Child Protection’s (DHHS) Rights to take my child

The Children, Youth and Families Amendment Bill proposes to extend the time child protection workers can remove children from their parents from one working day to two working days. This may see children separated from their families for several days should the removal coincide with a weekend.

Currently, within the 24-hour timeframe of separation, the Children’s Court hears emergency care applications to determine whether the removal was justified. Should this bill be passed the period between separation and the court hearing will be doubled.

The Government’s Arguments

  • Children are given more time to seek support, rest and attain medical attention before attending court the following morning
  • Enables more effective legal representation as parents and children have more time to meet with lawyers, so that lawyers can properly prepare for the court appearance, which would lead to less adjournments and delays. This creates a swifter timeline for court matters.
  • The Centre for Excellence in Child and Family Welfare states that government had extensively consulted with experts over the bill and agreed to ensure young people under the age of 21 without care are afforded an allowance.
  • The extension ensures children are not waiting in hours in police stations and courtrooms which minimises trauma on children.

The Opposition’s Arguments

  • The Department of Health and Human Services (DHHS) do not have to provide any evidence to justify child removal until the court hearing.
  • The extension of a child’s time away from their family can lead to separation anxiety and attachments issues which can be traumatic for children.
  • Joel Orenstein from the Law Institute of Victoria clarifies that most cases of child removal are found to be unwarranted.
  • The Victorian Aboriginal Legal Service contends that the decision conveniences the DHHS as opposed to prioritising the interests and welfare of children and that the bill is akin to the child removal that occurred during the Stolen Generation.

Our perspective on the legislation is that there is immense value in ensuring that the removal power of the DHHS is used responsively and responsibly. The removal of a child is sometimes authorised by junior and inexperienced departmental staff and is frequently traumatic for parents and children.

The 24-hour rule has been in operation for decades. We consider that the sooner a magistrate gets to review the decision to remove a child by the DHHS, the better outcomes for children and parents. Practitioners are also trained to deal with acting at short notice, meaning there is little need for this extension. This proposed change is a drastic step.

If you need assistance from an experienced children’s lawyer or Child Protection Lawyer, please contact Rowan Skinner & Associates Lawyers on (03) 9995 9155.

Bibliography

Topsfield, J. (2021, November 16). Children removed from families face longer wait before court hearings. The Age. https://www.theage.com.au/national/victoria/children-removed-from-families-face-longer-wait-before-court-hearings-20211116-p5998n.html

By Lloyd Skinner