A court ruling that forced grandparents to relinquish custody of their grandson due to the grandfather’s previous sexual offence history, but allowed them to continue to care for the boy’s younger sister, highlights an anomaly in WA’s child protection laws, a Curtin study has found.
Study* co-author Bill Budiselik, of Curtin’s School of Occupational Therapy and Social Work, said the grandparents were unable to keep caring for their grandson because the grandfather was unable to obtain a ‘working with children’ card – a requirement for people who care for children under a care and protection order.
“The only reason the card was required was because the older boy was legally under the department’s protection,” Mr Budiselik said.
“The granddaughter wasn’t under the department’s protection so in law it wasn’t necessary for the grandfather to have the card for him and his wife to care for their granddaughter.”
The study was co-written with Frances Crawford of Curtin’s School of Occupational Therapy and Social Work and Joan Squelch of the School of Business Law and Taxation.
Mr Budiselik said that, in the case examined, the newer Working with Children (Criminal Record Checking) Act 2004 WA had trumped the state’s Children and Community Services Act. Both Acts are administered by the Department for Child Protection.
“When the mother relinquished care of the elder child, the Department for Child Protection initially placed the child in the care of the grandparents,” he explained.
“The mother then drew the department’s attention to the fact that her father had a criminal conviction for sexual assault against a child – not his grandson – from more than 20 years ago.”
Mr Budiselik said the department took out a care and protection application, removed the boy from his grandparents’ care and placed him into non-family care while it assessed the grandparents.
“A departmental psychologist then assessed the grandparents as suitable to care for the boy,” he said.
“This was all prior to the Working with Children (Criminal Record Checking) Act coming into force, and the department placed the boy back in the care of his grandparents.”
In the meantime, the grandparents’ daughter had given birth to another child.
“In this case, the second grandchild was placed directly with the grandparents but the department didn’t take out a care and protection application, presumably because the grandparents had been assessed as suitable carers,” Mr Budiselik said.
“So, you end up with the situation of the department being obligated in law to remove one child but not believing the situation is serious enough to warrant the taking of a care and protection application in relation to a younger sibling.
“So, in law, the second child can stay there even though the law required the first child to be removed.”
Mr Budiselik said that when the Working with Children (Criminal Record Checking) Act came in to force, the elder grandchild’s existing care and protection status triggered the need for the grandparents to obtain a working with children card.
Once the new law came into being, if the grandfather could not obtain the card, the discretion the department once had to leave the boy with the grandparents vanished.
“To be a suitable carer for a child under a care and protection order you had to have the card, and the grandfather’s earlier offence meant he could not get one,” Mr Budiselik said.
Mr Budiselik said that, at the time, the department did have the option of seeking to discharge its care and protection order.
“You would have thought that it either would have done that or sought a care and protection order for the second child so the siblings would have been treated similarly,” he said.
“But, in fact, on what went to court, that hadn’t happened.
“It’s one of those cases where you suspect this was an unintended consequence of the new legislation.”
Department for Child Protection Director General Terry Murphy told Curtin News that a review of the Working With Children (Criminal Record Checking) Act was underway.
Mr Murphy said the review aimed to “determine if the already stringent legislation” could be “further strengthened”.
“The review is required by legislation and will look at the operations and effectiveness of the Act which covers the Working with Children Card,” Mr Murphy said.
“The check is already one of the most rigorous in Australia and the review will determine if there is room for improvement.”
Public submissions to the review close on February 29.
PHOTOGRAPHY: SAM PROCTOR
* Acting in the best interests of the child: a case study on the consequences of competing child protection legislation in Western Australia, Journal of Social Welfare & Family Law, Vol 32, No. 4, December 2010, pp369-379.