A CLOSE-UP look at the state government's response to pre-natal reports of children who are at risk of harm or of being removed from their families has found that it has been making unlawful decisions by taking action before a child is born.
The Department of Communities and Justice (DCJ) has also closed a significant number of pre-natal reports without allocation to a caseworker, and no referrals to support services, due to "no capacity to allocate".
The latest NSW Ombudsman report is focused on pre-natal cases due to the distinct legal and practice issues between pre-natal reports and reports naming children at risk of significant harm (ROSH).
It has found that, until September 2024, the department had largely failed to recognise those distinctions.
The Ombudsman looked at earlier system reviews, coronial inquests, legislation and decisions of courts and statutory bodies, published DCJ data and the Ombudsman's own complaint holdings.
The provision in the Care Act which allows for reporting before the birth of a child that the child may be at risk of harm after their birth was introduced to provide assistance and support for the mother, the report says.
"It does not give rise to any right for the department to intervene in the life of the pregnant woman, or to interfere with her rights in any way," the report says.
It also does not put any onus on the woman to accept help or support that is offered, but is a preventive measure.
Rebecca Rayfield, vice-president of Family Inclusion Strategies in the Hunter (FISH), a group run by parents with lived experience, said pregnancy was a critical window of opportunity when many women were highly motivated to make positive changes and seek support but the system continued to "miss this opportunity".
"Families we are working with continue to describe prenatal involvement as dominated by surveillance and monitoring and information gathering rather than actual support," Mrs Rayfield said.
The report identified another issue that FISH had grappled with, the fact that engagement with DCJ during pregnancy was described as voluntary, and was to be treated separately to risk of harm reports that could only be made once a child was born, but there had been unlawful overlap.
"Mothers report that choosing not to work with DCJ is later used to justify the removal of newborn babies," Mrs Rayfield said.
"There is no real choice to engage with DCJ or not, when the threat of removal is so real. FISH continues to argue that genuinely voluntary engagement with an agency with the power to remove a newborn child is not realistic."
The Ombudsman report backs that up, saying that a birth mother's engagement, or lack of engagement, with support services after a pre-natal report is "explicitly linked" to what happens after the child is born.
The best option for mothers facing the likely removal of their newborn babies is intensive early intervention, Mrs Rayfield said.
"In the current system, DCJ is almost always the sole gatekeeper to these services," she said.
"All too frequently DCJ do not make the necessary referrals for early help. The DCJ power to remove children combined with the high rates of removal in our Hunter Region, creates substantial barriers to meaningful actual engagement.
"The whole experience is traumatic for children, parents and families, particularly for isolated mums who are trying to escape from domestic violence."
The report contains DCJ data for 2023-24, showing that of the 5000 pre-natal reports it received, 37 per cent were closed without allocation to a caseworker due to "no capacity to allocate", and almost half of the pre-natal reports screened in as ROSH were closed for the same reason.
Only half (2497 of 5007) were allocated to a caseworker for casework.
"When a pre-natal report cannot be allocated, DCJ's Pre-natal Casework Policy states that triage officers must refer expectant parents to services before closing the pre-natal report," the report says.
"In our sample review of triage closures without allocation and with the label 'No Capacity to Allocate', there were 11 pre-natal reports. None of them recorded that any referral had been made before closure."
