The child protection system struggles to balance the needs of children at risk with the desire to keep families together. By Russell Marks.

The child and the state

Fifteen-year-old Jamie is arrested by police. It’s noon on a weekday in a town about two hours from Melbourne. She hasn’t done anything wrong. Not criminal, anyway, not this time. She’s already on a probation order – a criminal sentence – after she punched other kids last year. Police force her into the back of a divisional van under their general protective intervener powers, which authorise them to place a child in emergency care when they’re satisfied on reasonable grounds that the child is in need of immediate protection.

Police have arrested Jamie because she is also subject to a custody-to-secretary order. Under the order, Victoria’s Department of Human Services is legally responsible for her daily care and control. Months earlier, it successfully applied to the courts to remove her from the custody of her mother, Kerrie, and place her in foster care. Jamie’s child protection worker told me that the department had given Kerrie nine written warnings that it would seek custody of Jamie because they didn’t want her living in the same house as Kerrie’s partner, who has a conviction for sex offences. Kerrie ignored those warnings and the department took action.

Bewilderingly, Kerrie’s partner has by now been out of the picture for six months. Human services has no particular issue with Kerrie, and indeed has assessed her as an adequate parent.

Jamie doesn’t like living with her foster parents. Indications are that they’re kind, generous people who provide a good home. But it’s not Jamie’s home. She is a headstrong, fiercely independent young woman who has grown up too quickly. In that respect, she’s not alone in Victoria’s child protection system. Foster carers are increasingly rare, as the department prefers to place children in kinship care with extended family members.

At the time of her arrest, Jamie has been living with her boyfriend, 14-year-old Chad, in the living room of a house frequented by Kerrie. It’s not what anyone would call nice. Panels are missing from the front porch. The living room is dark and littered with sleeping bags and empty spirit bottles. It smells as if nothing’s been washed for months.

The department has what it calls “concerns” about Chad. Like Jamie, Chad has been involved in some low-level crime. Two of his older brothers are in prison after spending years on the youth detention merry-go-round. Jamie hasn’t been to school since they got together. 

Chad’s social worker, on the other hand, is pretty happy with his relationship with Jamie. For Chad, Jamie represents the best and only path away from what seemed to be the inevitability of following his brothers into the criminal justice system. Since she’s been around, he hasn’t offended. She helps him keep his appointments. 

As she had been the other times she’d been arrested, Jamie is taken to “secure welfare”. A magistrate, satisfied that she’s refusing to comply with the requirement that she live with her foster parents, had issued a warrant. 

There are two secure welfare facilities in the state, both in the inner north-west of Melbourne. Each facility has its own metropolitan transport service, but from Jamie’s town, the only way to Melbourne is in the back of a police van. It’s a three-hour trip. At the end of it she gets locked up.

Jamie thinks she’s being punished, but she’s mistaken: this is all for her protection. Baltara School, which is contracted to provide schooling to kids while they’re in secure welfare, proclaims that its “philosophical underpinnings” are based on a “therapeutic approach”, informed by “trauma and attachment theory”. Attachment theory predicts that people are likely to carry around as templates for all new relationships the kinds of relationships they formed as infants with their parents or significant caregivers. Victims of childhood abuse and neglect are likely to form insecure attachments, which they will unconsciously reproduce. 

Eminent US child psychiatrist Bruce Perry has concluded that the only therapeutic treatment that works is for the insecurely attached child to experience a long-term, stable, trust-based relationship. But DHS only has a child in secure welfare for a maximum of 21 days – 42 in exceptional circumstances. In practice, Jamie will be out in three days. Confusingly, the system tears traumatised kids away from the fragile support network they’ve scrounged together for themselves. “Crazy” is how one former child protection worker described the system. “We’re retraumatising traumatised kids, over and over and over again.”

Jamie’s child protection worker later explained to me that she’d lost contact with Jamie for a couple of weeks. This, it seems, was her basis for forming the view she was at “substantial and immediate risk of harm”, the only grounds on which a warrant application can lawfully be made. 

Jamie hates her human services department workers, and considers it a victory when she gives them the slip. But the department is in a difficult position: either it acts in such cases, leaving it open to accusations of heavy-handedness, or it doesn’t.

1 . A troubling truth

When 15-year-old Krisinda Smart died of a heroin overdose in a St Kilda flat in January 2008, the department had acted, often, but not when it counted. I worked briefly on Krisinda’s inquest and will only include here information publicly available. There had been 47 separate secure welfare warrants over the previous year and a bit, but when Detective Senior Sergeant Darren Naisbitt found Krisinda four days before her death, high, with a stolen wallet and in the company of a 29-year-old man, he declined to exercise his protective intervener powers. At the December 2012 inquest, Naisbitt – no longer in the police force – said he probably would have acted “if she’d been a nice girl from Brighton”.

During the two years the department had responsibility for Krisinda it never enrolled her in school, despite the fact that each time she visited her father in South Australia she not only attended school but did well. The department decided far too late to cease reunification plans with her mother, who had allegedly introduced Krisinda to illicit drugs and street prostitution. 

Out of the inquest emerged a deeply troubling truth: had everyone in the child protection system fulfilled their responsibilities, then Krisinda may have survived, at least on that occasion. But her extremely risky lifestyle meant that nobody could guarantee that she’d still be alive.

2 . Not doing enough

Dave is a former child protection worker who still works with vulnerable teenagers. He believes we’re not doing nearly enough to protect children. Having worked with many of Victoria’s toughest cases over the past two decades, Dave is cynical about the department’s emphasis on family reunification. Of all the alternatives, he notes it’s the one with the least impact on the bottom line. 

In Dave’s view, the emphasis on reunification is obscuring the department’s duty to act in the best interests of the child. “Sorry,” he said of parents, “but if you can’t get off the gear, get yourself some counselling, some sort of help. If you can’t demonstrate that you can be an adequate parent after six months, then you don’t have any claim on a child. Just because you gave birth to one doesn’t mean you have a right to fuck up their life. Having a child is a privilege, not a right.”  

The best interests of the child. It’s a mantra at the department, the phrase taken from the international Convention on the Rights of the Child, which Australia ratified in 1990. Victoria’s Children, Youth and Families Act 2005 is built on the convention, as is equivalent legislation in other states and federally. The phrase is supposed to inform every intervention by governments in the lives of children.

It’s an aspiration, mostly. We get nowhere near it when, for instance, we keep children seeking asylum in immigration detention, or when we lock 16-year-old Aboriginal boys in solitary confinement in adult prisons for 100 days, as happened in Victoria in 2012. We don’t score very well on the “best interests” test, either, when we leave children in high-risk family environments, or subject traumatised and neglected kids to countless short-term placements.

Some observers suggest that the whole-of-government trend towards the outsourcing of specialist services has had particular effects on children caught up in Victoria’s protection system. During the 1990s, residential units and other out-of-home care alternatives were outsourced to charities and other non-government organisations on the theory that they could do the work better. But as Dave points out, competitive tendering drives cost-cutting and undercutting, with the result that needy children are not being looked after to anywhere near the extent necessary to produce a safe environment for them. 

For Dave, there’s a fundamental confusion at the heart of the department. Is it trying to make budget, is it trying to keep families together, or is it trying to ensure the adequate protection of children’s interests? Statutorily it’s supposed to be the latter. Ideally goals overlap. But when they don’t, Dave maintains that neither the department nor the courts are clear enough about their overarching duty to the child.

3 . Targets take precedence

In one of several scathing reports tabled in the past five years, then Victorian Ombudsman George Brouwer found that “a practice has developed where the drive to meet numerical targets has overshadowed the interest of children despite evidence that they may be at risk.

“The managers deny this,” Brouwer added, “however I consider that the evidence speaks for itself.” 

The department, of course, is in an exquisitely difficult situation. For every Jamie, for whom the child protection system is using a sledgehammer to crack a small nut, there’s a Krisinda whom the system failed through powerlessness and incompetence. But the big issue is consistency: if a child is to be kept at home, this decision must be permanent; if, like Jamie, they are to be put in foster care, there needs to be certainty that this will not create more instability. New South Wales is making some ground on this issue. New legislation will make it very difficult to reverse a decision to remove a child once it has been made. The incoming regime is guided by strong principles: “Child safety, attachment, wellbeing and permanency.”

Those values cannot be said to have been applied to Jamie. Earlier this week I asked her how she was. “I’m good thx,” she replied via text message, “but i think dhs is lookin for me again.”

Names have been changed.

The online version of this article was edited on May 30, 2014. An earlier version of this article may have given the impression that Baltara runs the secure welfare services. That is not the case. Baltara is contracted to provide schooling to children while they're in DHS-run secure welfare facilities.

This article was first published in the print edition of The Saturday Paper on May 3, 2014 as "The child and the state".

A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.

Russell Marks is an honorary associate at La Trobe University.