Moving to a restorative and relationally based child protection system in the ACT Fiona Tito Wheatland & Mary Ivec (Australian National University) [email protected]and [email protected]The Office of Children, Youth and Family Services in the ACT Government’s Community Services Directorate is consulting at the moment on strategic directions for child protection services for 2015D 2020. While the consultation paper contains a list of aspirational ideas, these do not clearly articulate the existing problems and/or needs that the ideas being proposed are trying to address. Costings, background, benefits of the approach, assumptions behind the ideas are silently absent. The consultation period has been very short and haphazard, and there have been no broader facilitated consultations with the broader community. Significant and far reaching changes are implied in the proposal which have enormous implications for children above all, but also their birth and carer families, and for service provider agencies. There are also large financial risks to Government, to service provider agencies and carers. Many of the problems with the current system are deepDseated cultural and attitudinal ones, particularly within Child Protection Services (Attachment A: Tito Wheatland/Ivec Public Submission in response to the OOHC Strategy includes a critique section with examples of some of these problems with which there is widespread agreement.). Change which is truly transformative has to begin with cultural and attitudinal change. Beginning with engagement, developing webs of dialogue that feed into loopDlearning. Change occurs through an onDgoing iterative process, where small steps are taken towards establishing clearly defined goals, principles and articulated values. None of the processes currently under way mirror this way of working. As a consequence of this, the proposals thus far appear as a grab bag of ideas – some of which may have merit. However, they implicitly and explicitly involve fundamental changes to the funding and structure of the child protection system and shift in parenting responsibility for the Territory’s children and do not respond to the experiences of most parties in the current system. The widely recognised problems of lack of transparency of processes, the lack of reviewability and accountability in decisionDmaking, the lack of publicly available policies and procedures are not addressed. In fact, the paper calls for more flexibility and in a low trust system this is likely to simply involve greater injustice. There is a real risk that without more thoughtful and facilitated public consultations and Government consideration, we will be doomed to once again, repeat these mistakes. The proposals are supposed to lead to a more traumaDinformed system – a welcome approach for all currently involved. Yet, the paper is completely silent on how the massive unmet need, which already exists in this sphere, will be met. The proposals say that more children will stay with their families. However, it is difficult to see how this will occur safely for children and young people with the existing absence of appropriate services for families at risk and with complex needs. What we see is that families with support needs are coming to the attention of statutory services What we currently have is an adversarial system, which is in controlD and regulatory overDreach and care underDreach. The first step must be to connect with all interested parties in the community, engage in public dialogue and conversation, bringing all parties to the table, not in a two week period prior to budget but in an organised and planned way. We need to discuss and come to agree on shared goals and shared meanings of what is being proposed. Only in this mutually respectful way can there be a building up of trust, based on commitment and good will to move forward together. Given that ‘child protection is everyone’s business’, surely this is not an unreasonable request. We need to develop a 1 June 2014 1
restorative justice, we looked for options which were based on the acknowledgement that,
at our core, human beings are relational beings. All human being exists in relationship,
through connections to others. We are genetically primed to relate and our well-being
depends on this. A restorative approach acknowledges the web of relationships in which
people live. The centrality of relationships, our connectedness to one another, becomes the
most important driver in a restorative approach. As Jennifer Llewelyn, Professor of Law at
Dalhousie University and a leading person in the Nova Scotia Restorative Justice Community
University Research Alliance has said:
Attention to the multiple and intersecting relationships in which we live makes clear the ways in which wrongdoing causes harm not only to the individuals involved but also to the connections and relationships in and through which people live.1
This relational approach to intervention and action:
“directs the focus to the relationships between and among the parties involved2
with the starting point grounded in the African philosophy of ubuntu – ‘we live in and
through relationships with others’. There were many examples quite close to the ACT, and
indeed, already operating in the youth justice program within the ACT.
New Zealand experience
As part of the development of our own thoughts on these issues, we were invited by Paul
Nixon, Chief Social Worker, Child, Youth and Family, Ministry of Social Development (New
Zealand) and Professor Jennifer Llewellyn to an International Exchange of Ideas held at the
end of March 2014, in Whanganui New Zealand. Hosted by the Whanganui Restorative
Practices Trust3, the Trust’s mission is for Whanganui to become New Zealand’s first
restorative city, following in the path of Hull and Leeds in the UK and Halifax, Nova Scotia in
Canada.
The Trust aims to promote and encourage the Whanganui community to take up the
concept of restorative practice by:
building and repairing relationships – being respectful, and understanding the impact of our behaviour (both positive and negative)
empowering individuals, teams and work communities, so that groups build confidence and control over their lives and school/work activities
mutual accountability – everyone takes responsibility for their own actions, and repairs harm they may have caused others
1 Llewellyn JJ. Archibald BP. Clairmont D. Croker D. Imagining success for a restorative approach to
justice: implications for measurement and evaluation. 2013 Dalhousie Law Journal, volume 36, page 297.
2 Ibid at page 301.
3 For further information, see http://www.restorativepracticeswhanganui.co.nz/whanganui-restorative-
shared responsibility – by working together, building on the knowledge, skills and resources of the family, the group and the community
outcome and solution focused – basing all action on the focus of a good end result
The Trust’s work has been encouraged and strengthened by the support of an international
network led by Professor Jennifer Llewellyn from Dalhousie University and Nova Scotia’s
Restorative Justice Community University Research Alliance (NSRJ-CURA). Financial support
from the NZ Ministry of Social Development has also contributed to the development of the
Trust’s work.
The Maori welcoming ceremonies were immensely moving and powerful, leaving a tangible
feeling of people connecting at a deeper level and wanting to work together in authentic
partnership. The conference program offered many wonderful opportunities for dialogue
and sharing of practitioners’ and community stories. Co-facilitators from across New Zealand
were joined by a delegation from Nova Scotia, Canada. Australian participants from
Tasmania, Queensland, Northern Territory and Canberra made up some of the 150 people
gathered. Through the various workshops, restorative approaches in areas of human rights,
family violence, elder abuse, youth justice, schools, recovery and trauma, Indigenous
approaches to restorative justice and leadership were covered.
Key principles of restorative approaches discussed at the Conference included ensuring that
decisions are taken as closely as possible to the citizen,4 inclusion, participation,
communication, being forward-focused, solution focused and restoring relationships into
the future.5
Jennifer Llewellyn’s keynote address6 highlighted some critical issues for what it means to be
a restorative community. Communities needed to start with the questions that were the
most fundamental such as:
who we are and what it is we need from one another and within institutions, organisations and systems that structure our lives in the community. Otherwise restorative practices cannot make the difference we hope for, cannot be the answers we need. How we talk about things structures the way we think about them. And how we think about and understand what we’re doing affects what we do and how we do it. It’s about changing much more than simply shifting the furniture around. [At the core is building a] shared understanding of the city, of the relationships that can bring you into common conversation and about how to work together to secure the common visions. [It’s about a learning community that supports each other and fosters on-going learning. The ] strategic plan should be an ongoing commitment to a way of
4 This is termed “subsidiarity” in the literature :Ibid at 302.
5 Ibid at 304.
6 Llewellyn JJ. Conference Keynote Address, Towards A Restorative City Conference, 28 March 2014,
Whanganui, New Zealand.
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approaching your work together, as much about how you recognize and strive to address the harms of the past and present. A restorative approach can help us ask and keep asking the right questions so that we can seek the answers together.
Perhaps one of the most challenging messages we brought back with us was that a
restorative approach centred on relationship, was actually about how we all live and relate
day-to-day. How we talk to each other, our children, our neighbours and strangers and how
we hear what the other person is saying, are just as important as getting restorative
approaches in place when things go wrong. This is a particularly important lesson in the ACT
child protection space.
The conference brought people from around the world and across the Whanganui and
broader New Zealand community to learn from each other. It also built on New Zealand’s
existing strength in restorative justice approaches and restorative conferencing models.
These developments were significantly influenced by Maori community practices. The
application of restorative approaches is well established in New Zealand in child protection,
youth justice, educational settings, and continues to expand.
The broad and inclusive engagement of the local community in the conference and in the
building of a restorative city also enacted the restorative approach. The New Zealand
indigenous Maori people were strongly present, as were their ceremonies and language.
People from all walks of life came – teachers, youth workers, business people, school
children, prison officers, Maori leaders, politicians, local government officers, mental health
workers and many more. In the words of Gerald Hashey, from the Nova Scotia Human
Rights Commission, a restorative approach is “grass roots expansive”. To see the mutual
respect and relationship building in action was very inspiring.
NSW Family and Community Services Practice First
The genesis of the NSW FaCS Practice First initiative was a Churchill Fellowship undertaken
by Kate Alexander who sought to look at the best ways to support and encourage quality
practice in the front line of child protections systems. The report of that Fellowship stated,
in its executive summary that:
Relationship-based practice is the critical factor in working with families successfully. Systems must be designed in recognition of this fact, making sure workers have the requisite skills, time and support to form positive relationships that are built on shared goals about the safety and wellbeing of children.7
Kate’s research led to the in-house development of an innovative pilot reform project called
Practice First. Practice First focuses on building responsive relationships with families and
has three components:
7 Alexander K. To look at child protection systems in England, Norway and the USA with a focus on
supporting and inspiring frontline practice. Churchill Fellowship Report. Report to the Winston Churchill Memorial Trust of Australia, 2009: page 3.
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culture – we apply best practice principles rather than comply with tools and adhere to structure
people – we work in teams, defining roles clearly and emphasising leadership; skill development is ongoing
systems – we build systems that give legitimacy to family work, reduce the administrative burden on caseworkers and share risk and decision-making across teams.
The 10 foundation principles that underpin the Practice First system are designed as a
framework for practice in the NSW context. It consists of 10 foundation principles, drawn
from international best evidence. They consist of “core values and wisdom”, not a
comprehensive model. This provides flexibility within a principled vision. These are:
1. Ethics and values are integral to good practice.
2. Families have a right to respect.
3. An appreciation of context strengthens practice.
4. Language impacts on practice.
5. Good practice is built on both knowledge and skills.
6. Practitioners do best in a culture that fosters learning, hope and curiosity.
7. Reflection leads to better outcomes.
8. Sharing of risk leads to better decision making.
9. The quality of the relationships makes a significant impact on effectiveness.
10. Relationships have a cascade effect.
Practice First was first piloted in two sites, then trialled across NSW in 16 community service
centres and with one regional adolescent team. The three stated goals of the method are:
1. to work differently with families to gain a more rounded understanding of their strengths and difficulties and to engage them better in the process to increase their motivation to change;
2. to improve risk management through more support for critical reasoning; and
3. to increase caseworkers’ skills in helping families tackle their problems, with the possible consequence of reducing the numbers of children removed from their families.
Early results showed that caseworkers were spending more time with families, fewer
children entering OOHC and staff sick leave was reducing. A first evaluation of the program
by international expert, Professor Eileen Munro, from the London School of Economics and
Political Science provides an excellent review of what has been going well and what is
needed to refine the work. Professor Munro states in her review:
My overall judgment is that Practice First contains well-evidenced strategies for improving child protection work; it is leading to rapid and enthusiastically welcomed change in front line practice; initial evidence suggests that this is having some
Attachment A
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beneficial effects on children, young people and their families. However, this review identified a number of factors that, if left unchanged, might undermine the sustainability of the improvements.
The model will be on-goingly evaluated. This all provides an excellent basis for the ACT to
approach principles-based reform in this jurisdiction.
The Office of the Senior Practitioner, headed by Kate Alexander, produced a report
showcasing examples of best practice work nominated by on the ground staff. Kate’s report
starts a different kind of conversation in the Australian and international statutory child
protection practice narrative, that is both restorative and relationally based. Her report
speaks of:
healing, recovery and hope,
helping parents accept responsibility in supportive ways
providing flexibility around contact arrangements,
finding and communicating directly with support networks,
advocacy for parents as well as parent advocates,
addressing shame in a re-integrative rather than stigmatizing way,
acknowledging isolation and stigma of families,
encouraging the use of mentors,
seeing the importance of building bridges and connections, and
recognising how we all need each other (informal and formal systems working together) to figure out the best way to proceed when child safety is a concern; and
(perhaps most importantly) how we make things right when wrongdoing occurs.
Shining the Light normalizes many of the stresses families, who are involved in statutory
child protection, face. It humanizes parents and families without compromising the safety
of children. It provides many examples of how a range of strategies exist to keep children
safe, which go beyond rule-book compliance with policies, procedures and legislation.
Shining a Light is a great example of what Professor Jennifer Llewellyn calls ‘relational work’.
This is fundamental to a restorative practice approach that can be applied in a statutory
child protection setting. Statutory child protection authorities, while regulators themselves,
operate within a wider regulatory community of other workers, extended family, carers and
other agencies. These can influence and steer the flow of events for families and their
children, and relieve some of the pressures experienced by child protection bodies. This
report provides many wonderful examples of 'responsive regulation' and how skilled
workers can deal with the care and support function without dropping the ball in terms of
maintaining their control functions inherent in statutory child protection work.
Kate‘s work positions her well and truly in the space of the ‘restorative conversations’ being
had in New Zealand and in Nova Scotia, about what 'restorative approaches' would look like
in child protection - restoring dignity, respect, relationships within families and communities
and in the process, revealing the immense capacity for inclusiveness, compassion and caring
across formal and informal systems.
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Critique of the current ACT Child Protection System
There are broadly acknowledged problems with the ACT child protection system. The
current system does not meet the needs of the Territory’s children, birth families, kinship
and foster carers, agencies, service providers or indeed the wider community who have a
role to play and a contribution to make. The continuous turn-over of staff, loss of carers,
placement breakdowns, in both kinship and foster care, are all signs of a system much in
need of change, which does not meet the needs of any participants particularly well. While
there are some positive options put forward in the consultation paper, there is no apparent
vision or practice framework, which could lead the necessary cultural change.
The current system is characterized by poor support for birth and carer families in crisis, a
culture of shaming and blaming families when there are problems, a lack of transparent and
accountable decision making process, a lack of review of most important decisions relating
to children and repeatedly documented poor record keeping. Overall, it is the experience of
system users that it lacks empathy and shows disrespect for relationships. It is a low trust
system, where birth parents and carers are often subject to judgmental and sometimes
arguably malicious attitudes from CPS management and workers and sometimes Agency
staff.
Communication is often contemptuous, antagonistic and derisive. In terms of
accountability, there are far fewer rights of appeal than in other Australian jurisdictions, and
where rights do exist, they involve significant costs and extensive delays. In no other
relationships in a modern democracy is the power differential so great – arguably even
legislative powers in relation to terrorism are more regulated and transparent than the
decision-making powers around child concern and child protection reports. The level of
intrusion into families can be very deep and selective, and there is nothing someone who is
subject to these powers can do to alter it. Many processes do not comply with the ordinary
legal principles of natural justice administrative fairness. In no other areas of law, which
have such a huge impact on families and children would the absence of effective appeals
and the lack of accountability of decision makers be tolerated.
Where people or organisations express concerns or complains, there is a genuine and
grounded fear that their children will be removed or their contracts terminated, so people –
birth families, kinship & foster carers remain silent in the face of a deeply unsatisfactory
system. There is little in this strategy that addresses any of these issues. The proposal for
change are inadequately developed and do not address any of these widely acknowledged
problems. They involve high expenditure and high risks without an evidence base providing
a rationale to the strategy.
There has been little open and inclusive public consultation over these proposals and their
implications. What has occurred has been rushed and segmented. There has been no ability
to work together with all stakeholders in public forums to hear differing concerns and angles
to these issues. The general disengagement of CPS once disagreement is expressed and
Attachment A
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senior manager’s refusal to meet with people who are dissatisfied is widely recognised.
When families feel sufficiently distressed to demonstrate or otherwise take public action, or
otherwise voice their dissent, senior managers still do not engage. These persistent failures
are disrespectful, disempowering and shaming.
Once again, the message being given is that we should trust that this will get batter, and that
somehow the positives set out will be delivered. The rhetoric in earlier pronouncements on
‘reform’ has never been matched by actions. It is hard to see how, without considerable
repair work on relationships across the community, that anything will be taken on trust in
this area. The culture remains one of fear, distrust, disrespect, shame and disconnection
and there is nothing in this strategy that addresses these fundamentals.
The lack of transparency and accountability has resulted in systems which are what is
described as “power over” systems, which are secretive and disconnecting. Cultures like this
tend to repeat the same mistakes again and again. They create a climate of fear and
disempowerment, which paralyses many of the ordinary forces that might create impetus
for change. As the relational-cultural theorist Dr Judith Jordan states:
Fear is manipulated in hierarchical settings to ensure the preservation of existing power arrangements. In a culture built on exploitation of fear, people do not experience the safety necessary to let their inevitable vulnerabilities show. Unmitigated chronic fear in an unsafe context leads to a traumatic sense of disempowerment and personal immobilization. … Through mutual empathy we can heal these places of fear and disconnection. Mutual empathy arises in a context of profound respect, authentic responsiveness, humility, non-defensiveness, an attitude of curiosity, mindfulness (staying with the “not knowing”) and an appreciation of the power of learning. Movement out of isolation helps us pass through fear to hope and ultimately leads to growth and more connection.8
Conclusion
International and local examples show that we could indeed have a very different child
protection system. Instead of judgment, silence and disconnection which often
characterises child protection practice in the ACT, we could work towards a system that
respected and worked with all people in their vulnerability, that was transparent and
trustworthy and that reinforced and built on connection. The focus on shame, blame and
disempowerment, often reinforced by inappropriate bureaucratic processes in the current
system are counterproductive. They simply compound the feelings of hopelessness and
powerlessness that many people - birth families, carers, children, young people and often
some of the best workers - feel at the moment.
8 Jordan JV. Commitment to connection in a culture of fear. Work in Progress Paper No 104, 2005 Jen
Baker Training Institute at the Wellesley Centers for Women – Stone Center, Massachusetts: page 1.
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The current consultation paper appears to have little in the way of cultural transformation
planned, and without such changes, whatever else is done will be potentially diverted and
degraded. There is a great deal of concern that there are inadequate resources already
available, and that all the promises of a trauma-informed system relies on services and
approaches which are not yet on the ground. Even the long-promised Trauma Recovery
Centre will only be opening in July this year. It is clear that options for employed foster
carers are a long way from even being a conceptual possibility.
There are potential positives and negatives in a number of the proposals – however,
assertions that these will increase flexibility are viewed somewhat sceptically by those in the
system. ‘Flexibility’ has historically involved removal of something which allowed people
choices and its replacement by the need to go to a bureaucrat to seek ‘flexibility’ only to
have the service request knocked back. Consultation with agencies and others expected to
take up key roles appear to have only just commenced, and the legal relationships and rights
of all parties have yet to be even raised, let alone clarified.
In summary, our concerns are that this document contains too little detail to be a useful
basis for action, and thus gives rise to significant financial and other risks to the ACT
community and all participants in the child protection system. Instead,
We need agreed foundation principles for action (like those in Practice First).
We need reform proposals that are relationally focussed.
We need more open public discussion about what options might be best.
We need access to the evidence of the problems that these proposed solutions are seeking to address. We need known solutions for known problems.
We need senior and middle managers who can lead, support and model the behaviours which are required for a relationally-based system.
A starting point for this would be to invite and meet with Paul Nixon and Kate Alexander as
soon as possible, in Canberra, and with Professor Llewellyn who will also be in Canberra in
August 2014. Stakeholder engagement and public forums are critical components in this
process – if we are to have a relationally based system, we need to improve the
relationships and connections across the system and ensure that everyone has access to the
same information. This reform process could model a relational approach to problem
solving, instead of a misguided command and control process.
