When things go wrong

The online version of Hot Topics 81: Child care and protectionwas updated in February 2015. The update includes changes made to the Children and Young Persons (Care and Protection) Act 1988 and the Adoption Act 2000 which came into effect on 29 October 2014.

Child abuse and neglect are complex problems that need thoughtful responses at a number of levels and by multiple systems.

The challenge is to develop an overall responsive system which can protect children from serious harm without causing further psychological injury by ‘the cure’, or by unnecessarily removing children from their families. The ’rescue’ of children by the State, by removing them from their parents and communities, especially within Indigenous communities, is not without significant problems.

Reports and inquiries over decades in NSW and across Australia and elsewhere have provided disturbing evidence of the harm that is caused to children by the abuse and neglect of the very system that is expected to protect them – for example, The Stolen Generations, and the Forgotten Australians, Senate Report, 2004, and Systems abuse: Problems and Solutions(Cashmore, Dolby and Brennan, 1994). Some children in out-of-home care have been abused and neglected by their carers, and infants and children have died unprotected at the hands of their parents, either as a result of physical abuse or neglect.

Royal Commission into Institutional Responses to Child Abuse

A national Royal Commission was established on 11 January 2013, with six commissioners, to investigate how institutions like schools, churches, sports clubs and government organisations have responded to allegations and instances of child sexual abuse. The job of the Royal Commission is to uncover where systems have failed to protect children so it can make recommendations on how to improve laws, policies and practices.

The Royal Commission is investigating private, public and non-government organisations that are, or were in the past, involved with children. This includes the organisation's responsibility for the abuse children suffered in their 'care', their duty of care, and the appropriateness of their responses to the abuse, at the time or later. The terms of reference are to inquire into:

  • what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future
  • what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts
  • what should be done to eliminate or reduce impediments that currently exist for responding appropriately to child sexual abuse and related matters in institutional contexts, including addressing failures in, and impediments to, reporting, investigating and responding to allegations and incidents of abuse
  • what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.

An interim report was released on 30 June 2014. One volume outlines the process and findings of the Commission so far and the second volume presents some of the personal stories and experiences of abuse that have been shared in sub-missions to the Commission and at hearings. The website contains recent news and reporting.

Several government agencies in NSW have the responsibility to promote good practice and to regulate and monitor practice in relation to children. These include the Children’s Guardian, the NSW Ombudsman where the Child Death Review Team is now based, and the NSW Commission for Children and Young People. The Children’s Guardian monitors out-of-home care, accredits the agencies which deliver it and manages the Working with Children Check which all employees working with children are required to complete, to prevent people with any history of having mistreated children from being able to do so through their employment. The Ombudsman has special responsibility for scrutinising the systems for preventing child abuse by employees and the systems for handling and responding to child abuse allegations. The Ombudsman also prepares reports on child deaths and special reports on children in care. The Coroner also examines child deaths.

In 2009, the high-profile cases of Ebony and of Dean Shillingsworth were both the subject of special reports to Parliament, which are available on the NSW Ombudsman's website. The cases became the catalysts for the Special Commission of Inquiry into Child Protection Services headed by Justice James Wood AO QC.

Child death reporting

Reports about child deaths in NSW are produced by several bodies – the NSW Child Death Review Team (CDRT) chaired by the NSW Ombudsman, and Community Services. The purpose of child death reporting and reviews is to ‘understand how and why children die, and to use the findings to take action that can prevent other deaths and improve the health and safety of children’ (Child Death Review Process). In relation to child protection, the aim is to not to lay blame at the feet of services and workers involved with the family before the child died but to understand whether and what services and communication and changes might have prevented the child’s death.

The Child Death Review Team reports on child deaths in NSW from all causes (such as prematurity, disease, motor vehicle accidents, drowning, and abuse and neglect). The focus is on prevention strategies. The most recent CDRT report provides information about the 493 children whose deaths were registered in 2013; an issues paper in April 2012 focuses on the deaths of 40 children (34 aged under 5) from 2007-2011 who drowned in private swimming pools in NSW; and a Special Report to Parliament in 2014 looks at the deaths of children with a child protection history over a 10-year period, from 2002-2011.

Community Services is now also reporting publicly on the deaths of children in NSW who were known to Community Services at the time of their death. This means that a report had been received about the child and/or his or her sibling/s in the three years preceding the death; it also includes children or young people who were in statutory care at the time of their death.

Findings from the Child Deaths Annual Report

The 2013 Community Services Child Deaths Annual Reportfocuses on the 75 children and young people who died in NSW in 2013 who were ‘known to Family and Community Services’. In effect, being known to FACS is an index of vulnerability. Almost half were Aboriginal. In line with other years, most of the children died as a result of illness, disease or extreme prematurity. 'Sixteen babies died suddenly and unexpectedly, meeting the criteria for Sudden and Unexpected Deaths in Infancy (SUDI). Five children and young people died by suicide and two children died of suspicious or inflicted injuries' (page 5).

Case study: the death of Ebony

On 3 November 2007, a seven-year-old girl died in tragic circumstances, causing widespread public concern. Ebony’s death was the focus of an investigation and a special report to Parliament by the NSW Ombudsman.

Her death became one of the main catalysts for the NSW Government initiating a Special Commission of Inquiry into Child Protection Services in NSW, and for the Keep Them Safe reforms to the child protection system arising from that inquiry.

Ebony was born in 2000. She had two older sisters and, in 2002, a younger sister was born. Her parents both had mental health problems and difficulty managing their children and their behaviour. They lived in public housing until a few months before Ebony’s death, when they moved to a coastal town.

The family first came to the attention of DoCS (now called Community Services) in 1993 when the oldest girl was only eight months old, but there were no reports about the children until a few months after Ebony was born. The older girls were not attending school regularly and the family was reluctant to engage with any services or allow Ebony to be sighted by workers. When the youngest child failed to thrive (as Ebony previously had), the parents were required to be supervised. When they failed to comply with their undertakings, the child was taken into care and orders made for her to remain in care until she is 18.

In 2005, Ebony was diagnosed with autism by a paediatrician, but Ebony’s mother accepted services for only a short time. She attended a day-care centre briefly and infrequently; she was offered a place at a special needs school but never attended. The Department of Ageing, Disability and Home Care (DADHC) made a risk of harm report about her to the DoCS Helpline and there were a number of reports about the older girls’ failure to attend school. Following some inquiries to various departments and agencies, DoCS closed their investigation in late 2006 ‘due to competing priorities’ (lack of staff time). A further report in March 2007 led DoCS to visit the home, but the family moved house to a northern coast town and no worker saw Ebony before she died in November 2007.

Her death led to the criminal prosecution of her parents and provoked an inquiry and an investigation by the Ombudsman. Ebony’s mother was found guilty of murder; her father was found not guilty of murder, but guilty of manslaughter - the case is reported as R v BW & SW (No 3) [2009] NSWSC 1043.