Including All Children:
Submission on the Vulnerable Children Bill
30 October 2013
CCS Disability Action
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Contents
Recommendations .................................................................................................... 2
Who we are ............................................................................................................... 2
Introduction ............................................................................................................... 2
Disabled children are at a higher risk of child abuse and neglect .............................. 3
Why disabled children are at a higher risk of abuse and neglect ............................... 3
Disabled children can thrive like all children .............................................................. 5
Human Rights ........................................................................................................... 5
The options given to families ..................................................................................... 6
The intent of extended care agreements ................................................................... 7
John’s Story .............................................................................................................. 8
What repealing Section 141 would mean for John ..................................................... 9
The independent review of care and protection ......................................................... 9
Section 140 for all children ...................................................................................... 10
Transitioning sections 141 and 142 to Section 140 ................................................. 10
The number of children under Section 141 agreements .......................................... 11
No blame, the cost to children ................................................................................. 11
Funding battles negatively impact children .............................................................. 12
Independent advocate ............................................................................................. 12
Real immediate change........................................................................................... 13
Bibliography ............................................................................................................ 15
2
Recommendations

As part of the Vulnerable Children Bill, sections 141 and 142 of the Children,
Young Person and Their Families Act 1989 should be repealed. All children,
regardless of disability, should be placed in extended care under Section 140
of that Act.

When families/guardians want to place a child into extended care, the child
needs to have guaranteed access to an independent advocate, who uses a
child rights perspective. This needs to be enshrined in the Children, Young
Person and Their Families Act 1989.

Section 144 needs to be amended to require all children to give their consent,
regardless of disability, either themselves or through their independent
advocate.
Who we are
CCS Disability Action is one of the largest disability services providers in New
Zealand. We have been advocating for people with disabilities since 1935. Today,
our organisation has a strong disabled leadership and human rights focus. We
deliver regular services to over 4,000 people of all ages and disabilities.
CCS Disability Action currently has 29 children and young people with disabilities in
foster care across the Auckland and Northland Region. All of these children have
experienced some level of abuse or maltreatment. They range in age from 4 months
to 17 years of age, with a wide variety of disabilities.
Introduction
There are a wide variety of complex issues to do with vulnerable children. We want
to focus our submission on an immediate issue that the Social Services Select
Committee can address. Currently, a small number of disabled children are severely
disadvantaged by Section 141 of the Children, Young Person and Their Families Act.
This small number of disabled children is denied the same protection and rights as
their non-disabled peers. The original intent of the Children, Young Person and Their
Families Act has been distorted in practice to deny these disabled children a right to
family life. A loophole in the Act allows disabled children to be placed in full time
residential care, indefinitely, despite other families being willing and able to provide
for them.
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We ask the members of the Social Services Select Committee to change the Act to
remove this loophole and give these children back the right to a family life.
IHC Advocacy and the Human Rights Commission are also calling for sections 141
and 142 to be repealed and Section 144 to be amended. We back their submissions.
We want to speak to our submission.
Disabled children are at a higher risk of child abuse and neglect
Disabled children are often absent from the wider debate on vulnerable children
despite research showing them to be at acute risk of abuse and neglect. This is
because there is a lack of research and statistics on disability, especially compared
to data on ethnicity. What evidence is available, points to a link between disability
and child abuse and neglect at least as strong as ethnicity, if not stronger.
There is limited data in New Zealand on child maltreatment and disabled children.
The Ministry of Social Development does not identify whether a child has a disability
when reporting on abuse and neglect in its statistical reports. This makes it difficult to
accurately assess the rate of maltreatment and abuse for children with disabilities
(Wyber 2012).
Evidence from overseas shows disabled children to be at very high risk of child
maltreatment. One of the most comprehensive study to date, which took place in
America, found children with disabilities to be 3.8 times more likely to be neglected,
3.8 times more likely to be physically abused, and 3.1 times more likely to be
sexually abused when compared with children without disabilities (Committee on
Child Abuse and Neglect, Council on Children With Disabilities, Desch, & Hibbard,
2007, p. 1019).
Research has found that children with communication difficulties and behavioural
disorders had a much higher rate of maltreatment (Committee on Child Abuse and
Neglect, Council on Children With Disabilities, Desch, & Hibbard, 2007, p. 1019).
Why disabled children are at a higher risk of abuse and neglect
While there is a lack of New Zealand data on disabled children, there is enough
information to paint a worrying picture.
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In New Zealand, children with disabilities are more likely to live in one parent
households. In 2006, an estimated 28 percent of disabled children lived in one-parent
households (Office of Disability Issues; Statistics New Zealand, 2009, p. 15).
Previous research has shown that 25.8% of people on the Domestic Purpose
Benefits had children with disabilities (O’Donovan, McMillan, & Worth, 2004).
We also know that children with disabilities are more likely to live in benefit
dependent homes. In 2012, 37.5% of guardians claiming a Child Disability Allowance
were on a main benefit or Superannuation. 48% of child disability allowances granted
in the 2011/2012 financial year were to guardians on a main benefit or
Superannuation (Ministry of Social Development , 2012, pp. 100-101).
Many professionals feel uncomfortable working with children with disabilities because
of a lack of knowledge and training. Social workers have said they find it difficult to
identify abuse in disabled children. Often this is because they may dismiss evidence
of abuse as the result of the child’s disability. They also find it difficult to effectively
communicate with some disabled children, which can lead to the underreporting of
maltreatment and abuse (Wyber , 2012, pp. 25-26).
Parenting a disabled child can bring additional challenges, including the need for
medical care, developmental or educational services and basic care-giving support.
There is evidence that families of disabled children are at increased risk of stress,
especially if there is little support available. Parental stress has been linked to child
abuse and neglect (Wyber , 2012, pp. 28-33, 35).
Children with disabilities also tend to remain in foster care longer and have more
placement breakdowns (Rosenberg & Robinson, 2004). Limited support is available
to foster families, especially around the extra barriers disabled children face.
There is also evidence that families who have not fully accepted their child’s
diagnosis are at a higher risk of having an insecure bond with their child. It has been
suggested that the risk of abuse and neglect may be higher for children with mild and
moderate needs because families may struggle to accept the diagnosis (Wyber ,
2012, pp. 30-31, 35).
Many Government disability support services, however, are aimed at supporting
children with high to very high needs, including the Child Disability Allowance, the
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On-going Resourcing Scheme, Transition funding, and many Ministry of Health
Disability Support Services.
The American Academy of Pediatrics notes that families with limited support may be
at especially high risk of maltreating children with disabilities, because they are
isolated, stressed and feel that they cannot meet the care requirements of their
children (Committee on Child Abuse and Neglect, Council on Children With
Disabilities, Desch, & Hibbard, 2007, p. 1020).
While targeting high and very high needs children may appear to make sense given
the limited resources available, the lack of support for families with children with mild
to moderate needs may be increasing the risk of abuse and neglect. The current lack
of support for children with autism spectrum disorder, but no other co-existing
disability, is particularly worrying.
While all these factors may contribute to an increase risk of abuse and neglect, it is
very important to note that disabled children have the same rights as other children,
including the right to be free of abuse and neglect. There is no excuse for the abuse
or neglect of any child, regardless of whether they have a disability or not.
Disabled children can thrive like all children
The high risk of child abuse and neglect is not inevitable for disabled children. If
support is available and disabled children are treated and valued equally, including in
legislation, the risk can be eliminated.
Wider changes are needed, but there are small, but significant, changes that the
Social Services Select Committee can make right now to the Vulnerable Children Bill
that will bring about real positive change for some of New Zealand’s most vulnerable
children.
Human Rights
There are a number of sections in the Convention on the Rights of Persons with
Disabilities which should be reflected in the Vulnerable Children Bill.
Disabled children and adults are entitled to, without any discrimination, the equal
protection and equal benefit of the law. Governments are also required to take all
necessary measures to ensure disabled children have full enjoyment of all human
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rights and fundamental freedoms on an equal basis with other children (Convention
on the Rights of Persons with Disabilities).
Governments are required in all actions concerning children with disabilities to take
the best interests of the child as a primary consideration. They are also required to
take all appropriate means to protect persons with disabilities from all forms of
exploitation, violence and abuse (Convention on the Rights of Persons with
Disabilities).
Governments must ensure that children with disabilities have equal rights to family
life. Government must also prevent concealment, abandonment, neglect and
segregation of children with disabilities (Convention on the Rights of Persons with
Disabilities).
Unfortunately, the current Children, Young Person and Their Families Act prevents a
small, but significant, number of disabled children from exercising these rights.
The options given to families
Across the country most families are acting in the best interests of their children.
When a family is in crisis, however, it can be difficult to balance the best interest of
one child against the wider family’s needs (Carpinter & Harrington, April 2006, p. 14).
Having children with high and complex support needs, including behaviour needs,
can make this more difficult, especially if limited support is available.
We recognise that families often have to make difficult decisions about their children,
including disabled children. The decisions families make are heavily influenced by
the options the government gives them and wider societal views.
Unfortunately, in wider society disabled children are still not always valued in the
same ways as non-disabled children.
Residential options are often attractive to families, providers and funders for solving
difficult problems, especially as access to shorter term options, such as respite, can
be limited. There have been many examples of children being placed in full time
extended care because access to shorter term options was not readily available
(Carpinter & Harrington, April 2006, p. 23). Research has shown that disabled
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children and parents can often have very different views on residential care (Welch,
et al., 2013).
Long term residential care, no matter how well run, can have significant negative
effects on children. Professionals are no real substitute for a family. This is why
Section 140 of the Children, Young Person and Their Families Act puts strict time
limits on extended care agreements.
Disabled children, however, can be placed in extended care under a different section
of the Act, Section 141. Section 141 gives children less protection and allows
agreements to be extended indefinitely.
Although Section 141 refers to severely disabled children, there is no working
definition of a “severely” disabled child; this term can potentially apply to all children
with an intellectual or physical disability (Green).
As long as Section 141 is an option, for some disabled children, their right to a family
life will not be realised.
The intent of extended care agreements
Section 140, 141 and 142 agreements are all extended care agreements, but they
have different provisions and work differently in practice. Extended care agreements
are full-time, but time limited, out-of-home placement for children. They are used
when a family cannot provide the day-to-day care their child requires for an
extended, but supposedly limited, period of time.
Extended care agreements are not intended to be permanent. Section 140
agreements can only be entered when the parent or guardian, usually having the
care of the child, intends for the child or young person to return home. If there is no
chance the child will return home, the child should move to the care of another family
and not be under an extended care agreement.
8
A former Care and Protection Coordinator and Senior Policy Advisor at the Child
Youth and Family states:
“Extended care agreement is only appropriate when the intention is for the out-offamily care situation to be temporary and for the child to be returned to their parent.”
(Green)
Unfortunately, this intent is lost in Section 141 agreements, which can be extended
indefinitely. The parent or guardian does not have to intend for the child or young
person to return home. This creates a gap that children can fall into where they are
still in the care of their family, but do not live with them. The family retains
guardianship and control over the child, but does not have to look after them and, in
practice, can be very removed from the child’s life.
We have observed the provisions under Section 141 being used to keep children in
full time residential care, when another family is willing and able to care for the child
in their home. The inadequate protections under Section 141 and the ability to
indefinitely extend agreements allow this systemic abuse. Below is a story based on
real children that we have worked with in the community.
John’s Story1
John is 7 years old; and has complex disability support and health needs.
John’s families left him in the care of others for a few days. They then decided that
they no longer were able to have him at home and did not pick him up. Child, Youth
and Family said that because John was disabled this relinquishment of care was due
to disability and therefore was not a care and protection issue. If John was not
disabled, the parent’s actions would clearly have been deemed as abandonment.
A family group conference was held. The family agreed that another family would
take care of John. A family was found who were willing to welcome John into their
home, but then his family changed their mind. They wanted John to live in a
residential home, as they felt that if they could not look after John, no family could.
1
*The above story is based on real children we have worked with in the community. The
details, name and age have all been changed.
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That was several years ago. Today, John is still in the residential home. His family
visit infrequently and unreliably. John does not get out into the community and has
few belongings. Staff members change shifts every eight hours and also frequently
leave. John has no stable adults in his life.
What repealing Section 141 would mean for John
John is under a Section 141 agreement, which may be extended indefinitely, even
with the current changes proposed in the Vulnerable Children Bill. If Section 141 did
not exist, he would have been placed under a Section 140 agreement with far greater
protections, including strict time limits. This is the same section non-disabled children
use.
If John had been under a Section 140 agreement, his placement in a residential
home would have a maximum time limit of one year. It could not have been
extended. Today, John would be with his original family or a new family; he would not
be left in a residential home, potentially indefinitely.
There are real children like John currently in residential homes under Section 141
agreements. In reality they have little hope of ever living with a family again. In
placing a time limit for non-disabled children under Section 140, Parliament has
recognised the harm long-term residential care can have on a child. It is no different
for disabled children.
The independent review of care and protection
An independent review of care and protection mechanisms for disabled children was
carried out in 2006. We were involved in the review. The review acknowledged the
legislation was inconsistent and that there was a case for repealing Section 141.
The review thought, however that reforms to these sections and to Ministry of Health
and Child, Youth and Family services could address the issues (Carpinter &
Harrington, April 2006). Seven years later, however, Section 141 continues to keep
children in residential care indefinitely.
A full repeal of Section 141 and 142 is the only way to ensure disabled children have
the same rights as non-disabled children.
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Section 140 for all children
The Independent Review recommended more frequent use of out-of-home
placements under section 140 (Carpinter & Harrington, April 2006, p. xii). Given that
issues still remain seven years after this recommendation; all children should use
Section 140.
If disabled children need to go into extended care, it should only be done through
Section 140. This would give disabled children the same rights and protections as
non-disabled children. Full time residential care for disabled children would become
time limited, just as it is for non-disabled children.
At the end of the time limit, a home within a family would legally have to be found. At
times this may be challenging, but positive family placements are found for even the
most challenging non-disabled children. The alternative is to potentially leave these
children in extended care agreements indefinitely, which is a corruption of the original
intent of the Act. Disability should not be used as an excuse to avoid tackling difficult
issues.
In our experience, given the chance and right supports, families can be found for all
disabled children, regardless of the severity of their disability.
Disabled children should have the same rights and protections as non-disabled
children, including the right to a family life. To have the same rights, disabled children
need to be under the same section of the Act when entering extended care.
Transitioning sections 141 and 142 to Section 140
The Ministries of Health and Social Development already agree that Section 142 is a
historical provision that should no longer be used (Child, Youth and Family and
Health and Disability National Services, March 2010, p. 24).
Section 141 is currently being used. The number of children under Section 141
agreements is small, however. Repealing it will require change for some children
already under Section 141 agreements (Carpinter & Harrington, April 2006, p. 10).
These agreements will have to be transitioned to Section 140 agreements or
revoked. A timeframe could be set for this, but there is no reason that all agreements
cannot be transitioned, especially considering the small number of children affected.
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The number of children under Section 141 agreements
The 2006 Independent Review estimated that 140 children and young people with
disabilities were in out-of-home placements under section 141 as of July 2005.
Of this estimated 140 children, Need Assessment and Service Coordination
organisations could identify 74 children and Ministry of Health national records
contained information on the payments for 66 children. Child, Youth and Family could
identify fifteen children. Data on the remaining children only came from the Section
141 Certifiers (Carpinter & Harrington, April 2006, pp. 8-10).
No blame, the cost to children
The main reason for the different treatment of disabled children under the Children,
Young Persons and Their Families Act is the desire to not blame families who are no
longer able to care for their disabled children. A lawyer who drafted the legislation
recalls that the reason for these sections was to ensure a “no blame” situation for
families when they were no longer able to care for their disabled child (Green).
This is why families under Section 141 are able to indefinitely remain guardians of
the child, despite not having to provide day to day care. If this extended care is for a
limited, relatively short duration, this is more understandable. When the Section 141
agreement is extended again and again, this process becomes highly detrimental
and abusive to the child.
Section 141, when abused, is a denial of reality. The child is being cared for by
someone else, but the family remains in control. Section 141 agreements allow
families of disabled children to avoid suffering the stigma of abandoning their child,
despite, practically, this being exactly what has happened.
While we appreciate not wanting to stigmatise families, the current solution comes at
a very high price for the children involved. To protect families, these children are
denied the right to a family life. This is the exact opposite of a child centred
approach. It is also in marked contrast to the situation with non-disabled children.
If Section 140 agreements were used instead, families would still avoid the stigma of
having to give up their child, but would not be able to abuse the process.
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Funding battles negatively impact children
Different agencies are responsible for funding out-of-home placement depending on
whether the placement is deemed to be caused by a child’s disability support needs
or a child’s care and protection needs
If the out-of-home placement is mainly caused by a child’s or young person’s
disability support needs, then the Ministry of Health will pay the placement costs. If
the out-of-home placement is primarily caused by a child’s or young person’s care
and protection needs, then Child Youth and Family will pay the full placement costs
This leads to protracted arguments about the cause of the out-of-home placement,
and about funding responsibility. These arguments can cause considerable delays in
reaching agreement (Carpinter & Harrington, April 2006, p. 27). In our work, we have
witnessed these arguments first hand.
There is nothing child centred about these funding arguments. These arguments also
have no effect on overall government funding as both agencies are tax payer funded.
The current situation can also encourage Child, Youth and Family to downplay care
and protection issues with disabled children to avoid funding responsibility. Child,
Youth and Family is often reluctant to class situations where a family no longer wants
to care for their disabled children as abandonment. This is in stark contrast to the
situation with non-disabled children.
Having separate sections of the Act for disabled children fuels these funding battles.
Independent advocate
The current sections 141 and 142 are not child centred; power under Section 141
rests with the child’s guardians. The placement of the child is determined solely by
the family group conference. This means that when the family is unable to care for a
child with disabilities, the family can insist on residential care and block attempts to
provide alternative care in a family environment.
Under Section 141, the families’ wishes can override what is in the best interest of
the child.
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Section 144 of the Child, Young Person and their Family Act provides that children
over the age of twelve must consent in writing to section 140 and 142 agreements,
but not section 141. Consent for Section 142 agreements are also waived if the
child’s disabilities prevent them understanding the nature of the agreement. In all
agreements, the wishes of the child are meant to be taken into consideration.
However, how the child’s wishes are to be heard and considered is not defined. We
have found in our work that in many cases the child’s wishes are not taken into
account in Section 141 agreements.
There is no independent advocate for the child and, in our view, no adequate
safeguards. In many cases, the family will act in the best interests of the child, but, as
in the above example, not in all cases. In some cases children with disabilities are
placed in residential care, despite others in the community being willing and able to
provide for the child in a family environment.
The voice of the child has to be heard, especially in decisions about where the child
will live. Family and government departments cannot be relied on to always act in the
child’s best interest.
Advocacy could be through an independent lawyer appointed for the child or another
advocate, independent of the family and government. The Human Rights
Commission could also have a monitoring role for Section 140 agreements. The
independent advocate mechanism needs to be based firmly on human rights and
child rights.
Real immediate change
Repealing sections 141 and 142 is a way for the Government to bring real immediate
change for some of New Zealand’s most vulnerable children. This change does not
require more funding, complex regulations or a lengthy implementation period. What
is needed is leadership.
Repealing these sections would mean children currently in residential homes, like
John, would finally be able to live in a family again. With a simple law change, you
can stop stories like John’s from happening and bring real change to children already
in full time residential care.
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The number of children involved is small, but they are some of the most
disadvantaged children in our society. The small numbers mean that this group is
neglected in policy and service development (Carpinter & Harrington, April 2006, p.
10).
All children deserve a home in a family. You can stop any more disabled children
ending up like John, simply by repealing these sections. We urge you to act to
protect some of our most vulnerable children.
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Bibliography
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