom the information would usually be disclosed.

516.The purpose of Information Privacy Principle 1.3 is to inform people that their information may be passed on to other organisations by the Victorian public sector agency that originally collected their information.

517.Between late 2005 and early 2007, the Victorian Privacy Commissioner investigated 12 privacy complaints relating to the department’s inappropriate release of address information.

Common to some of these complaints was that the complainants who had provided their address details and other personal information to the department were not aware that the information would ultimately be received by their violent ex-partners in Children’s Court reports.

518.In 2009 the Victorian Privacy Commissioner investigated nine complaints where it was alleged the owner of the information was not made aware to whom the department would disclose their personal information.

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519.Under the Children, Youth and Families Act, the Children’s Court can order the department to provide a court report to the parents of a child. The Children, Youth and Families Act also allows one parent to request that another parent have restricted access to all or part of the report.

520.If the department does not advise child protection clients to whom their information in a court report may be disclosed, clients may not know to request restricted access. Clients also cannot forewarn the department that there are dangers for them in including certain types of information in court reports.

521.During interview my officers were informed that notices about to whom information in court reports will usually be disclosed to are not consistently provided by staff.

522.The manual contains practice advice about child protection staff providing notice to people about the possibility of their information being disclosed in a court report. This is required in accordance with section 549 of the Children, Youth and Families Act. However the practice advice does not include guidance on when and how workers should advise people about the possible disclosure of their information to other persons or agencies. During interview, a senior departmental worker stated:

… obviously there are lots of situations where we don’t - we shouldn’t be telling people that we’re about to use their information in a particular way. But there is room after you’ve used it when situations have slowed down, to get back to people and say, ‘Well, we did it this way, I would’ve liked to have spoken to you about it but I couldn’t because of the way that you were presenting’.

523.I note the department is undertaking a review of its practice advice that relate to privacy.

It has also drafted an Information Collection Statement for persons involved with the child protection program. In its current form, this statement does not make reference to the likelihood of personal information being provided to persons external to the department.

Community service organisations

524.In addition to the department, registered service providers such as Child FIRST and other community service organisations have information handling responsibilities. These may come by virtue of being registered by the Secretary under section 46 of the Children, Youth and Families Act. Community service organisations may be providing services to child protection clients under a contractual agreement with the department. Either way, they have an obligation to comply with the Information Privacy Act.

525.The Secretary for the department is responsible for registering community service organisations if satisfied they can provide services to meet the needs of children requiring care and support. The department is also responsible for contracting community service organisations to provide services to its clients. As such, the department has a level of responsibility to ensure community service organisations provide their staff with adequate privacy training so that personal information is protected.

526.After interviewing several senior employees from community service organisations, my officers learned that while some privacy training was provided by the department with the introduction of the Children, Youth and Families Act, privacy training is foremost considered ‘a luxury’ because ongoing training is not typically provided.

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During interview, a senior departmental worker stated:

… there’ll be people that attend a session [facilitated by the department] that are from funded agencies but not because there’s a specific issue, there’s not a targeted response to managing a particular incident and ensuring that at least in that particular area that the lessons are learnt and people don’t repeat the same thing again …

527.My officers established that the level of awareness about privacy obligations within community service organisations is unclear. One community service organisation employee believed their organisation was doing privacy ‘well’. However, another employee stated:

I think the department did roll out some initial training around privacy but I’m not sure what it was and I certainly didn’t attend.

528.As case study 28 and the below examples illustrate, community service organisations have been responsible for some of the most significant privacy breaches with regard to child protection client information in the last twelve months. The summary of case study 28 explains a notification made to the Victorian Privacy Commissioner about the loss of client files from a community service organisation’s employee’s car. In relation to this loss I note that senior management of the community service organisation failed to appreciate the significance of their data security breach.

529.My investigation revealed an earlier loss of child protection client information in May 2008 by a community service organisation in similar circumstances. This loss was not reported to the Victorian Privacy Commissioner or to the department’s privacy officer.

Case study 34

The car belonging to a manager of a community service organisation was broken into. The car was parked outside the organisation’s offices. A satchel under the seat was stolen. It contained the personal information of the community service organisation’s clients, including the department’s child protection referral form and documentation between the community service organisation and each family. The referral form listed the names, addresses and telephone numbers for eight families. The satchel was found dumped two days later. The organisation notified the families and informed the Child Protection Quality and Compliance Unit and the regional director of the loss.

530.My investigation also identified examples where community service organisations failed to exhibit proper data security practices.

Case study 35

Staff from a community service organisation attended a local coffee shop and left notes from a meeting at a table. The person who picked up the notes was able to identify that the notes were about a friend’s child. The person contacted the friend and advised that notes relating to the child had been left at the coffee shop.

Case study 36

A community service organisation moved premises from three separate locations and sold sixty-six filing cabinets. Some months later, a media outlet informed the community service organisation that it had located client files in a filing cabinet sold by the organisation. The files related to children in residential care. A preliminary investigation by the Victorian Privacy Commissioner revealed that the community service organisation failed to undertake an audit of its files before selling the cabinet.

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It also had an inadequate record management system and was unable to properly track its files.

Criminal records

531.The Information Privacy Act defines certain types of personal information as ‘sensitive information’. Sensitive information is given special protection under the Information Privacy Act as it is often the basis upon which a person is discriminated. Racial origin, religious beliefs, sexual preferences and membership of a trade union are all considered to be types of sensitive information. An individual’s criminal record is also ‘sensitive information’ under the Information Privacy Act.

532.In accordance with Information Privacy Principle 4.2, the department must take reasonable steps to destroy or permanently de-identify personal information if it is no longer needed for any purpose. This is partly intended so that outdated or irrelevant information cannot be used by an organisation. When the results of a criminal record check are received it

is important that the relevant information on the check is captured and recorded by the department so that it can be used by child protection workers to make decisions about the suitability of a child’s placement or to assess any safety concerns.

533.The Public Records Act 1973 (Vic) which is administered by the Public Records Office of

Victoria has requirements regarding retention periods for all government documents. Once a document, such as a criminal records check, has been kept for any mandatory retention period it must be destroyed in accordance with Information Privacy Principle 4.2 if there is no longer a reason for keeping it.

534.My investigators reviewed the Criminal Records Check Practice Advice in the manual which contains guidance about capturing and assessing information derived from a criminal records check. However, the advice fails to address how long a criminal record should be kept and where it should be stored.

535.It is not clear whether the department has obtained advice from the Public Records Office regarding how long it should retain a criminal records check. My officers have also identified confusion amongst senior child protection program staff about how to handle a criminal record check. During interview senior departmental staff expressed the following beliefs about what the department did with a check after is was received:

destroy the check immediately

store the check separate to the hardcopy client file, in a locked cabinet

uncertainty about the department’s processes.

Conclusions – compliance with privacy legislation

536.There is a fundamental and widespread lack of understanding amongst departmental staff about their data security obligations under the Information Privacy Act.

537.The issues examined during my investigation indicate that a reactive approach of responding to ‘crisis’ losses of child protection client information prevails over a proactive approach to data security issues.

538.I also consider that the department has consistently failed to provide clear direction to staff on data security issues which has resulted in managers making decisions about the appropriateness of removing client information from departmental offices without an overarching framework for that judgement.

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539.The workload stress present in several regions appears to have contributed to staff being permitted to remove client files from the office. This practice places highly delicate and sensitive information about vulnerable Victorians at risk and breaches the Information

Privacy Act.

540.I also consider that sufficient action is not being taken to prevent unauthorised accesses to CRIS. The department does not conduct random and frequent audits of CRIS and does not treat inappropriate accesses to CRIS as a privacy issue in all circumstances.

541.Good data quality is a requirement of Information Privacy Principle 3.1 and is vital to achieve fair outcomes for clients of the department. However, there are several examples of poor data quality in the child protection program. I note that child protection workers’ high caseloads and the flawed functionality of CRIS may contribute to the poor quality of data.

542.The department has failed to ensure that all individuals subject to the department’s involvement are provided with advice about to whom their personal information may be disclosed. This can result in significant safety risks, particularly when abusive persons are provided with the personal details of a victim.

543.Many community service organisation employees are not sufficiently aware of their privacy obligations. The level of support provided to community service organisations by the department is currently inadequate. The department has a responsibility to assist community service organisations with handling delicate and sensitive information.

544.I consider the current level of guidance provided to child protection workers about the handling of criminal records to be inadequate.

Recommendations – compliance with privacy legislation

I recommend that the department:

Recommendation 25

Review its policies and practice advice on removing child protection client files from its offices. This review should examine the circumstances under which information may be removed from its offices. The draft practice advice should be submitted to the Victorian Privacy Commissioner for comment.

The department’s response

The department has accepted this recommendation.

Recommendation 26

Review the adequacy of the new portable storage devices currently in circulation and take appropriate action to ensure that encryption devices cannot be overwritten.

The department’s response

The department has accepted this recommendation.

Recommendation 27

Conduct regular audits of access to Client Relationship Information System data. The outcome of audits should be made available to the Victorian Privacy Commissioner upon request.

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The department’s response

The department has accepted this recommendation.

Recommendation 28

Provide relevant departmental staff with data security training and ensure registered community service organisations provide their staff with data security training.

The department’s response

The department has accepted this recommendation.

Recommendation 29

Report all significant losses of child protection client information to the Victorian Privacy

Commissioner.

The department’s response

The department has accepted this recommendation.

Recommendation 30

Review the quality of client files to assist in compliance with Information Privacy Principle 3 (Data Quality).

The department’s response

The department has accepted this recommendation.

Recommendation 31

Review the practices in relation to child protection staff providing clients with advice about whom their personal information may be disclosed to via court reports.

The department’s response

The department has accepted this recommendation.

Recommendation 32

Ensure contracted service providers and registered community service organisations provide their staff with mandatory privacy training.

The department’s response

The department has accepted this recommendation.

Recommendation 33

Seek advice from the Public Records Office on the issue of retention of criminal records. Review the Criminal Records Check Practice Advice so that it contains correct information about retention and destruction of criminal record data.

The department’s response

The department has accepted this recommendation.

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WORKFORCE ISSUES

545.The department acknowledges that it has been an ongoing challenge to recruit and retain skilled and confident child protection workers. A Victorian government discussion paper titled Child Protection and Workforce Retention and Planning26 noted many workers enter the current system with a desire to ‘make a difference’. However, increasing numbers of staff leave the child protection profession because they ‘feel the current system does not help them achieve this goal’.

546.Data provided by the department indicated that in November 2008 there were 1019 full time equivalent (FTE) child protection worker (CPW) positions, with sixty-two per cent of the workforce employed at the CPW-2 and 3 levels. Of this workforce, almost 70 per cent were between the ages of 31-45 years old, with nearly 30 per cent under the age of 30 years.

Table 8: Age breakdown of child protection workers

 

500

 

 

 

467

 

 

 

 

 

 

 

 

450

 

 

 

 

 

 

400

 

 

 

 

313

Headcount

350

 

 

 

 

300

 

 

 

 

 

250

 

 

206

 

 

200

 

118

 

 

 

150

 

 

 

 

 

 

 

 

 

 

100

16

 

 

 

 

 

50

 

 

 

 

 

0

 

 

 

 

 

 

 

1925-1945

1946-1954

1955-1963

1964-1978

1979-1994

547.The proportion of full-time employees in the child protection program is 77 per cent and women make up over 87 per cent of the workforce. In research conducted by the

department, it reported that there is little opportunity for part-time work which is another factor inhibiting retention of staff. This varies considerably from the Department of Human Services as a whole which employs 45 per cent of its female staff on a part-time basis.

548.The data also identified that in November 2008, 63 per cent of the workforce was deployed in metropolitan regions. However, it is important to note that the distribution does not include unfilled positions. The following figure demonstrates the difficulties experienced by rural regions in recruiting staff.

26 Child Protection workforce retention planning: Discussion paper, May 2008.

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Figure 3: Distribution of vacant Child ProtectionWorker FTE

 

 

 

BSW 6 (8%)

 

 

 

9

8

 

 

1

 

 

 

 

EMR & CPA HES 1 (1%)

 

 

 

 

21

 

GIP 15.74 (21%)

 

 

 

 

 

 

GRA 4.4 (6%)

 

 

 

HUME 16.9 (23%)

 

6

 

L/M 7 (10%)

 

 

 

10

 

 

 

 

 

 

NWMR 15.9 (22%)

 

 

 

SMR 6.3 (9%)

 

 

 

 

549.The Child Protection Workforce Retention and Planning paper notes that the child protection program continues to deal with challenging workforce issues, although this is not an issue that is specific to Australia. This challenge is ‘across the globe’ with other countries experiencing the same issues as the Victorian child protection system. In 2006-07 the staff attrition rate was high at 30 per cent which resulted in ‘substantial experience gaps’ and ‘increased workload for those who remain’. 27

550.This discussion paper also noted several reasons why child protection workers do not tend to remain long in the child protection workforce. These factors included the volume of work, excessive workloads, poor management, poor career prospects and a lack of professional development opportunities.

551.The Principal Practitioner also reported that workers’ experience of Court:

frequently contributes to the attrition rate and is amongst the most frequently cited reason for staff resignation and hence to the loss of experienced Child protection workers …

552.The Community and Public Sector Union informed my office that following WorkSafe Provisional Improvement Notices being issued, two regions were still operating in a culture of:

fatigue, ‘burnout’, psychological stress, continued anxiety about the operational

future for the service and community ramifications of not having an adequate operational presence, leading to loss of job satisfaction.

27 Ibid, page 3.

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553.The following table demonstrates the length of service of child protection staff at a CPW-2 level. This graph reflects that most CPW-2 level staff have less than two years experience working with the department.

Table 9: CPW 2: Length of service with the department

200

 

 

 

 

 

 

 

150

 

 

 

 

 

 

 

100

 

 

 

 

 

 

 

50

 

 

 

 

 

 

 

0

 

 

 

 

 

 

 

<01

1-2Y

3-4Y

5-7Y

8-9Y

10-14Y

15-19Y

20+Y

 

 

 

 

Years

 

 

 

554.In February 2008 the department undertook a recruitment campaign to attract experienced child protection workers from Ireland and the United Kingdom. The project was designed to boost the workforce capacity with experienced staff who would increase the supply of skilled professionals in the Victorian child protection system. The department’s objective was to recruit 50 skilled professionals. In November 2008, 30 child protection workers from the

United Kingdom and Ireland were employed. The project cost the department approximately $500,909.

555.The focus on increasing the supply of skilled child protection workers is also demonstrated in the department strengthening initiatives with Victorian universities and TAFE’s. The department is increasing the awareness of child protection in tertiary education and promoting student placements in the child protection program in order to recruit staff.

Implications of vacancies and inexperience of the workforce

556.The combination of vacancies and inexperienced staff was described by many witnesses as having a serious impact on the availability and quality of child protection responses. Many stated that there was often an inability to respond to reports because sufficient staff were not available.

557.Evidence gathered from one rural region demonstrated that there was a low level of child protection worker availability in one sub-office over a six-month period:

In November 2008 the [office] had 57% staff availability and in December 2008 there was 51% staff availability. January 2009 observed an increase in staff availability to 65%, with availability then decreasing in February to 62% and March 50%.

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558.Not only does this have an impact on the ability to respond to urgent matters, it also contributes to the continual shuffling of cases between staff. One unit manager stated that staffing has always been ‘incredibly lean’ and does not:

… allow for absences of any description, whether it be a couple of days of leave or sick leave, going on training. It’s tight. It’s always been tight.

559.One regional manager said that it was ‘impossible to do the work’ when they had 25 staff vacancies. They said this had implications for child protection clients. Another former child protection manager stated that in order to manage the staff vacancies, ‘contingency’ plans would be put in place. However, they said contingency plans meant another area of the program would suffer and it ‘was just a matter of continually plugging the gaps’.

560.However, while staff availability clearly has an impact on the ability of staff to conduct the work, there is evidence that filling all staff vacancies would not solve the workload issue entirely. As discussed in the chapter titled ‘Failure to protect children’ the number of unallocated cases varies across regions and one senior staff member stated that even if their region had no vacant positions, they would still not be able to reach the target of allocating

95 per cent of client cases.

561.In some regions the number of staff vacancies is not high, but there is still a high number of unallocated client cases. For example, the Hume region had six vacant staff positions and 188 unallocated cases in June 2009. If all positions were filled and all cases allocated evenly, staff would have 31 clients each which is not a realistic number to allocate to one child protection worker.

562.For example, the Gippsland region had approximately eight vacant staff positions in June 2009 and 754 unallocated cases. However, the Loddon Mallee region has a similar number of vacant positions (9.5) with 177 unallocated cases. In contrast, the Southern Metropolitan region has the highest number of vacant positions at 26 in total with 205 unallocated cases.

563.Not only does the number of staff vacancies have an impact on the capacity to complete the work, but the level of staff experience also has an impact. The Community and Public Sector Union informed my office that in one region approximately 45 per cent of staff have ‘less than 12 months experience in child protection’. This was reflected by one regional manager who informed my officers that many of the staff in the Southern Metropolitan region are new graduates and this is not just specific to one region, this is state-wide. Further, the manager stated that reliance on inexperienced new graduates has an impact on ‘our capacity to investigate’.

564.The department has devoted considerable effort to exploring alternative operating models for child protection. A new model is being trialled in the Eastern Metropolitan Region in a project known as the ‘demonstration project’.

565.The demonstration project commenced in February 2008 with a view to improve the capability and stability of the child protection workforce, to improve the early intervention model and outcomes for children and to improve the effectiveness of the child protection program’s engagement with families and services.

566.The key changes being pursued by the demonstration project are reforms in practice, smaller teams with more support, senior departmental employees to jointly work cases and expert input from a principal child protection worker. The department has contracted KPMG to undertake an evaluation of the demonstration project in 2009/10.

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567.This project appears to have many promising elements and may present a useful direction for the department. However, the Community and Public Sector Union stated:

The results of the demonstration pilot show that there is no quick fix to child protection. The system cannot be fixed by changing the operating model without DHS [the department] providing adequate resources to address the high workload.

568.In response the department stated that it is:

acutely aware of the need to ensure that staff retention, an issue that is significant for child protection systems around the world, is at the centre of our workforce reforms. The Department’s existing retention activities for child protection workers are underway and the department recognises that there are challenges which will need to be addressed through a more focussed retention strategy, as this is critical to stabilising the workforce.

569.The department further stated:

Over the next 12 months it is expected the additional staff resources will help to address the significant workload, recruitment and retention … issues … Noting your comments … concerning the acute staffing shortages in some regions, the new resources will be targeted to teams and offices facing particular staffing difficulties.

Conclusions – workforce issues

570.The issue of recruiting and retaining staff in the child protection program appears to be a long standing one which Victoria has in common with many other jurisdictions. Low retention rates have resulted in a staff group lacking in experience.

571.There appear to be many reasons why staff leave the child protection program. However, workload pressures are a significant factor. Rural regions have had particular difficulties recruiting and retaining staff. Serious case practice issues identified during my investigation appear related to staffing problems.

572.The department has developed several measures to recruit and retain staff and has demonstrated a commitment to exploring alternative strategies. I consider there is further opportunity in this area.

573.I note that much child protection activity is focussed on receiving and considering telephone reports, many of which do not require further action. Inadequate staffing in rural regions may be assisted by the department exploring the possibility of centralising some operational functions in a metropolitan location where recruitment opportunities are greater. I proposed that the department commission an examination of the potential for centralising operational functions to assist with retention and recruitment in rural regions.

574.In response the department stated:

The department agrees that most rural regions face significant recruitment and retention challenges. The department has prioritised this and is developing a more strategic approach to rural retention. Specific elements of the Government’s recent $77.2m package have a particular focus on improving recruitment and retention in rural regions. The support of rural regions will be a priority focus of the new

department, the new Quality and Compliance branch and the new Child Protection

Specialist Intervention Team.

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The department considers that a statewide intake is not the best way to address rural recruitment and retention issues. A centralised intake function currently runs in each rural region and provides a critical source of local information for regional Child

Protection programs, professional referrers and community members regarding services and supports for vulnerable children and families. Rural child protection intake also has significant interface responsibilities with local Child FIRST services, Family Services and related service providers.

The department considers an important balance is required between the need for effective, efficient intake arrangements of sufficient critical mass and the need to provide locally responsive and informed interventions that ensure children and families are linked into appropriate service pathways.

The experience of other Australian jurisdictions that have developed large-scale statewide Child Protection intake mechanisms is one where Child Protection is overwhelmed by reporting of non-Child Protection matters. Considerable effort and resources are then diverted to filtering reports rather than working with vulnerable children and families. In addition, knowledge of local services and pathways is disconnected from intake. Such net-widening negates the community’s responsibility for Child Protection and distracts the Child Protection service from its core work.

575.The department’s response indicates that it has reservations regarding whether such an approach would be effective and suggests it has not been successful in other jurisdictions. In my opinion this issue requires more detailed examination.

ACCOUNTABILITY AND TRANSPARENCY IN THE CHILD PROTECTION SYSTEM

Introduction

576.During the course of my investigation the child protection program became the focus of significant media scrutiny in relation to fatal injuries sustained by a two-year-old girl, referred to as ‘Hayley’ in the media, who was the subject of a report to the department.

The case prompted a public statement from the mother of Daniel Valerio, a deceased two- year-old, described by the Herald Sun as ‘one of the most notorious child abuse cases in Australian history’.

577.In the years before and since the death of Daniel Valerio in September 1990, numerous reviews of the child protection system have occurred. Often these reviews are prompted by a high profile case, rather than as an element of proactive, ongoing reform. Both the Valerio case and the death of ‘Hayley’ have prompted such reviews.

578.Despite the intermittent media attention, it has become apparent during my investigation that most child protection cases receive limited if any external scrutiny. My investigation revealed instances where children had died, been seriously injured, allegedly assaulted by their carers or professionals failed to agree on how to proceed in a child’s best interests. Yet, some of these cases attracted little or no external scrutiny.

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579.My investigation also identified fundamental flaws in the integrity of the data used by the department to track and measure its performance against its responsibilities. I have received considerable evidence that shows the department’s data collection practices to be vulnerable to manipulation, unreliable and overly simplistic.

580.My investigators were also told that the Client Relationship Information System (CRIS) lacks adequate reporting functionality. In addition to deficiencies in data collection, the department is not required to publicly report on its compliance with statutory obligations or internal practice standards. I also found little evidence of the department conducting meaningful analysis of critical incident reports. Many witnesses also spoke of limitations on the role of the Child Safety Commissioner and the Victorian Child Death Review Committee.

The structure of the department

581.Until the creation of a separate Department of Health on 12 August 2009, the Department of Human Services was Victoria’s largest government agency. It had nine divisions and across eight regions approximately 13,000 internal staff were employed. The department funded organisations such as hospitals, aged care facilities, ambulance services and community service agencies that collectively employed more than 80,000 people. Its expenditure represented about 38 per cent of the Victorian government’s total operating expenditure.28

582.The 2009-10 budget allocated $14.7 billion to the department of which $583 million was allocated to child protection and family services. This represents less than 4 per cent of the department’s expenditure.

583.The department’s nine divisions were described on its website as being responsible for strategic priorities, implementing policy, and funding and monitoring service delivery. The department delivered services through its eight geographical regions which it described as responsible for funding and delivering health, housing and community services as well as developing strong partnerships with agencies to collaboratively plan local services. New arrangements to accommodate the creation of the Department of Health are currently being developed.

584.The Children, Youth and Families Act 2005 places significant responsibility for the protection of children at risk on the Secretary of the department. These responsibilities include funding and regulating the infrastructure surrounding the state’s response to these children as well as receiving and investigating reports, making applications to the Children’s Court and implementing conditions on Protection Orders.

585.The size of the department and its multiplicity of responsibilities require a complex web of communication pathways. The recent creation of the Department of Health should allow the department to focus more clearly on its child protection responsibilities. However, considerable complexity within the department and the nature of its work continues to exist.

586.The size and complexity of the department’s responsibilities can be illustrated by the typical line of reporting between the Secretary, the person with statutory responsibility for child protection services in Victoria, and an individual child protection worker receiving or investigating a report regarding a child. It remains to be seen if the new departmental arrangements will change significantly from existing arrangements as represented in the following figure.

28 Victorian Government Department of Human Services, Annual Report 2007-08.

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Figure 4: Line of reporting for metropolitan regions in child protection

Secretary

Executive

Director,

Operations

Regional

Director

Community

Care

Manager

Child

Protection

Manager

Assistant

Child

Protection

Manager

Unit Manager (CPW5)

Team

Leader (CPW4)

Case

 

Child

 

Child

Support

 

Protection

 

Protection

Worker

 

Worker

 

Worker

(CPW1)

 

(CPW2)

 

(CPW3)

 

 

 

 

 

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587.It can be expected that the child protection worker, team leader and unit manager will have some contact with a child or family the department is involved with, particularly during the Best Interests Planning process. Senior regional staff members are only likely to have contact if handling appeals or complaints. The Executive Director, Operations, and the Secretary are unlikely to have any direct involvement in a case.

588.It should also be noted that the Community Care Manager, Regional Director, Executive Director and the Secretary all have broad ranging responsibilities for other areas of the department’s operations.

589.The current structure means the officer accountable for the department’s statutory child protection obligations has at least six intermediaries between her/him and the delegate exercising her/his responsibilities. Three of those intermediaries are not child protection specialists.

590.It is also notable that the executive leadership of the department for child protection services

the Executive Director, Children Youth and Families, the Director, Child Protection, Placement and Family Services and, the Assistant Director, Child Protection Operations – do not form part of this line of responsibility.

591.I have referred elsewhere in this report to evidence that the regional performance of the department varies widely and that different thresholds are being applied depending on local resource issues.

592.In response to my draft report, the department stated that the recently announced government funding will result in:

improved mechanisms for monitoring performance and early identification of operational difficulties

more ongoing and continuous support from head office to remediate issues with front line service delivery

a change management strategy to implement the new governance structure and associated arrangements in ways which will strengthen operational confidence and capability.

The governance review will also develop a framework to address the issue of variation in regional practice across the state.

Data integrity

593.During my investigation I received evidence that data relied on by the department for planning is open to manipulation or is otherwise unreliable. This data underpins the department’s ability to measure its performance.

594.For instance the Expenditure Review Committee reports, which are provided to the Secretary and Treasury twice yearly and the Minister for Community Services annually, include a measure of the extent to which child protection reports requiring an immediate response

are responded to in a timely way. This measure requires that a ‘direct investigation’ occur within 48 hours in 97 per cent of cases assessed as requiring an immediate response. A direct investigation includes a child protection worker sighting the child subject to the report. However, witnesses said at interview that this indicator is at times manipulated to achieve targets.

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595.Evidence was given during interview by senior departmental staff that this performance measure was often recorded as met despite the child not being sighted. For example, a senior staff member stated that at times they had telephoned client families and recorded this measure as having been met, despite the child not having been sighted. The department has advised that its procedures in relation to sighting of children are clear and if true, this practice is not condoned nor supported.

596.I note that the CRIS data presented in the department’s monthly reports for the child protection program, particularly in relation to unallocated client cases, is often ‘snapshot’ data. This snapshot data presents statistics for one particular day in a month and my investigators were given examples of how this practice has resulted in data being unrepresentative of actual experience.

Cumulative harm reporting

597.A critical performance measure concerning the department’s implementation of the reforms instigated by the Children, Youth and Families Act is that related to ‘cumulative harm’. The data collection practices relating to this measure are inadequate to provide confidence that reported performance reflects actual practice.

598.Section 10(3)(e) of the Children, Youth and Families Act requires that the department consider:

the effects of cumulative patterns of harm on a child’s safety and development.

599.The department’s advice provided to regions about its cumulative harm performance measure was:

Where child protection has received two reports in a 12 month period that have not been investigated, irrespective of classification, any subsequent report must be investigated unless the Intake Unit Manager reviews the case and assesses that investigation is not warranted.

600.The department’s compliance with the performance measure for cumulative harm is to be reported annually to the Victorian Treasurer. The 2007/08 performance target was set at 95 per cent.

601.The department informed my office that it undertook a limited file audit in 2008. The department sampled 414 cases from a total of 2,620 reports that met the requirement for a review.

602.While the department reported that the data may have underestimated compliance with the requirement, only 52 per cent of the state-wide sample was deemed to have met the requirement.

603.The department has advised my office in written correspondence that ‘…compliance is no longer tracked because it has become mandatory in all cases.’ This reflects the department’s expectation that the introduction of a mandatory field in CRIS will ensure compliance.

Non-compliance with statutory obligations

604.Witnesses provided many examples of instances where staff did not have access to the data they needed to ensure the child protection program complied with key statutory and internal policy obligations. In some instances this was because the data was not collected, or because there was a lack of the requisite skills to access and analyse data that was available.

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605.Under section 176 of the Children, Youth and Families Act the department must prepare a Cultural Plan for every Aboriginal child placed in out-of-home care under a Guardianship to the Secretary Order. The Victorian Aboriginal Child Care Agency reported that the number of Cultural Plans prepared only represents 20 per cent of the statutory requirement.

606.Practice advice number 1059 Responding to Aboriginal Children contains standards which require the department to consult with the Victorian Aboriginal Child Care Agency regarding:

all reports (including wellbeing reports) regarding Aboriginal children, and also regarding significant decisions in all phases of child protection intervention.

607.The Victorian Aboriginal Child Care Agency informed my office that following the introduction of CRIS:

there has been no ability to measure compliance from July 2005 to 2009.

608.Regional managers also expressed frustration that CRIS does not provide adequate data to assist in tracking compliance with various internal practice standards with one regional manager stating:

there’s no way of extracting data … we’ve got hundreds of practice instructions

where generally the measurement of those comes following an adverse event … rather then being able to produce reports.

609.In the chapter titled ‘Failure to comply with statutory obligations and internal practice standards’ I referred to specific examples in relation to tracking compliance with criminal record checks and Best Interests Case Planning standards.

Monitoring and reporting on system capacity

610.During my investigation I became aware of limitations in the department’s ability to monitor the capacity of the child protection program to respond to demand.

611.If a child subject to child protection involvement does not have an allocated child protection worker, the case is considered ‘unallocated’. The level of unallocated client cases is therefore a key indicator of the system’s capacity. However this important measure is not an externally reported performance measure.

612.At July 2009, across Victoria, approximately 22.6 per cent of children subject to child protection program involvement did not have an allocated caseworker. The child protection program’s internal target for unallocated client cases is set at five per cent.

613.In 2005 the government provided the department with $25 million to create 60 additional child protection worker positions over a four-year period, with an additional $5 million to enhance training for child protection workers. This funding followed an investigation undertaken by my office in relation to a child who had been abused while in a foster care placement, referred to by the media as ‘Baby Ben’. Following my investigation, I made a range of recommendations including that the department:

Provide advice to Government regarding the resources necessary to ensure all child protection clients requiring active case management have an allocated caseworker.

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614.The allocation of these funds was accompanied by a target to reduce the proportion of unallocated client cases to less than five per cent by September 2007.

615.After becoming aware of the high rates of unallocated client cases across the state I examined the advice provided by the department to government regarding this issue.

616.I requested any briefings that had been provided to the Minister during the previous 12 months regarding workload issues relating to the child protection program. I was provided with a copy of a briefing dated 27 August 2008 titled Progress in Reducing Unallocated Child Protection Cases. The briefing stated:

… the 60 additional positions funded in the Treasurer’s Advance and announced in November 2005 increased the notional capacity of the program … Many more cases are now allocated … but some of the improved performance also results from

individual workers having higher workloads, and this may carry risks with regard to future staff morale and retention.

617.I was also provided with a copy of a briefing dated 26 February 2008 titled Proposal to Recruit Experienced Child Protection Practitioners from the United Kingdom and Ireland. This briefing noted that:

The on-going effect of turnover on staff and workloads is most marked in the pressure of managing cases awaiting allocation – a challenge faced by every region.

Boosting workforce capacity and capability through overseas recruitment … also provides the means to address key issues identified by child protection staff as critical barriers to the implementation of a new operating model for child protection.

618.During the course of my investigation I was also informed by the department that its capacity to monitor the rate of unallocated client cases had only recently been restored after nearly two-and-a-half years where no accurate data was available.

Inadequate analysis and reporting on incidents

619.The department’s incident reporting system provides for matters of concern to be reported as category one, two or three incidents. The categorisation reflects the seriousness of the matter and dictates the seniority of the officer to whom the matter must be reported. The practice advice that supports incident reporting describes the aims as including:

the provision of high quality services to clients through the full and frank reporting of adverse events and subsequent analysis.

620.The most serious matters, category one incidents, are defined as:

having the most serious outcomes such as a client death or serious injury to a client or staff member, allegations of sexual or physical assault to a client or staff member, any event that has the potential to involve the minister or be subject to a high level of public or legal scrutiny.

621.Agencies that are funded to provide care for children on behalf of the department, such as community service organisations and residential service providers, have a mandatory responsibility to report category one incidents. The critical incident report should be made to the relevant senior staff member of the agency and to the department. Critical incident reports must be completed as soon as possible but no later than the next working day.

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622.A manager of one community service organisation stated during interview that the organisation completed ‘very few’ critical incident reports and they said:

not because there hasn’t been critical incidents but because there hasn’t been the training.

623.The following is an example of a matter that was not promptly reported despite serious allegations being made against residential out-of-home care staff.

Case study 37

My office received a complaint from a 15-year-old young person in care who alleged that she had been physically assaulted by two residential staff members.

My office made enquiries of the department and I requested documentation supporting any action taken by the department and any investigation of the alleged incident.

An incident report had been completed by relevant staff members providing their version of events four days after the incident. More than a month later, following enquiries from my office, the department completed an incident report describing the allegations made by the young person.

I concluded that the department had failed to take appropriate action in a timely manner. I found this delay particularly concerning in light of the fact that the young person disclosed the alleged assault to a number of different individuals and received medical attention for physical injuries the same day the incident occurred.

As a result of my investigation I recommended that the department review training provided to staff to ensure incident reports are submitted in a timely manner.

I also recommended the department provide my office with the outcome of its investigation in relation to the young person’s allegations. The department accepted my recommendations.

624.During interview, some regional managers who were interviewed described the current incident reporting system as ‘incredibly huge and onerous’ and the degree of data analysis as ‘virtually negligible’ because of a lack of resources. These concerns were consistent across many senior staff state-wide.

625.However, on occasions, some regions have used the incident reporting system as a catalyst for improving practices. One manager explained that their analysis of incident reports led to their detection that:

… there was no high risk adolescent register in the region, which is an expectation, there should be one. … now we’ve done some analysis of those … and we’ve reinstituted the high risk adolescent register.

626.I asked the department to show whether it had undertaken any analysis of incident reporting. The department provided my office with category one incident reporting summaries which it had previously drafted for its Executive Performance Report. This document relates to the various programs within the department. Analysis of child protection program incident reports in the first quarter of 2008-09 was limited to commentary stating that there had been a reduction in the reported incidents of child prostitution from 31 to 13 reports and that the department would continue to monitor this type of incident.

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627.I proposed that the department provide resources to enable each region to complete analysis of incident reports. In response the department stated:

It is a core responsibility of regions to analyse incident reports and it is not necessary to provide additional resources. Regions currently have program and corporate capacity to consider regional issues arising out of incidents reports. While the department does not consider that additional resources are required for this specific task, existing departmental project work on incident reports aims to provide additional support to regions in analysing and understanding incident report data.

Expert internal review mechanisms

628.My investigation found a number of examples of constructive reviews of the department’s involvement with children that were undertaken by the department’s Principal Practitioner. I consider that many of the examples of poor case practice referred to elsewhere in this report could also have contributed to improving the quality of the work undertaken by the child protection program had they been subject to the close examination evident in the Principal Practitioner’s reviews.

629.The Principal Practitioner’s role is described as follows:

to be the principal clinician and adviser to the department on child protection practice

sets and monitors service delivery standards, reviews and develops modes of service

delivery practice and has a strong research component. … will provide specialist and strategic advice on professional practice and act on the department’s behalf in managing professional relationships with external stakeholders and key investigations.

630.The Principal Practitioner reports to the Executive Director, Children, Youth and Families

Division and the Director, Child Protection, Placement and Family Services. I also note that the Principal Practitioner is a member of the Victorian Child Death Review Committee and the Therapeutic Treatment Board.

631.An example of the positive value of the Principal Practitioner’s role is a recent review of cases in a rural office following an incident in which a young child was hospitalised with significant injuries inflicted by her mother. A draft report by the Principal Practitioner confirmed she reviewed 24 cases from the rural office. The Principal Practitioner showed considerable rigour in her analysis and candour in her findings. For instance the Principal Practitioner concluded in a draft report:

Serious concerns existed in regard to the inadequate child protection response and genuine fears were held in regard to the children’s safety. The writer formed a view that the strong concerns were well founded.

632.A ‘contingency team’ was developed in response to the issues identified by the Principal Practitioner. When interviewed by my officers the Principal Practitioner noted the goodwill and generosity exhibited by child protection staff, stating that when they became aware of the poor case practice and the implications for the children involved, a number volunteered to relocate to the rural office for a period of time in order to ensure the children’s needs were met. I understand that the contingency team issued several Protection Applications in relation to cases previously mishandled.

633.The intervention by the Principal Practitioner in the rural region appears to have been the catalyst for direct action to secure the safety of children who may otherwise have been left at risk.

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634.In response to my draft report, the department advised that it will employ two additional Principal Child Protection Practitioners to:

enhance practice quality and decision making on the most complex cases as well as having the capacity to strategically address shortfalls in case practice …

635.While reviews by the Principal Practitioner seem to be comprehensive, there is less satisfaction expressed by community service organisations regarding other internal reviews undertaken by the department. One community service organisation representative commented on the issue of internal case reviews stating:

The vast majority of cases never get before the Children’s Court. So who is reviewing DHS [the department’s] decision making? DHS is reviewing DHS decision making. I think it’s a totally unaccountable system.

Transparency and public accountability

636.The child protection program is governed by the Department of Human Services. The department funds most of the child protection service system, develops the legislative and policy frameworks within which it operates, regulates the providers and assumes statutory responsibilities for the children who rely upon it. I am concerned at the potential for conflicts of interest within these arrangements and the lack of public scrutiny of the department’s performance.

Conflicts of interest

637.In my March 2008 report Conflict of Interest in the Public Sector29 I explained the potential for self-dealing to be an issue for public bodies with multiple and overlapping responsibilities.

638.I have noted similar issues in relation to the department’s funding of community service organisations and its involvement in case management issues regarding common clients. During my investigation my officers were told of examples where community service organisations were placed in a difficult position when they raised issues with the department.

639.There are many circumstances in which children involved in the child protection system do not have parents who are well equipped to advocate for their best interests. In such instances, the only voice that can provide advocacy on behalf of children are the professionals involved in their care. It is therefore important to ensure the department’s role of funding and regulating the community based sector does not impede staff in community organisations from articulating their views robustly.

640.In response the department stated:

In a highly integrated system comprising both statutory and non-statutory services, robust advocacy, debate and dialogue about a child’s best interests are necessary and encouraged. The department also has responsibilities to ensure the effective and efficient use of public funds. It is accepted that these responsibilities should be clearly separated from sensitive case management and client advocacy issues. The department undertakes to ensure that mechanisms to strengthen this separation are considered …

29 Ombudsman Victoria, Conflict of Interest in the Public Sector, Melbourne, March 2008.

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641.One senior staff member of a community service organisation described their experience of refusing a referral from the department. They said the community service organisation declined the referral because it felt the risk issues were too serious to be managed in the community. The community service organisation staff member stated:

I was put under severe pressure to take the case to the point where a very senior person in child protection said ‘We’re paying your salaries, you have to take this case!’

642.During interview another community service organisation manager summarised the conflicting interests at play:

the department’s responsible for the service delivery of child protection, it’s responsible for the regulatory control of the funded service, it’s responsible for determining the distribution of the funding between those two elements; … And then it’s responsible for the legislation. Well any good manager advocates for resources and policy attention for the thing it’s responsible for … So you can’t have a genuinely integrated service system; you can’t have legislation that says, ‘We want diversion and early intervention,’ when then you then have an administrative structure … that’s responsible for the statutory also responsible [sic] for the diversionary end, without being honest and saying, ‘Well of course you’re going to get sucked up to the diversionary end’. And not only that, you have a system where the vast majority of cases have no external review.

Lack of transparency

643.Child protection intervention is necessarily accompanied by a variety of measures to protect the privacy of the individuals subject to departmental intervention. However, these measures can restrict the opportunity for the public to understand the issues involved in the child protection program and can limit the transparency of the process.

644.Under section 534 of the Children, Youth and Families Act it is an offence to publicly release details of proceedings in the Children’s Court which may identify a child, a party to the proceedings or a witness. This means that the department will generally not comment to the media and will cite privacy concerns and / or restrictions on reporting under the Children,

Youth and Families Act. During exceptional circumstances, such as when a child has been abandoned and media assistance is sought to locate the child’s parents, the department may be permitted to publicly release identifying information about a child.

645.One briefing to the Secretary dated 11 April 2008 identified during my investigation concerned a media request for information regarding an external consultant’s review of the child protection program. The consultant’s report was requested under the Freedom of Information Act 1982. In an internal document outlining the implications of releasing the requested material the department stated:

it would be contrary to the public interest by eroding public confidence in the child protection service …

646.I am concerned that the accountability framework that has developed around the child protection system lacks sufficient rigour and transparency or the proactive elements required to ensure the state’s response to children meets community expectations.

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647.While my office is able to review the administrative actions undertaken by the department, I believe that there is a need for additional external scrutiny of the child protection program. Despite the availability of various performance measures, the public rarely receive information regarding the performance of the child protection program outside media reports of high profile cases.

Limitations of the role of the Child Safety Commissioner

648.The key independent scrutineer of the child protection program is generally considered to be the Child Safety Commissioner. My investigation concluded that the Child Safety Commissioner is limited in this regard in that he does not have the ability to report to Parliament independently or outside his annual report.

649.The Child Safety Commissioner’s role is governed by the Child Wellbeing and Safety Act and includes five core functions:

promoting child-safe environments

monitoring the out-of-home care system

conducting inquiries into the death of children known to child protection and other matters referred by the Minister for Children

reviewing the administration of the Working with Children Act 2005 and providing community education

providing advice to the Minister for Community Services.30

650.The Child Safety Commissioner’s findings and recommendations from investigations are forwarded to the Minister for Community Services and the Secretary of the department for consideration.

651.The Child Safety Commissioner does not have the capacity to report direct to Parliament on an issue or case of concern. The Child Safety Commissioner can only provide Parliament with his annual report.

652.The Child Safety Commissioner has no coercive powers to investigate matters and relies on the cooperation of the department and other agencies to perform his functions. The

Child Safety Commissioner said when interviewed that he is generally satisfied with the cooperation he receives.

653.The Child Safety Commissioner informed my investigators that the Minister requested he conduct an investigation when he was first appointed as Child Safety Commissioner. However, he went on to say:

… since then it’s been decided or noted that the Act [Child, Wellbeing and Safety Act] doesn’t provide for me to be able to conduct investigations and I believe that the Minister is planning to present an amendment to the Act shortly in parliament which will allow her [the Minister] to ask me to conduct reviews or investigations into situations that affect the safety of children in the Department of Human Services.

654.Amendments in August 2009 to the Child Wellbeing and Safety Act now allow the Minister to recommend that the Child Safety Commissioner undertake an inquiry in relation to any child protection client. The Minister may make such a referral if they consider the review will assist in the improvement of the department’s practices and the enhancement of child safety.

30 The Child Safety Commissioner website is at: <http://www.ocsc.vic.gov.au>.

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655.In response to my draft report the department informed my office that:

the Minister will send an annual charter letter to the CSC [Child Safety Commissioner] that outlines key issues and priorities for his office to consider … and invite the CSC [Child Safety Commissioner] to raise individual matters of concern with the Minister should they come to his attention … The charter letter will also make clear that the CSC [Child Safety Commissioner] will be in a position to include any issues raised through this work in his Annual Report … the Minister must table the CSC’s [Child Safety Commissioner] annual report in Parliament within 21 sitting days.

656.I note that the Minister is responsible for funding arrangements and that the Child

Safety Commissioner is currently funded via a separate administrative unit within the department to that which funds child protection services. To avoid any conflict of interest, the department should ensure that such an arrangement continues and that the Child Safety Commissioner is resourced by an administrative unit that is not involved in the delivery of child protection services.

657.I proposed that the department consider giving the Child Safety Commissioner the authority to report on any matter relating to his role and functions to the Minister who must then present that report to Parliament in the same manner as the Child Safety Commissioner’s annual report is tabled. In response the department stated:

The department agrees that the Child Safety Commissioner should be able to report on any matter relating to its role and function to the Minister. The existing

arrangements permit the Child Safety Commissioner to raise any matter, at any time, on his own discretion or at the instigation of the Minister. There is considerable work done by the Child Safety Commissioner however, that would not be considered appropriate to table in Parliament, in particular the many individual case review reports. In addition the Child Safety Commissioner produces many other reports which are made publicly available and therefore do not need to be tabled in Parliament. The Child Safety Commissioner may publish any findings arising from his work in his annual report which must be tabled in Parliament …

Limitations of the current child death review system

658.The State Coroner’s Office is responsible for investigating deaths where the circumstances are sudden, traumatic or unexplained. The Victorian Child Death Review Committee has a focus on the role of the department during the deceased child’s life. Specifically, the Victorian Child Death Review Committee establishes the facts of each case and examines the adequacy and appropriateness of the decision-making and actions of the department and any relevant agency.

659.The single most publicly accessible window into the issues confronting child protection, aside from my office, is the child death review system. However, several child protection managers said they found the outcome of these reviews to have little value to them. I also learnt of cases concerning deaths of children known to the department that were not subject to a review.

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660.Until recently, under the Child Wellbeing and Safety Act the department was required to advise the Child Safety Commissioner of the death of each Victorian child who was a child protection client at the time of death or had been a client within three months prior to his or her death. All deaths regardless of the cause are required to be reported. Recent amendments have now extended this timeframe to 12 months.

661.When the Child Safety Commissioner receives notification from the department about the death of a child, he is required under legislation to record the death on the Child Death

Register held within the Inquiries and Review Unit (the unit) of the office. The unit then undertakes a review into each death as required by the Child Wellbeing and Safety Act. The object of each review is:

to promote ongoing and continuous improvement and innovation in policies and practices relating to child safety and protection.

662.Every death is subject to the same standardised review and report and the confidentiality of all involved is required to be maintained. The department advised that detailed analysis and consideration of each child death is not evident in many other jurisdictions.

663.The unit produces reports on its review and a draft copy is forwarded to the department and other stakeholders for comment. The report is then finalised and forwarded to the Victorian Child Death Review Committee.

664.The Victorian Child Death Review Committee is an independent ministerial advisory body. The Victorian Child Death Review Committee has no powers to obtain further material in relation to any of the deaths reported to it and relies on the material provided by the Child Safety Commissioner alone to form the basis of its review of each death.

665.The role of the Victorian Child Death Review Committee is to consider the findings provided by the Child Safety Commissioner on a case by case basis and determine whether any recommendations for action are required. An annual report for the Minister for Community Services is produced outlining the inquiries reported to the Victorian Child Death Review Committee for the previous year and any recommendations following its review of each death inquiry.

666.To ascertain whether deaths of children previously reported to the department had been overlooked by the review process I requested data from Victoria Police for known or suspected homicides of individuals under the age of 18 years at their time of death.

667.I reviewed data from the three-year period 2005-08 and found that 79 children were believed to have been the victims of homicide. I then compared a list of these individuals with the department’s client files and found that 24 of these children appeared to have been known to the child protection program. That is, they had involvement with the department at some time during their life. Of these 24 children, only two were subject to a child death review.

668.While the data-matching exercise between departmental and Victoria Police records was problematic because of minor differences in details recorded by each, I confirmed that at least six children and possibly around twelve children previously reported to child protection were believed to have been victims of homicide but were not subject to the child death review process. In at least two cases, involvement with the department was as recent as four months prior to the child’s death and therefore just outside the scope for the child death review process in operation at the time.

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669.The department responded that:

we understand that the children known to child protection that you cite, at least eight were the result of transport accidents, not suspected homicide.

670.In response to the department’s comments I note that homicide data recorded by Victoria

Police includes offences such as murder, culpable driving and drive at dangerous speed causing death.

671.Child protection workers also said they were concerned as to whether child deaths were the most informative sample of cases to draw lessons from. In particular child protection managers raised concerns about resources and effort being focussed on cases involving children who had died of natural causes.

672.It should be noted that between 1996 and 2008, 17 deaths, or eight per cent of deaths reviewed by the Victorian Child Death Review Committee were categorised as non- accidental. Of these deaths, five had minimal involvement with the department. In contrast

35 per cent of deaths during this period were categorised as acquired / congenital illness, 18 per cent were attributed to accidents and 14 per cent attributable to Sudden Infant Death

Syndrome.31

673.A related issue that arose during my investigation was the lost opportunity to review the handling of cases involving abuse that did not result in death. As it stands, there is limited external scrutiny of incidents in which a child may have come close to death. Review and analysis of such incidents could result in significant learning and training opportunities for the department and in turn, better outcomes for children.

674.One former senior child protection manager stated:

the analysis of the kid who ended up with the fractured skull while they were on

our list and while they were even on an Order, that may well tell us something really significant about our processes and how we keep kids safe.

675.I have also become aware of a gap that has emerged since the introduction of the Children, Youth and Families Act and the remit of the child death review process. The Children, Youth and Families Act allows child protection staff to now receive reports regarding the safety and wellbeing of an unborn child, and provide advice and assistance to parents of an unborn child. The department received 686 reports in relation to unborn children between April

2007 and June 2008. After the birth of these children, 186 or 27 per cent were the subject of a

Protection Application. Whilst this initiative offers new opportunities to intervene sooner to seek better outcomes for children, the child death review process fails to match the Children,

Youth and Families Act in this regard as the following case study demonstrates:

Case study 37

I received a complaint from a mother who was involved with the department prior to her son being still born. A still born is not legally considered a child under the Children, Youth and Families Act. As a ‘child death’ had therefore not occurred, the matter did not fall within the jurisdiction of the Child Safety Commissioner.

31 Victorian Child Death Review Committee, Annual Report of Inquiries into the Deaths of Children known to Child Protection 2009, Office of the Child Safety Commissioner, June 2009.

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I considered that given the department has the capacity to work with families under the Children, Youth and Families Act prior to the birth of a child, such incidents should be reported to the Child Safety Commissioner. This would provide the department with the opportunity to review the practice and effectiveness of child protection intervention for unborn children. It would also allow the Victorian Child

Death Review Committee to provide feedback to the department on such service responses.

The department did not accept this recommendation stating that there were ‘privacy implications’ in voluntarily reporting a death to the Child Safety Commissioner and it would encounter restrictions on the information it could access. The department also advised that there were sufficient mechanisms in place to review and improve the quality of the department’s interventions.

676.The department responded to the above case study:

New provisions were included in the CYFA [Children, Youth and Families Act] which focussed on early intervention and the intention to provide earlier support and intervention to families expecting a baby (unborn children reports). As part of these deliberations, careful consideration was given to the definition of a child in the CYFA [Children, Youth and Families Act] and a clear policy decision was made not to change the definition that applied in the previous legislation …

Conclusions – accountability and transparency in the child protection system

677.Clear accountability for the protection of children should be a key aspect of the design of the child protection system. I have described the degree to which the Secretary is removed from the exercise of the department’s statutory duties by her delegates. There is also a marked separation between the accountability for operational decisions and child protection leadership roles in the department.

678.The department is a large and complex organisation with responsibilities for many demanding public functions. In my view the current state of the child protection system requires these issues to be the focus of the public officer and organisation with statutory responsibility for its performance. The recent separation of health from the department will assist.

679.A more direct alignment of management structures around the delivery of child protection services may enable the considerable variance in practices and resource issues between the eight regions to be addressed. In my view it is not defensible that there appears to be multiple thresholds of tolerable risk to children across the state based on geographic location.

680.The department’s role as a funding body has attracted criticism by senior personnel in community service organisations who reported that at times the department is using funding to unreasonably direct the conduct of case work undertaken by community service organisations. There was also concern expressed to my office, confirmed by staff in operational management roles in the department, that Child FIRST services are being used inappropriately because the department has inadequate capacity to respond to reports.

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681.Given the evidence provided during my investigation from community service organisations staff, I consider that a review should be undertaken of the current funding arrangements

to ensure that community service organisations do not encounter impediments to robustly advocate for the best interests of children and present their professional opinions on matters under consideration.

682.My investigation has identified that the department’s current data reporting practices are susceptible to manipulation. I am concerned about the integrity of the data and whether it accurately captures the quantity and quality of interventions undertaken by the department.

683.In response to my draft report the department stated that a Child Protection Quality

Assurance Branch would be established within the department and will concentrate on performance monitoring with a focus on quality and compliance. The Child Protection Quality Assurance Branch will routinely monitor data on rates of allocation throughout the child protection program and consider the appropriateness of the current timelines for responding to reports.

684.I consider that the data provided in the department’s reports to the Secretary, Department of Treasury and Finance and the Minister for Community Services is insufficient to allow recipients to adequately consider the performance of the department.

685.Further, the information that is reported is largely focussed on compliance with timeframes, with little emphasis on measuring the extent of the department’s success in exercising its duty of care to the children for whom it is responsible.

686.Given the concerns raised by my investigation concerning ‘Baby Ben’, it is disappointing to learn that there was no accurate state-wide data on allocation client case rates between

April 2006 and December 2008. I consider that the unallocated client case rate is an important indicator of the department’s capacity to respond to demand.

687.In my view performance against this indicator should be reported regularly both within the department and to government. Such reporting would be particularly useful for the

Secretary, the Department of Treasury and Finance and the Minister for Community Services in monitoring the department’s performance and capacity.

688.The government responded positively to my investigation concerning ‘Baby Ben’, allocating substantial resources to address the rate of unallocated cases. However, based on the information provided by the department, the Minister has not been kept informed over the past year and, before that, the department was incapable of informing her of the numbers of children who do not have an allocated child protection worker. I consider the department should have provided more robust advice to the Minister and the government as a whole regarding the state of the child protection system.

689.I also note that it is problematic when data is frequently captured as a ‘snapshot’. A snapshot does not allow for problems to be identified and addressed which may not have been apparent on the particular day a snapshot was taken.

690.It is clear from the evidence given during interviews of several senior departmental staff that staff do not have confidence in the integrity of the data generated by CRIS and are frustrated by the lack of reporting available from CRIS. Several staff explained that they lacked the resources and expertise to analyse the data in a meaningful way.

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691.The department is not required to report in relation to its compliance with statutory obligations, internal practice standards or unallocated client case rates which would be informative measures of the department’s capacity to provide an appropriate and expected level of service to vulnerable children and young people.

692.I am concerned that there is no formal reporting of compliance with statutory requirements such as Cultural Plans for Aboriginal children which is a significant legislative reform. Similarly, I believe the performance measure for cumulative harm lacks the rigorous assurance processes required to significantly change how children at risk are responded to.

693.While I have commented positively on the quality of the reports completed by the Principal Practitioner, the role of the Principal Practitioner is not sufficient in itself to generate public confidence and inform debate regarding the effectiveness of the child protection system. I believe a mechanism should be introduced whereby the Principal Practitioner’s reports are made available to the Child Safety Commissioner to enable a more independent review of individual cases and any systemic issues identified during such reviews.

694.Despite the stated aims in the critical incident practice advice which includes ‘subsequent analysis’ following ‘full and frank reporting of adverse events…’, my investigation revealed a lack of systemic review and a lack of analysis of critical incident reporting. Evidence I have received from witnesses suggests a general under-reporting of significant incidents.

695.Regional managers reported that proactive analysis of incident reporting is required but resources are not available to enable this to occur. The current incident reporting system is reactive and opportunities to identify and address trends in the data are being missed.

696.It appears there is a lack of training of child protection and community service organisation staff regarding what, when and how they should be reporting incidents. This is likely to be resulting in reports not being completed when they are required.

697.The Child Safety Commissioner’s role is limited in that he does not have sufficient ability to report on his role to Parliament. In my opinion this limitations should be addressed to ensure that the Child Safety Commissioner can fulfil a strong independent role to advocate for children. This should occur in relation to both particular matters and for systemic issues identified by the Child Safety Commissioner. I note the Child Wellbeing and Safety Act has new provisions which allow the Minister to recommend that the Child Safety Commissioner undertake an inquiry in relation to a child protection client.

698.The previous limitation of a three-month period for child death reviews was in my opinion inadequate and was resulting in lost opportunities for review and learning. I believe the recent amendments to extend the period of review to 12 months are positive. The suitability of this 12-month timeframe will require monitoring and analysis to ensure that it is sufficient. It is possible that the period of review may need to be extended beyond a 12-month period.

699.The Victorian Child Death Review Committee was established with a specific mandate to review inquiries into the deaths of children known to the child protection program. I

believe that the role of the Principal Practitioner should be extended to enable it to consider incidents of abuse and neglect which may have resulted in a child coming close to death. The work of the Principal Practitioner can be built upon to produce a more robust system of accountability. The Secretary has responded positively to my recommendations and has committed to ensuring the Principal Practitioner’s reviews are routinely provided to the Child Safety Commissioner.

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700.This commitment will provide the Child Safety Commissioner with an array of information sources upon which he can monitor the child protection system. Combined with a greater capacity to report to Parliament, the Child Safety Commissioner would be well placed to perform his function.

Recommendations – accountability and transparency in the child protection system

I recommend that the department:

Recommendation 34

Review current arrangements to ensure community service organisations are able to appropriately advocate for the best interests of children and present their professional opinions on matters under consideration.

The department’s response

The department has accepted this recommendation.

Recommendation 35

Ensure that the role of the Principal Child Protection Practitioner includes the review of incidents of abuse and neglect of children known to the department which do not result in the death of a child. These reviews should be provided to the Child Safety Commissioner.

The department’s response

The department has accepted this recommendation.

Recommendation 36

Review its current data reporting practices and provide my office with a copy of the review within three months.

The department’s response

The department has accepted this recommendation.

Recommendation 37

Report on its compliance with statutory obligations in its annual report.

The department’s response

The department has accepted this recommendation.

Recommendation 38

Report on unallocated client data for each region and state-wide in its annual report and to the Minister on a monthly basis.

The department’s response

The department has accepted this recommendation.

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Recommendation 39

Ensure that the Principal Child Protection Practitioner continues to report to the Executive of

Child Protection but also provide copies of reports to the Child Safety Commissioner and be available for consultation with the Commissioner and / or a specialist external review body.

The department’s response

The department has accepted this recommendation.

Recommendation 40

Ensure that systematic regional analysis of incident reports occurs.

The department’s response

The department has accepted this recommendation.

Recommendation 41

Provide an analysis of incident reports specific to the child protection program to the Minister and the Child Safety Commissioner on a quarterly basis.

The department’s response

The department has accepted this recommendation.

Recommendation 42

Provide training to all relevant departmental and community organisation staff regarding critical incident reporting requirements.

The department’s response

The department has accepted this recommendation.

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SUMMARY OF RECOMMENDATIONS

Recommendation 1

Establish arrangements for the ongoing independent scrutiny of the department’s decision- making regarding reports with particular attention to:

a.how the urgency of reports is categorised

b.the consistency of thresholds applied across the regions

c.theappropriatenessofthethresholdsappliedbythedepartmentinitsdecision-making.

The department’s response

The department has accepted this recommendation.

Recommendation 2

Commission a review of the fitness for purpose of the Client Relationship Information System.

The department’s response

The department has accepted this recommendation.

Recommendation 3

Review its suite of performance measures to ensure that a focus on comprehensive investigation of reports is encouraged.

The department’s response

The department has accepted this recommendation.

Recommendation 4

Review the current standards in relation to response times.

The department’s response

The department has accepted this recommendation.

Recommendation 5

Assign responsibility for monitoring regional performance to a senior executive who has responsibility to implement a corporate response when regional performance does not meet minimum state-wide standards.

The department’s response

The department has accepted this recommendation.

Recommendation 6

Develop a comprehensive strategy for enhancing greater understanding between its staff and Child FIRST workers regarding respective roles and agreed processes.

The department’s response

The department has accepted this recommendation.

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Recommendation 7

Facilitate regular meetings with the Victorian Forensic Paediatric Medical Service to improve practice in relation to forensic medical assessments of children.

The department’s response

The department has accepted this recommendation.

Recommendation 8

Conduct a review of the department’s handling of reports concerning domestic violence issues.

The department’s response

The department has accepted this recommendation.

Recommendation 9

Conduct a review of the department’s handling of reports concerning children who are exposed to known sex offenders.

The department’s response

The department has accepted this recommendation.

Recommendation 10

Revise its practice standards to require an investigation plan to be documented during the course of each investigation.

The department’s response

The department has accepted this recommendation.

Recommendation 11

Report on unallocated client case numbers in annual reports.

The department’s response

The department has accepted this recommendation.

Recommendation 12

The Attorney-General provide a reference to the Victorian Law Reform Commission to examine alternative models for child protection legislative arrangements that would reduce the degree of disputation and encourage a focus on the best interests of children.

The Attorney-General’s response

The Attorney-General has accepted this recommendation. He stated:

I endorse the recommendation that a reference be provided to the Victorian Law Reform Commission (VLRC) to examine alternative models for child protection legislative arrangements that would reduce the degree of disputation and encourage a focus on the best interests of children. I will ask that the VLRC consider the Scottish model and those models interstate that take a more administrative case management approach to issues such as access.

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As a part of this reference I will ask the VLRC to review the lessons learned from previous reviews of child protection and the legal system, particularly in relation to models for the Children’s Court (this would include consideration of the BCG [Boston Consulting Group] Report). I will include in the reference to the VLRC a request that the VLRC consider alternatives to the current model of hearings in the Children’s Court and whether there are certain types of matters that ought to be decided administratively rather than judicially.

Recommendation 13

Review opportunities for other public sector agencies to take more responsibility to assist the department in providing protection for vulnerable children.

The department’s response

The department has accepted this recommendation.

Recommendation 14

Establish arrangements to ensure compliance with practice standards and key statutory obligations such as Best Interests Case Plans, Stability Plans and Cultural Support Plans. Ensure compliance is subject to independent scrutiny and regular auditing by an independent body and the outcomes of these audits are reported to Parliament.

The department’s response

The department has accepted this recommendation.

Recommendation 15

Complete its review of its Criminal Records Check Practice Advice and provide my office with a copy of the review within three months.

The department’s response

The department has accepted this recommendation.

Recommendation 16

Conduct an audit of compliance with the Criminal Records Check Practice Advice for all open cases involving a kinship placement.

The department’s response

The department has accepted this recommendation.

Recommendation 17

Provide training to all relevant staff in relation to the Criminal Records Check Practice Advice.

The department’s response

The department has accepted this recommendation.

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Recommendation 18

Resolve any outstanding issues regarding the ‘person responsible for harm function’ currently available on the Client Relationship Information System and provide updated advice and training to all staff regarding its use.

The department’s response

The department has accepted this recommendation.

Recommendation 19

Provide training to staff in the assessment and documentation of kinship placements.

The department’s response

The department has accepted this recommendation.

Recommendation 20

Report compliance with supervision standards in its annual report.

The department’s response

The department has accepted this recommendation.

Recommendation 21

Establish arrangements for a central privacy unit which has a complaint, educative and training function.

The department’s response

The department has accepted this recommendation.

Recommendation 22

Review current arrangements for the management of privacy complaints and document formal processes.

The department’s response

The department has accepted this recommendation.

Recommendation 23

Establish a privacy officer position that is specific to the child protection program to provide specialist advice.

The department’s response

The department has accepted this recommendation.

Recommendation 24

Establish arrangements for privacy network meetings between the privacy unit, child protection staff and community service organisations.

The department’s response

The department has accepted this recommendation.

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Recommendation 25

Review its policies and practice advice on removing child protection client files from its offices. This review should examine the circumstances under which information may be removed from its offices. The draft practice advice should be submitted to the Victorian Privacy Commissioner for comment.

The department’s response

The department has accepted this recommendation.

Recommendation 26

Review the adequacy of the new portable storage devices currently in circulation and take appropriate action to ensure that encryption devices cannot be overwritten.

The department’s response

The department has accepted this recommendation.

Recommendation 27

Conduct regular audits of access to Client Relationship Information System data. The outcome of audits should be made available to the Victorian Privacy Commissioner upon request.

The department’s response

The department has accepted this recommendation.

Recommendation 28

Provide relevant departmental staff with data security training and ensure registered community service organisations provide their staff with data security training.

The department’s response

The department has accepted this recommendation.

Recommendation 29

Report all significant losses of child protection client information to the Victorian Privacy

Commissioner.

The department’s response

The department has accepted this recommendation.

Recommendation 30

Review the quality of client files to assist in compliance with Information Privacy Principle 3 (Data Quality).

The department’s response

The department has accepted this recommendation.

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Recommendation 31

Review the practices in relation to child protection staff providing clients with advice about whom their personal information may be disclosed to via court reports.

The department’s response

The department has accepted this recommendation.

Recommendation 32

Ensure contracted service providers and registered community service organisations provide their staff with mandatory privacy training.

The department’s response

The department has accepted this recommendation.

Recommendation 33

Seek advice from the Public Records Office on the issue of retention of criminal records. Review the Criminal Records Check Practice Advice so that it contains correct information about retention and destruction of criminal record data.

The department’s response

The department has accepted this recommendation.

Recommendation 34

Review current arrangements to ensure community service organisations are able to appropriately advocate for the best interests of children and present their professional opinions on matters under consideration.

The department’s response

The department has accepted this recommendation.

Recommendation 35

Ensure that the role of the Principal Child Protection Practitioner includes the review of incidents of abuse and neglect of children known to the department which do not result in the death of a child. These reviews should be provided to the Child Safety Commissioner.

The department’s response

The department has accepted this recommendation.

Recommendation 36

Review its current data reporting practices and provide my office with a copy of the review within three months.

The department’s response

The department has accepted this recommendation.

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Recommendation 37

Report on its compliance with statutory obligations in its annual report.

The department’s response

The department has accepted this recommendation.

Recommendation 38

Report on unallocated client data for each region and state-wide in its annual report and to the Minister on a monthly basis.

The department’s response

The department has accepted this recommendation.

Recommendation 39

Ensure that the Principal Child Protection Practitioner continues to report to the Executive of

Child Protection but also provide copies of reports to the Child Safety Commissioner and be available for consultation with the Commissioner and / or a specialist external review body.

The department’s response

The department has accepted this recommendation.

Recommendation 40

Ensure that systematic regional analysis of incident reports occurs.

The department’s response

The department has accepted this recommendation.

Recommendation 41

Provide an analysis of incident reports specific to the child protection program to the Minister and the Child Safety Commissioner on a quarterly basis.

The department’s response

The department has accepted this recommendation.

Recommendation 42

Provide training to all relevant departmental and community organisation staff regarding critical incident reporting requirements.

The department’s response

The department has accepted this recommendation.

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GLOSSARY AND ABBREVIATIONS

Allocation

Allocation is the term used when the primary responsibility for case management of a client file is given to one child protection worker.

Alternative Dispute Resolution Conference

In accordance with section 217 of the Children,YouthandFamiliesAct 2005, the Children’s Court may refer a matter for alternative dispute resolution. The Children,Youth and Families Act identifies the purpose of alternative dispute resolution as providing parties with ‘the opportunity to agree or advise on the action that should be taken in the best interests of the child’. Present at Alternative Dispute Resolution Conferences are a convenor, child protection workers, the child (where appropriate) and the child’s parent(s) and legal representative(s).

Best Interests Plan

A Best Interests Case Plan is the formal plan that guides assessment, planning and action by child protection workers for a child subject to protective intervention. A Best Interests Case Plan incorporates a statutory case plan (section 166 of the Children,Youth and Families Act), Cultural Plan (section 176 of the Children,Youth and Families Act), care and placement plan, family reunification plan and/or a Stability Plan (section 170 of the Children,Youth and Families Act) as appropriate.

Case support worker

A case support worker is classified as a CPW-1 and provides support to child protection workers with case management tasks. Case support workers often assist in supervising family contact visits for children in care.

CASIS

Client and Service Information System.

Child FIRST

Child and Family Information Referral and SupportTeams (community based intake).

Child Protection Quality and Compliance Unit

The Child Protection Quality and Compliance Unit provides an oversight and support function for the regions.

Child protection worker (CPW)

Under section 181 of the Children,Youth and Families Act the Secretary of the department is classified as a ‘protective intervener’.The Secretary may delegate any function or power under section 17 of the Children,Youth and Families Act to an employee of the department. A child protection worker is therefore delegated as a ‘protective intervener’under the Children,Youth and Families Act. Child protection workers are classified as a CPW2-5. A child protection worker provides a child centred, family focussed service to protect children and young people from significant harm resulting from abuse or neglect within the family.

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Child wellbeing report

‘A person who has a significant concern for the wellbeing of a child may refer the matter to a community based child and family service’as per section 31 of the Children, Youth and Families Act.

Community based child protection worker

Community based child protection workers are assigned to each Child FIRST site to undertake a range of key functions, including:

facilitation of referrals from child protection to Child FIRST and vice versa

provision of consultation and advice on specific cases to Child FIRST and community service organisations, including safety planning to enable ongoing case management

identification of cases within child protection requiring referral.

Community service organisation

A non-government organisation funded by the department to deliver a designated service to the community.

Corporate Integrity Information Resolutions unit (CIIRu)

CIIRu is located within the Portfolio Services Branch of the department and has the responsibility for coordinating and managing enquiries regarding complaints, human rights, whistleblowers, freedom of information, privacy, Disability Services Commissioner, fraud prevention and Ombudsman review.

Criminal records check

A criminal records check is a request for information about a person’s criminal record from the Records Service Division ofVictoria Police.

CRIS

Client Relationship Information System.

Cultural Plan

Section 176(2) of the Children,Youth and Families Act states that ‘A cultural plan must set out how the Aboriginal child placed in out of home care is to remain connected to his or her Aboriginal community and his or her Aboriginal culture’.There are further provisions in section

176 of the Children,Youth and Families Act to ensure that the department prepare and monitor compliance with ‘a cultural plan for each Aboriginal child placed in out of home care under a guardianship or long term guardianship order’.

Cumulative harm

Cumulative harm refers to the serious impact for the child of continuing or recurring, actions, omissions and behaviours over time. Harm that arises from either a single traumatic incident or a series and pattern of events and circumstances is considered equally serious.The central aspect of harm is the outcome for the child, which is determined by the impact on the child’s stability and development.

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Custody to Secretary Order

A Protection Order which grants sole custody of a child to the Secretary of the department but does not affect the guardianship of the child. Pursuant to section 287 of the Children,Youth and Families Act, a Custody to Secretary Order:

(a)grants sole custody of the child to the Secretary; and

(b)does not affect the guardianship of the child; and

(c)subject to this Division, remains in force for the period (not exceeding 12 months) specified in the order; and

(d)may include any conditions that the Court considers to be in the best interests of the child, including-

(i)a condition concerning access by a parent or other person; and

(ii)in the case of an Aboriginal child, a condition incorporating a cultural plan for the child.

Custody toThird Party Order

A Protection Order which grants sole custody of a child to a person who is neither a parent nor the Secretary of the department but does not affect the guardianship of the child. Pursuant to section 283(1) of the Children,Youth and Families Act, a Custody toThird Party Order:

(a)grants sole or joint custody of the child to the person or persons named in the order; and

(b)must not be made in favour of-

(i)the Secretary in his or her official capacity; or

(ii)a person employed by a community service in his or her official capacity; or

(iii)a parent of the child; and

(c)does not affect the guardianship of the child; and

(d)remains in force for the period (not exceeding 12 months) specified in the order; and

(e)may include any conditions that the Court considers to be in the best interests of the child, including-

(i)a condition concerning access by a parent or other person; and

(ii)in the case of an Aboriginal child, a condition incorporating a cultural plan for the child and

(f) must not include any condition that gives powers or duties to, or otherwise involves, the Secretary.

Department

The Department of Human Services.

Foster care

Foster care is a home-based care model that provides placements for children and young people up to 18 years of age who are unable to live with their families because of abuse or neglect, or where the parent(s) are unable to care for the child or young person for a short period of time due to illness or other significant family circumstances.

Foster carer

A foster carer is someone assessed and approved by a community service organisation to provide a home and care for children.

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Guardianship

A legal guardian is responsible for all decision-making regarding the child or young person.

Guardianship to the Secretary Order

A Protection Order which grants custody and guardianship of a child to the Secretary of the department to the exclusion of all other persons. Pursuant to section 289 of the Children,Youth and Families Act, a Guardianship to Secretary Order:

(a)grants custody and guardianship of the child to the Secretary to the exclusion of all other persons; and

(b)subject to this Division, remains in force for the period (not exceeding 2 years) specified in the order; and

(c)ceases to be in force-

(i)when the child attains the age of 18 years; or

(ii)when the child marries.

Information Privacy Act 2000 and Privacy Principles

The InformationPrivacyAct 2000sets the minimum standards for the handling of personal information byVictorian public sector organisations and their contractors.The ten Information Privacy Principles at the core of the Information Privacy Act cover collection, use, disclosure, access, security, accuracy, retention and destruction of personal information.

Intake

The Intake phase is the initial point of contact with the department for most professionals and concerned members of the public. Each region has a dedicated Intake phase to determine which cases require further child protection intervention.The Intake phase may involve child protection staff making preliminary telephone enquiries with other professionals to gather information. Intake can refer cases for further investigation by the department or refer cases which do not warrant departmental involvement to Child FIRST.

Interim Accommodation Order

A temporary Order under section 262 of the Children,Youth and Families Act which controls where a child lives pending the final determination by the Children’s Court. An Interim Accommodation Order may include conditions that the Children’s Court considers should be included in the best interests of the child.

Interim Protection Order

An interim Order of up to three months duration which the Children’s Court may make upon finding a child is in need of protection but assessing that it is desirable to test the appropriateness of a particular course of action before making a final protection Order.

Kinship care

Kinship care is broadly defined to include care provided by relatives, other than natural parents, and significant other adults in the child’s life.

Law Enforcement Assistance Program (LEAP)

LEAP is the database used byVictoria Police to store particulars of all crimes brought to the attention of police members.

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Out-of-home care

Out-of-home care refers to services offered by a registered community service organisation, pursuant to part 3.3 of the Children,Youth and Families Act. Out-of-home care services provide placement and support services to children and young people, who have been assessed as at risk by the statutory child protection service, or where their parents are unable to care for them for a period of time. Specific services such as home-based care and residential care are part

of placement and support services which are contained within the out-of-home care service system.

Performance measure

Performances measures are put in place by an organisation to determine how it is progressing against the organisation’s goals.

Permanent Care Order

An Order which grants a person (other than a parent or the Secretary of the department) custody and guardianship of a child which remains in force until the child turns 18 years of age or marries.

Personal information

Section 3 of the Information Privacy Act defines personal information as ‘information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion’.

Practice Standards

Refers to the practice standards and procedures formulated by Child Protection to ensure uniformity of practice throughout the state. Practice standards are contained in the Protecting Victoria’sChildren-ChildProtectionPracticeManual.

Principal Child Protection Practitioner (Principal Practitioner)

The Principal Child Protection Practitioner provides expert consultation on complex cases and provides assistance to child protection workers to prepare for Children’s Court.The role involves regular court liaison, training and a strong research focus.

Protection Application

An application made to the Children’s Court for a finding that a child is in need of protection from actual or likely harm. In accordance with section 243(1) of the Children,Youth and Families Act, the department can make a Protection Application by notice by notifying:

(a)the child to appear; and

(b)the child’s parent to produce the child-

before the Court for the hearing of a protection application.

Pursuant to section 241(1) of the Children,Youth and Families Act, the department can also make an application by safe custody:

(a)without a warrant, take the child into safe custody or cause another protective intervener to take the child into safe custody; or

(b)apply to a Magistrate for the issue of a search warrant for the purpose of having the child taken into safe custody.

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Protection Order

A Protection Order is an Order made by the Family Division of the Children’s Court for the protection and care of a child.

Protective intervention report

A protective intervention report is a report about a child in need of protection under section 34 of the Children,Youth and Families Act.

Registered community service organisations

The Children,Youth and Families Act provides for the registration of community service organisations.The categories for registration are: out-of-home care service; community based child and family service; and a prescribed category of service.

Residential care services

Provide temporary, short or long term accommodation and care to children and young people who are unable to be placed in home-based care.

Reunification

Return of a child to the care of a parent.

Secretary

Secretary to the Department of Human Services.

Stability Plan

In accordance with section 170 of the Children,Youth and Families Act, a Stability Plan is a component of a child protection statutory Best Interests Case Plan, which outlines how a child will receive continuous, stable care away from home. A Stability Plan for an Aboriginal child or young person must demonstrate compliance with the Aboriginal Child Placement Principles.

Substantiation

During the course of an investigation by the department it is required to make a ‘substantiation decision’as to whether a child has experienced or is currently at risk of significant harm to their safety, stability or development.This decision is recorded on the child’s client file on CRIS.

Supervision Order

A Protection Order which gives the Secretary of the department responsibility for the supervision of a child but does not affect the custody or guardianship of the child. Pursuant to section 280 of the Children,Youth and Families Act, a Supervision Order:

(a)gives the Secretary responsibility for the supervision of the child; and

(b)does not affect the guardianship or custody of the child; and

(c)provides for the child to be placed in the day to day care of one or both of the child’s parents.

Team leader

A team leader is classified within the department as a CPW-4.The team leader’s primary function is to supervise staff to ensure that the relevant departmental and legislative standards are met so the best possible service is provided to children, young people and their families.

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Unit manager

A child protection unit manager is classified within the department as a CPW-5.The unit manager leads the delivery of child protection client services, maintains strategic relationships and ensures effective management and communication within the unit.The position holds responsibility for key operational delegations relating to statutory child protection services.

Victoria Police Sexual Offences and Child Abuse Unit

A division ofVictoria Police which participates in joint investigations with the department regarding matters where a criminal offence may have occurred, such as reports relating to physical and sexual abuse allegations. Under section 181 of the Children,Youth and Families Act all members ofVictoria Police are ‘protective interveners’.

Voluntary placement

The Children,Youth and Families Act allows the voluntary placement (with no Court Order) of a child or young person in a placement provided by a community service organisation.To achieve a voluntary placement a short or long term child care agreement between the parent/ guardian and the community service organisation must be completed. A child care agreement

is a written agreement with a service provider, signed by the parent(s) that gives permission for a child or young person to live in a placement provided by that service provider.

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Ombudsman’s Reports 2004-09

2009

Own motion investigation into the tendering and contracting of information and technology services within Victoria

Police

November 2009

Brookland Greens Estate – Investigation into methane gas leaks

October 2009

A report of investigations into the City of Port Phillip

August 2009

An investigation into the Transport Accident Commission’s and the Victorian WorkCover Authority’s administrative processes for medical practitioner billing

July 2009

Whistleblowers Protection Act 2001

Conflict of Interest and Abuse of Power by a Building Inspector at Brimbank City Council

June 2009

Whistleblowers Protection Act 2001

Investigation into the alleged improper conduct of councillors at Brimbank City Council

May 2009

Investigation into Corporate Governance at Moorabool Shire Council

April 2009

Crime statistics and police numbers

March 2009

2008

Whistleblowers Protection Act 2001

Report of an investigation into issues at Bayside Health

October 2008

Probity controls in public hospitals for the procurement of non-clinical goods and services

August 2008

Investigation into contraband entering a prison and related issues

June 2008

Conflict of interest in local government

March 2008

Conflict of interest in the public sector

March 2008

2007

Investigation into VicRoads driver licensing arrangements

December 2007

Investigation into the disclosure of electronic communications addressed to the Member for Evelyn and related matters

November 2007

Investigation into the use of excessive force at the Melbourne

Custody Centre

November 2007

Investigation into the Office of Housing’s tender process for the

Cleaning and Gardening Maintenance Contract - CNG 2007

October 2007

Investigation into a disclosure about WorkSafe and Victoria

Police handling of a bullying and harassment complaint

April 2007

Own motion investigation into the policies and procedures of the planning department at the City of Greater Geelong

February 2007

2006

Conditions for persons in custody

July 2006

Review of the Freedom of Information Act

June 2006

Investigation into parking infringement notices issued by Melbourne City Council

April 2006

Improving responses to allegations involving sexual assault

March 2006

2005

Investigation into the handling, storage and transfer of prisoner property in Victorian prisons

December 2005

Whistleblowers Protection Act: Ombudsman’s Guidelines

October 2005

Own motion investigation into VicRoads registration practices

June 2005

Complaint handling guide for the Victorian Public Sector 2005

May 2005

Review of the Freedom of Information Act: discussion paper

May 2005

Review of complaint handling in Victorian universities

May 2005

Investigation into the conduct of council officers in the administration of the Shire of Melton

March 2005

Discussion paper on improving responses to sexual abuse allegations

February 2005

2004

Essendon Rental Housing Co-operative (ERHC)

December 2004

Complaint about the Medical Practitioners Board of Victoria

December 2004

Ceja task force drug related corruption - second interim report of Ombudsman Victoria

June 2004