Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Bill

  • enacted

Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Bill

Government Bill

142—2

As reported from the Social Services Committee

Commentary

Recommendation

The Social Services Committee has examined the Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Bill and recommends by majority that it be passed with the amendments shown.

Introduction

This bill represents part of the Government’s reform of services for vulnerable children, young people, and families. The bill would amend the Children, Young Persons, and Their Families Act 1989. It aims to achieve a child-centred system by:

  • extending State responsibility for care and protection to a person’s 18th birthday (currently, State care and protection stops on a person’s 17th birthday)

  • encouraging the participation of children and young people in decisions that could significantly affect them

  • ensuring that, wherever possible, policies and services have regard to the views of children and young people

  • supporting the set-up of independent advocacy services, with a particular focus on children and young people in care

  • allowing a broader range of professionals to perform a wider set of tasks to help identify and meet the needs of vulnerable children and young people.

The bill seeks to achieve this last point by making the chief executive responsible for many tasks that social workers are currently responsible for. The chief executive could then delegate responsibility to other people. This delegation could be to social workers, or to others if the chief executive is satisfied (under clause 7, new section 7C(2)(a)) that they are appropriately qualified to perform the task.

The following commentary discusses significant issues and amendments. It does not mention minor, consequential, or technical amendments.

Commencement date

In clause 2, we recommend changing the commencement date of the bill to 1 April 2017. This would align the bill with the date when the new Ministry for Vulnerable Children, Oranga Tamariki, is expected to begin operating.

Delegating powers and functions

Clause 7 would insert new sections 7A to 7E into the Act. The new sections are about the chief executive delegating his or her functions or powers to other people.

We recommend inserting new section 7BA after new section 7B. This would clarify that the chief executive could delegate powers or functions conferred by a court order or a warrant.

Delegating to a manager

If delegates are not social workers, extra conditions would apply. These are set out in proposed new section 7C. Under new section 7C(2)(a), the delegate must be appropriately qualified to perform the function or power.

We recommend inserting new subsection (3) into new section 7C and inserting new section 7CA after new section 7C.

These amendments would provide that, where the chief executive delegates to a manager who is not intended to perform the function or power themselves, the manager would not have to be appropriately qualified to perform the function or power. The manager could subdelegate functions or powers to social workers or other appropriately qualified people. New section 7CA would ensure that any subdelegate who is not a social worker must be appropriately qualified.

Delegations and subdelegations must be publicly notified

Under clause 7, new section 7D, all delegations of the chief executive’s powers or functions must be publicly notified and information about them must be available on the Internet until the delegation is revoked.

We recommend amending new section 7D so that subdelegations would also have to be publicly notified.

We also recommend an amendment to allow people to inspect delegation information at the chief executive’s head office. This would be a helpful alternative for those who do not use the Internet.

Other amendments relating to delegations

We recommend amending clause 4 to insert new subsection (1A) into the interpretation section of the Act. This would clarify that references in the Act to the chief executive should be interpreted to also mean his or her delegates and subdelegates.

Clause 10 and Schedule 2 of the bill would make consequential and other amendments to the Act. To enable the chief executive to delegate his or her functions or powers to a wider workforce than just social workers, Schedule 2 would give functions and powers to the chief executive that are currently conferred on social workers. So, for example, in many places in the Act, Schedule 2 would replace references to “social worker” with references to “the chief executive”.

We recommend changing Schedule 2 to make its amendments to the Act clearer and easier to follow. Our amendments to Schedule 2 would ensure that the functions and powers currently conferred on social workers were correctly vested in the chief executive.

Clause 11 and Schedule 3 would make consequential amendments to other Acts. We recommend inserting amendments to the Search and Surveillance Act 2012 into Schedule 3. The amendments would reflect the amendments in Schedule 2 of the bill to sections 39, 40, and 386 of the Children, Young Persons, and Their Families Act, which would move the search power from social workers to the chief executive.

Participation by children and young people

Clause 8, new section 11, would require those responsible for certain proceedings and processes to ensure that children and young people are encouraged and assisted to participate in relevant proceedings and processes. Children and young people would have to be given reasonable opportunities to express their views, and their views would have to be taken into account.

Preparation for family group conference

Under new section 11(1)(b), children and young people would be encouraged to participate in the proceedings of a family group conference.

We recommend widening new section 11(1)(b) and 11(3)(b) to also cover the processes required to convene or reconvene a family group conference. This would make it clear that, as well as participating in the family group conference, children and young people should also participate in its preparation.

Support to express themselves and to be understood

Under new section 11(2)(c), support must be provided for children or young people who have difficulties expressing their views or being understood. Difficulties could arise from the child’s age, the languages they speak, a disability, or another reason.

This provision could mean that a support person would attend meetings and other proceedings, and we recommend inserting new section 11(3A) to make this clear.

We also recommend inserting new section 11(3B) to prevent the support person attending if the person responsible for the meeting or other proceeding considers it impracticable or inappropriate for them to attend.

Transitional provisions

Clause 9 and Schedule 1 of the bill would amend Schedule 1AA of the Act, which contains transitional, savings, and related provisions. We recommend amending Schedule 1, Part 2, so that court applications by social workers could continue to be processed appropriately after the bill takes effect.

New Zealand Labour Party minority view

There are elements of this bill that Labour wholeheartedly supports. Overall, however, we believe the bill represents a missed opportunity.

Lifting the age of care and protection

We applaud the move to lift the age of care and protection to 18 years of age. In fact, when National came into office, there was already a bill on the order paper that would have achieved this, which was unfortunately dropped.

We disagree, however, with the bill’s move to separate care and protection from the age of the youth justice system. Not only does separating these two ages in law mean that New Zealand will continue to breach the United Nations Convention on the Rights of the Child (UNCROC), it also presents practical difficulties.

As the Children’s Commissioner (and former Principal Youth Court Judge) Andrew Becroft pointed out, “the change half-step, and not full step, to include youth justice seems to us to be burdensome, and it will add administrative complexity”. While we acknowledge that the Government is currently considering lifting the age of the Youth Court jurisdiction, it is a huge shame and waste of resource to miss the opportunity to deal with both issues at the same time. We hope to hear a positive announcement from the Government in this area soon, not least to reduce the complexity that will soon to be added to our system.

The delegation of powers currently residing with social workers

We are strongly opposed to those new sections recommended under clause 7 of the bill, which vest powers, currently held by social workers, with the chief executive. This will essentially allow the chief executive to delegate these powers to other professions, with very few checks and balances, and without the oversight of Parliament. We believe that is wrong.

Social workers are trained professionals. Like the Police, they carry out certain weighty functions set out in legislation, and as such are able to be held to account—functions like the removal of children. These roles and responsibilities cannot, and should not, be taken lightly. We fully acknowledge that the deferential response model already allows Child, Youth, and Family (CYF) to delegate caseload to social workers operating outside of CYF, but the idea that powers contained in legislation could simply be handed over at the discretion of the chief executive is a line that we do not believe should be crossed.

A number of submitters shared this view, and even those who may potentially be recipients of these powers spoke out against this amendment. Many argued that the collaboration across professions that work with children is already possible without such a huge legislative change. Others argued that the ability to work effectively with families could in fact be undermined by the delegating of these statutory powers. Overall, we agree that these changes could well lead to poor outcomes for children and their whānau and we do not support them.

Design of an independent advocacy system

We support all moves to place the child at the centre of decision making, give them a voice, and ensure they are heard. This includes the establishment of an independent advocacy service. We have expressed our view that we want to ensure that this service is sustainable and well supported. We are concerned that relying on the philanthropic sector for such a crucial body’s establishment may undermine its longevity. We are keen to see guarantees that this service will be here to stay.

Green Party Aotearoa New Zealand minority view

The Green Party supports raising the age of care and protection to 18, though we agree with submitters that it does not make sense to raise the age of care and protection and not the age of youth justice. We are concerned that creating a two-tier system for children is missing the reality that many children within our youth justice system are children in our care. Creating two systems is administratively burdensome and inefficient and we did not hear an argument to justify continuing with a lower age for youth justice, in breach of our UNCROC commitments. The Green Party is embarrassed that New Zealand is one of the last countries in the world still treating children as adults in our justice system.

The Green Party also supports the establishment of a new youth advocacy service that will support them to express their views on matters that are important to them and for the chief executive to listen to their views on the operation and effectiveness of services provided under the Act. However, we agree with submitters that, as per international best practice, the service should also connect children in care, advocate for individual children in care, empower children in care, supporting them to speak up about what they need, and invest in training and development to grow their leadership. We believe this would have benefits to those young people and our society as a whole.

The Green Party also supports embedding the views of children and young people in the new operating model, especially in new section 11(2)(c) which requires suitable supports to be provided for children who may have difficulties expressing their views. However, again we share the concerns expressed by several submitters that the legislation is not specific enough. While the bill specifies that children’s views must be taken into account, it doesn’t say how their views will be weighed against other concerns, how anyone will know they’ve been taken into account, and, if it’s decided that their request or views aren’t in their best interest, how this will be communicated to them. It could be argued this is operational detail, but we disagree. The current Act has provision for consideration to be given to children’s wishes, but the Commissioner for Children has raised concerns that this hasn’t been operationalised. The Green Party believes that putting more detail in the legislation is the best way to ensure the intent is realised.

While the Green Party supports, albeit with qualifications, the three provisions above and would vote for legislation with just these changes, we so deeply oppose the changes to enable wholesale delegation of CYF powers that we are unable to support this bill.

Significant concerns were raised by a range of submitters opposing the broad delegation of powers. The point was well made by the New Zealand Council for Christian Social Services when they said they couldn’t comment on this point sensibly as there wasn’t enough detail to know what it would mean in practice. The Office of the Children’s Commissioner also noted that the legislative process seemed to have outstripped the policy process. Considering the high level of anxiety that this bill may enable a dismantling of the statutory sector, we are taking a precautionary approach and opposing this bill.

We also share the fear raised by several submitters that already under-funded and over-stretched community agencies may now be expected to take on additional roles without adequate funding. We were told this has been happening with the children’s teams. It ultimately puts children and families in more danger. We do not have confidence that enabling broad scale delegation into a context of massive under-resourcing will solve any problems.

We also share concerns that delegating out these roles could further reduce transparency and accountability. The Office of the Children’s Commissioner has said that it does not have the budget to properly follow up when it has concerns for children within CYF residences. Widening delegations will make this job more difficult. We believe it would be irresponsible to support legislation without a clear announcement of increased funding and specific provisions to ensure transparency and accountability.

We share concerns that this may further fragment an already fragmented system. It is already difficult to maintain the necessary child abuse investigative expertise, to help get a conviction, within a largely centralised system. Delegating out this role could make maintaining that expertise even more difficult and put children at further risk.

We share the view of the Commissioner for Children and other submitters that legislation needs to demarcate the role of uplifting children and specify who we give what role. The Green Party wants to see legislation clarify that profit-making organisations, such as Serco, have no place in our care and protection system. We also want to protect the independent relationship that non-government organisations have with families, and explicitly restrict coercive State powers.

Appendix

Committee process

The Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Bill was referred to the committee on 15 June 2016. The closing date for submissions was 28 July 2016. We received and considered 22 submissions from interested groups and individuals. We heard oral evidence from 11 submitters.

We received advice from the Ministry of Social Development.

Committee membership

Alfred Ngaro (Chairperson)

Darroch Ball

Matt Doocey

Hon Paul Goldsmith

Jan Logie

Jono Naylor

Dr Parmjeet Parmar

Maureen Pugh

Carmel Sepuloni

Phil Twyford