Confidentiality in child protection cases

Confidentiality in child protection cases Who benefits and who loses?

Dr Frank Ainsworth and Dr Pat Hansen • Senior Principal Research Fellow (Adjunct), School of Social Work and Community Welfare, James Cook University, Townsville, QLD Guardian ad Litem, NSW Children’s Court • Head, School of Social Work, Australian Catholic University Lawyer, practicing part time in the NSW Children’s Court

The NSW legislation • The Children and Young Persons (Care and Protection) Act 1998

Protecting the reporter • Child protection legislation in all Australian states and territories protects the identity of a mandatory reporter ( s26) • The argument used to support this position is that a mandatory reporter has to be protected from harassment (or worse) by the perpetrator of CAN • The Children’s Court is a closed court and it can be argued that this is further protection for children and the CP authority

Protecting the child and family • It is an offence to name a child or family involved in a child protection case (s 105) • The argument used to support this position is that identification of either parents or children would be stigmatising • As a closed court the Children’s Court proceedings and the Child Protection authority are protected from scrutiny in the name of providing protection for the child and family

The rules of evidence • The rules of evidence do not apply in the Children’s Court, s93 • The argument used to support the removal of the rules of evidence was that the rules were allowing some parents to avoid a finding of CAN by relying on legal technicalities • One result of this removal is that material presented to the Court by CP caseworkers can and does include rumour and innuendo as well as significant inaccuracies

Protecting the CP authority • The question to ask is - does this legally sanctioned ‘secrecy’ conceal injustice? • Example: Re Georgia and Luke (No. 2) 2009 The judge found that the ‘CP caseworkers ‘were guilty of a serious abuse of power’ • Even though this was the case the parents are prohibited from identifying themselves and telling their story. This is not the case in Victoria.

Evidence by affidavit • In 2010, a Wood Report recommendation - CP caseworkers will submit material to the Court by report rather than affidavit. • To allow caseworkers to provide accurate information, rather than adversarial evidence • Does this downgrade quality and integrity of the materials that the Court relies on?

Who benefits and who loses (1) • Protecting a witness/reporter from harassment (or worse) is a long established legal principle • Different areas of law legal principles- right of an accused person to know the identity of their accuser, and to be dealt with fairly • In CP cases the first principle is followed the the second principle is not

Who benefits and who loses (2) • The first question to be asked is - who does the non-disclosure legislation, the Children’s Court as a closed court, the non-application of the rules of evidence and the removal of evidence by affidavit - benefit most? The CP authority or children and parents? • The second question to be asked is - who loses most from the non-disclosure legislation, the Children’s Court as a closed court, the non-application of the rules of evidence and the removal of evidence by affidavit? The CP authority or children and parents?

The other side of the coin • The CP authority collects vast amounts of information about children and families • Children and parents have no privacy or confidentiality – s 248, subpoena • The CP authority keeps information forever

What do you think? • Should everything stay as it is? • Should some things change? • And if change is needed what should change?

E-mail addresses • frankainsworth@hotmail.com • patricia.hansen@acu.edu.au

Confidentiality in child protection cases