Advocacy as a Human Rights Enabler for Parents in the Child Protection System

ABSTRACT

Parents and guardians in child protection systems are in unequal power relationships with child protection practitioners. This relationship is experienced as exclusionary or even oppressive by many parents and guardians. For families and communities in the child protection system who experience intersectional discrimination and disadvantage, such as people with intellectual disabilities and First Nations people, this unequal relationship and subsequent potential exclusion and oppression can be even more profound. A growing body of literature indicates that advocacy can assist in addressing unequal relationships in other contexts, such as involuntary mental health. This paper explores the role of representational advocacy in supporting parents in child protection settings through a case study of an advocacy service in Victoria, Australia. Using a human rights framework to guide the analysis, the paper highlights how advocacy can help support rights, but that broader structural change will be required to consistently uphold the rights of parents.

KEYWORDS:

• Advocacy
• child protection
• IFAS
• human rights
• social work

Introduction

Social work and social workers have long been intertwined with child protection systems, overwhelmingly focused on the welfare and safety of children. In recent years, the experiences of parents, caregivers and guardians¹ engaged with the child protection system have been more clearly documented, with many parents reporting experiences of unequal relationships, exclusion and oppression. In many cases, these experiences engage human rights, particularly when the parent involved or their community has experienced racism, discrimination and broader human rights violations. While the child’s best interests are the paramount human rights consideration in child protection, this is only the primary of many interrelating and interdependent rights that child protection practitioners, particularly social workers, are bound to uphold. In this paper, we consider how advocacy for parents can maintain human rights for parents and their children.

Parents consistently identify dissatisfaction with the child protection system, with remarkably consistent themes emerging in studies across the Anglophone world (Ross et al. 2017; Tilbury and Ramsay 2018; Haight et al. 2017). Our evaluation of Independent Family Advocacy and Support (IFAS) (Maylea et al. 2021), replicated these findings. In this paper, we use a human rights analysis to cut through the noise arising from the adversarial relationship common between parents and child protection practitioners and seek to highlight how advocacy can help maintain human rights and lead to better outcomes in the child protection context.

Some scholars have called for the abolition of the child protection system (Dettlaff et al. 2020), while others have called for a ‘rethink how parental rights and responsibilities are best facilitated at institutional levels’ (Hamilton and Maslen 2021, 1) or ‘a whole-of-child-protection regulatory refit’ (Braithwaite 2021, 49). In this paper, we argue for the less radical, shorter-term goal of incorporating advocacy into existing child protection systems to mitigate human rights violations. This pragmatic approach risks missing ‘the underlying politics of oppression that serves to keep families marginalised’ (Hamilton and Maslen 2021, 1). To avoid this, we first outline the human rights frameworks relevant to families in the child protection system for two groups; First Nations families and families where a parent has intellectual disabilities. Then, we highlight how advocacy can help reduce human rights violations for these groups, using the example of IFAS, a non-legal advocacy service in Victoria, Australia. Finally, we return to the question of the ‘underlying politics of oppression’ to argue that advocacy alone cannot bring human rights compliance to the child protection system and that broader structural changes are required.

Human rights frameworks

The dominant human rights document relevant to the child protection setting is the United Nations Convention on the Rights of the Child (CRC) (UN General Assembly 1989); however, two foundational human rights documents provide additional guidance relevant to this paper. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is relevant to First Nations people and communities, and the United Nations Convention on the Rights of Persons with Disabilities (CRPD) (UN General Assembly 2007a, 2007b) is relevant to people with intellectual disabilities.²

Others, such as Hansen and Ainsworth (2009), have drawn on article 5 of the Universal Declaration of Human Rights (UDHR) to argue that some parents experience the child protection system as arbitrary, cruel, inhuman and degrading. Rather than repeat their analysis, this paper focuses on how advocacy has upheld rights contained in the CRC, UNDRIP and the CRPD.

Convention on the rights of the child

The CRC is the foundational document from which the focus on the ‘best interests’ of the child stems. Article 3 of the CRC requires that in ‘all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration’. Article 7 of the CRC states that every child has ‘as far as possible, the right to know and be cared for by his or her parents’. Less commonly cited is article 5, which requires that governments ‘respect the responsibilities, rights and duties of parents’ in the exercising of the child’s rights – including their right to be cared for by their parent.

The CRC allows for the existence of a child protection system that removes children from their families, but article 9(1) requires that this should be done only when ‘necessary for the best interests of the child’. Further, article 9(2) requires that ‘all interested parties shall be given an opportunity to participate in the proceedings and make their views known’ and article 18 requires governments to ‘render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities’.

Despite the articulation of these rights over three decades, the literature shows they are not consistently upheld by child protection systems (Ross et al. 2017; Tilbury and Ramsay 2018; Haight et al. 2017; Maylea et al. 2021; Hansen and Ainsworth 2009). Where social workers and other child protection practitioners wield coercive power, it can be extremely difficult to develop the trusting, therapeutic relationships required to provide support and ensure the involvement of parents in the process.

Declaration on the rights of indigenous peoples

For First Nations parents or parents of First Nations children, the UNDRIP provides additional rights protections.³ Article 7(2) reads:

Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

A strict reading of this right suggests that no First Nations child can be removed from a First Nations family unless placed within that same First Nations group. This is not reflective of practice, with many examples from colonial societies of historical and contemporary removal of First Nations children from their communities (Jacobs 2009; AIFS 2020; Cooper and Whittaker 2014; Collings et al. 2018). First Nations community-controlled organisations are increasingly taking back control of care for First Nations children, with positive results (Keddell, Cleaver, and Fitzmaurice 2022; Blackstock, Bamblett, and Black 2020). Despite this, and decades of explicit policies aimed at addressing the issue, the rate of removal of First Nations children is higher than that for the general population in New Zealand (Boulton, Potaka-Osborne, and Cvitanovic 2018), Australia (AIFS 2020), Canada (Trocmé et al. 2019) and the United States (Jacobs 2009). In Australia, First Nations children are nearly ten times more likely to be living away from their families than other children, a rate that has increased consistently over the last decade (AIFS 2020). Leaving aside the contentious question of whether First Nations children can ever be removed from their communities, the overrepresentation of First Nations children gives rise to an obligation, under UNDRIP, for governments to reduce this overrepresentation.⁴

The current situation is bound within the historical context in which First Nations children were, in many colonial and settler societies, forcibly removed from their families and placed in institutions or white families. In Australia, this is referred to as the ‘Stolen Generations’, and the continued overrepresentation of First Nations children in child protection implies the perpetuation of this colonial-era policy (Douglas and Walsh 2013; AIFS 2020). Social work, globally, has begun to grapple with some of this historical context, yet social work’s complicity in historical and contemporary practices continues to plague the profession today (Choate 2019). Social work’s claim to be a profession founded on human rights is dogged by continuing inequities in child protection settings (Maylea 2021), compounded by systemic issues within the child protection system itself (Dettlaff et al. 2020).

Convention on the rights of persons with disabilities

For parents with intellectual disabilities, the CRPD provides a framework based on the theme of non-discrimination. This means that a child cannot be removed simply because, or only because, a parent has disabilities. While still allowing for children to be removed, and maintaining that the best interest of the child is paramount, article 23(2) of the CRPD requires governments to ‘render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities’. Article 23(1)(b) protects the ‘rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children’. Articles 5 and 12 of the CRPD protect people with disabilities from being treated differently in legal processes because of their disability, and article 23(4) states that ‘In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents’. A strict reading of the CRPD indicates that parents with intellectual disabilities can never have their children removed on the basis of their disability and that the government must provide whatever supports are necessary to ensure that parents with intellectual disabilities can parent.

In practice, this is not occurring. There is general agreement in the literature that ‘no systematic correlation exists between parental intellectual disability per se and parenting performance’, but that they may require specific, tailored supports (Aunos, Feldman, and Goupil 2008, 320). Yet, across the Anglophone world, parents with disabilities are not provided with the support they require to parent and are instead finding their children are taken away by the state (Mayes and Llewellyn 2009; Proctor and Azar 2013; DeZelar and Lightfoot 2020; Llewellyn and Hindmarsh 2015). Studies show that children of a parent with intellectual disabilities constitute between 9% and 22% of child protection cases but make up less than 1% of all families (Proctor and Azar 2013). Between 30% and 40% of children of a parent with intellectual disabilities are removed from their care (Mayes and Llewellyn 2009). These outcomes do vary but are remarkably consistent across jurisdictions. In Australia, Maylea et al. (2021) found that child protection practitioners are not adequately trained to support parents with intellectual disabilities, which may be a contributing factor. Aunos and Pacheco (2021) found that specialised disability services were more likely to find ways to support the ability of parents with intellectual disabilities to parent, while generalist child protection services were more likely to assess the parents as not able to parent.

The right of parents with intellectual disabilities to be provided with the support they need to parent is not currently being upheld, and/or they are being discriminated against in the child protection system.

Why human rights for parents?

The rights of children, particularly that ‘best interests of the child shall be the primary consideration’, are widely implemented and referred to in policy and legislation (Zemljak and Maylea 2020). As shown above, the rights of parents, particularly First Nations parents and parents with intellectual disabilities, are not. These rights are not automatically mutually exclusive. In many, if not the vast majority, of child protection cases, the best interests of the child can be supported through providing appropriate, timely, tailored supports to the parents. A rights-based approach to child protection values the interdependence of the rights of parents, children and other parties in the child protection process, seeking to support and uphold the rights of everyone involved. This is not always feasible in the risk-management focused, adversarial engagement characterising many child protection interactions. As shown below, there are also pragmatic improvements, where a rights-based approach can lead to better use of resources, more effective communication and reduced risk of harm to children. Social workers are, by definition, human rights workers (IFSW 2014), and must uphold the rights of parents as well as children. In Victoria, where IFAS operates, the Charter of Human Rights and Responsibilities 2006, makes upholding human rights a legal obligation.

Upholding the rights detailed above provides a way to refocus and improve the current system and shows a pathway to a better outcomes. As noted below, excuses as to cost, or difficulty in undertaking systemic reform, have no validity under a human rights analysis. A human rights approach provides an unabashedly idealistic lens to view service provision, demanding that social workers and other human rights informed reformers do not settle for compromised systems that violate human rights.

As discussed below, advocacy is only a small part of this but is a valuable example of how human rights can, and have, led to a better child protection experience for some families. In the next section, we discuss how advocacy in general, and IFAS in particular, may help to address some of these human rights violations noted above.

Advocacy and IFAS

Advocacy, as we use it in this paper, is ‘the activity of an individual to pursue and act in the interests of another, where the latter defines his or her own interests and through the process of advocacy gains a certain degree of power to pursue them’ (Foley and Platzer 2007, 618). Dalrymple and Boylan (2013) provide a comprehensive list of dichotomous ways to conceive of advocacy. They include individual/systemic, active/passive, internal/external, formal/informal, peer/professional. In child protection, advocacy may take the form of self-advocacy, where the parent/guardian represents themselves, or representational advocacy, where another person represents the parent. This representative may be a professional or a peer advocate, or both. There are also models of advocacy for children, however, in this paper, we focus on advocacy for parents.

Advocacy is a powerful tool with well-established benefits in many practice settings (Ridley et al. 2015; Flynn 2010; Dalrymple and Boylan 2013). However, independent advocacy is not routinely used in child protection services, and there is limited research on the role and impact of independent advocates in child protection case management globally, with a few notable exceptions (Featherstone et al. 2011; Collings et al. 2018; Jordan, Chui, and Forth 2020; Tobis, Bilson, and Katugampala 2020; Atkin and Kroese 2021; Featherstone et al. 2011; Fitt et al. 2021).

IFAS

Recognising the potential for advocacy in the child protection context, in 2017, in Victoria, Australia, Victoria Legal Aid (VLA), a statutory body responsible for providing legal aid services, funded a pilot program called Independent Family Advocacy and Support (IFAS). During the three year pilot phase, IFAS was limited to Darebin, Moreland and Bendigo, and has since expanded to Ballarat and is now funded by the Victorian government. IFAS works to support informed decision-making and engagement between families and child protection practitioners when a report has been investigated and substantiated but the matter has not yet proceeded to court. First Nations families, families where a parent has intellectual disabilities and culturally and linguistically diverse families are priority groups for IFAS,⁵ but IFAS works with families outside these priority groups as well. IFAS also provides information about the child protection system to anyone and referrals and telephone advice to workers or family members. In addition, IFAS provides coaching for self-advocacy and direct advocacy for people in the priority groups.

IFAS uses a model of advocacy based on Independent Mental Health Advocacy (IMHA), which is a model of representational social work advocacy with additional lived experience inputs (Maylea et al. 2021). IFAS uses a representational advocacy model, which it defines as:

Presenting the client’s views and preferences to others in order for their voice to be amplified in settings where they are in a position where they have less power to impact on decisions that directly affect their rights and lives.

This means advocates do not make value judgements about a parent’s goals, will not share information with child protection practitioners or others without the parent’s explicit consent, and will not take any action without the client’s instructions. When providing direct advocacy, advocates will work with parents to provide them with information on rights and responsibilities, help develop options, support decision-making, speak directly to child protection and other professionals, and refer to other appropriate services. The overall goal is to avoid escalation to court proceedings wherever possible.

Method

In 2019 and 2020, we conducted an independent evaluation of IFAS, funded by VLA (Maylea et al. 2021). The evaluation was conducted in two stages, a midterm review in 2019 and a final review in 2020, and employed a suite of data collection approaches, including qualitative, quantitative statistical and economic analyses. The evaluation was participant driven, adopting codesign and coproduction principles, embedded in a pragmatic paradigm (Yvonne Feilzer 2010). This paradigm:

[…] advocates a relational epistemology (i.e. relationships in research are best determined by what the researcher deems appropriate to that particular study), a non-singular reality ontology (that there is no single reality and all individuals have their own and unique interpretations of reality), a mixed-methods methodology (a combination of quantitative and qualitative research methods), and a value-laden axiology (conducting research that benefits people). (Kivunja and Kuyini 2017, 35)

We spoke with 30 people who had used IFAS, including 6 parents with intellectual disabilities and 6 parents of First Nations children (4 of whom were First Nations), and 48 professionals, including advocates, lawyers, child protection practitioners and First Nations community-controlled organisation staff.⁶ Our evaluation team, and the authors of this paper, include a researcher with lived experience as a parent in the child protection system and a First Nations researcher. The evaluation, and this paper, were guided by a lived experience advisory group which includes parents with intellectual disability and First Nations parents. The evaluation was also informed by an expert reference group of organisational stakeholders.

All qualitative data collected were audio recorded, transcribed and double coded using well-rehearsed conventions of thematic analysis (Braun et al. 2019). All data were coded by one evaluator who conducted the interview and one who had not. The lead evaluator then synthesised the coding, presented findings to the team and stakeholders for discussion, which were published in the evaluation report (Maylea et al. 2021). These themes and their underlying data were then reanalysed for this paper to highlight salient themes relevant to human rights frameworks (as identified above), initially by two members of the research team then cross checked and reanalysed by the lead researcher. These themes were then presented to and discussed with the research team.

Overall, the evaluation found that the advocacy was highly valued by parents who used IFAS. Participants trusted their advocates to support them through very difficult experiences and found that IFAS built their capacity to self-advocate. Advocacy increased the accountability of child protection practitioners. The evaluation found that the majority of practitioners also valued the service, although a minority found engaging with advocacy counterproductive, confusing or frustrating, primarily because they did not understand or appreciate the IFAS model of advocacy. The evaluation estimated that IFAS was successful in diverting approximately 20% of families from court, saving $3.52 for every dollar invested.

Ethics approval for the evaluation was provided by RMIT University Human Research Ethics Committee (#HREC22471). External research approval was provided by the Victorian Centre for Evaluation & Research Evidence (BAC-DM-788, TRIM: HHSD/21/118918). Only data collected under the RMIT University approval are used in this paper.

In the following section, we explain how we found that, limited by context, IFAS is able to work to maintain the human rights of parents in the child protection system. We do this by presenting data from interviews with parents with intellectual disabilities, First Nations parents, and parents of First Nations children. The data presented in this paper are not intended to be statistically representative of all parents in the child protection system or even all parents who have used IFAS but provide qualitative insight into how IFAS worked to maintain human rights for these parents.

IFAS advocacy and human rights

Overall, the evaluation data showed that IFAS did reduce the total number of children who proceeded to court, diverting approximately 20% of families away from the child protection system and approximately 6% diverted from out of home care.⁷ This is, in itself, a way of protecting the human rights of those families, and in doing so, progressing the aims of the child protection system. In each case where a child was not removed due to IFAS involvement, a child protection practitioner made an assessment that that child was no longer at risk of significant harm. This was either because, due to IFAS involvement, the child protection practitioner could now communicate with the parent to establish that the child was not at risk, or that IFAS had helped the parent reduce the risk of harm to the child, either through direct support or referral to other services.⁸

For these families where children were not placed in out of home care, their right to be cared for by their parents was upheld due to IFAS advocacy and support. For families overrepresented in the child protection system, such as First Nations families and families where a parent has intellectual disabilities, reducing this discrepancy is probably the most crucial function of IFAS in upholding human rights. However, for both groups, additional human rights protections specific to their experiences and needs emerged from the thematic analysis and are presented in the following two sections.

IFAS advocacy enables engagement with First Nations families

All parents indicated they had benefited from advocacy, but First Nations parents faced particular systemic barriers. These barriers are, as noted above, complex historical and contemporary interactions steeped in systemic racism and colonialism. In our study, First Nations organisations, First Nations parents and parents of First Nations children identified mistrust and intergenerational trauma as issues that made engaging with the child protection system difficult. In this section, we show how building trust with advocates allowed First Nations families to engage with the child protection system. IFAS advocates were able to provide a ‘bridge’ between the child protection worker and the parent. Through this two way connection, parents could communicate with child protection workers, and subsequently, child protection workers were less likely to remove the child.

Parent 9, a First Nations parent, felt that First Nations families were treated differently from others in the child protection system:

It’s pretty much been made clear that there’s definitely different standards for Indigenous families compared to non-indigenous families. [P20]

Parent 10, a First Nations Parent who had intellectual disabilities, specifically told us that he felt he had been treated unfairly:

I think the Department’s been very unfair … to the point of biased … because the Department up there is so corrupt. … You know, things like we’d have paperwork for them and they’d purposely not give it to the [child protection] solicitor or our solicitors the day before it went to court. Then the magistrate didn’t have a chance to read it and the magistrate would make another out of home accommodation order due to those factors. [P10]

Another First Nations parent felt that child protection workers intentionally did not share information:

Interviewer:

Had child protection given you information at all about your rights or what they were doing?

P11:

No.

Interviewer:

No?

P11:

They didn’t. They never do, they do that on purpose.

These specific negative experiences were located within the broader historical context of the Stolen Generations and continuing overrepresentation of First Nations families in the child protection systems. This was recognised by professional stakeholders such as this statutory case manager employed by a First Nations community-controlled organisation:

Working with Aboriginal families, there is the weight of 200 years of oppression, for a start, that knocks on the door with you when you’re child protection, and quite often the message can get lost in that kind of conflict because families, understandably, are upset. Every family’s upset when child protection knocks on the door, but I think the weight of pattern and history that knocks with child protection, quite often, the relationship can be so skewed by that that you can’t do good work, and you end up in court. [SH9]

Another statutory case manager from a First Nations community-controlled organisation in the same focus group noted that child protection services sometimes attributed the reaction they received to personal anger issues rather than a justified response to generational trauma:

It’s the weight of 200 years knocking on your door and then [child protection] going, ‘Well everybody in the house was cranky, so clearly, someone’s got anger issues' without recognising it’s actually your knock of the door that prompted the anger, versus everyone in the house is angry. [SH10]

This same statutory case manager indicated that sometimes, child protection practitioners did not have the language skills required to communicate with First Nations families:

We have a Child Protection worker with very, very eloquent speech, using dialogue or a conversational style that is not relatable to the family, particularly a young woman and all her supporters, which are the extended family, and sitting in that space, I do not feel that that family or that mum is actually being heard, and she’s not actually been given an opportunity to use her voice to express herself and to give her opinions of anything. It’s such a stressful, such an intimidating environment, that she doesn’t have that. [SH10]

For First Nations parents, or parents of First Nations children, IFAS was able to provide a way of navigating these issues. Primarily, this was by advocates sharing their professional power with the parent as a third-person observer of the process:

The way [Child Protection] spoke to me and all. Well, they spoke to me like a level-headed adult when [IFAS Advocate] was around, but when [IFAS Advocate] wasn’t I was just another young child that didn’t deserve to have another child. [P1].

This sentiment was echoed by another First Nations parent:

P30:

Before IFAS Advocate was involved, [Child Protection] weren’t listening to anything, or anything that I would say to my [other] worker or them. They would legit, just curveball it and put something else around it.

Interviewer 2:

What were some of the things that IFAS Advocate 2 did that made a difference to that, do you think?

P30:

Well, she would turn around and say to them, because [Child Protection] used [to] cut me off before I could finish what I was saying, and [IFAS Advocate] was like, can we please give [Parent 30] a chance to say what she would like to say.

IFAS also directly combated the issue of asymmetrical information by providing families with information that allowed them to participate in decisions:

I think it’s just her there when you needed that, you know, just to go over things. Having her there was, because if I was unsure about something, then to ask her she was able to, you know, answer. (P25)

IFAS linked First Nations families into culturally specific services which provided the support required to parent:

IFAS helped me get involved with Odyssey House, this is the Kids in Focus programme through Odyssey House, and that was all done through [IFAS Advocate]. … I was at the point of giving up with [child protection] … [IFAS] actually turned my eyes around to work with them, maybe open up to different workers, and now, as I said, I’ve got an Aboriginal worker and I’ve got a Kids in Focus worker. I actually work with them and I talk with them, and if it wasn’t for [IFAS Advocate] opening up my eyes to certain things I probably would’ve given up, to be honest. (P24)

Ultimately, for P24, this meant that they were able to keep their children at home:

For years we were getting told we weren’t getting our kids back, like even though we did everything we needed to do. Without IFAS’s help I wouldn’t be in this situation, we wouldn’t have our kids back. (P24)

In these ways, IFAS is upholding the rights of First Nations families to participate in the child protection process, which both improves their ability to exercise autonomy and reduces the rate at which their children are removed.

IFAS advocacy enables engagement with parents with intellectual disabilities

Parents with intellectual disabilities who participated in the evaluation shared similar experiences to First Nations parents, with some distinct differences. They also distrusted the child protection system, which they felt attacked and targeted them. They also found that advocacy helped to address information asymmetry and enabled communication in otherwise adversarial settings. One additional function of advocates was supporting parents with intellectual disabilities in calming their reactions to frustrating circumstances, reactions which may otherwise be used against parents to indicate issues with anger. In this section, we explore each of these aspects.

As noted above, as with First Nations parents, parents with intellectual disabilities were seen as being particularly susceptible to child protection involvement. Professional Stakeholder 2 told us that:

Parents with intellectual disability have their children removed much, much quicker than many other families and they go into the system further, quicker, deeper. … with intellectual disability, currently in our society – that automatic view is you have an intellectual disability, therefore you must be deficit. [SH2]

Parents with intellectual disabilities who participated in the evaluation also distrusted the child protection system, citing similar frustrations to First Nations parents:

They will pin you down for no reason. … trying to take the child off them. And it’s, I don’t know, they just pin them down, no reason. I have so many reports over the years, every page – this has never happened, this happened, this never happened, dates wrong, all of this – it makes no sense. [P6]

For people with intellectual disabilities, the experience of child protection was an extension of broader social and institutional interactions in which they experienced being dismissed. This sometimes manifested as frustration at not being taken seriously. Parent 6 also noted the way that documents written by child protection services maintained power by being inaccessible to parents. IFAS advocates, bringing professional power to bear, could help parents understand and challenge these written documents in a way that parents with intellectual disabilities could not always do themselves.

This parent, echoing the sentiments of Parent 6, viewed child protection as dishonest and not sharing information they should have shared:

‘Coz they’re not – they’re never really honest, and they’re never really – they don’t tell you your rights, they just tell you what they want you to know … And I don’t think that will change with their workplace at all. Because a lot of it is very unprofessional and misleading. ‘Coz they want you to screw up. They want you to make the mistakes. They don’t want you to know the ins and outs and what your rights are. [P17]

Another parent with intellectual disabilities felt that child protection intentionally shifted parents’ responses:

I know from past history, [child protection] can often twist words or they can twist sentences or they can twist things that you’ve said or done and turn them into things that are even, really over-exaggerate them and turn them into things that are really not, that’s not how it is at all. And that can be very, you know, crucial when it comes to sitting in a court room. [P26]

As with First Nations parents, parents with intellectual disabilities viewed child protection as actively hostile or malicious. A support worker for Parent 6, told the evaluation team:

For me, watching, it’s like someone’s in the boxing ring. Has been in the boxing ring but has no boxing skills, and is getting punched continually by people around who know what his weaknesses are, like hearing, and intellectual disability, that he’s now got someone in his corner who’s prepared to fight for him. [SW1]

This sense of being the target of animosity was palpable in the data.

As with First Nations parents, previous engagement with the child protection system was also linked to hostility towards child protection practitioners. Previous engagement included experience as a child in the child protection system and experience of having previous children removed:

[They] put me in foster home, after foster home, after foster home. I had so many [child protection] workers that I felt like I couldn’t trust anybody. And that points to a lot of other issues.

… 

So I fell pregnant again – ‘coz I was pregnant when I was 14, and it didn’t go so well with [child protection] involvement. And then when I fell pregnant again, I think I got a letter in the mail saying that they were going to be involved with me. [P17]

Some participants described experiences so distressing that it seems impossible that they would ever develop a trusting or therapeutic relationship with child protection. Parent 26 described the removal of her newborn daughter:

As soon as my first child’s umbilical cord was cut, I was in court the very next day fighting for some rights, you know, the little rights I had left. And they took her straight to the special care nursery, so she didn’t even come to me, you know? [P26]

As with First Nations parents, parents with intellectual disabilities found that the presence of an IFAS advocate shifted the attitude of child protection practitioners:

And now I find that Child Protection changed their attitude. And that’s where it should have been done that, to us, and Advocate done a really terrific job. And it made everything sort out, and that was it. [P6]

This was echoed by Parent 6, who felt that the engagement with child protection practitioners became more of a dialogue, rather than orders, when the advocate was involved:

They were more unprofessional and didn’t tell me all the right information that I needed to know. It’s like they weren’t so honest. They would just sit there and tell me whatever they want. But when IFAS Advocate became involved, she would pull them up and actually say, ‘No, this can’t be', or, ‘Legally this is that' and it was really helpful because I wasn’t aware of all that information ‘coz they didn’t tell me that. And there had been some times where DHS have been unprofessional. [P17]

Parents with intellectual disabilities also reported that IFAS advocates facilitated conversations with child protection practitioners that would not have occurred otherwise:

Like sometimes I would feel that I couldn’t communicate – I’m kind of a nice person so if somebody’s making me feel uncomfortable I won’t tell them to a degree. But I have told [IFAS Advocate] privately and then she’ll CC me into a care team meeting or an email, and then she’ll advocate every word that I say and she’ll send me the email first to ask me if that’s what I meant, and then she’ll send it on, and then they would understand. [P17]

This communication facilitation went both ways, with Parent 26 telling us that the advocate was able to help them understand what child protection wanted:

[Advocate would] still say well, alright, now this is how they’re seeing it, this is how they’re looking at it, you know what I mean? This is where they’re coming from … and that, then that helped me, like, actually, yeah, they are being reasonable, they do have a point, you know what I mean? [P26]

For Parents 21 and 26, both of whom had intellectual disabilities, the communication facilitation included the role of the advocate in calming their reaction to frustrating experiences:

When they’ve got one of your children, they can’t understand, they don’t seem to understand that you become aggressive, and you become angry. (P21)

For parents with intellectual disabilities, it was particularly important not to share their frustration, to avoid it being linked to their disability or their ability to parent:

Sometimes you need to say things in an assertive way, but like a forward way, but you can’t, you’ve got to be careful too, how you say. You can’t say it in just any old way, because otherwise then they’ll say, well, this woman’s got an anger problem. (P26)

Another area advocates supported parents with intellectual disabilities was in support for decision-making. For Parent 17, IFAS helped them choose which issues to contest and which were not worth the effort or might have negative consequences:

She helped me make lots of decisions ‘coz [child protection] wanted me to do [an assessment], and I didn’t want to do it at the start. … So [IFAS Advocate] advised me that I could fight it and go to court and they wouldn’t win, but it might just be easier to do it so then they can disappear very soon. [P17]

In this way, IFAS advocates were able to provide the support required to facilitate communication and engagement with the child protection system.

Discussion

While the data presented here are not intended to be representative of all parents in the child protection system or even all parents who use IFAS, the findings are consistent with other literature on parental advocacy in child protection (Tobis, Bilson, and Katugampala 2020; Gerber et al. 2019; Reimer). Atkin and Kroese (2021) and Collings et al. (2018) found advocates helped parents with intellectual disabilities understand more of what was happening, with outcomes broadly similar to the findings from this study. Less research is available on advocacy with First Nations families in child protection settings, with our findings demonstrating a need to further explore this potential.

There are, overall, more similarities between the two groups than there are differences, with both groups feeling targeted or attacked in the child protection system and both groups gaining power back through the work of the advocate. Both groups identified issues with information asymmetry, which was addressed by the information provision by the advocate. Being given information allowed parents to exercise their right to participate in the child protection system, as required by Article 9(2) of the CRC. For both groups, IFAS linked parents in with appropriate services, which both upheld their rights to be provided with support, as required by Article 23(2) of the CRPD, and ultimately made it more likely the child would stay with the better-supported parent, consistent with article 9(1) of the CRC.

For both groups, advocacy facilitated conversations that adversarial relationships between parents and child protection practitioners had previously prevented. For First Nations parents, these relationships were coloured by centuries of colonisation, and for parents with disabilities, coloured by a lifetime of being told they were not capable. Parents felt targeted by the systems, and by individuals within systems. This is clearly inconsistent with the way the vast majority of child protection practitioners would view themselves, which would be as doing a difficult job as well as they could under the circumstances. Bridging this gap between parent perceptions of child protection practitioners and self-perception of child protection practitioners is a key function of IFAS advocacy.

When these experiences turned into frustration, advocacy could prevent that frustration from becoming directed at child protection practitioners and help parents show their best selves in a difficult process. While the complicating factors were different, advocacy was able to assist in both cases.

For parents with intellectual disabilities, advocates were more involved in supporting decision-making, something that is central to the CRPD (Weller 2008). This is an essential human rights function and key to ensuring that people with disabilities are able to participate in society without discrimination.

One key feature of IFAS is the way lived experience is built into the advocacy model. IFAS employs a Lived Experience Advisor as part of the advocacy team and works closely with a lived experience advisory group comprising people who have had child protection involvement with their children. This group includes parents with intellectual disabilities and First Nations parents. IFAS also maintains close partnerships with disability advocacy groups and First Nations community-controlled organisations. This approach of integrating lived experience as a core component of the model is key to creating an approach to advocacy that is successful in the promotion of human rights. This is well established in other fields (see, e.g. Roennfeldt and Byrne 2020; National Development Team for Inclusion 2018) but less well developed in parental child protection advocacy (Featherstone et al. 2011; Tobis, Bilson, and Katugampala 2020). More research is needed to better articulate and describe this dynamic, but the involvement of people with disability and First Nations people in services that support them is a key human rights goal, essential in community participation and self-determination. Working closely with community members and other community organisations also allows for the amplification of strategic issues and contributes to influencing policy change beyond the reach of individual advocacy.

Another key feature that enabled IFAS’s success was its independence from other organisations and systems. Located within the legal aid infrastructure, rather than in a government department, charity or non-government organisation, meant that it was both protected from influence and able to advocate on strategic issues. This independence also helped parents to trust IFAS, particularly when parents had past experience of organisations colluding or sharing information without the parent’s knowledge.

These findings suggest that IFAS is operating consistently with the Advocacy Charter, a document developed by the National Development Team for Inclusion (2018) in the United Kingdom, to promote best practice advocacy. Despite these successes, and noting the success that IFAS showed in diverting all groups of families from court, there are many human rights that were not protected simply with the inclusion of an advocate and which will require fundamental systemic change to address.

The issue of overrepresentation is a clear indication that the child protection system is not providing the support required to uphold the rights of First Nations parents and parents with intellectual disabilities to parent their children. The test, in the CRC, is ‘as far as possible’ and consistent with the ‘best interests of the child’ with ‘all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the Convention … to the maximum extent of their available resources’. If support can possibly be provided that allows the best interests of the child to be maintained while living with the parents, this must be done. The United Nations Committee on the Rights of the Child (2016, 7) has declared in a General Comment that governments ‘have no discretion as to whether or not to satisfy their obligation to undertake the appropriate legislative, administrative and other measures necessary to realise children’s rights’. This includes legislation, policy, service delivery, resourcing, budgeting, implementation and evaluation. Excuses as to cost, or difficulty in undertaking systemic reform, have no validity. We note that this view is not shared by the Australian government, who objected to the General Comment, writing that ‘while children’s rights are a significant priority in public spending, they are not the only priority in public expenditure’ (Australian Government 2016, 2). A human rights lens allows for a rejection of this approach, by clearly articulating that governments that fail to provide the necessary support are violating human rights.

Advocacy can assist with providing support, but only to a limited extent, and must be considered just one part of the broader reform required to achieve a human rights compliant child protection system. These broader solutions must be multifaceted. Crucially, no child protection system that places First Nations children outside their communities can ever be consistent with UNDRIP, so First Nations communities must be resourced to care for their own children, which will require ‘child welfare systems fully embrace self-determination and self-management’ (Blackstock, Bamblett, and Black 2020, 9; see also; Davis 2019). Legal representation will have an important part to play (Thornton and Gwin 2012), as will improved training for child protection practitioners (Maylea et al. 2021). Munro and Turnell (2018) point to organisational change and role redefinition for practitioners to support rights-based practice, while Pösö (2018) argues that including experts by experience will improve both children’s rights and overall outcomes. Hansen and Ainsworth (2009) argue an Australian Charter of Human Rights would improve human rights compliance in child protection, although the lack of impact of the Victorian Charter of Human Rights and Responsibilities Act 2006, in the jurisdiction we undertook our evaluation of IFAS, shows that such documents are only of limited use. Hamilton and Maslen (2021) argue for parents to be restored with institutional justice capital, an ambitious demand which illustrates the challenge of the reform, while Christiansen and Hollekim (2018) argue against the homogenisation of parenting based on narrow contextual norms. Braithwaite (2021) describes a kind of institutional oppression that prevents meaningful reform, highlighting an even greater challenge that must be tackled to create the conditions in which reform can occur. Braithwaite’s call for fundamental change brings us to Dettlaff et al. (2020) and other abolitionists who see the system as beyond reform, requiring replacement.

In this complex and challenging discourse, there is limited evidence of a political appetite for meaningful policy change. There are clear roadmaps for reform (see, e.g. Davis 2019), and an emerging evidence base to show that reform is possible. For example, Tobis, Bilson, and Katugampala (2020, 167) shows how parent activists and their allies have brought ‘unprecedented improvements’ to children and families by working with city administrators. Highlighting the complexity of the reforms required, Tobis identifies that ‘thousands of changes’ were put into place, noting shifts in ‘policies, funding, programs, administration, staffing, legal representation, monitoring, training, and the relationship between the public and the private sectors’. He singles out the reduction in the number of children removed from their families, improved legal representation, and lived experience involvement as key contributors to success. He also argues that some elements of the system, such as foster care and the child protection agency, require further, fundamental reform. Meanwhile, advocacy can play an important, if limited role, in protecting human rights, while individual advocacy organisations can contribute to broader, structural advocacy.

Conclusion

In this paper, we have shown that contemporary child protection systems consistently fail to protect the human rights of First Nations people and people with intellectual disabilities. This is a complex dynamic but is clearly evidenced by the drastic overrepresentation of both groups in child protection systems. We have argued that advocacy for parents can help to address this, by reducing information asymmetry, facilitating communication with child protection practitioners, calming reactions to frustrating circumstances, and by providing an accountability mechanism that promotes better practice. These functions can be summarised as advocates taking the time to listen to what the parents said and then helping them to articulate what they wanted to say clearly. This helped to support parents to have their human rights protected and was highly valued by parents. We also found that lived experience was a core component of effective advocacy, but that this requires further exploration to properly articulate this dynamic.

Despite the clear benefit of advocacy, advocacy alone will not bring human rights compliance to the child protection system but will be of use both while working towards meaningful reform and in supporting parents who work towards systemic change.

Disclosure statement

Robyn Buchanan is Senior Advocate at Independent Family Advocacy and Support, Victoria Legal Aid.

Additional information

Funding

This work was supported by Victoria Legal Aid.

Notes on contributors

Chris Maylea

Dr Chris Maylea is a social worker, lawyer, and Associate Professor of law at La Trobe University.

Lucy Bashfield

Lucy Bashfield is a research assistant at RMIT University.

Sherie Thomas

Sherie Thomas is an Anglicare Victoria Intensive Family Services Practitioner.

Bawa Kuyini

Bawa Kuyini is Associate Professor of Social Work at RMIT University.

Kathleen Fitt

Dr Kathleen Fitt is a lecturer in social work at RMIT University.

Robyn Buchanan

Robyn Buchanan is Senior Advocate at Independent Family Advocacy and Support, Victoria Legal Aid.

Notes

1 We use the term ‘parent’ in this paper, to include non-biological ‘parent-like’ relationships or grandparents or other family members who are ‘parent-like’ primary caregivers.

2 Other documents, such as Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) are also relevant, but for clarity and conciseness are not considered in this paper.

3 As a Declaration, rather than a Convention, UNDRIP is not technically legally binding in the way the CRC or CRPD are intended to be. For this analysis, which focuses on advocacy rather than legal doctrine, we do not make a distinction between the different hierarchy of international human rights legal frameworks.

4 Four countries with overrepresentation of First Nations children in child protection systems; Australia, Canada, New Zealand and the United States; voted against UNDRIP when it was adopted in 2007, although have since expressed varying levels of support for the document.

5 Culturally and linguistically diverse families are priority groups were added as a priority group in 2020, and were not a priority group during the evaluation data collection phase and so have not been included in the analysis for this paper.

6 Child protection practitioners were interviewed for the evaluation, however, due to the restrictive nature of the research agreements required to conduct these interviews, their data is not used in this paper.

7 Our evaluation was not able to determine at what rate First Nations family and families with intellectual disabilities specifically were diverted from the child protection system by IFAS, and this should be an area for further research. See Appendix 1 in (Maylea et al. 2021) for detailed calculations underpinning this figure.

8 The evaluation examined the potential that IFAS was leading to children staying in circumstances that were unsafe for them to do so and found no evidence of this occurring (Maylea et al. 2021).