Currently I am working with a client whose child is under the guardianship of the Minister to the age of eighteen. This is an important case because it represents all that is unhelpful about Child Protection decision making and the long term care of children. We had applied for legal aid and were hopeful that once this was granted there would be a pathway to have the order varied. The lawyer contacted me and informed me that the only pathway would have been to have challenged the order within twenty one days of it being granted. To apply to the supreme court to have this challenged would have cost $2,000 for the application alone. When unemployed and at he lowest end of the socio-economic pile who has the money to seek such an application? That is just the application fee. Legal aid wont fund the actual court proceedings. The reality is that very few people, if any, can afford to challenge the legal system and child protection services once their child has been removed and a long term order is in place.
But it becomes more complicated and unjust than what I have mentioned. There is virtually no way that a parent can change an order, regardless of how much they have reached sainthood. However I am told that the Department is able to seek variations to orders and do this regularly. They can return to the court and change aspects of an order at a whim particularly if they believe the current order is not in the best interest of he child. They do not, and refuse to, change orders if the parent has changed his or her lifestyle and is even able to provide a better home than the one the child is currently living. It often appears that the department believes that in all circumstances they are the better parent. We all know that that isn’t the case.
How have we allowed a system to develop which is clearly inequitable. Are they afraid that if everyone had access to an appeal process that the department would be held accountable for the decisions they make. The department will argue that the parent has many opportunities to prove that they can parent differently and to some extent that is true but often the time frame for this is too small and the decision makers become too entrenched in their decision that they refuse to offer appropriate pathways towards re-unification. In my clients case this is what happened.
I admit that this is relatively new territory for me but I found it interesting that when I contacted the department and presented them with the legal interpretation I had been given the person I spoke to wasn’t certain as to the exact process either and suggested that I contact the clerk of the court to find out. If a senior Social Worker in the department cant be definitive about the legal ramifications and requirements then we have to wonder why we would expect front line staff to know either.
What this means for practice is that Social Workers are obligated to inform their clients of the implications of the workers actions. That includes the legal ramifications of the decisions of the court and the appeal process. Me client told me that if she had known this she would have responded differently to the court process in the beginning and challenged the GOM 18 order more vehemently. If I had known what I know now I would have have talked to her about these issues and also asked the social workers concerned why they weren’t talking to the client about the ramifications for the client and child.
When I hear Social Workers tell parents that even though the department are seeking a GOM 18 the client can still return to court I want to vomit. It is a gross misrepresentation of the actual situation, in fact it is a lie, either based on ignorance or just plain guilt. I wonder if Child Protection workers really understand the implications of their decisions and the long term impact this has on the parents and more importantly the child.
The client I am referring to here lives in a neat and very tidy home. Has great parenting skills. Is applying for university next year. Is very intelligent. No longer self harms. Has improved her mental health to the point one could argue it is no longer problematic. But under the current system no matter what she changes she will never be able to get her daughter back in her care. In fact the department thinks the child is better in a family where corporal punishment is the norm, leaving the child in the care of others for days on end is okay, and that the carers are aging and not able to provide the same care as her mother, is all in the best interest of the child.
The department is able to return to court and vary the order but are unwilling to do so. The client told me that she doesn’t care if the department remain involved she just wants her daughter back. But they don’t get it and I am left wondering, why? I sense that some of the people from the department, who have met my client, since I have been advocating for her, also are wondering what is going on here. But no one has the guts to challenge their workers decisions in the first instance, and more importantly no one has the guts to act in what is in the best interest of the child.
I have worked with some fantastic social workers at Families SA. It distresses me that the decision making process, which ultimately changes peoples lives for ever, is allowed to be made by inexperienced unequipped Social Workers. I know if some of these more experienced and capable Social Workers had been given this case that there would have been a different outcome.