Discussion of the Knowns and Unknowns of Child Protection During Pregnancy in Australia

ABSTRACT

Legislative provisions for accepting unborn child reports into the child protection system in Australia have coincided with a noticeable rise in the number of infants entering care. This article collates information on the child protection process during pregnancy based on a desk review of relevant public primary sources. The effectiveness of child protection during pregnancy in reducing statutory intervention at or following birth and avoiding unintended consequences is also explored through an examination of relevant child protection data, reviews, and research. The summary revealed some differences in the process of making, accepting, and responding to an unborn child report across Australia. The knowns about child protection during pregnancy include a high rate of unborn child reporting, a high proportion of children involved in unborn child reports who are subsequently admitted to care, and a disproportionate representation of Indigenous children in these statistics. The knowledge gaps include the circumstances of parents involved in unborn child reports who are approached by child protection and when; parents who refuse to engage; parents who are provided advice and support; and the outcome of these cases. Some aspects of child protection practice during pregnancy, including information sharing, risk assessment and case planning, and parental engagement and partnership throughout the process represent further knowledge gaps.

IMPLICATIONS

• Attention to the high rate of unborn child reporting to child protection in Australia and to the differences in procedures for responding across the states and territories is needed.

• The high proportion of children involved in unborn child reports who are subsequently admitted to care, and the disproportionate number of Indigenous children who are represented in unborn child reports, substantiations, and care entries during infancy need to be addressed.

• There is a need for further research on child protection practices during pregnancy and case outcomes to maximise safe pregnancy journeys.

KEYWORDS:

• Child Protection
• Pregnancy
• Out-of-home Care
• Indigenous Australians
• Infants
• Antenatal Care
• Unborn Child
• Unborn Child Reporting
• Fear of Child Removal
• Infant Removals
• Child Removals
• Maternal Consent
• Maternal Support

In many western nations the rate of infant removal, particularly at or close to birth, has increased substantially. In England, Broadhurst et al.’s (2017) analysis of national data showed a 79% increase in the number of infants aged less than 12 months subject to care proceedings between 2007–2008 and 2016–2017. The largest increase (136%) was for newborns, representing an increase from 15 per 1,000 in 2007–2008 to 35 per 1,000 in 2016–2017. In the US, 19% of all new foster care entries during the 2018 financial year were infants, representing the largest category of foster care entries (US Department of Health and Human Services, 2019). Between 2015 and 2018, Keddell (2019) reported a 33% increase in the rate of infants entering out-of-home care within 3 months of birth in New Zealand, from a rate of 35 per 1,000 live births to 46 per 1,000.

In 2016–2017 in Australia, 487 more infants were admitted to out-of-home care than were admitted in 2012–2013, an increase of 24.7% (Australian Institute of Health and Welfare, 2018). Increases have been observed across all states and territories. In Western Australia, Bilson et al. (2017) calculated that between 1996 and 2009, the proportion of infants entering their first episode of care increased from 15.3% to 24.8% of all first-time entrants to care. Babies aged under 1 month increased from 3.2% to 9.1% of all children entering care. In New South Wales, Marsh et al. (2017) reported a four-fold increase in the number of newborns (aged 7 days old or less) who entered care between January 2006 and December 2014. In Victoria, infant removals have increased by 20% in 5 years, from 6.9 per 1,000 in 2014–2015 to 8.4 per 1,000 in 2018–2019 (Australian Institute of Health and Welfare, 2020).

Indigenous infants are over-represented in Australian statistics on infant removals. O’Donnell et al. (2019) found that Indigenous infants in Western Australia were 10 times more likely to enter out-of-home care than non-Indigenous infants. In New South Wales, among the cohort of Indigenous children who entered care in 2015–2016 (n=1,144), 10% were assumed into care shortly after birth, typically within the first 2 weeks of life. Overall, 18% of the cohort entered care within the first 6 months of life (Davis, 2019). In Victoria, in the 2 years from 2017 to 2019 Indigenous infants subject to a child protection report while they were a foetus in utero (subsequently referred to as an unborn child report) were significantly more likely to enter out-of-home care within 12 months of birth, compared to non-Indigenous infants (21% and 13%, respectively) (SNAICC, 2019).

The Consequences of Infant Removal

Placement in care during infancy is necessary in certain cases. Babies are vulnerable to harm as they are completely reliant on their caregivers to attend to their needs. Maltreatment during infancy can also affect the structure and functioning of the brain as it rapidly develops in the first 2 years of life (Shonkoff et al., 2012). Physical abuse, including shaking, may cause catastrophic injuries and even death. However, out-of-home care carries developmental risks through disrupting attachment formation and exposing very young children to the risk of unstable care and sequential attachment disruptions resulting from placement churn and failed family reunification (Granqvist et al., 2017). Infant removal can disrupt family and cultural connections as well as natural processes of breastfeeding, depriving the infant of associated sensory, cognitive, and health benefits (Victora et al., 2016).

Women who have an infant taken into care experience a deep sense of loss, despair, guilt, and shame, which can have a severe and enduring psychological impact (Broadhurst et al., 2017; Hinton, 2018; Wall-Wieler, Roos, Bolton, et al., 2018). Grief and loss associated with infant removal may contribute to a rapid repeat pregnancy as an attempt to manage intense feelings surrounding traumatic loss of a baby through care proceedings, increasing the risk that women will experience removal of a subsequent infant (Broadhurst & Mason, 2013). These women may also experience reduced income payments, unstable housing, and social isolation (Broadhurst & Mason, 2017; Canfield et al., 2017). For Indigenous families and communities, the distress of infant removal is compounded by intergenerational trauma related to colonisation and the stolen generations (Dudgeon & Hirvonen, 2014). Assumption of care of a newborn is a distressing and challenging professional activity for healthcare professionals, midwives, hospital social workers, and child protection practitioners involved in the process (Marsh et al., 2019).

From the mid-2000s Australian states and territories began introducing legislative provisions for child protection reports during pregnancy (Bromfield & Holzer, 2008). Accepting, and acting on, unborn child reports in Australia fits within a broader early intervention framework (Connolly & Katz, 2019), where the aim was to identify risk of future harm and support the family to address protective concerns before birth. Further, Australia has taken a public health rather than a criminalisation approach to address the specific risks of substance use in pregnancy (O’Connor et al., 2020), which is consistent with an early intervention approach (Angelotta et al., 2016).

The Current Research

This article has two primary aims: (1) to collate information on Australian processes for child protection in pregnancy; and (2) to appraise the effectiveness of child protection during pregnancy in reducing statutory intervention at or following birth, including an exploration of any unintended or undesired outcomes. The summary of information provided on child protection during pregnancy in Australia was based on a desk review of public primary sources including current laws, policies, and child protection practice guidelines. The effectiveness of child protection during pregnancy was considered by examining the available data on the volume of unborn child reports and their timing during pregnancy, the characteristics of parents involved in unborn child reports, provision of early help, and support and child removal following an unborn child report. The potential for unborn child reports to lead to unintended consequences was based on an examination of child protection reviews, inquiries, and research conducted in Australia and overseas. A detailed description of legislation, policy, and practice surrounding unborn child reports to child protection in the different Australian states and territories is provided.

Unborn Children and Child Protection in Australia

Unborn Child Reports to Child Protection

Concerns about the safety of unborn children at birth can be reported to child protection in all Australian states and territories. Tasmania is the only jurisdiction where there are mandatory reporting requirements where there is a reasonable likelihood that following birth a child will be at risk of abuse, neglect, or death due to the actions of the mother or a person with whom the mother resides (Australian Institute of Family Studies, 2020). In New South Wales, while unborn child reports are not mandated, once an unborn child report is substantiated (meaning that there is reasonable cause to believe an unborn child is at risk of future harm), mandated reporters have an obligation to report failure to engage with antenatal services (Australian Institute of Family Studies, 2020). In South Australia, legislation has recently been amended to permit notifiers to report concerns about an unborn child at any stage of a woman’s pregnancy.

Factors included in the relevant child protection guidelines that may increase the risk of abuse or neglect following birth, or grounds for making an unborn child report, include family violence, teenage pregnancy, homelessness, unmanaged mental illness, significant learning difficulty or intellectual disability, and substance misuse (see, for example, unborn child abuse definitions in the South Australian Structured Decision Making® System Mandatory Reporting Guide; National Council on Crime and Delinquency, 2018). Failure to engage in prenatal services or other services provided to address the risk of harm to an unborn child after birth may lead to an unborn child report (Quick & Scott, 2019; Sykes, 2011; Wise, 2020). Past behaviours are also taken into consideration when making an unborn child report, for example, if a carer has previously been convicted of an offence against a child, or if the mother has had previous involvement with child protection or a sibling has been previously removed by a court order from the care of either parent (Victoria State Government, 2021).

Investigation of Unborn Child Reports

New South Wales, Western Australia, Queensland, and Tasmania have statutory provisions for investigation during pregnancy to determine whether an unborn child will need protection after birth (referred to as a substantiated investigation outcome). Queensland explicitly requires maternal consent for their participation in investigations (Department of Child Safety, Youth and Women, 2020), whereas maternal consent is not required in Western Australia, Tasmania, or New South Wales (Department of Health, 2014; Hinton, 2018). In Victoria, South Australia, the Australian Capital Territory, and the Northern Territory, legislation does not allow for investigations to commence before the child’s birth (see also Australian Institute of Health and Welfare, 2021a). In the Northern Territory, information provided by the notifier is used to assess whether there should be an investigation after the child’s birth to determine if a child protection intervention is needed. The child protection department can place an alert about an unborn child on their client management system for monitoring and follow-up if necessary or refer the expectant mother to community-based services (Territory Families, 2020).

Case Planning, Case Management, and Referral During Pregnancy

Unlike some international jurisdictions, Australian states and territories do not recognise the legal personhood of a foetus in utero. This limits child protection jurisdiction to after a baby is born. Until then, intervention is provided on a voluntary basis. In Queensland and the Australian Capital Territory, child protection remains involved if the child is assessed as needing protection after birth (Community Services, 2018; Department of Child Safety, Youth and Women, 2020). In New South Wales, a safety risk assessment informs the development of a safety plan, which is undertaken in partnership with parents. There are also legislative provisions for a Parental Responsibility Contract, which is again developed in partnership with parents (Davis, 2019).

Planning for Action at Birth

Child protection during pregnancy involves planning for predicted risks once the child is born, including decisions about assumption of care immediately following birth if it is deemed that the baby would be at immediate risk of harm if the baby went home to the care of the parent(s). Many parents with psychosocial risks may avoid contact with child protection during pregnancy due to fear of child removal, especially if they have had previous contact with child protection or are from communities that are overrepresented in the child protection system (Broadhurst & Mason, 2013; Hinton, 2018). If child protection has tried unsuccessfully to engage the pregnant woman or other parent or carer, and there are significant concerns about the safety of a child following birth, case planning can occur in the parents’ absence. An investigation may be initiated after birth if necessary. Here, child protection can request an immediate notification from the maternity hospital where the birth is planned or expected (referred to as a high-risk birth alert).

To the extent that it can be achieved in the child’s best interests, parental involvement and participation in case planning is actively encouraged. Western Australia, for example, has comprehensive guidelines for child protection case planning if a notification has been received before a child is born (Department of Health, 2014). This includes provisions to ensure that where it is safe to do so, expectant mothers are alerted of the decision to remove their newborn. However, the extent to which planning is a transparent and inclusive process, and the frequency with which decisions to remove newborn babies are not disclosed to parents is unclear. Yet, we do know that parents who do not engage in services and support can be perceived by child protection as a flight risk (Marsh et al., 2019), and that parents may not always be informed about decisions to intervene at birth (Davis, 2019; Wickham, 2009).

Effectiveness of Child Protection During Pregnancy

The little information that is available on the timing during pregnancy of unborn child reports, the source of unborn child reports, the types of services that are offered to expectant parents, the extent and nature of parental engagement with child protection where a child may be at risk of future harm, the duration of child protection involvement, and the outcome of these cases is presented below.

Volume of Unborn Child Reports and Their Timing During Pregnancy

The available data outlined below suggest the rate of unborn child reports per 1,000 live births ranges between 23.8 and 47.1, with rates for Indigenous children far higher than non-Indigenous children. Drawing on administrative data from 2013, Taplin (2017) estimated an incidence rate of 42.6 unborn child reports per 1,000 live births in the Australian Capital Territory. Davis (2019) reports that in 2016–2017 there were 4,540 unborn child reports in New South Wales, with just under 30% relating to Indigenous children (representing a rate of 47.1 unborn child reports per 1,000 live births for all children, and a rate of 228.9 unborn child reports per 1,000 live births of Indigenous children). Arney and Chong (2018) identified 647 unborn child reports in 2014 in South Australia, equating to 31.7 unborn child reports per 1,000 live births in that year. Unpublished data obtained by the authors from the Victorian Department of Families, Fairness and Housing shows that 1,960 unborn child reports were received in 2016–2017, representing a rate of 23.8 unborn child reports per 1,000 live births (Department of Families, Fairness and Housing, unpublished). National child protection data collated by the Australian Institute of Health and Welfare only provides information about the number of children who were the subject of a child protection substantiation who were unborn at the time of the report to child protection. This relates only to jurisdictions that permit investigation during pregnancy (New South Wales, Queensland, Western Australia, and Tasmania). There were 1,739 children who were the subjects of substantiations of unborn child notifications received in 2019-2020 (Australian Institute of Health and Welfare, 2021a, p. 24). Shockingly, 44.7% of substantiated children who were unborn at the time of the report to child protection were Indigenous (Australian Institute of Health and Welfare, 2021b).

As a general principle, referral to child protection should be at the earliest opportunity after pregnancy is confirmed to allow sufficient time for assessment and planning and to provide parents time to engage with services and support. However, some unborn child reports are made late in the antenatal period, which means referral, advice, and assistance to address child protection concerns before birth is not viable. In the Australian Capital Territory, for example, of the 216 unborn child reports made in 2013, over half occurred during the third trimester of pregnancy (Taplin, 2017).

Circumstances of Parents Involved in Unborn Child Reports

There is an emerging body of evidence on the characteristics of birth mothers involved in unborn child reports, which reflects the constellation of well-established risk factors for child abuse and neglect. These include poverty, young age at first birth, the presence of intellectual disabilities, substance use, denial or concealment of pregnancy, mental health difficulties, family violence, and homelessness (see, for example, Broadhurst et al., 2017; Griffiths et al., 2020; Taplin, 2017; Wall-Wieler, Roos, Brownell, et al., 2018). Prior child protection involvement, such as parents with a personal history of out-of-home care or who previously had a child removed from their care, has been linked to unborn child reports (Broadhurst et al., 2017; Hinton, 2018; University of South Australia, 2017). In the Australian context, Indigeneity of the unborn child has been shown to be an additional and unique predictive risk factor for unborn child reporting and infant removals (Bilson et al., 2017; Marsh et al., 2017; O’Donnell et al., 2019; Taplin, 2017). Information on fathers involved in unborn child reports is extremely sparce, reflecting an apparent lack of focus on fathers in child protection practice itself (Critchley, 2021).

Unborn Child Reports That Progress to Investigation and Assessment

There is variability in the proportion of cases that progress to investigation among the states where such provisions exit. Data from the Australian Institute of Health and Welfare show that in 2019–2020, 100% of unborn child reports in Queensland progressed to an investigation, and a very high proportion of unborn child reports in Western Australia (93.5%) were investigated. In Tasmania, 69.7% of unborn child reports were investigated (Australian Institute of Health and Welfare, 2021a). The proportion of unborn child reports that are acted on in the other states and territories is entirely unclear.

Maternal Consent and Provision of Help and Support

Maternal consent for investigation or assessment and intervention represents a significant knowledge gap. Specifically, there is no published data on the proportion of mothers who consent to an investigation or assessment (where consent is required), or the proportion of cases that progress to an investigation or assessment that resulted in advice to the mother, referral to support services, or case management from child protection. While there is an absence of information concerning maternal consent for investigation or assessment and intervention during pregnancy, consent relies on practitioners’ skills in developing partnerships. A lack of cultural safety and responsiveness, and perceptions of racial bias in assessment have been identified as barriers to meaningful engagement with Indigenous women during pregnancy (Davis, 2019).

Initial approaches by child protection at the last stages of pregnancy undermine engagement in planning and casework processes, and some data are available to suggest late assessments are a feature of child protection during pregnancy. The Australian Institute of Health and Welfare (2021a), for example, reported that in 2019–2020 only 45.4%, 22.2%, and 20.5% of investigations of unborn child reports were completed before birth in Queensland, Western Australia, and Tasmania, respectively. It is unclear, however, whether late assessment and planning is a function of unborn child reporting during the late stages of pregnancy (as suggested above) or a delayed response by child protection. Hinton (2018) argued that delays in assessment and planning typically reflect late referrals in conjunction with large caseloads limiting opportunities for child protection practitioners to get to cases in a timely way. Child protection may deliberately delay contact with a pregnant woman if it is assessed that child protection involvement will place the newborn baby at increased risk (see, for example, Department of Child Safety, Youth and Women, 2020).

Child Removal Following an Unborn Child Report

As above, the Australian Institute of Health and Welfare only provides information on unborn children subject to a substantiation. Of the 1,337 unborn children subject to a substantiation in 2018–2019, (569 Indigenous, 520 non-Indigenous and 248 Indigenous status not known), 40.9% Indigenous and 45.4% non-Indigenous children were admitted to out-of-home care within 12 months of substantiation (Australian Institute of Health and Welfare, 2021b). Other sources also suggest a high proportion of children involved in unborn child reports are subsequently admitted to out-of-home care. Taplin (2017), for example, found that of the 117 babies born in the Australian Capital Territory in 2013 who had been subject to an unborn child report, 12% were removed within 100 days of birth. Of these infants, 36% were removed within the first week and a further 57% within the first month of birth. In South Australia, Arney and Chong (2018) found that 80% of a random sample of 131 Unborn Child Concern reports received in 2014 had a subsequent child protection report before the child’s second birthday. Of these cases, 27.5% resulted in a protection order involving placement in out-of-home care. In the New South Wales sample of 1,834 newborns taken into care between 2006 and 2014 examined by Marsh et al. (2017), 88.9% had been the subject of an unborn child report. In Victoria, of the 1,960 unborn child reports made in 2016–2017, 7.4% (n=145) resulted in out-of-home care. There was regional variation in the number of unborn child reports and the proportion of unborn child reports that resulted in removal, although the reasons for this are unclear. Regional variation in the application of child protection polices relating to unborn child reports and infant removals has also been identified in the United Kingdom (Broadhurst et al., 2017) and New Zealand (Keddell, 2019).

Potential Unintended Consequences of Child Protection During Pregnancy

Child protection has long experienced tensions between its two main missions, protecting children and supporting families, and practitioners face real challenges in establishing good working relationships with families who may fear, reject, or evade child protection. Research has highlighted the extraordinary lengths to which some expectant mothers will go to avoid contact with child protection during pregnancy and after birth (Davis, 2019; Fong, 2019; Stone, 2015).

Avoidance of Antenatal Care

Fear that children will be taken into care is frequently cited as a reason for inadequate or no antenatal care in studies conducted outside Australia, particularly amongst substance-using women and mothers with a history of having a child taken into care (Broadhurst & Mason, 2017; Broadhurst et al., 2017; Wall-Wieler et al., 2019). Expectant mothers may deploy a range of strategies that render them visible while concealing psychosocial risk factors, including through minimising or masking their experience of hardship, homelessness, violence, and even substance use (Fong, 2019; Stone, 2015). This form of constrained engagement may result in protective concerns only becoming apparent late in the antenatal period, where the window of opportunity for practitioners and families to work together to reduce or eliminate risks to the unborn child is not viable.

While there is no published Australian research about avoidance of antenatal care among expectant women involved in an unborn child report, in one South Australian study, just over half (57%) of unborn child reports were made by health staff (predominantly midwives and hospital social workers) (University of South Australia, 2017). This is because health professionals may have the first contact or be aware that a woman is pregnant and a key component of early intervention with pregnant women involves psychosocial screening at a first antenatal visit (Wickham, 2009). In addition to avoidance of antenatal care, for Indigenous women in Davis’s (2019) review, who have experienced historically coercive statutory intervention, the entrenched and pervasive fear that their children will be taken into care has led some women to move across child protection boundaries before birth, give birth unassisted at home, or flee maternity hospitals after birth before child protection can attend. Such actions can exacerbate concerns about women being a flight risk leading to increasingly intrusive child protection practices during pregnancy, delivery, and following birth (Davis, 2019; Marsh et al., 2019; Wickham, 2009).

Discussion

In Australia, state and territory governments are responsible for statutory child protection. From the mid-2000s jurisdictions began introducing legislative provisions for accepting unborn child reports to child protection. While it is possible to make an unborn child report to all child protection authorities, there are some differences in the processes that follow. In the Northern Territory, information provided by the notifier is used to assess whether there should be an investigation after the child’s birth to determine if a child protection intervention is needed. The expectant mother may also be referred to community-based services. New South Wales, Western Australia, Queensland, and Tasmania have statutory provisions for investigation during pregnancy to determine whether an unborn child will need protection after birth, while an assessment can be conducted in the Australian Capital Territory and Victoria for planning purposes. In all jurisdictions, help and support during pregnancy is voluntary. However, where parents refuse to engage with child protection and there are significant concerns about the safety of a child following birth, case planning can occur in the parents’ absence. In addition, child protection can place an alert about an unborn child for monitoring and action at birth.

Due to shortcomings in the public reporting of child protection administrative data, the true extent of the scope, timing during pregnancy, and outcomes of unborn child reports is difficult to ascertain. We do know that the rate of unborn child reporting in Australia is high, and that Indigenous unborn children are over-represented in unborn child reports, the group of substantiated children who were unborn at the time of the report to child protection and care entries during infancy. While midwives and hospital social workers are likely principal notifiers, apart from Indigeneity and prior involvement with child protection, little is known about the circumstances of Australian parents involved in unborn child reports, particularly fathers. The degree to which the racial disproportionality in unborn child reports and infant removals is attributable to a lack of practitioner skills and cultural competence necessary to develop partnerships with Indigenous women, parents’ fear of engaging with child protection, racial bias in assessment, an over-reliance on historic child protection file information,or an overstatement of the inevitability of families repeating the cycle are other unknowns.

While the introduction of unborn child reporting has coincided with a noticeable rise in the number of infants entering out-of-home care in Australia, it is unclear whether there is a direct causal effect. There is currently insufficient information to know whether unborn child reporting leads to enhanced engagement in support and services, and ultimately, less intrusive child protection interventions, or whether reporting simply increases monitoring by child protection without engagement in, or timely connection to, effective support. While the evidence base is not robust, there is some indication that women can be approached by child protection at the last stages of pregnancy, meaning the window of opportunity for practitioners and families to work together to address child protection concerns before birth is not viable. Unborn child reports made late in gestation, high caseloads, and deliberate delays so as not to place a newborn baby at increased risk are possible impediments to timely contact and planning. Whether unborn child reporting is causing pregnant women with psychosocial risks, or prior involvement with child protection, to avoid antenatal care is uncertain. However, research clearly shows that women’s prior experiences can render them extremely fearful that their child will be taken into care, resulting in reluctance to engage with services during the antenatal period (Broadhurst & Mason, 2013; Hinton, 2018).

Conclusion

Legislative provisions for unborn child reports to child protection were introduced across Australia almost 20 years ago. Despite a noticeable increase in the rate of infants entering out-of-home care in Australia, basic information is lacking regarding the rate of unborn child reporting and its timing during pregnancy, the circumstances of parents involved in unborn child reports, who is approached by child protection to investigate or assess concerns and when, who refuses to engage, who is provided advice and support, and the outcome of these cases. Child protection practice during pregnancy, including information sharing, risk assessment, and case planning, and family members’ engagement, partnership, and experiences throughout the process remain largely undocumented. Better insights and data, including specific information relating to Indigenous babies involved in unborn child reports to child protection and the reasons for regional variations in unborn child reports and infant removals will increase understanding of this sensitive, complex, and challenging area of child protection work. This will highlight where improvement is needed to maximise safe pregnancy journeys.

Disclosure Statement

No potential conflict of interest was reported by the author(s).