IN CONFIDENCE
Office of the Minister for Social Development
Chair
Cabinet Social Policy Committee
INVESTING IN CHILDREN
ACCOUNTABILITIES
LEGISLATIVE
REFORM:
PAPER
EIGHT
–
Proposal
1
I am proposing legislative measures to support the accountability arrangements for the new
operating model for vulnerable children and young people. These measures will complement
and underpin the accountability and performance framework for the Ministry for Vulnerable
Children, Oranga Tamariki (the new Ministry) and other social sector agencies
2
This paper is one of a series of papers being considered by the Cabinet Social Policy
Committee (SOC) that contain legislative proposals required to underpin the operating model
for the new Ministry. These complementary proposals support the Government's objectives of
a child-centred care, protection, and youth justice system that will improve outcomes for
vulnerable children, young people and their families.
3
This paper, and three companion papers on extending the discretion to provide transition
support up to age 25, including 17 year-olds in the youth justice system, and improving
outcomes for Māori and other amendments, comprise the fourth tranche of proposals. These
four papers are also accompanied by a second financial implications paper noting the fiscal
implications of the legislative programme as a whole.
Executive summary
4
There have been longstanding issues in the system for responding to vulnerable children and
young people that have not been addressed under existing accountability arrangements. In
this paper, I am proposing legislative amendments to support the new Ministry and the wider
sector’s ability to address the needs of vulnerable children and young people.
5
The use of mechanisms currently available in the public sector performance management
system, and the performance management framework being developed for the new Ministry,
will help strengthen and clarify accountability. I propose that these arrangements are
underpinned through legislative change across a number of areas.
A public reporting mechanism
6
Given the early stages of development of the operating model, I propose an overarching
legislative requirement on the Minister (or a delegate) to report to Parliament, within five years
from enactment of the legislation, on the extent to which the existing policy and legislative
settings are meeting the needs of the groups of children and young people with which the
new Ministry is concerned. This would include reporting specifically on outcomes for Māori,
and on whether further legislative change is recommended.
1
Establishing the new Ministry’s role in prevention
7
To support the focus of the new operating model on intervening earlier to prevent escalation
into the statutory systems, I recommend a new legislative duty on the chief executive of the
new Ministry to ensure that services to reduce the impact of early risk factors are co-ordinated
with government-funded activities (of the kind set out in the vulnerable children’s plan) for
improving outcomes of children, young people and families, or reducing identified early risk
factors.
A single point of accountability for addressing the needs of children in the intensive
intervention service
8
I envisage that the intensive intervention service in the new operating model will provide
services to children in need of care and protection as well as those with significant unmet
needs who do not meet the threshold. Given that it is currently difficult to estimate the fiscal
impact of mandatory service provision for children with significant unmet need who do not
meet the threshold, and the potential benefits, I am not recommending further legislation in
relation to this group at this time.
9
[9(2)(h) Maintain legal professional privilege]. To help provide greater assurance that the
FGC process effectively addresses the needs of vulnerable children, young people and their
families, I propose amendments to the CYPF Act to improve practice, transparency and
oversight for care and protection family group conferences (FGCs) and performance of
conference outcomes. I propose that the chief executive be required to develop and publish
policies and practice standards in relation to her role in conferences and giving effect to their
outcomes; and clarifying that the purpose of care and protection FGCs is to make
recommendations, decisions and plans that meet the care, protection and long-term wellbeing
needs of the child or young person.
Young people receiving a youth justice response
10
For children and young people who come to the attention of authorities for offending or
alleged offending, there are existing provisions to address the causes of the offending
behaviour. It is critical, however, that their broader unmet needs should also be addressed. I
propose that legislation require that the chief executive of the new Ministry and the New
Zealand Police must consider whether any child or young person who is having their
offending (whether alleged, admitted or proved) resolved through the youth justice system
would benefit from being referred to prevention or intensive intervention services.
Children and young people in care
11
Children and young people in care are amongst the most vulnerable in New Zealand.
[9(2)(h)]. the chief executive of the new Ministry to take reasonable steps to meet the needs
of, and provide for stable and loving care for, children and young people in care or in a
residential youth justice placement, in accordance with National Care Standards.
Rights of complaint and review
12
It is essential to the credibility of the government’s responses to vulnerable children and
young people that checks and balances be put in place that promote transparent, effective
and timely consideration of concerns raised about individual cases. I propose a duty on the
chief executive to ensure that complaint mechanisms are established that enable any child or
young person, and family members or caregivers of that child or young person, to raise
2
concerns. I also propose that the CYPF Act empowers regulations to be made that set up
such independent review mechanisms as may be necessary.
Strengthening cross-agency accountabilities
13
The new Ministry will require specialist services from other agencies to help address the
needs of vulnerable children. The Investing in Children Programme and Treasury, in
partnership with agencies across the social sector, are developing a framework for facilitating
access to services for vulnerable children and young people, from other agencies.
14
To support this, I am proposing amendments to the existing requirements relating to the
development of a vulnerable children’s plan (currently contained in Part 1 of the Vulnerable
Children Act 2014 (VCA)) to ensure the chief executives of the new Ministry, and the
Ministries of Education, Health, Justice and Social Development and the New Zealand Police
(“children’s agencies”) work together at a strategic level around the populations of children
and young people of interest to the new Ministry.
Background
15
There have been longstanding issues in the system for responding to vulnerable children that
have not been addressed under existing accountability arrangements.
16
On 30 March 2016, SOC, with Power to Act, considered the Final Report of the Expert Panel
on Modernising Child, Youth and Family and endorsed the overall scale, scope and direction
of the reform. This included the establishment of a new operating model, with key elements
including the creation of a single point of accountability and a common purpose across the
system [SOC-16-MIN-0022 refers].
17
SOC noted that the current system is overly complex and fragmented, and is not meeting the
needs of vulnerable children and young people to grow into flourishing adults [SOC-16-MIN0022 refers]. SOC invited the Minister for Social Development to report back on areas for
possible legislative reform, including [SOC-16-MIN-0024 refers]:
17.1 creating clear accountability within the new operating system for prevention activity,
including prevention of youth offending, and strengthening responsibilities and
accountabilities for other agencies and Crown entities to ensure availability of effective
universal and enhanced services for vulnerable children and families
17.2 establishing a single point of accountability for assessing the needs of vulnerable
children, young people and families, including those who have significant unmet needs
but do not yet require a care and protection or youth justice response, and accountability
for meeting the full range of assessed needs for vulnerable children, young people and
families requiring intensive intervention
17.3 introducing new and amended provisions to support stable and loving care from the
earliest opportunity, including new, enforceable, obligations to meet the identified
recovery, growth and developmental needs of children in care, and the creation of
mandatory National Care Standards
17.4 ensuring the needs of vulnerable young people exiting care and in transition are
identified and met, up to age 25; and establishment of ‘community parenting’.
3
Proposals for accountability
18
19
20
My overarching objective when considering the need for legislation is to provide greater
certainty of a sufficient response to children and young people and therefore improved longterm outcomes. The specific objectives in considering accountabilities proposals are to:
·
support the provision and co-ordination of prevention services for children and young
people, in order to reduce the impact of early risk factors and help children and young
people achieve better long-term outcomes
·
meet the needs of individual children and young people to whom the new Ministry is
providing an intensive intervention, care, youth justice or transition support response,
including by providing opportunities and support for care-experienced children and
young people
·
ensure clear and transparent standards of service for children and young people,
including rights of review
·
provide clarity and public transparency about the overall mandate and role of the new
Ministry as a single point of accountability for vulnerable children and young people,
including its system leadership role.
I propose that the accountability structure for the new Ministry and other social sector
agencies is underpinned through legislative change in a number of areas, as this will:
·
act as a strong signal and driver of behavioural change for chief executives, staff and
the sector
·
help sustain change over time
·
provide clarity and transparency for the public, and for affected children, young people
and their families. Clear and transparent standards set by legislation can be supported
by mechanisms to provide a remedy for children, young people and families who do not
consider those expectations have been met.
Legislative underpinning for accountabilities can range from less prescriptive provisions such
as principles or objectives, to duties, which are usually more specific and enforceable. New
legislative duties are only proposed where other measures are unlikely to achieve objectives.
Existing accountability mechanisms, and enhancements of these under the new operating
model, will help strengthen and clarify accountability
21
The operating model for the new Ministry will have five core services: prevention, intensive
intervention, youth justice, care and transition support.
22
The public sector performance management system provides existing accountability
mechanisms that can be used to support the new operating model. These will apply to the
new Ministry in relation to particular outcomes, and also apply on a system-wide basis. Work
is currently underway to develop the performance framework for the new Ministry. The
framework will:
·
provide clear overarching expectations, putting children and young people at the centre
of investment decisions
·
support understanding of the contribution of services provided by other government
agencies and non-government providers and communities
·
drive a culture of evidence-based decisions, by establishing clear accountabilities for
funding and commissioning decisions
4
·
clarify performance expectations at all levels of management and operations, driving
strong incentives and a culture of delivering outcomes
·
align funding structures with performance outcomes, facilitating funding and investments
following the child and young person through the system.
23
I expect that the new Ministry will require access to specialised support services from other
agencies, and in particular the Ministries of Education, Health, and Social Development. I
note, however, that services from the social sector are aimed at broad populations and are
often inaccessible, or insufficient, for vulnerable children and families. Child, Youth and
Family has lacked a clear mandate to direct services from the wider sector towards vulnerable
children and families, resulting in an inability to access services in a timely manner.
24
The Investing in Children Programme and Treasury, in partnership with agencies across the
social sector, are developing a framework for facilitating access to services for vulnerable
children and young people, including for services provided by other agencies.
25
The arrangements between agencies that these proposals are designed to establish can be
put in place without legislative reform. I am proposing that accountabilities on other agencies
continue to be primarily established through a system-wide performance management
framework informed by an actuarial model under a social investment approach.
26
I am recommending that progress on this work continue to be made through the Vulnerable
Children’s Board, along with Treasury and the State Services Commission, with the next
report back to the Ministerial Oversight group scheduled for October 2016 on a system-wide
performance management framework for vulnerable children, developed in consultation with
other agencies. I then intend to follow that with a report to Cabinet in February 2017 on
progress alongside any specific decisions required.
27
Legislative amendments that will complement the system-wide performance framework are
considered in the section on cross-agency accountabilities.
A public reporting mechanism
28
Given the early stages of development of the operating model, I believe that in some areas
the emerging operating model needs to be tested and reviewed to ensure the enhanced
accountability arrangements are operating as desired.
29
To support the enhanced system-level accountabilities outlined above, I propose a legislative
requirement on the Minister (or his or her delegate) to report to Parliament, within five years of
enactment (or earlier if desired) on the extent to which the existing policy and legislative
settings are meeting the needs of the groups of children and young people with which the
new Ministry is concerned. This would provide an opportunity for the new Ministry to operate
for a reasonable period of time under improvements to existing accountability arrangements
prior to considering whether enhancements to legislated accountabilities might be desirable.1
30
Following the initial report, subsequent reports would be required every three years. This
would include reporting specifically on Māori children and young people and also include
reporting on whether further legislative change is recommended.
31
This would be in addition to existing accountability arrangements that include departments
reporting on performance measures and being subject to select committee scrutiny on those.
1
I note that under Part 1 of the VCA, chief executives of the children’s agencies are also required to report
jointly to the responsible Minister on the extent to which they have implemented the vulnerable children’s
plan.
5
Legislation establishing the new Ministry’s role in prevention services
32
A prevention focus is intended to be one of the most important changes within the new
operating model. The focus will be on the identification of early risk factors in order to support
families to meet the needs of children and young people to prevent further escalation into the
services operated by the new Ministry, using a system-wide social investment approach.
33
The Children, Young Persons, and Their Families Act 1989 (CYPF Act) already conveys
broad duties around the promotion of services that promote wellbeing and assisting parents
and families to prevent their children suffering harm. The revised purpose and principles of
the CYPF Act, as agreed by Cabinet in September 2016 [SOC-16-MIN-0113 refers], help
create clearer accountability for prevention activity, and include specific reference to the need
to prevent harm. However, further clarity about the new Ministry’s role is needed to ensure a
system-wide, co-ordinated and effective prevention response. While prevention and early
intervention is dependent on the contributions of services and initiatives provided by a range
of social sector agencies, the new Ministry will have a central role.
34
I recommend a new legislative duty on the chief executive of the new Ministry to co-ordinate
prevention activities across government. This will include ensuring, where practicable, that
any services to reduce the impact of early risk factors funded by the new Ministry are coordinated with government-funded activities (of the kind set out in the vulnerable children’s
plan) for improving outcomes of children, young people and families, or reducing identified
early risk factors, to ensure that services:
34.1 are unified under a shared strategy and set of outcomes with respect to children and
young people with early risk factors for future involvement in the statutory care,
protection or youth justice systems
34.2 adopt a common approach to evaluating those outcomes and, where possible,
determining return on investment
34.3 are available to meet the needs of children and young people of different ages and
developmental stages, and include processes to support children and young people to
move between service types as their age and developmental stage changes.
35
This duty is intended to clarify the role of the new Ministry with respect to certain types of
preventative and early intervention services, but it is not intended that legislation prescribe the
groups of children who would receive such services. I anticipate that such services to address
early risk factors could be accessed by children or young people who have already entered
other service lines of the Ministry, including intensive intervention and youth justice services.
36
Amendments to strengthen the accountabilities across agencies for prevention activity is
considered in the ‘cross-agency accountabilities’ section.
A single point of accountability for addressing the needs of children in the intensive
intervention service
37
Cabinet has agreed that the new operating model will have an intensive intervention service,
which includes early and effective identification, investigation and assessment where there
are concerns around the safety or wellbeing of vulnerable children and young people [SOC16-MIN-0023 refers].
6
Children with significant unmet need below the existing statutory threshold
38
Changes agreed by Cabinet on 7 September 2016 [SOC -16-MIN-0113 and SOC -16-MIN0114 refer] signal my intention that the new Ministry’s responsibilities include early and
intensive intervention with a group of children who are at risk of being in need of care or
protection.
39
This group of children and young people below the care and protection threshold with
significant unmet need is expected to be similar to the group currently receiving children’s
team responses, but may also include others such as children and young people with serious
disabilities, and some young people in the youth justice system. There is an estimated target
group of 20,000 children for children’s teams, although not all of these children will be
receiving a service response at any one time. Currently, there are around 1,400 children
receiving a children’s team response, with teams covering half of the District Health Board
(DHB) regions in the country.
40
I have considered legislation to create legal accountability on the new Ministry for meeting the
needs of children with significant unmet need below the care and protection threshold. Given
that it is currently difficult to estimate the fiscal impact of mandatory service provision for this
group and the potential benefits, I am not recommending further legislation at this time.
41
Accountability can be created using existing accountability mechanisms, and reinforced
through the amended purposes and principles of the CYPF Act that emphasise early
intervention to address concerns with children. The non-legislative machinery through which
Crown accountabilities are set should be amended and improved and the Crown’s
performance under these amended settings be reviewed, prior to further consideration of
making any legislative amendments to meet the needs of these children and young people.
Children and young people in need of care and protection (but not in care)
42
Many children and young people found to be in need of care or protection2 do not enter the
care of the chief executive or other organisation. All children who are considered to be in
need of care or protection by the Ministry must be referred to a family group conference
(FGC). In 2013, around 7,000 children were in a care and protection FGC. The function of
the FGC3 (if it considers the child or young person to be in need of care or protection) is ‘to
make such decisions or recommendations, and to formulate such plans in relation to that child
or young person as the conference considers necessary or desirable’ having regard to the
relevant principles of the Act.4
43
The chief executive5 is required to ‘give effect to that decision, recommendation or plan by the
provision of such services and resources, and the taking of such action and steps, as are
necessary or appropriate in the circumstances of the particular case.’6 This duty is, however,
conditional on the chief executive being satisfied that the conference’s outcomes are not
clearly impracticable, unreasonable, or clearly inconsistent with the principles of the Act.
44
The multiple notifications and/or conferences experienced by some children and young
people suggests that this process may not be successfully addressing care, protection or
2
By a care or protection FGC or by the Family Court
The FGC is a separate and independent statutory entity and it has its own duties with regards to children
and young people. It is not subject to the non-legislative statutory mechanisms that apply to state sector
agencies.
4
Section 28(b) of the CYPF Act
5
The same duty can apply to the New Zealand Police.
6
Section 32 of the CYPF Act
3
7
wider wellbeing needs, or securing access to the range of services they require. It is unclear,
however, whether the statutory accountabilities are, in and of themselves, an impediment to
better results being achieved for these children and young people.
45
The lack of clarity about how well FGCs and the chief executive are responding to these
children and young people’s needs is, in part, due to the lack of independent monitoring of
these functions and the lack of any practical means by which children and young people or
their families can review decisions that affect them. Additionally, there is currently no
requirement for clear or consistent practice standards and policies applicable to FGC
processes or to the chief executive’s obligation to give effect to outcomes.
46
I propose that amendments to the CYPF Act should be made to improve practice,
transparency and oversight for family group conferences and execution of conference
outcomes by:
47
·
requiring the chief executive to develop and publish policies and practice standards in
relation to her role in conferences7 and giving effect to their outcomes
·
clarifying that the purpose of care and protection FGCs is to make recommendations,
decisions and plans that meet the care, protection and long-term wellbeing needs of the
child or young person (without limiting their broad powers).
The system, in seeking to improve the performance of the Crown and the social sector in
responding to the needs of children and young people in need of care or protection, must be
clear about the role of parents and usual caregivers of children in meeting children’s needs. I
note that recent amendments made to the CYPF Act by this Government have acknowledged
this and require FGC plans for this group of children to specify the responsibilities and
personal objectives of any parent or other person caring for the child.
Young people receiving a youth justice response
48
Responses to this group of children and young people, insofar as accountabilities are
concerned, are best separated into two distinct categories:
·
how the youth justice system responds to the young person’s offending
·
how the broader prevention, early intervention and intensive intervention system
designed for vulnerable children and young people responds to the wider wellbeing
needs of the young person.8
49
[9(2)(h)]. The fiscal risk in extending the duties on the Crown is considerable. I propose that
existing accountability mechanisms are used to improve responses to the offending behaviour
of children and young people.
50
The wider unmet needs of children and young people who come to the attention of New
Zealand Police or the new Ministry for offending or alleged offending should be considered
within the context of prevention and intensive intervention responses.9 It needs to be clear
that young offenders, and children who may be at risk of future offending behaviour, are a
core part of prevention and intensive intervention accountability arrangements. I note that the
7
Family group conference proceedings are both privileged and confidential, and conferences themselves are
statutory bodies independent of the chief executive.
8
There is a significant body of international evidence that keeping young people for long periods of time in
the criminal justice system promotes worse life-time offending. This is, in part, reflected in the youth justice
principle in the CYPF Act that criminal proceedings should not be commenced against a young person in
order to meet their care or protection needs.
9
There are pre-existing statutory processes for referring young offenders to care and protection responses
8
proposals in this paper in relation to accountabilities for prevention and intensive intervention
apply to young offenders who have wider wellbeing needs.
51
Cabinet [CAB-16-MIN-0478 refers] has decided that youth justice FGCs will be empowered to
consider what further action should be taken in respect of the young person after youth justice
proceedings have concluded.
52
I propose that the policy intent behind that decision – to ensure that a young person’s ongoing
needs are addressed – be further embedded by requiring the chief executive or a Police
constable to consider whether a child or young person who is having their offending (whether
alleged, admitted or proved) resolved through the youth justice system would benefit from
being referred to prevention or intensive intervention assessment or services.
Children and young people in care
53
Children and young people in care are amongst the most vulnerable in New Zealand. Issues
with the current system include insufficient focus on identifying the earliest opportunity to
provide safe, stable and loving care, and insufficient attention on meeting the full range of
needs of children and young people in care.
54
Cabinet has already agreed to amendments to the principles of the CYPF Act to make safe,
stable and loving care a priority for the new Ministry and to a new regulation making power
providing for care standards [SOC-16-MIN -0114 refers].
55
[9(2)(h)]
56
[9(2)(h)]
57
[9(2)(h)] the chief executive of the new Ministry to take reasonable steps to meet the needs
of, and provide for stable and loving care for, children and young people in care or in a
residential youth justice placement, in accordance with National Care Standards.
58
This is intended to provide transparency and clarity as to the chief executive’s obligation in
order to assist in discharging it more effectively. The new duty would be accompanied by a
requirement for care standards to be mandatory to ensure that care standards are always in
place covering this group of children and young people.
59
[9(2)(h)]
Rights of complaint and review
60
Better, more child-centred responses to vulnerable children will provide improved outcomes
for those children and for New Zealand generally. However, it is essential to the credibility of
the government’s responses to vulnerable children that checks and balances be put in place
that promote transparent, effective and timely consideration of concerns raised about
individual cases.
61
There is no current requirement for the chief executive to have transparent, effective and
timely complaint processes. While there are current complaint mechanisms in place in Child,
Youth and Family there has been very limited use of them by children and young people.
62
The Children’s Commissioner has wide-ranging powers of investigation into actions under the
CYPF Act. However, the Children’s Commissioner’s powers do not currently extend to
complaints by caregivers, parents or others, nor do they currently require any action to be
taken by Child, Youth and Family.
9
63
I propose that a duty is imposed on the chief executive to ensure that complaint mechanisms
are established that enable any child or young person, and family members or caregivers of
that child or young person to raise concerns about any action taken by the chief executive (or
by some other person under delegation from the chief executive or within the chief executive’s
accountabilities).
64
The mechanisms must provide a reasonable opportunity for complaints to be resolved in a
timely, fair and child-centred manner. Equally, complaints processes must provide, and be
seen to provide, a level of independence from the people whose actions are the subject of
complaint. Accordingly, I propose that the chief executive must consult with the State
Services Commissioner when establishing and amending complaints mechanisms so that
some oversight, independent of the new Ministry, ensures that the design meets the
objectives of the complaints mechanism.
65
Additionally, the chief executive will have a duty to ensure that policies and services of the
department have regard to the outcomes of cases considered through the complaints
process. The Children, Young Persons and Their Families (Advocacy, Workforce and Age
Settings) Amendment Bill (Bill No 1) introduced into the House on 1 June 2016 requires the
chief executive to ensure that children and young people have services available to them that
provide them with an opportunity, and support, to express their views about matters that are
important to them in relation to an action or service under the Act, and the operation and
effectiveness of processes and services under the Act for the purpose of contributing to the
improvement of these.
66
I also propose that the CYPF Act empowers regulations to be made that establish such
independent review mechanisms that may be necessary so that complainants may seek an
independent review of the chief executive’s responses to their complaint. The regulations
could, for example, define how the complaints process should interact with the Children’s
Commissioner’s powers and any obligations the chief executive might have to respond to the
Commissioner’s findings. The regulations may regulate the Children’s Commissioner’s
powers and may determine the obligations on the chief executive to respond to
determinations made by the Commissioner or some other body.
67
On 30 March 2016, SOC noted my intention to review the responsibilities of the Office of the
Children’s Commissioner to determine what resourcing and skills are required to fulfil the
oversight functions in the future system, and to provide further advice on this matter in
October 2016 [SOC-16-MIN-0023]. As I indicated when I announced his appointment in May
for a full-time two-year term, I see part of the Children’s Commissioner role as being to
provide advice on how the role of the Children’s Commissioner may evolve as the new
operating model for care and protection is implemented.
68
I am not proposing at this time to seek changes to the statutory functions of the Children’s
Commissioner under sections 12 and 13 of the Children’s Commissioner Act 2003. It is too
soon to judge how the new Ministry’s operating model and the related changes to complaints
and advocacy mechanisms in Bills No 1 and 2 will affect the resourcing and skills required by
the Commissioner to discharge the section 13 specific functions in relation to the CYPF
Act. The Ministry of Social Development, as the Commissioner’s monitoring department, will
provide further advice on the scope and timing for a review of this matter in August 2017.
Strengthening cross-agency accountabilities
69
The new Ministry will be a single point of accountability for addressing the needs of the most
vulnerable children. However, I expect that the new Ministry will require access to specialised
support services, especially from the Ministries of Education, Health and Social Development.
10
As noted earlier, the performance management framework will help provide accountability
and I propose to support this through changes to the Vulnerable Children Act 2014 (VCA).
70
The VCA enables the responsible Minister (in consultation with children’s Ministers) to set
Government priorities for improving the wellbeing of vulnerable children. Once these priorities
are set, the chief executives of the Ministries of Education, Health, Justice and Social
Development and the New Zealand Police (“children’s agencies”) are required to work
together to develop a vulnerable children’s plan.
71
Currently, no single agency is required to co-ordinate the development of the vulnerable
children’s plan. I propose that to reflect the new Ministry’s accountabilities around vulnerable
children and young people, responsibility for co-ordination of the vulnerable children’s plan is
placed on the chief executive of the new Ministry. Chief executives of children’s agencies
under the VCA will still be responsible for working together on the development of the plan.
72
The Investing in Children Programme is currently leading work to prepare the first vulnerable
children’s plan, the first step of which will involve the setting of Government priorities.
73
I am proposing a number of amendments to the requirements relating to the contents of the
plan that will focus the plan on the populations of interest to the new Ministry.
Creating greater accountability for prevention and supporting the social investment approach
74
The VCA obligates the chief executives of children’s agencies to jointly develop a plan as to
how they will work together to achieve the Government’s priorities for improving the wellbeing
of vulnerable children, and requires them to jointly report on this plan.
75
Currently, the legislation does not explicitly require working together to intervene early and
address vulnerability before it escalates. To strengthen accountability for prevention activity
across agencies, I propose requiring the vulnerable children’s plan to set out the outcomes to
be achieved with respect to children and young people with early risk factors for future
involvement in the statutory care, protection or youth justice systems and the steps that will
be taken to achieve these. I also propose that reporting on progress against these outcomes
is required. Such an approach would assist with a social investment approach and help
create an increased emphasis on prevention and early intervention.
A strategic focus on improving the wellbeing of the most vulnerable
76
I propose amending the requirements around the development of a vulnerable children’s plan
to ensure children’s agencies work together strategically around populations of interest to the
new Ministry, by:
·
requiring the vulnerable children’s plan to apply to the specific populations of children
and young people receiving intensive intervention, youth justice, care and transition
support services, from the new Ministry
·
requiring the plan to specify the steps that will be taken to improve the wellbeing of
these groups, including arrangements for:
-
agencies’ participation in assessment, planning and decision-making around those
individual children and young people (including, where appropriate, the
participation of Crown entities and contracted providers in their sectors)
-
services that are part of each agency’s core functions to be provided to those
children and young people, including, where appropriate, services that are not
11
directly delivered (eg those delivered by District Health Boards, schools and
contracted providers).
77
The existing accountability and reporting requirements under the VCA will apply.10 The
vulnerable children’s plan does not create legal rules, create any legal right enforceable in a
court of law, affect or limit the way in which a statutory power of decision is exercised, or
affect the interpretation of any enactment or the operation of the rule of law.11
78
The proposed amendments will help ensure that agencies’ working arrangements around
these groups of children are approached strategically, and will provide greater transparency
and accountability in relation to the actions agencies take. These proposals aim to promote
the collaborative working arrangements needed between the new Ministry and other key
social sector agencies to ensure children and young people’s needs are assessed and
addressed comprehensively, and support the performance management framework
developed for the new Ministry.
79
I believe that the level of vulnerability of the groups of children receiving services from the
new Ministry means that there needs to be specific reference to these groups in the
legislation to ensure there is a concerted, enduring cross-agency focus on improving the
wellbeing of these children. However, I note that the ability for the vulnerable children’s plan
to apply to other groups of vulnerable children will not be limited by this change because the
flexibility of Ministers to set broad policy priorities is maintained.
80
I note that the ability for services to be accessed by vulnerable children and young people will
be contingent on the availability of funding and resources, and will also depend on service
design.
Requiring the vulnerable children’s plan to apply to care-experienced children and young people up
to 21
81
I consider that the wider government sector should be more proactive in supporting children
and young people who have been in care, who lack the natural support networks that enable
many other young New Zealanders to flourish. I propose that the vulnerable children’s plan is
required to set out actions to improve the wellbeing of care-experienced children and young
people, that is, children and young people aged up to 21 who are or have been in care. This
will help provide transparency and accountability for the support and opportunities that
children’s agencies provide for this highly vulnerable group.
82
The intention is that agencies will have a wide degree of flexibility to determine the type of
support or opportunities they could set out in the plan.12 I envisage that children’s agencies
could work with other agencies and non-government organisations to identify suitable support
and opportunities.
Minor amendments to the VCA consequent to the establishment of the new Ministry
10
Chief executives are required to jointly report to the Minister annually on the extent to which they have
implemented the plan, and ensure that a copy of the plan is included in the agency’s annual report and on a
website.
11
The existing provision in Part 1 of the VCA that maintains the statutory independence of the Commissioner
of Police will also continue to apply.
12
Examples of such support and opportunities include subsidised services, employment opportunities or
internships, assistance with obtaining driver licenses and opportunities to participate in the design of
services.
12
83
84
Some minor amendments are needed to the VCA consequent to the establishment of a new
Ministry to ensure that both the new Ministry and the Ministry of Social Development are
subject to the relevant provisions of the VCA. These amendments are:
·
an Order in Council is made under Part 1 of the VCA to retain the Ministry of Social
Development as a core children’s agency,13 in addition to the new Ministry, given its role
in relation to income and employment support for children, young people, parents and
caregivers.
·
an Order in Council under Part 2 of the VCA to include the new Ministry within the
definition of a prescribed State service, which carries obligations to adopt a child
protection policy and to require contracted providers of children’s services to adopt a
child protection policy
·
an amendment to the Part 3 of the VCA to include the new Ministry as one of the key
agencies that is able to grant exemptions from the workforce restriction for core
children’s workers with specified convictions and to prosecute non-compliance with the
duties in that Part. This amendment is appropriate because the new Ministry will employ
a significant number of “core” children’s workers, as defined in the Act.
I also seek agreement to amendments to other legislation as required to replace references to
the Ministry of Social Development with references to the new Ministry.
Consultation
85
This paper was prepared by the Ministry of Social Development. The following agencies were
consulted in the development of proposals: the Ministries of Education, Health and Justice,
the New Zealand Police, the Children’s Action Plan Directorate, Te Puni Kōkiri, the State
Services Commission, the Treasury, the Ministry for Pacific Peoples, the Ministry for Women
and the Department of Corrections. The Department of the Prime Minister and Cabinet has
been informed. The Vulnerable Children’s Board has provided direction on specific proposals.
86
Early options considered on placing specific duties on school boards were discussed with the
President of the New Zealand School Trustees Association.
87
The Office of the Children’s Commissioner (OCC) was consulted on this paper. The OCC has
indicated that in relation to cross-agency accountabilities, it considers stronger accountability
mechanisms are needed than those proposed so that there is clear legislative direction to
prioritise the needs of children and young people in the care and protection and youth justice
systems. I have considered the option of placing specific duties directly on other agencies, but
given the risks associated with this approach and the fact that the vulnerable children’s plan
has not yet been tested, further legislative amendment is not advisable at this time. The
requirement for a Parliamentary report provides an opportunity to consider at a later stage
whether these existing mechanisms are effective.
88
Former members of the Panel’s Youth Advisory Panel were consulted on specific proposals.
13
Part 1 of the VCA places duties on the chief executives of “children’s agencies” with the purpose of
ensuring they work together to improve the wellbeing of vulnerable children. Currently, MSD is a “children’s
agency” under section 5 of this Act because it administers the CYPF Act, but is not named in the legislation.
If the administration of the CYPF Act were to be transferred to the new Ministry, MSD would no longer be a
“children’s agency.”
13
Financial implications
89
Many of the legislative proposals do not have direct cost implications or entail limited costs for
a minimum level of compliance. In some areas, giving full effect to the ambitions of the new
operating model is likely to result in significantly higher cost for the new Ministry and for other
agencies than the minimum legal compliance requires. These higher costs are likely to arise
regardless of whether legislation is amended. Some agencies indicate concern with the costs
implications of the operating model generally.
90
As part of the new operating model, there are likely to be cost implications for the new
Ministry in improving the service it provides to children and young people in care in line with
National Care Standards. The Standards themselves will be developed through regulations.
91
Similarly, the requirements on the chief executive to develop and publish policies and practice
standards in relation to the chief executive’s role in conferences and giving effect to their
outcomes may have some fiscal implications, which would be dependent on the type of
service provision envisaged under the new operating model.
92
Police note that there would be some costs to update the Police database to record referrals
made as a result of the requirement to consider whether a child or young person who has
come to its attention for offending would benefit from referral to prevention or intensive
intervention.
Complaints mechanism
93
The complaints approach was last reviewed and enhancement costs estimated in 2013 by the
former Police Commissioner Howard Broad. Consideration ranged from enhancement to the
current review process to a model that can escalate to review by an independent investigatory
authority, more akin to the Police Complaints Authority.
94
[9(2)(f)(iv) Confidentiality of advice]
95
The number of complaints requiring resolution may rise initially as a more child-centred
approach is instituted, testing existing resources. However these models would include a
strong investment approach feedback loop that drives practice improvements, reducing
service issues and complaints over time. Any initial increase that may occur and the
efficiencies derived from such an improved process cannot be accurately estimated at this
time.
Human rights implications
96
There are no direct human rights implications arising from the proposals in this paper. Draft
legislation that arises from these proposals will be assessed comprehensively for compliance
with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993, and with New
Zealand’s international obligations.
97
These proposals will increase New Zealand’s alignment with the United Nations Convention
on the Rights of the Child, in particular, the following articles:
·
Article 3, that the child is ensured such protection and care necessary for their
wellbeing, and that institutions, services and facilities for care or protection of children
shall conform with standards established by competent authorities.
14
·
Article 19, that States parties shall take all appropriate measures to protect children from
all forms of abuse and the establishment of social programmes to provide necessary
support for the child and for those who have the care of the child.
·
Article 20, that a child deprived of, or who cannot remain in, his or her family
environment, shall be entitled to special State protection and assistance.
·
Article 39, relating to measures to be taken to promote physical and psychological
recovery and social reintegration of a child victim of abuse or neglect.
Legislative implications
98
The proposals in this paper will be included in a second stage of legislative reform to establish
the new operating model (Bill No 2). This Bill has been included in the 2016 Legislation
Programme [9(2)(f)(ii) Protect collective and individual Ministerial responsibility].
99
Officials from the Ministry of Social Development will work with the Parliamentary Counsel
Office and other agencies to consider how amendments should be structured across the
CYPF Act, the VCA and other legislation.
Regulatory impact and compliance cost statement
100 The regulatory impact analysis requirements apply to the proposals in this paper. A
Regulatory Impact Statement has been prepared for this paper and is attached.
101 The Regulatory Impact Analysis Team at the Treasury (RIAT) has reviewed the Regulatory
Impact Statement produced by the Ministry of Social Development. The reviewers consider
that the information and analysis summarised in the RIS meets the QA criteria. It makes the
case that legislative along with operational changes are necessary to underpin the
accountability structure of the New Ministry for Vulnerable Children and to support the new
operating model.
102 However, the actual impact of decisions will largely depend on the detailed design of the new
arrangements. Therefore, it is important to put a comprehensive monitoring and evaluation
process in place, to measure the success of the new system and identify any additional
changes needed.
Gender implications
103 Women are more likely than men to be the primary caregivers for children and young people,
so strengthened accountabilities and greater assurance as to service adequacy will benefit
women and their whānau.
Disability perspective
104 Children with disabilities are significantly overrepresented within the youth justice and care
and protection systems and are some of the most vulnerable children in contact with CYF.
The proposals in this paper are likely to benefit children and young people with disabilities as
they provide greater assurance that services are provided to to meet their diverse needs.
Publicity
105 The Final Report of the Expert Panel and the accompanying Cabinet papers were released
on 7 April 2016. A first set of Cabinet papers considered by SOC in September 2016 were
15
released on 22 September 2016. Any further specific public announcements about Bill No 2
will be co-ordinated by the Office of the Minister for Social Development.
Recommendations
106 It is recommended that the Committee:
1
note that, in March 2016, the Cabinet Social Policy Committee (SOC), with Power to
Act, considered the Final Report of the Expert Panel on Modernising Child, Youth and
Family, and endorsed the overall scale, scope and direction of the reform, including the
establishment of a new operating model, with key elements including the creation of a
single point of accountability and a common purpose across the system [SOC-16-MIN0022 refers]
2
note that SOC invited the Minister for Social Development to report back on areas for
possible legislative reform, including:
2.1 creating clear accountability within the new operating system for prevention activity,
including prevention of youth offending, and strengthening responsibilities and
accountabilities for other agencies and Crown entities to ensure availability of
effective universal and enhanced services for vulnerable children and families
2.2 establishing a single point of accountability for assessing the needs of vulnerable
children, young people and families, including those who have significant unmet
needs but do not yet require a care and protection or youth justice response, and
accountability for meeting the full range of assessed needs for vulnerable children,
young people and families requiring intensive intervention
2.3 introducing new and amended provisions to support stable and loving care from the
earliest opportunity, including new, enforceable, obligations to meet the identified
recovery, growth and developmental needs of children in care and the creation of
mandatory National Care Standards
2.4 ensuring the needs of vulnerable young people exiting care and in transition are
identified and met, up to age 25, and establishment of ‘community parenting’ [SOC16-MIN-0024 refers]
3
note that existing accountability mechanisms, and enhancements of these under the
new operating model, will help create accountability
4
agree that the Ministry of Social Development (MSD), along with Treasury and the State
Services Commission report to the Ministerial Oversight Group by October 2016 on a
system-wide performance management framework for vulnerable children
5
invite the Minister for Social Development to report to Cabinet by February 2017 on
progress on a system-wide performance management framework for vulnerable children,
developed in consultation with other agencies
A public reporting mechanism
6
agree to a new legislative requirement on the Minister (or his or her delegate) to report
to Parliament within five years of enactment, and every three years thereafter, on the
extent to which the existing policy and legislative settings are meeting the needs of the
groups of children and young people with which the new Ministry is concerned, including
16
reporting specifically on Māori children and young people, and on whether further
legislative change is recommended
Legislation for the new Ministry’s accountabilities
Prevention
7
agree that legislation be amended to require the chief executive of the new Ministry to
ensure, where practicable, that any services to reduce the impact of early risk factors
funded by the new Ministry are co-ordinated with government-funded activities (of the
kind set out in the vulnerable children’s plan) for improving outcomes of children, young
people and families, or reducing identified early risk factors, to ensure that services:
7.1 are unified under a shared strategy and set of outcomes with respect to children
and young people with early risk factors for future involvement in the statutory care,
protection and youth justice systems
7.2 adopt a common approach to evaluating those outcomes and, where possible,
determining return on investment
7.3 are available to meet the needs of children and young people of different ages and
developmental stages, and include processes to support children and young people
to move between service types as their age and developmental stage changes
Children with significant unmet need below the existing statutory threshold
8
note that further legislation is not recommended at this time to underpin the new
Ministry’s accountability for meeting the needs of children with significant need who do
not meet the current statutory threshold given that it is currently difficult to estimate the
fiscal impact of mandatory service provision for this group and the potential benefits
Children and young people in need of care and protection (but not in care)
9
[9(2)(h)]
10
agree that practice, transparency and oversight for family group conferences and
execution of conference outcomes, in order to better meet children’s needs, is improved
by amending the CYPF Act to:
10.1 require the chief executive to develop and publish policies and practice standards in
relation to her role in family group conferences (FGCs) and giving effect to their
outcomes
10.2 clarify that the purpose of care and protection FGCs is to make recommendations,
decisions and formulate plans that meet the care, protection and wellbeing needs of
the child or young person (without limiting their broad powers)
Young people receiving a formal youth justice response
11
note that there are existing significant statutory accountabilities towards young people
who have been the subject of a youth justice family group conference
12
agree that non-legislative accountability measures applicable to intensive intervention
and prevention are designed to respond to the wider unmet needs of children and young
people who are engaged in the youth justice system or are at risk of entering the youth
justice system in the future
17
13
agree that the CYPF Act is amended to require the chief executive or a Police constable
to consider whether a child or young person who is having their offending (whether
alleged, admitted or proved) resolved through the youth justice system would benefit
from being referred to prevention or intensive intervention services
Children in care
1
[9(2)(h)]
2
[9(2)(h)]
3
agree that that in order to ensure that National Care Standards become a mandatory
requirement, the Governor-General must by Order in Council made on the
recommendation of the responsible Minister, make regulations for National Care
Standards
Rights of complaint and review
4
note that the enduring credibility of the government’s responses to vulnerable children
require transparent, timely and child-centred checks and balances in place to respond to
concerns raised
5
note that there are currently no obligations imposed on the chief executive to have
complaint mechanisms in place
6
agree that legislation be amended to require the chief executive to establish complaint
mechanisms that provide timely, fair and child-centred responses to children, young
people and parents and caregivers who are affected by actions taken under the CYPF
Act by the chief executive or others acting within the chief executive’s ambit
7
agree that the chief executive must consult with the State Services Commissioner when
establishing and amending the complaints mechanism
8
agree that the chief executive be required by legislation to ensure that policies and
services of the department have regard to the outcomes of cases considered through the
complaints process
9
agree that a regulation making power is added to the CYPF Act that enables
independent mechanisms to be established that are empowered to review the chief
executive’s response to complaints
Strengthening the cross-agency requirements in the Vulnerable Children Act 2014
10
note that the Vulnerable Children Act 2014 (VCA) enables the responsible Minister (in
consultation with children’s Ministers) to set Government priorities for improving the
wellbeing of vulnerable children, and requires the chief executives of the Ministries of
Education, Health, Justice and Social Development and the New Zealand Police, to
develop a vulnerable plan once priorities have been set or changed
11
agree that legislative responsibility for co-ordination of the vulnerable children’s plan is
placed on the chief executive of the new Ministry
12
note that the Investing in Children Programme is currently leading work to prepare the
first vulnerable children’s plan
18
13
agree to amend the requirements around the development of a vulnerable children’s
plan to ensure children’s agencies work together strategically around populations of
interest to the new Ministry, by:
13.1 requiring the vulnerable children's plan to set out the outcomes to be achieved with
respect to children and young people with early risk factors for involvement in the
care, protection and youth justice systems and the steps that will be taken to
achieve these outcomes, and creating a requirement to report on progress
13.2 requiring the vulnerable children’s plan to apply to the specific populations of
children and young people receiving intensive intervention (including those with
significant unmet needs who are below the care and protection threshold), youth
justice, care and transition support services, from the new Ministry
13.3 requiring the plan to specify the steps that will be taken to improve the wellbeing of
these groups, including arrangements for:
13.3.1 agencies’ participation in assessment, planning and decision-making around
those individual children and young people (including, where appropriate,
Crown entities and contracted providers in their sectors)
13.3.2 services that are part of each agency’s core functions to be provided to
those children and young people, including, where appropriate, services that
are not directly delivered (eg those delivered by District Health Boards,
schools and contracted providers)
13.4 requiring the vulnerable children’s plan to apply to care-experienced children and
young people (ie persons up to age 21, who are or have been in care)
14
note that as part of the drafting process, consideration will be given to how amendments
should be structured across the VCA, the CYPF Act, and other legislation
Minor amendments to the VCA consequent to the establishment of the new Ministry
15
agree to the following changes consequent to the establishment of a new Ministry to
ensure that both the new Ministry and MSD are subject to relevant provisions of the
VCA:
15.1 an Order in Council under Part 1 of the VCA to retain MSD as a core children’s
agency, in addition to the new Ministry
15.2 an Order in Council under Part 2 of the VCA to include the new Ministry within the
definition of a prescribed State service, which carries obligations relating to child
protection policies
15.3 an amendment to the Part 3 of the VCA to include the new Ministry as one of the
key agencies that is able to grant exemptions from the workforce restriction and to
prosecute non-compliance with the duties in that Part
16
agree to any amendments to other legislation as required to replace references to the
MSD with references to the new department
Financial implications
17
note that the majority of legislative proposals in this paper do not have direct cost
implications or entail limited costs for a minimum level of compliance, and in some areas,
19
giving full effect to the ambitions of the new operating model is likely to result in
significantly higher cost for the new Ministry and for other agencies than the minimum
legal compliance requires
18
note that costs for a reformed complaint resolution structure are estimated [9(2)(f)(iv)
Confidentiality of advice]
Next steps
19
invite the Minister for Social Development to issue drafting instructions to the
Parliamentary Counsel Office to draft amendments to the CYPF Act, the VCA, and other
legislation as required, to give effect to Cabinet decisions on the recommendations in
this paper
20
authorise the Minister for Social Development to make any minor technical and
administrative changes required to finalise draft legislation giving effect to the proposals
in this paper, in keeping with the overall policy aims of the proposals, and in
consultation with other Ministers as appropriate
21
note that any substantive policy decisions required to finalise draft legislation for
inclusion in Bill No 2 will be submitted to Cabinet for decisions.
Authorised for lodgement
Hon Anne Tolley
Minister for Social Development
20