Executive summary

In Australia, and internationally, the family is recognised as the best environment for raising children wherever possible. Governments provide a range of universal and specialist services to support families. However, where a parent has a disability, particularly cognitive disability or mental illness, children are removed from their family at a rate many times greater than where parents do not have a disability.

In Victoria, the Charter of Human Rights and Responsibilities (the Charter) protects the rights and interests of families and children as the fundamental unit of society. Australia is a signatory to the United Nations Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD and the CRC provide that children should not be separated from their parents against their will unless this is in the best interests of the child as determined by a Court and subject to judicial review. Under these conventions, abuse or neglect by the parents is a justification but the disability of a parent is not. The State is also committed under the CRPD to providing the supports necessary for parents with disability to meet their parenting responsibilities. The responsibility for raising children is to be shared by the whole community.

The Public Advocate considers that the rights and interests of children and parents with disabilities that are enshrined in domestic legislation and international conventions are at risk if our child protection system creates a dichotomy between the rights of children and the rights of parents. Greater protection, support and understanding of families where a parent has a disability are needed so that these families can stay together where possible. There is considerable knowledge available about how to work successfully with parents who have cognitive disabilities in order to reunify families or enable families to stay together. The Public Advocate strongly supports the adoption of these approaches across Victoria so that fewer children will need to be removed from their parents’ care.

A perceived dichotomy between the interests of children and their parents has most likely been built on erroneous assumptions about inherent parental incapacity, the lack of appropriate family supports, predictions of the likelihood of future harm to children in a risk-averse society and the priority given within the system to stability for children, thought to be found in permanent care.

Victoria has been leading the way in Australia in providing a range of family support services through the Child FIRST service system. However, when a family moves into the child protection system, many of these services are not available and the focus of the casework moves to investigation and assessment rather than support, even when the goal of a protective court order is the reunification of the family.