With the first ‘tranche’ of proposed legislative changes associated with the Child Youth and Family review comes the opportunity to make submissions to the Social Services Committee. We have made one in regards to the final proposed change – to delegate fairly substantial powers beyond the state organisation (name as yet unknown) to third party professionals/organisations. They don’t have to be social workers (in fact the point is exactly to extend certain powers beyond social workers to other professionals) and the organisations remain unknown. If passed, this Bill will have two main results we should be concerned about. Firstly, it is a direct challenge to the expertise of social workers – specifically – to be able to receive notifications and make the most intrusive types of orders – without leave. Even more concerning is the move to enable those outside the state (whoever it is) to be able to perform all the functions currently held by the CE of CYF. This includes every coercive power of the state you can think of, and with a direct reference to requiring the appropriate ‘contracting’ to be in place, seems clearly to set the scene for the privatisation not only of less contentious services such as foster care or preventive services (already contracted to a number of NGOS), but of direct front-line decision-making and practice such as taking notifications of concern, applying for declarations, and applying for custody orders. We think it’s a bad idea, for reasons given below.
Submission on: Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Bill
From: The Re-imagining Social Work Collective
- Neil Ballantyne, Senior Lecturer in Social Work, Open Polytechnic of New Zealand.
- Liz Beddoe, Associate Professor in Social Work, University of Auckland.
- Ian Hyslop, Lecturer in Social Work, University of Auckland.
- Emily Keddell, Senior Lecturer in Social Work, University of Otago.
- Simon Lowe, Senior Tutor in Social Work, University of Waikato.
- Deb Stanfield, Social Work Academic, Wintec.
Thank you for the opportunity to make this submission. While the legislative changes cover a number of issues, this submission relates primarily to the final proposed change: the proposal to delegate powers, previously held by social workers and Police constables, as well as all powers currently held by the CE, to others outside Child Youth and Family. We fully support the changes relating to the age of leaving care, advocacy and young people’s contribution to decision-making. These changes are very much in line with international rights conventions, cultural and economic norms in relation to the expected role of parents (in this case, the state) and current knowledge with regards to child development. We also consider these changes to reflect a commitment to considering children as competent actors and rights holders fully able to contribute to decisions made about their lives.
The more contentious issue is the proposal to delegate powers, previously held by social workers and Police constables, as well as all other powers held by the CE, to others outside Child Youth and Family (or whatever the new organisation will be named). This is contained in the proposal to allow the Chief Executive to delegate powers as per the State Services Act, by replacing the word “social worker” in the CYP&TF Act with “Chief Executive”, which will enable all powers held by the CE to be delegated to third parties, including those who belong to other professions outside CYF. The proposal is that this can be done by the CE, with the qualification that it can only occur in situations where: “(a) the person is appropriately qualified to perform the function or exercise the power, taking into account the person’s training, experience, and interpersonal skills; and (b) if the person is outside the State Services, the person will be bound by contractual obligations that are sufficient to support the appropriate exercise of the delegation” (new s7 C ii).
We make this submission with reference to the proposed Bill changes themselves, the explanatory note, and the regulatory impact statement (RIS) relating to workforce settings.
Our primary arguments are that this change may:
1. confuse the public and child care professionals about who holds statutory powers;
2. lead to greater variability in thresholds for intervention creating a more inequitable child protection system;
3. create conflict between professionals with regard to appropriate reasoning, knowledge bases and ethics that underpin applications for legal orders;
4. result in service users disengaging from preventive services;
5. create a heightened expectation on the courts as the arbiters of conflicts in professional decision-making;
6. set the scene for privatising core functions of the state, despite assurances given by the Minister that the changes proposed would not affect the core tasks of front-line child protection practice.
The rationale offered for this change (as set out in the explanatory note) is that it will enable: a) “enhanced access to appropriate specialist skills and expertise to respond to the needs of vulnerable children and young persons”, and b) “a broader range of professionals to perform a wider set of functions under the CYPF Act to help identify and meet the needs of vulnerable children and young persons”. We contend that both of these concerns can be addressed without recourse to the extension of coercive state powers to those outside the state sector. Our arguments against the proposed change are as follows:
1. The proposed change may confuse the public and child care professionals about who holds statutory powers.
If numerous people employed by agencies outside of the state hold powers to accept notifications of possible harm, and to apply for custody orders, this could lead to confusion with regards to whom reports of concern should be made. For example, if a child care professional makes a notification of concern to a contracted service with delegated powers, but not to CYF (or its descendent), will they be considered to have complied with their own child protection policy? Also, a service user engaged with a non statutory service may be unaware that that agency holds power to apply for statutory orders. Even though there is the intention to make this information available to the public, many will not routinely check online registers or other information sources. We suggest that, if this amendment is made, all service users must be informed, at the point of engagement with the service, that the provider holds these delegated powers.
2. The proposed change could create even more variability in terms of thresholds for intervention creating a more inequitable system.
The current child protection system already has variations in practice decision-making, which result in some children not getting a protective enough intervention, while others are removed unnecessarily. The proposed change is likely to create even greater differences in intervention responses, particularly as those outside the CYF system may not have a wide enough overview of relevant thresholds for action; or, due to lack of information, may have an incomplete understanding of the family and their connection with other services, supports and resources.
We note the RIS gives more detail on this, stating that: “The current model promotes in-house service delivery by employed social workers and limits the ability of the agency to deliver services via strategic partners who may be better equipped to provide child-centred responses … the current provisions in the Act may restrict the ability to be responsive to delivery models that best meet the needs of children, young people and families. A clear example is the limitation on who may receive a report of concern (ie a social worker employed by the department or constable). This limits the ability of the Chief Executive to use strategic partners, such as iwi or non-government organisations to deliver elements of an intake system”.
The statement above assumes that the ability to coordinate and deliver services via strategic partnerships is limited by the current legislative arrangements. We refute this, as partnerships involving service delivery are currently in place and can also be improved in line with family needs in the new proposed model without extending the the stated statutory powers to NGOs and other partner agencies. Partner agencies can already be approved as community services or as child and family, Iwi or cultural services. This enables them to contract for services as well as assume guardianship and custody of children. It should also be noted that there already exists a power for ‘any other person’ , with the leave of the court, to apply for a declaration that a child or young person is in need of care and protection (the pathway to other orders) (s68). However, it is highly concerning that other agencies may be involved in the CYF intake system, and to be involved in making other applications, as again this makes pathways into statutory services very unclear for both service users and professionals trying to work together alike. With variable consistency comes inequity in responses to service users, and lack of trust in the system.
3. The proposed change may create conflict between professionals with regard to appropriate reasoning, knowledge base and ethics that inform legal orders.
Applying for orders is at the most extreme end of interventions with families and should only be pursued if there are imminent safety concerns, or all other preventive and supportive options are deemed to have failed. If a paediatrician, (an example named in the proposal of a professional who might assume these powers) has real concerns, they would most likely have referred to CYF. Under the proposed change, if they are displeased with the outcome of the referral, they could decide to apply for a statutory order in their own right. How can this contribute to a unified, collaborative, multi-agency team approach? Inter-professional teams work best when everyone is clear about their own expertise, skills, and roles. If one professional decision maker has the power to trump another, this sets the scene for inter-professional conflict and confusion about authority, role boundaries, decision-making thresholds and relevant knowledge bases. If an individual disagrees with a decision made by a medical or legal professional the correct path is to pursue a complaints process, not to assume the authority and role of that professional. Other professionals may not have been exposed to the range of ethical issues and obligations, have the breadth of knowledge needed to undertake a holistic assessment, have a relationship with the family, or be able to operate effectively in the child protection legal domain.
The assumption underlying the proposed change seems to be that the specialised area of child protection social work is something that anyone can do. This view is clearly spelled out in the RIS, which states: “The new operating model for responding to vulnerable children and young people envisages that while social workers would remain the main professionals discharging functions under the CYPF Act, there would be flexibility for other professionals to play core roles in helping to identify and meet the needs of vulnerable children and young people, where they are better or equally positioned to perform those functions”. Who, and in what circumstances, are those “better or equally positioned”?
The argument may be made that a person with more day to day interaction with the family is better positioned to apply for orders. This is an issue to do with the construction of the statutory role, rather than an argument that it should be extended to others. If CYF social workers were more adequately resourced to engage with families, this could enable them to be those best positioned. In the mid -1980s, prior to the introduction of the 1989 Act, multi-disciplinary Child Protection Coordinating Teams were trialled (in Otara and Porirua – and possibly in other districts). The related proposal to vest executive child protection powers with the chairpersons of such teams did not come to fruition. Even without such powers this approach resulted – in practice – in pressure being applied to social workers to institute care proceedings. It is contended in the Regulatory Impact Statement that “The right to apply for court orders without leave is not a function that forms a core part of the key skills and competencies of the social work profession”. We take issue with this statement. The issue with applications without leave is not so much whether it is or is not within the remit of social workers per se, but whether this power is held within the state or not. Given that it is a highly intrusive intervention with serious consequences, one where the rights of parents and children must be carefully weighed up; and the state is responsible for ensuring that rights conventions are upheld, to extend these powers beyond the state to contracted agencies is highly questionable. Furthermore, Child protection social workers may be more reluctant to initiate such proceedings precisely because they are aware of the wider ramifications of the action and of the alternative, less adversarial, options that are available for intervening in the lives of children and families. Taking executive action to ensure immediate care is one thing. Creating change within high needs families is another. The expertise of child protection social workers lies in making these judgements and creating the conditions for change.
4. The proposed change may result in service users disengaging from preventive services.
We welcome the emphasis in the reforms on creating more coherence between the statutory and NGO sectors, and the concept of having an overview of families’ experiences of preventive and statutory services as part of a systematic continuum. However, extending coercive powers beyond the boundary of the state may cause some service users to disengage from preventive services once they discover that the NGO (or private organisation) they are using is able to apply for statutory orders in the same way as CYF. Practitioners in this area often state they are pleased they do not hold such powers, as it results in a more engaged and trusting relationships with service users and better outcomes for children and families.
We note the RIS states that: “The need to utilise the skills of a broader range of professionals is expected to become more of an issue under the new operating model because of the new functions associated with prevention …Research and expert input that informed design work on the proposed operating model to date has emphasised the potential benefits of a multi-disciplinary approach to child protection work and decision-making. There is a growing body of evidence recognising the value of creating multi-disciplinary teams whose main task it is to undertake intensive assessments and then therapeutic work based on the findings of their assessment.” We agree with this statement, but none of this requires the access to statutory powers of more professionals to do so. ‘Intensive assessments and the resulting therapeutic’ work do not require the options of applying for legal orders, as this may introduce the heavier and more intrusive functions of the the child protection system far earlier than is necessary or helpful. True prevention involves engaging with families in a humane, engaged and collaborative manner before there is a need for legal orders. The new ‘functions associated with prevention’ should not include intrusive legal powers.
5. The proposed change may create a heightened expectation on the courts as the arbiters of conflicts in professional decision-making.
If applications for orders can come from a more diverse group of professionals, with differing logics and knowledge bases, this would rely more than ever on the court to be able to maintain consistency and fairness in the orders made. While judges are – of course – bound to make a decision based on the case as it is presented, variation in the facts selected and the case narratives emphasised will make it even more difficult for courts to ensure this. For example, if a family is presented in an entirely deficit and risk focussed manner, or in very medicalised language, neither provides a holistic understanding of the child’s needs or the family’s ability to meet those needs.
6. The proposed change sets the scene for privatising core functions of the state.
Finally, proposing to extend the range of professionals able to take on statutory powers, and referring directly to having “contractual arrangements in place to support them” seems to set the the scene for privatising core functions of the state despite the assurances given last year by the Minister that the changes proposed would not affect the core functions of front-line practice.
For example, in this exchange on the Nation:
Interviewer: Can you rule out today that you won’t be outsourcing front-line care and protection services?
Minister Anne Tolley: Look, I – Let’s put it to rest – this is a state responsibility. There’s no talk within Government at all of outsourcing that responsibility.
The ability of an external organisation, whether non-profit or for profit, to take on statutory powers via the proposed Bill appears to directly contradict the Minister’s public declaration.
An effective child protection system ensures that the rights of citizens of all ages are protected, the possible releasing of this key responsibility beyond the state, however carefully managed, seems to be ideologically driven by faith in market forces to provide quality services, rather than a balanced approach that retains key powers by the state, while acknowledging that important services around support and therapeutic needs can be met by a range of providers.
We are concerned that this power of delegation extends not only to the current role of social workers as stipulated in the Act, but also to the existing powers of the CE. These powers are extensive and include: deciding what kind of placement is best for a child, providing financial support for plans and taking guardianship of children. If these powers are also able to be delegated out this signals a wide range of powers effectively leaving the control of the state. It seems odd that this delegation of power is considered necessary to meet the aims of “enhanced access to appropriate specialist skills and expertise” and to to “help identify and meet the needs of vulnerable children and young persons”. There are many ways of enabling the input of other professionals via referral and contracting of their specific services (e.g. a psychologist contracted to identify and meet therapeutic goals) without enabling that professional to apply for statutory orders.
Finally, we understand that the single point of accountability held by the CE will be expressed via the use of contracted partner agencies including iwi organisations and NGOs, in order to improve systematic responses along a continuum. However, the proposed delegation of statutory powers seems to us to be going a step too far. The overall aims of the reform to align services across the preventive and intervention spectrum more closely with children’s needs may well be undermined by the proposed change.
Image Credit |Keith Miller