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TRANSCRIPT OF PROCEEDINGS
O/N H-787619
THE HONOURABLE M. WHITE AO, Commissioner
MR M. GOODA, Commissioner
IN THE MATTER OF A ROYAL COMMISSION INTO
THE CHILD PROTECTION AND YOUTH DETENTION
SYSTEMS OF THE NORTHERN TERRITORY
ALICE SPRINGS
10.36 AM, FRIDAY, 2 JUNE 2017
Continued from 1.6.17
DAY 43
MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN, MS S. McGEE and MS R. RODGER as Counsel Assisting
MS S. BROWNHILL appears with MR C. JACOBI and MS A. SWINDLEY for the Northern Territory of Australia
MR D. WOODROFFE appears with MR O’CONNELL for North Australian Aboriginal Justice Agency
MS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid Service
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MR GOODWIN: Commissioners, we continue to hear stories of those who have experienced the child protection system firsthand. We have two to hear from this morning. Yesterday we heard the first part of the story of CS and CT. CS and CT are grandparents who recall their experience when their newest granddaughter was removed immediately after birth. They have told us how they returned to the hospital the day after their granddaughter’s birth only to find the child was no longer there. Today we hear the second part of their personal story and the impact on them, as well as the baby’s siblings, of the removal of their granddaughter.
RECORDING PLAYED
MR GOODWIN: Commissioners, that was the story CS and CT. This morning’s second personal story is that of CR and CZ. CR and CZ share their perspectives on the removal of children and the impact of separation from kin and culture on Indigenous children and their families.
RECORDING PLAYED
MR GOODWIN: Thank you, Commissioners.
COMMISSIONER WHITE: Yes, Mr Goodwin.
MR GOODWIN: I believe Mr Morrissey will take the next panel of witnesses.
COMMISSIONER WHITE: Thank you.
MR MORRISSEY: Commissioners, the next segment is the cross-over issues panel, and I call Dr Katrina McFarlane – sorry – Dr Katherine McFarlane, Katrina Wong, and Karen Broadfoot. May I just note that Katrina Wong is proceeding by way of video link.
COMMISSIONER WHITE: Thank you. We will just wait until we get Ms Wong onto the screen that we’re all together. She was there for a passing moment and then slipped away. Ms Wong, you’re with us?
MS WONG: Hello.
COMMISSIONER WHITE: Good. So I am Commissioner White, and Commissioner Gooda is next to me. And we have a panel, Dr McFarlane and Ms Broadfoot. So I’m just going to administer the affirmation to each of you. So I will do you first, Ms Wong.
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<KATRINA WONG, AFFIRMED [11.12 am]
<KATHERINE McFARLANE, AFFIRMED [11.12 am]
<KAREN BROADFOOT, AFFIRMED [11.12 am]
MR MORRISSEY: Thanks. Dr McFarlane, would you state your full name please.
DR McFARLANE: Katherine Lyn McFarlane.
MR MORRISSEY: And what is your occupation?
DR McFARLANE: I’m a senior lecturer at the university in Bathurst, which is Charles Sturt University.
MR MORRISSEY: Thank you. And did you prepare a witness statement for the purpose of this proceeding with two annexures?
DR McFARLANE: I have.
MR MORRISSEY: And have you had the chance to read that statement for the purpose of the proceeding?
DR McFARLANE: I have.
MR MORRISSEY: Are the contents true and correct?
DR McFARLANE: They are.
MR MORRISSEY: I tender that statement.
COMMISSIONER WHITE: Exhibit 489.
EXHIBIT #489 STATEMENT OF DR KATHERINE LYN MCFARLANE
MR MORRISSEY: Ms Wong, what’s your – sorry. Pardon me. What’s your full name?
MS WONG: Katrina Wong.
MR MORRISSEY: What’s your occupation?
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MS WONG: I’m a senior solicitor of the children’s civil law service of Legal Aid in New South Wales.
MR MORRISSEY: Did you prepare a statement for this Royal Commission?
MS WONG: Yes. I did.
MR MORRISSEY: Did that have five annexures annexed thereto?
MS WONG: Yes. It did.
MR MORRISSEY: And have you had a chance to read that statement for the purpose of the proceeding.
MS WONG: Yes. I have.
MR MORRISSEY: And are the contents true and correct?
MS WONG: They are.
MR MORRISSEY: I tender that statement.
COMMISSIONER WHITE: Exhibit 490.
EXHIBIT #490 STATEMENT OF KATRINA WONG
MR MORRISSEY: Finally, Ms Broadfoot, would you state your full name, please.
MS BROADFOOT: Karen Marianne Broadfoot.
MR MORRISSEY: And what’s your occupation?
MS BROADFOOT: I’m the acting general manager for Youth Justice.
MR MORRISSEY: And did you prepare a statement with 15 annexures for the purpose of this Commission?
MS BROADFOOT: I did.
MR MORRISSEY: And have you had a chance to look at that statement recently?
MS BROADFOOT: I have.
MR MORRISSEY: And are the contents of that statement true and correct?
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MS BROADFOOT: Yes.
MR MORRISSEY: Commissioners, I tender that statement and the annexures as well.
COMMISSIONER WHITE: Exhibit 491.
EXHIBIT #491 STATEMENT OF KAREN MARIANNE BROADFOOT
MR MORRISSEY: Very grateful. So the first question I will put – I will ask for a response from each of the panel members in due course, but perhaps starting with Dr McFarlane, if we could, is – could you just please explain the nature of cross-over and just explain what cross-over is and what the nature of cross-over is between the child protection and youth justice systems.
DR McFARLANE: Certainly. Crossover is the term that you have used here; it has got very many different names. I call care-criminalisation. Others refer to a care-to-crime pathway or pipeline or nexus. It’s all used interchangeably. It essentially means exactly the same thing, which is the progress by which – or the processes by which children who are in state care in one form or another, either with foster care, with kinship care, with relatives, or in institutional care such as group homes or what you know as residential care, how they end up involved in the criminal justice system. And my research and the arguments indicate that that progression is – follows very similar lines and that it is an overrepresentation of children from this small background that end up involved in the justice system.
MR MORRISSEY: Alright. Thank you. Can we say what – is it possible to say, Dr McFarlane, perhaps, what’s the approximate size of the cohort of crossover children.
DR McFARLANE: It’s very difficult to quantify mainly because governments don’t collect the statistics specifically on that. So information that is public available tends to mix the children that are in State care with those who have an involvement and background with the child protection system, which are very different things. Child protection obviously is a lot bigger. Not every child that has had child protection notifications actually ends up being removed from family and placed in care. It also depends on – in New South Wales, we include children in kinship care, those placed with relatives, in the definition of out-of-home care. In some other jurisdictions – in most other jurisdictions – they don’t, so the numbers differ.
However, in New South Wales and in my experience, children enter the justice system at vastly disproportionate rates. In my study, looking at case files before the New South Wales Children’s Court, 50 per cent of the children who appeared before the court had been in the care system at some stage. Many of them were still in there. More broadly it ranges from about 25 to about a third to half of the jail, adult
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jails and juvenile justice populations are made up of people who have been through the care system in some form.
MR MORRISSEY: Ms Wong, you have got a very much hands-on involvement in the field. Can you say something about the application of those general principles in your field?
MS WONG: Yes. I can definitely concur with Dr McFarlane’s research on the ground in terms of our experience. Legal Aid has a number of specialist legal services targeted to young people. One of them is the children’s legal service that provides specialist criminal law representation for young people that appear before the children’s court. And then there is my service, the children’s civil law service, that was set up in response to the type of young people that we talk about and refer to as cross-over young people.
From Legal Aid’s experience, we conducted some research into our high service users. So they would be the frequent flyers of people who utilise Legal Aid services, and we found that 80 per cent of those users of Legal Aid services were young people under the age of 19. And, worryingly, almost all of them had some time, had spent some time, in juvenile detention, and almost half of them had spent – had been in out-of-home care. What it meant was that we, as an organisation, decided that there had to be a better response to this group of young people.
An issue that – or observation that Legal Aid had made for quite a long period of time was that there was a large number of young people appearing before the Children’s Court in quite – for quite minor criminal offences. And these were young people that resided in residential out-of-home care families. There seemed to be a more frequent interaction in the criminal justice system for these children in residential care and there was certainly an interaction in terms of the challenging behaviours that they exhibited and the responses from the residential care workers and their use of police as a behaviour management tool, and we identified that that was a key pathway for young people in the care and protection system into the criminal justice system.
And of course this was then overlaid with other intricacies such as bail and remand and apprehended violence orders and breaches of that. And so what then happened was you would have a constant roundabout of the young person appearing before the criminal justice system, placement breakdowns, which meant they had to move from one residential care facility to another, disengagement from school, and so forth.
So that was what we identified and our service was then set up to provide a sort of wraparound, holistic service for this group of young people, and I would say a significant proportion of clients in my service are crossover young people. A lot of the work that we do is providing advocacy around navigating through systems, advocating around administrative decisions that are made by either community services or by the residential care agencies that are looking after young people. It also providing that wraparound legal service for young people who would have
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multiple legal issues but don’t identify that they have legal issues and they impact on them further down the track and they even accelerate their entry back into the criminal justice system.
We also have a social worker and a youth worker attached to our team, and it’s a recognition that these young people who are the crossover young people have complex needs, and they need – no legal remedy or service is able to adequately address those issues without also having some sort of case management from a social work perspective. So in that regard, we have been working around some systemic change, and that involves looking at protocols, using a collaborative approach of police and community services to draft guidelines around when not to use police, with a real focus around diverting young people away from the criminal justice system who are in residential care.
MR MORRISSEY: Alright. Could I just intervene for one moment there, please. We are going to come back and ask for some detail about that protocol, but just the term that you used earlier has occurred in this Commission several times, but I wonder if you could explain it. The term wraparound care: what do you mean by that?
MS WONG: Yes. I guess when we talk about wraparound legal service, if you think of a typical legal service, it’s usually – you represent a young person in court, that’s the appearance, and that’s it. What this means is we are able to have the luxury of actually assisting a young person for a longer period of time. Usually when a young person gets referred to your services around one legal issue, but then we do a legal health check to ensure that we cover off all the legal issues that the young person might have, and they might not be able to identify what those legal issues are.
And we have developed a tool that we use to kind of identify other issues that they may not consider to be legal. And the idea is that we deal with them all in the one time, while the young person is engaged with other legal services and we can also refer them to our social worker and youth worker to address all the other welfare needs, which might include housing, it might include Centrelink, it might include linking to mental health services and Drug and Alcohol Services.