Laws to Protect Children – Childhood Development Essay

Laws to Protect Children – Childhood Development Essay
Issues surrounding child protection, the family and state intervention are multifaceted and complex. The social construction of the family is framed in a contextual subjectivity, value laden and built upon the culture,

experiences and understanding of those involved. Within this a wide range of problematic issues can be identified in definition, including how we define and perceive the family and children and subsequently with the resolution of that definition, what constitutes acceptable and unacceptable behaviour within the family. To encompass all definitions and perceptions within public discourse would not be possible which makes it extremely challenging to then know exactly when and on what grounds, assumptions and understanding the state should intervene in family life.

A definitional issue and an unwillingness of many to open the private inner world of family life to public interpretation and scrutiny does not mean the state should not intervene, but rather highlights many of the pressures and contention faced in state intervention.

Defining abuse is central to determining appropriate state intervention with the suggestion that “child abuse is not an absolute concept, and behaviour has to be examined in its context before it is defined as maltreatment…the chronicity and severity of maltreatment prompts intervention.” (Fernandez 2005 p180)
A sensitive dichotomy between family privacy and state intrusion and monitoring is also an important issue, particularly when exploring state intervention as a preventative measure as “acknowledging that any form of surveillance of child-rearing practices poses a threat to the family in a liberal state” (Fernandez 2005 p184) leaving interventions trying to juggle these two contradictory standpoints in child protection.

A generally agreed definition in practice is inclusive of “when a child has been, is being, or is likely to be subjected to physical, emotional, or sexual actions, or inactions which result in significant harm or injury to the child.” (Australian Institute of Health and Welfare 1999 p6) From this an argument can be formulated that all behaviour and actions included in this definition warrants state intervention.
State intervention may often be conceptualised into two response categorisations – prevention and protection. In locating when the state should intervene in child protection matters relative to protection where abuse is believed to have already occurred it is less complex as the state moves towards protecting the child from risk of harm as soon as possible. The parameters of potential abuse occurrence and investigation are clearer with the role of the state in child protection able to be clarified relative to the outcome of the investigation and specific situational contexts. In matters of prevention, the question of when the state should intervene can become more problematic and complex. The proliferation of prevention service provision as a key child abuse prevention strategy has proven to be very successful with “getting services to families at a time when they identify that they need help is an important way to support the strengths in a family and make positive changes in the lives of children and young people” (NSW Commission for Children and Young People 2000 p44) When a family requests assistance as a preventative measure they can receive appropriate support and intervention for their current issues and future needs which is a conducive partnership is preventing abuse and establishing support networks for children and families. Imposing preventative strategies with families is much more problematic as if no abuse or maltreatment has yet occurred and the family is unwilling to co-operate it is difficult to work towards positive and preventative outcomes.

Determining state intervention with particularly marginalised groups may also be very challenging. For example, families with children with learning disabilities may be recognised as a particularly at risk. Mild to moderate developmental disabilities which include intellectual and learning impairment “were over represented in the sample of maltreated children with disabilities, supporting the view that such children are more at risk of maltreatment than children with a severe disability” (Tomison 1993 p6). There are many factors such as parental stress, interruptions in attachment and child inability to understand or resist abuse that may indicate a high risk for abuse however these risk factors cannot be used to create assumptions of abuse or neglect. State intervention at a prevention level may certainly benefit many families with children with a disability however imposing these is not a fair or appropriate response.
Another marginalised group accustomed to the role of state intervention of some level within their lives are refugee children. Refugee children’s status within Australia is already evidence of state intervention. These are children who may be classified as high risk, with multiple family issues. These may include trauma from their experiences in their home countries, their asylum to Australia, from their detention or processing for refugee status as well as ongoing issues surrounding their relocation, financial stress and cultural difference which may include a different conceptualisation of child maltreatment and abuse. These may be individuals who are also, understandably suspicious of state intervention further problematizing if in instances such as these, state intervention as prevention or as protection becomes necessary. Determining when the state should intervene within these examples is difficult, as is defining state involvement with any at risk group and is dependant on wide-ranging factors and specific contexts.

Legislation and practice standards within child protection do not specifically mandate appropriate responses and protocol defining when the state should intervene in family life. However, promotion of the health, wellbeing and safety of children and young people is a fundamental consideration within all aspects of the care and protection of children. Inclusion of plans and strategies to prevent abuse and neglect, provide support and assistance to families in difficulty or facing multiple issues, responding to reports of risk of harm as a matter of safety and prevention and ensuring that cases are adequately investigated and offenders appropriately dealt with are recognised among interagency practice (NSW Commission for Children and Young People)
These definitions and standards work hand in hand with the principle of “the best interests of the child” recognised within the ratified United Nations Convention on the Rights of the Child (CROC). Within the convention the best interests of the child are held as a paramount or at minimal a primary consideration in actions and decisions concerning children. (NSW Commission for Children and Young People 2005) This underpins many of the principles, practices and actions undertaken within child protection within the Australian context.

If we can articulate and ascertain that state intervention should occur to promote health, wellbeing, safety and overall best interests of the child, we must deconstruct how we decide what the best interests of the child may be.

The United Nations CROC does not simply define a child’s best interests but rather reflects points of clarity central to the best interests of the child that are adaptable to the specific context of the child. These points include the need for a child’s best interests to be taken into consideration, a respect for a child to enjoy the rights and freedoms specified within CROC, the participation of children in decision making processes effecting them and in the event of a parent being unable to maintain the child’s best interests as a fundamental concern, the state may need to intervene in the family life (NSW Commission for Children and Young People 2005) CROC determines minimum standards by which to understand the best interests of the child but is not directly implemented through legislation, although is meant to be included in various aspects of the Children and Young Persons (Care and Protection) Act 1998 and the Family Law Act amendments of 1996 (NSW Commission for Children and Young People 2005)

Within child protection practice, the best interests of the child should be represented and reflected in the provision if a child and family centred focus which is wherever possible involving the inclusion and collaboration of all necessary family members and services providers. It should be planned, holistically co-ordinated with the participation of all relevant parties including the child, is evidence based and wherever possible is preventative and strengths based worked on obtaining positive goals and outcomes.

A strong argument for children’s issues and children’s rights within child protection relates to the rights of children and young people to participate in decision making that affect their life. This is a fairer representative method of comprehending the plethora of issues surrounding and involved in the best interests of a child, as a child has a right to inclusion and also has an insight into their own life which may prove to be beneficial in determining best interests and making plans for the future. The recent focus on child participation has been reflected in legislation, policy and practice however its significance within an often “adult centred paradigm” (Mason 2005 p91) undervaluing the construction of childhood and understanding of the often challenging experiences for children. Policy and practice has often reflected children as “future adults and thereby ignoring them as ‘beings’ with experiences in the present” (Mason 2005 p92) Child inclusive and participatory practice is one of the most fundamental elements in working towards the best interests of the child with a greater need for child representation, consultation and consideration in all aspects of child protection.

Rogers and Wrightsman have identified two major orientations within child protection in determining the best interests of a child. These include the ‘nurturance orientation’, an adult centred top down approach, and the ‘self determination’ orientation, taking into account the articulated thoughts needs and wants of a child in all aspects of policy planning and action. (Fernandez 2005 p187)

As with determining when the state should intervene in the life of a family, certain considerations and assumptions must be explored to gain a comprehensive insight and understanding of the contextual experience and circumstances of the young person. This is very important in determining best interests and again various considerations must be incorporated such as ensuring the health, safety and welfare of the child as paramount, meeting all the basic needs of the child, giving children, young people and families an opportunity to contribute to the decision making process where appropriate as well as a consideration of the child’s culture and identity as essential in being upheld and supported and approached in a culturally appropriate and inclusive manner.

Determining the best interests of the child may also be problematic with marginalised groups such as children with learning disabilities and refugee children.
Children with learning disabilities may not be able to articulate or represent their best interests, in many instances disenabling them from active participation and self-determination in decision-making on their own future. However the best interests of the child should not be imposed or defined without the input where possible of the child. An understanding of the needs of the child, the context and the factors determining and influencing their situation must also be examined when exploring the best interests of the child as a child with a disability should not be defined by that disability but rather as a child, with the diversity of needs, experiences and interests. This is also problematic with refugee children who may face multiple language and cultural barriers and may hold suspicion and fear of the state determining factors regarding their future and interests. The best interests of the child as a principle reflect the UN convention on the rights of the child and thus reflect a life of safety, health and wellbeing, which was unlikely from their country or origin. Cultural understanding, prevention, collaboration and inclusiveness are essential in determining the best interests of refugee children. Their experiences are complex and diverse with barriers such as language, cultural isolation, resistance, fear, lack of knowledge of law and customs and lack of access to services. These need to be adequately taken into consideration as to not warrant a knee jerk reaction to practices that may not represent a western notion of the best interests if the child.

There are a wide range of issues, conflicts and dilemmas a child protection worker may face within their work in child protection services. The concepts of protecting children, state intervention and the best interests of the child are value laden and interjected with ever changing contextual subjectivities that complicate and problematize much of the involvement of child protection agencies and workers in the lives of children and families.

The child protection worker is centred within these diverse and often contradicting forces and influences and plays a difficult role as a decision making intermediator in situations where no interpretation or decision can ever be completely inclusive or absolute, and where all documentation and decisions made by workers can be questioned and scrutinized. Although this is essential and interdisciplinary collaboration can lead to the most appropriate interventions, scrutiny may be unfairly framed impinging on the workers morale and sense of professional competence.
All workers draw upon their professional judgement and contextualizing of events by various participants that may influence their decision-making. At all levels of intervention the worker faces these direct and indirect conflicts and dilemmas as their work is plagued with contradictions and subjectivities. This may be highlighted in situations of omission rather than commission of abuse where the basis on which a decision is made is less clear. This is a topical issue currently for workers when attempting to promote prevention rather than protection.

As errors in decision-making may have significant repercussions, with their “judgement questioned or professional integrity compromised while engaged in child protection duties.” (Briggs et al 2004 p4) Managing to handle the stress and emotionally charged nature of their work is a significant issue and potential dilemma within child protection. This is an issue that may also be conflicted organisationally with inadequate support and recognition of the intensity of child protection for workers by management or colleagues (Briggs et al 2004)

High staff turnover may pose a problem for the child protection caseworker with contradicting case notes, lack of stability in interaction with the family and lack of cohesive decision-making through a case history posing a serious threat to the safety and ability of a worker to engage with a family and increase the risk to a child. Workers face conflicts as they may be perceived as a threat to the family structure with many people “marginalised and disempowered reacting in frustrated and aggressive ways to those who represent authority, such as human service professionals working for a statutory body.” (Briggs et al 2004 p2)

The safety of workers may be compromised with violence, threats and intimidation problematic within the field. A dilemma to the worker is how to respond to these and working on developing coping mechanisms for the stressful and problematic behaviours often resulting in burn out, transfers, absences and resignations. (Briggs et al 2004)

High caseloads also pose a major problem for workers as their client numbers and departmental performance targets may conflict with the need for time on case work and the holistic investigation of cases with subsequent appropriate case management. This leads to the potential for child safety to be compromised, which is a major ethical dilemma within child protection to which there is no simple solution, rather a balance within the system to attempt to promote the best interests of the child.
Child protection services have been described as “closed systems, isolated from the communities they are supposed to serve.” (Tucci et al 1998 p16) Barriers perceived, existing or imposed between child protection services and the community or other community services are problematic and isolating for the child protection worker. This may make it much more difficult for the worker to engage with the community and promote the best interests of the child, or to be able to intervene safely when necessary in the lives of families. This isolation may be proliferated structurally within child protection services with issues surrounding funding, lack of collaboration or co-operation internally or with other departments and agencies and lack of feedback or supervision. Many of the problems appear to be located intrinsically in a structural and fundamental level that may be relatively inflexible and inadaptable to the needs of the workers and the community. The recent trend of outsourcing and competitive tendering within child protection services is also a cause for concern for the child protection worker. It may be very difficult for a worker to maintain best practice principles if the service providers move away from an egalitarian and care prioritised service within an economic rationalist framework. (Tucci et al 1998)
Workers may also face multiple challenges and conflicts in their work with multiple needs and particularly marginalised clients such as children with an intellectual disability and refugee children. Workers may face challenges in the participation of these children. Learning disabled children may face intellectual challenges or challenges defining personal need while refugee children may face language and cultural barriers or may fear participating or defining their needs fearing persecution and distrusting the safety of involvement with government departments. These pose potential conflicts and dilemmas for the worker who may face difficultiews with these families in prevention and protection work. The worker may see families under extenuating circumstances of stress, trauma and isolation and may face many challenges in engaging these families. Additional issues of cultural practices and the role of the family may pose additional dilemmas for the worker in working with clients who may come from cultures that condone levels of family violence and child abuse. This may be confronting and difficult for a worker within culturally inclusive and rights based practice facing issues of child safety, abuse, law and culture.

State intervention and the best interests of the child are societal issues incorporating the values, beliefs and social construction of the child and family at an intrinsic level. This is reflected within child protection approaches to prevention and protection and is very challenging for a worker within child protection services as no universal standards of objectivity can apply to working within these situations and various contexts. Maintaining a focus upon the rights and inclusion of children and young people within these processes incorporating the holistic needs within a child’s life within the individual, family and society is of immense importance. Working within child protection towards preventative, inclusive and evidence based practice can work collaboratively with a child centred focused in providing the greatest quality support and service for children and their families and work towards the rights and safety of children being upheld within all facets of society.


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