HOW PARENTS WITH DISABILITIES ARE DISCRIMINATED AGAINST IN THE VICTORIAN CHILD PROTECTION SYSTEM
By Bianca Failla
I. INTRODUCTION
Australia has anti-discrimination legislation to ensure that the human rights of people with disabilities are respected, and to enable people with disabilities to be provided with equal opportunities and equal rights.
However, despite it being unlawful for discrimination to occur on the basis of one’s disability, people with disabilities continue to face discrimination and barriers which preclude them from participating in society on an equal basis, as individuals without disabilities. For those who are parents who have children involved in the Victorian child protection system, the negative attitudes and discriminatory treatment that they face by child protection services, such as the Department of Health and Human Services (DHHS) and government agencies such as the Victorian Children’s Court (the VCC) and Court Services Victoria (CSV), may be a larger stumbling block to their parenting than the disability itself.
In Victoria, the law says that a child or young person at risk of harm must be protected by the child protection system.[1] The law also says that in order to determine whether a decision or action is in the best interests of a child, consideration must be given to providing the widest possible protection and assistance to the parent and child, as the fundamental group unit of society, and to ensure that intervention into that relationship is limited to what is necessary to secure the child’s safety.[2]
However, it is apparent that in some situations, consideration of what may be in the best interests of a child who has a parent with a disability is not always taken into account, as it is more difficult for parents with disabilities to regain care of their children due to the discriminatory treatment that they experience.[3]
This paper will argue that parents with disabilities are scrutinised more closely and are discriminated against by the DHHS.[4] Parents with disabilities are often judged on their inability to parent before they are provided with an opportunity to learn new skills.[5] They are also expected to demonstrate that they have capacity to safely care for their children in educational settings which do not accommodate for their disabilities or learning needs.[6]
Many parents with disabilities are also not provided with adequate individual support from the DHHS’ Child Protection Practitioners, who are assigned the role of managing their child protection cases, due to the time constraints associated with assisting parents with disabilities.[7] There is also a lack of support services for people with disabilities referred by the DHHS to help parents address the protective concerns in relation to their children, which ultimately prevents family reunification from occurring.[8]
II HOW PARENTS WITH DISABILITIES ARE DISCRIMINATED AGAINST
A. Failure to Provide Accessible Information
One area in which government service providers engage in discrimination is in the manner and format that they provide information, or when they fail to provide information.[9] For example, Child Protection Practitioners employed by the DHHS do not provide all parents with information resulting from statutory intervention due to not having documentation available to them in alternative formats.[10] This issue affects individuals with vision impairments who may require information to be provided in braille or in an audio format, and individuals with cognitive disabilities, who require information to be provided in plain English.
An example of this issue was raised by a father with a vision impairment who reported that when he received information from his Child Protection Practitioner, which related to the reasons why he was being investigated by the DHHS, the information was provided to him in an illegible format.[11] The information was in size nine font on coloured paper which the father was unable to read, and the Child Protection Practitioner did not offer to provide the information to him in an alternative format to accommodate his disability.[12]
Some Child Protection Practitioners have also conceded to not providing the DHHS’ ‘Information for Parents’ sheets which discusses the child protection process, to parents with vision impairments as they are unable to read them.[13] Court orders and information on the legal process produced by the VCC and delivered by CSV are also not available in appropriate formats for parents with disabilities, leaving parents reliant on others to explain documents to them.[14]
Additionally, court reports produced by the DHHS are often not made available until the day before or on the morning of court hearings, (despite being court ordered to be provided three days prior to the hearing).[15] This leaves parents with disabilities at a disadvantage as individuals with intellectual disabilities are unable to have the information properly explained to them.[16]
An example of where the DHHS had failed to comply with its statutory duty to produce a copy of their court report by a required deadline was highlighted in the case of DOHS v Mr D & Ms W,[17] under the heading, ‘DOHS’ Disgraceful Ignoring of the Father’. In this case, former Magistrate, Peter Power made it clear that the DHHS had failed to comply with its statutory obligations under the Children Youth and Families Act 2005 (Vic) (CYFA), by not serving the father with a copy of the court report until the day of the hearing.[18] Furthermore, similar issues have also been identified by other VCC Magistrates, who often express frustration at the lack of compliance by the DHHS with court procedures, which often disadvantage families in the child protection system.[19]
The failure to provide parents with disabilities with information in alternative formats to accommodate their disabilities or by required deadlines is a form of indirect discrimination or a failure to provide reasonable adjustments, as parents are left at a disadvantage due to not being provided with necessary material to understand the legal process, their rights in their child protection case and their ability to respond to allegations is diminished compared to parents without disability who have access to these materials.[20]
B. Negative Attitudes Linked to Disability
An additional issue that is apparent for parents with disabilities, is that their parenting is scrutinised more strictly by Child Protection Practitioners because of their disability.[21] This is a form of direct discrimination which often occurs because Child Protection Practitioner’s form views that abuse or neglect of children will inevitably occur because the parent has a disability.[22] Similarly, some Child Protection Practitioner’s also have a tendency to form views that parents with disabilities are unable to learn new parenting techniques or comprehend information to help safely parent their children because of their disability.[23]
For example, one parent in Victoria with sensory disabilities, reported that DHHS staff did not provide him with information due to their perception that he did not have capacity to understand the information.[24] When this issue was recognised by a Children’s Court Magistrate, who questioned why the Child Protection Practitioner had not informed the parent of the DHHS investigation and court processes, the Child Protection Practitioner indicated to the court that it was because the parent ‘didn’t have a full brain'.[25]
The negative perceptions of people with disabilities was also recognised by Victoria Legal Aid, who have recently produced submissions which support the view that the parenting capacity of parents with mental health issues in the child protection system is often presumed to be low, or prejudged notwithstanding some mental health issues being episodic.[26]
Parents have also reported that because they have a disability, the DHHS has recommended limiting their contact time with their children. For example, one parent reported that her Child Protection Practitioner believed that the contact time with her child should be reduced on the basis that the practitioner believed that because she had a disability, she was incapable of experiencing emotions such as attachment or grief.[27]
Child Protection Practitioner’s also appear to mislead the VCC with their information when assessing risks to children in court reports when a parent has a disability.[28] This issue has also been recognised by family members of parents with disabilities who reported that the evidence provided in the DHHS court reports which indicated whether the parent is likely to neglect the child in the future is often taken out of proportion, exaggerated and sometimes incorrect information is recorded often due to the parent having a disability.[29]
One reason why parents with disabilities are discriminated against by Child Protection Practitioners may be due to the lack of education that is provided to DHHS staff in relation to working with people with disabilities. This issue has also been recognised by Child Protection Practitioners who have disclosed that they are provided with no training on working with parents with disabilities during their induction training with the DHHS.[30]
The DHHS also publishes information which may be viewed as discriminatory on its Child Protection Manual (CPM). For example, while mandatory reporting of child abuse and neglect does not apply to women who are considered to be a risk prior to giving birth, the DHHS has published advice in the CPM, on the practice requirements and guidance to the public for reports of unborn children.[31] The information advises people that an appropriate circumstances where a report about an unborn child should be made to DHHS is where a mother has an intellectual disability or mental illness which is likely to affect her capacity to care for the child, or impact on the child’s safety.[32] The Office of the Public Advocate has stated that the publication of this information has created an expectation that where a pregnant mother has an intellectual disability or mental illness, she should be reported to the DHHS.[33] This negative treatment is discriminatory as it implies that the mothers with an intellectual disability or mental illness are unable to properly care for their children before they are even provided with the opportunity to parent.
C. Insufficient Support Services
Service providers are required under anti-discrimination law to provide reasonable adjustments to people with disabilities in the provision of providing a service.[34] An adjustment is something that the service provider does to make sure that the parent with a disability has the same opportunities as a parent without a disability.
For example, Child Protection Practitioners would be required to refer and provide support services to parents with disabilities which cater to their disabilities and they would also need to ensure that they provide adequate individual support to a parent with a disability, to enable them to have the same opportunities in addressing protective concerns in relation to their children, as a parent without a disability.
However, despite the requirement to provide reasonable adjustments to people with disabilities, VCC’s Magistrates have recognised that parents with disabilities have had difficulties in obtaining support services that could assist them in their child protection cases.[35] The reason for this problem is because there is a lack of support services provided by the DHHS which specifically caters for parents with disabilities, and for those that are offered, they are only offered on a short term basis.
The lack of support services provided to parents with disabilities may be a form of indirect discrimination or discrimination on the basis of the failure to make reasonable adjustments, as parents with disabilities often receive negative parenting assessments from support services which are not catered to their needs and do not allow them to properly learn new skills.[36]
D. Duration of Support Provided
However, many of the support services referred by the DHHS do not cater to the needs of parents with disability as the time that they expect parents to learn new information or parenting skills is limited.[39] This issue is a also a form of indirect discrimination or a failure to provide a reasonable adjustment as some parents with disabilities require additional time to learn new parenting skills to pass their parenting assessments.[40]
E. Individual Support Provided by Child Protection Practitioners
A further example of how parents with disabilities are not provided with reasonable adjustments in the child protection system can be seen in the lack of individual support provided to them by Child Protection Practitioners due to the time that is required to work with them, due to the nature of their disability.[41]
Child Protection Practitioners have also confirmed that they are unable to provide individual adequate support to parents with disabilities due to not having the skills and time to provide them with assistance.[42] Child Protection Practitioners have also indicated that they struggle to allocate the time required to support parents needing more intensive support and that due to this issue some families do not receive the support required that may enable them to keep children in their care.[43]
However, the lack of individual support provided to parents in the child protection system also appears to be an international issue.[44] For example in England, it was reported that a child protection worker stated that they believed that an issue which was, ‘not so talked about’ is that child protection staff, ‘don’t get on with people with disabilities’ and they ‘don’t like working with them because of the time they take, and they do take time’.[45] Another child protection worker also stated that child protection staff in England are not always in a position to provide support to parents requiring too much time and that this is even worse for people with learning disabilities as, ‘what takes ten minutes for someone without learning disabilities can take an hour, sometimes longer’.[46]
Child protection workers in England also stated that they are under pressure to rush things through the system, and that because of this, work is not always completed which ultimately disadvantages families.[47] It is highly likely that this is also the case in Victoria due to the recent complaints made about the DHHS by its staff members.[48]
For example, in May 2018, a Senior Child Protection Practitioner, Ms Eileen Canford sued the DHHS for breaching an agreement that prevented staff from working long hours.[49] Ms Canford alleged that senior management at the DHHS ignored her complaints about her team’s unmanageable caseload and excessively long shifts, and claimed that there was a risk that vulnerable children and families could be harmed as her staff were unable to follow up on their child protection cases.[50]
III WHEN A GOVERNMENT FUNCTION CONSTITUTES A SERVICE
In Victoria it is unlawful for service providers to discriminate against people with disabilities by refusing to provide them with a service, or in the manner in which the service is provided.[51] The definition of goods and services includes services provided by government departments, such as the DHHS, VCC and CSV.[52] However, there is uncertainty around whether an activity of a government agency may constitute a service, if the activity in question is being provided in line with a statutory duty.[53]
In IW V City of Perth[54] the Perth City Council rejected an application for town planning approval for a centre for individuals with HIV. Although this case did not find that the council was providing a service, members of the court, made it clear that there could be situations where the performance of a statutory duty can be held to be providing a service.[55]
If parents have been subjected to discriminatory treatment by the DHHS, CSV or the VCC, and they wish to argue a case of disability discrimination, they must first show that the service that was being provided to them, directly related to the facts of their case.[56] This requirement was highlighted by McHugh J in Waters v Public Transport Corporation (Waters),[57] when it was made clear, that in determining whether a respondent has refused to provide a service to a complainant, it is necessary to identify what service has been refused by the person and what service the alleged discriminator provides.
Secondly, parents must show that the service being provided was directed towards them. However, they are not required to establish that the service was solely being provided to them.[58] This requirement was emphasised in Falun Dafa Association of Victoria v Melbourne City Council,[59] when the Falun Dafa Association (FDA) argued that by staging a Moomba Parade, and by making decisions on who could attend, the respondent council was providing a service to more than one person, including participants and potential participants.[60] Furthermore Bowman J agreed with the FDA’s submissions on the point that the provision of services can be provided to more than one person or groups of people.[61]
Parents should also be aware that the mere fact that a service is not provided on one occasion, will not indicate that there has been a refusal of a service, if the respondent can show that they took all necessary steps to provide the service.[62] For example, in Ball v Silver Top Taxi Service,[63] the court found that the Silver Top Taxi Service (the respondent) did not discriminate against the applicant because they had failed to make a booking for a wheelchair accessible taxi.[64] The reason for this was because the respondent was able to show that it did everything in its power to dispatch an appropriate taxi on the day that it was requested, and because it dealt with the applicant’s booking no differently than it would have if the applicant did not have a disability.[65]
Similarly, Moore J also made it clear in Wood v Calvary Health Care Act Ltd, [66] that service providers will not be found to have refused a service in the event that they are temporarily unable to provide a person with the service. This point was made when the court found that the applicant had not been refused a service, when she was initially refused to be provided with healthcare due to her past drug use and behaviour, as the service was temporarily closed due to new customers and staff shortages.[67]
A delay in providing a service or making a facility available will also not be considered to be a refusal of a service or a failure to provide a service. For example, in King v Gosewich,[68] the applicant claimed that he had been discriminated against on the basis that the respondent provided a meeting 40 minutes late (as it had to be transferred from the second floor of a building to the ground floor of a building) was not a refusal to provide a service.[69]
Parents must also show that the alleged discrimination from the government agency relates to an operational decision or the exercise of statutory discretion,[70] and provides them with a benefit.[71] For example, in Rainsford v State of Victoria,[72] Sundberg J explained that in order for complainants to establish that the activity of a government agency constitutes a service, they must show that the service that they are receiving is beneficial in nature and confers a benefit to them.[73]
Parents who wish to argue that they have been discriminated against in the child protection system may argue that because the DHHS offers services and works with parents to improve their parenting capacity and skills to address protective concerns in relation to their children, the services provided to parents are beneficial in nature.
Additionally, if parents with disabilities wish to argue that the VCC or CSV have discriminated against them due to failing to provide them with accessible information or court orders, they may also have capacity to argue that services provided by VCC and CSV also provide a benefit to them as their services provide court users with access to legal information and documents which can assist them in understanding their rights in the legal process.
However, parents who wish to argue claims of discrimination against the DHHS, should note that there is uncertainty around when government agencies performing a statutory duty are subject to anti-discrimination law. However, in Commissioner of Police v Mohamed,[74] the court made it clear that while the investigation of complaints and the protection of people may constitute a service by police, this did not extend to later stages of an investigation and decisions about whether to prosecute.[75] Therefore, the law may not cover parents who have been discriminated against when the DHHS is conducting later stages of their investigations or making decisions on whether to lodge Protection Applications in relation to a child. However, parents may argue that all actions carried out during the intake, voluntary engagement, protective order and early stages of the investigation phase conducted by the DHHS, may be covered by anti-discrimination law.
IV CONCLUSION
In conclusion, although Australia has implemented legislation to ensure that unlawful discrimination of people with disabilities does not occur, there are many situations where parents with disabilities continue to experience discrimination in the Victorian child protection system.
Government agencies such as CSV, the VCC and predominately the DHHS are failing to provide individuals with disabilities with reasonable adjustments to accommodate their disabilities. Child Protection Practitioner’s also discriminate against parents with disabilities, by holding incorrect assumptions relating to disability and by failing to provide parents with the support and information that they require to ensure that can address the protective concerns in relation to their children. It is clear that this discriminatory behaviour may be due to a lack of education and training around disability and discrimination law, but what is clear, is that more work needs to be done to ensure that Child Protection Practitioners are not ignorant to the requirements of parents with disabilities as they are an already vulnerable group in society.
CSV and the VCC are arguably the gatekeepers of the legal process. For this reason, it is imperative that these agencies ensure that they are providing necessary legal information in alternative formats to ensure that parents with disabilities understand their legal rights and are not left being disadvantaged in the legal process.
Furthermore, the potential exists for complaints of disability discrimination regarding child protection services offered to parents where it may be shown that a parent has experienced less favourable treatment based on their disability. If a parent can establish that the service that they are provided with is beneficial in nature and does not include later stages of an investigation then it is likely that the conduct of the DHHS, CSV and the VCC may be caught within the ambit of anti-discrimination law.
[1]Children, Youth and Families Act 2005(Vic) (CYFA) s 162 (1)
[2]CYFAs 10(3)(a).
[3]Barbra Carter and Kate Fitt, ‘Child Protection’ Disability Advocacy Resource Unit(speech, 23 May 2017)< http://www.daru.org.au/resource/child-protection>. Alister Lamont and Leah Broomfield, ‘Parental Disability and Child Protection: Key Issues’, Australian Institute of Family Studies, (journal article, December 2009)< https://aifs.gov.au/cfca/publications/parental-intellectual-disability-and-child-protection-key-i>. Phillip Swain and Jonathon Goodfellow, Pride and Prejudice; A Snapshot of Parents with Disabilities Experience of the Child Protection System in Victoria(Disability Discrimination Legal Service Inc, 1sted, 2002) ii.
[4]Ibid.
[5]Phillip Swain and Jonathon Goodfellow, above n 3.
[6]Tim Booth and David McConnell, ‘Temporal Discrimination and Parents with Learning Difficulties in the Child Protection System’, 36(6) British Journal of SocialWork1004.
[7]Kate Fitt, ‘Our Forgotten Families: Issues and Challenges Faced by Parents with Disabilities in Victoria’, (Parents with a Disability Community Network, 1sted, 2010) 26.
[8]Rosemary Shehan, ‘Magistrates’ decision-making in child protection cases’(Ashgate Publishing, 1STed, 2003) 1004.
[9]EOAs 44; DDAs 24.
[10]Swain and Goodfellow, above n 3, 45.
[11]Swain and Goodfellow above n 3, 46.
[12]Children’s Court of Victoria, Coloured Minute Forms (web page, 17 January 2020)< https://www.childrenscourt.vic.gov.au/forms/child-protection-forms/coloured-minutes-forms>.
[13]Swain and Goodfellow above n 3, 64.
[14]Swain and Goodfellow above n 3, 85
[15]Victoria Legal Aid,Child Protection Legal Aid Services Review (Victoria Legal Aid, September 2017) 37. Swain and Goodfellow above n 3, 88.
[16]Ibid.
[17][2009] V ChC 1.
[18]DOHS v Mr D & Ms W [2009] V ChC 1.
[19]Rosemary Sheehan, Above n 8, 130.
[20]Swain and Goodfellow, above n 3, 88.
[21]Swain and Goodfellow, above n 3.
[22]Ibid.
[23]Swain and Goodfellow, above n 3, 17.
[24]Swain and Goodfellow, above n 3, 46.
[25]Ibid, 46
[26]Victoria Legal Aid, ‘Intersections between Mental Health and the Legal System and the Impacts for People and Communities’ (Submission, Productivity Commission’s Inquiry into the Economic Impact of Mental Ill-health, April 2019) 10.
[27]Katt Fitt, above n 7, 27
[28]Ibid.
[29]Ibid.
[30]Swain and Goodfellow, above n 3,69.
[31]Barbra Carter, ‘Rebuilding the Village: Supporting Families where a Parent has a Disability’, Office of the Public Advocate(Report, 2015) < https://www.publicadvocate.vic.gov.au/our-services/publications-forms/327-rebuilding-the-village-supporting-families-where-a-parent-has-a-disability>; Department of Health and Human Services, ‘Child Protection Manual’ (manual, 2 January 2019)<https://www.cpmanual.vic.gov.au/advice-and-protocols/advice/intake/unborn-child-reports#h3_1>
[32]Ibid.
[33]Barbra Carter, above n 32.
[34]EOAs 44; DDAs 24.
[35]Rosemary Shehan, above n 8, 100.
[36]Swain and Goodfellow, above n 3, 17.
[37]Centre for Parent Information and Resources, ‘Intellectual Disability’, (web page, 16 June 2017) < https://www.parentcenterhub.org/intellectual/> .
[38]Ricardo Caceda and Charles Nemeroff et all, ‘Toward an Understanding of Decision Making in Severe Mental Illness’, Neuropsychiatry Online(journal article, 2014)<https://neuro.psychiatryonline.org/doi/pdf/10.1176/appi.neuropsych.12110268>.
[39]Swain and Goodfellow, above n 3, 17.
[40]Ibid.
[41]Barbra Carter, above n 32.
[42]Barbra Carter, above n 32, 16.
[43]Swain and Goodfellow, above n 3, 60.
[44]Tim Booth and David McConnell, above n 37, 1001.
[45]Tim Booth and David McConnell, above n 37, 1001.
[46]Tim Booth and David McConnell, above n 37, 1002.
[47]Tim Booth and David McConnell, above n 37, 1002.
[48]Miki Perkins, Child Protection Staff Routinely Overworked: Legal Claim, The Age Newspaper(newspaper article, 1 April 2019)< https://www.theage.com.au/national/victoria/child-protection-staff-routinely-overworked-legal-claim-20190401-p519pf.html>.
[49]Ibid.
[50]Miki Perkins, above n 55.
[51]EOAs 44(1)(a)(b)(c); DDAs 24(a)(b).
[52]EOAs 4(1); DDAs 4(1).
[53]Beth Gaze and Belinda Smith, Equality and Discrimination Law in Australia: An Introduction(Cambridge University Press, 1sted 2017) 154.
[54](1997) 191 CLR 1, 11.
[55]IW V City of Perth (1997) 191 CLR 1, 43-44.
[56]Waters v Public Transport Corporation (Waters) (1991) 173 CLR 349, 404-405.
[57]Ibid.
[58]Falan Dafa Association of Victoria v Melbourne City Council[2003] VCAT 1955, 36.
[59][2003] VCAT 1955.
[60]Falan Dafa Association of Victoria v Melbourne City Council[2003] VCAT 1955, 21.
[61]Ibid.
[62]Ball v Silver Top Taxi Service [2004] FMCA 967.
[63][2004] FMCA 967.
[64]Ball v Silver Top Taxi Service [2004] FMCA 967.
[65]Ibid.
[66][2006]155 FCR 489, 497, 28.
[67]Wood v Calvary Health Care Act Ltd [2006]155 FCR 489, 497, 28.
[68]King v Gosewich[2008] FMCA 1221.
[69]Ibid.
[70]IW v City of Perth(1997) 191 CLR 1, 15;NSW Police Service & Ors(2001) 6(1) AILR 75, 173 – 174.
[71]Francis Simmons, ‘When is performing a government function a service?’ (2008) 46(2) Law Society Journal (2008)1.
[72][2007] 1059, 77.
[73]IW v City of Perth(1997) 191 CLR, 11andRainsford v State of Victoria(2007) 167 FCR , 73.
[74][2009] NSWCA 423.
[75]Commissioner of Police v Mohamed[2009] NSWCA 432, 36 and 38.
