Summary

In November 2012, the Minister for Family and Community Services, Pru Goward MP, released a discussion paper containing child protection legislative reform proposals. The reform proposals are in three parts: (1) promoting good parenting; (2) providing a safe and stable home for children and young people in care; (3) and creating a child-centred system. This briefing paper provides background and commentary on the second part of the proposals, which aim to improve permanency planning for children and young people in care.

Out of home care
As at 30 June 2012, there were 18,169 children and young people in out-of-home care in NSW (compared to 14,667 five years earlier). Around two-thirds were in statutory care (where the Minister or a non-related person has parental responsibility for residency because of an order of the Children’s Court), and one third were in supported care (care arranged, provided or supported by the Director-General of the Department). About 27 percent of children and young people in care were under the age of six. Over one third of the out-of-home care population were Aboriginal and/or Torres Strait Islander. More than half of the same population were in relative or Aboriginal kinship care, while almost 40 percent were in foster care. More than one third of all children and young people in care had three or more placements in their current care period. [2.4]

Permanency planning for children in care
The concept of permanency planning emerged in the 1970s, first in the US and later in the UK. The permanency movement developed in response to concern about children drifting in a number of unstable fostering arrangements for long periods of time. While there does not appear to be an accepted definition of permanency planning, Tilbury and Osmond describe it as “a case planning process aimed at securing stability and continuity for children in out-of-home care”. They also note that permanency planning has relational, physical and legal dimensions. According to a 2007 paper by Osborn, Delfabbro and Barber, the evidence suggests that placement instability in out-of-home care is likely to have significant effects on the current and long-term wellbeing of children. A 2007 study of young people leaving care in NSW found that stability and, more importantly, a sense of emotional security were highly significant predictors of young people’s outcomes four to five years after leaving care. [3]

Legislation on permanency planning
Permanency planning provisions were introduced in NSW in 2001. The bill that led to these provisions was much amended after considerable controversy about proposals to encourage consideration of adoption at an early stage. Under the current provisions in the Children and Young Persons (Care and Protection Act 1998 (which are basically the same as in 2001), the Director-General of the Department is required to prepare a permanency plan when applying to the Children’s Court for a care order. This is a plan that aims to provide a child or young person with a stable placement that offers long-term security. The permanent placement options include: restoration to the parents, placement with members of a kinship group, long-term placement with a foster carer, placement under an order for sole parental responsibility, and adoption. In the case of an Aboriginal or Torres Strait Islander child or young person, a permanency plan must address how the plan has complied with the Aboriginal and Torres Strait Islander placement principles. [4]

Permanency planning in practice
In May 2006, the Department of Community Services began the first stage of its three-year Permanency Planning Project which aimed to integrate the principles of permanency planning into casework practice. The project involved training caseworkers in the implementation of a new Permanency Planning Policy, which contained specific timeframes for decision-making about long-term care of children and young people in care (for children under two years of age, decisions about whether restoration was a realistic possibility were to be made within six months of removal). In 2008, the Department set up an out-of-home care adoption team to promote permanency through adoption if was in the best interests of the child, particularly those in long-term placements. While the number of adoptions of children and young people in care has risen over the past five years, the numbers are still low (65 in 2011/12). There is no published information on the use of sole parental responsibility orders, although the Department has stated that these orders have been underutilised. [5]

Legislation on adoption
In NSW, adoption is governed by the Adoption Act 2000, which was enacted following a NSW Law Reform Commission review of adoption laws. That review recommended that the laws be rewritten so that adoption was characterised by openness and was no longer shrouded in secrecy. An adoption application can be made to the Supreme Court by the Director-General of the Department or by the principal officer of an accredited adoption service provider. Generally the court must not make an adoption order unless consent has been given by each parent of the child; consent is not required if a child aged 12 or older gives sole consent to the adoption, or if the Court dispenses with the requirement for consent. The Court must not make an adoption order unless satisfied of a number of matters including that it is in the child’s best interests of the child, that due consideration has been given to the child’s wishes and feelings, and if relevant, that the Aboriginal and Torres Strait Islander placement principles have been properly applied. [6]

Legislative reform proposals
The discussion paper released by the Minister contains a number of permanency planning reform proposals. These proposals, which would impact on both child protection and adoption laws, include:

· Establishing a new preferred hierarchy of permanent placement types (with adoption placed above long-term foster care);

· Introducing specific timeframes for making decisions about restoration of the child to their family;

· Creating a new long-term guardianship order that would support long-term relative and kinship placements;

· Streamlining adoptions, including by removing administrative burdens for existing carers to be approved as applicants for adoption. [7]

Selected stakeholder responses
The Department of Family and Community Services received 230 submissions in response to the discussion paper. These submissions have not yet been made available on the Department’s website (as at 2 April). Presented in this briefing paper are a summary of responses from six important stakeholders. These stakeholders had mixed views on the proposals. For example, while some stakeholders (e.g. NSW Children’s Guardian) support the promotion of adoption as a permanent placement option (with some qualifications), other stakeholders (e.g. Legal Aid) argue that adoption should only be considered once a child is established in long-term foster care, with a carer with whom they have developed a strong bond. Similarly, while some stakeholders (e.g. the Association of Child Welfare Agencies) support legislative restoration timeframes (subject to various provisos), others (e.g. Community Legal Centres NSW) argue that all decisions need to be made on a case by case basis. [8]

Permanency planning in two other States
In Victoria, child protection laws require the Secretary of the Department to ensure that a stability plan is prepared for each child who is in out of home care as a result of a protection order. Stability plans must be completed within certain statutory timeframes. The long-term placement options are similar to those in NSW. One option is a permanent care order, which is more widely used than sole parental responsibility orders in NSW. Adoption is another long-term placement option but is has been rarely used. In January 2012, a child protection inquiry panel delivered its report, which recommended that the Government should identify and remove barriers to achieving permanent placements for children in care, including by reviewing every child in care who is approaching the statutory stability timeframes to determine whether an application should be made for a permanent care order. [9.1]

In Queensland, legislation requires the Department to develop a case plan for each child who is in need of care and protection. The Department must regularly review this plan and prepare a review report and a revised case plan. This report must address how the revised case plan gives priority to the child’s need for long-term stable care. Permanency planning guidelines also contain timeframes for reunification to occur after which a long-term placement should be pursued. In February 2013, the Queensland Child Protection Commission of Inquiry released a discussion paper which identified two options to improve placement stability for children in care. One is the increased use of long-term guardianship orders; and the other is a new form of order between long-term guardianship and adoption. The paper noted that “significantly increasing the use of adoption in the care system…would be widely opposed”. [9.2]

Permanency planning in two other countries
In the US, the child protection system is primarily governed by State law but federal Congress has enacted legislation which States must meet in order to receive federal funding. In 1996, President Clinton outlined the goal to at least double the number of children adopted or permanently placed each year. In 1997, Congress enacted the Adoption and Safe Families Act 1997, which aimed to help States move children out of foster care into safe, permanent homes more quickly. Measures included reducing the timeframe for holding a permanency hearing from 18 to 12 months and a program to reward States for increasing the number of adoptions from care. The Fostering Connections to Success and Increasing Adoptions Act 2008 extended the adoption incentive program and introduced other measures. During 2011, almost 50,000 children were adopted from foster care (up from 27,000 in 1996). [10.1]

The UK Government has also introduced a number of measures to promote permanency for children in care, including adoption. In 2002, legislative reforms were enacted to support adoption and to create a new placement option: special guardianship orders. Since taking office, the Cameron Government has made increasing adoptions of children in care a priority. In March 2012, the Government released an action plan to tackle delays in adoptions of children in care; in December 2012, it announced a new package of support for people who want to adopt; and in January 2013 the Government announced proposals to address the shortage of adoptive parents. In February 2013, the Government introduced into the House of Commons a bill which seeks to implement a number of measures announced over the past year. [10.2]

Comparing foster care and adoption outcomes
According to Thoburn, on the basis of the available evidence, there is no robust way of comparing outcomes for children adopted from care with similar children who join permanent foster families or leave care through guardianship orders. The results of a longitudinal study in the UK (published in 2009) found that disruption rates for children in foster care compared unfavourably with those for children who had been adopted. However it was difficult to compare the two types of placement because children in foster care generally enter these placements at an older age than children enter adoptive placements. For children in foster care whose placements were stable, the study found no significant difference in emotional difficulty and educational progress compared to those who were adopted. A longitudinal study in the US (published in 2011) reported different findings. It compared developmental outcomes after five years for young children (under 13 months of age) in foster care who had returned home, remained in care, or been adopted. It found that children in foster care had the poorest developmental outcomes on all measures. [11]