"Children have a right to be raised by their natural parents." (Image posed by models)

"Children have a right to be raised by their natural parents." (Image posed by models)

The recent removal of a child from a young mother with a disability is heart-wrenching and disturbing, and leaves me and those involved in the case in emotional turmoil. Goodness knows, then, how the poor mother, "Rebecca", is coping, let alone her child.

It appears, however, that the removal of children from parents with a disability, basically because they have a disability, may be not so uncommon.

Removing a child from a parent because they have a disability is discriminatory, inhumane and breaches the human rights of both parent and child 

There are two ways children can be removed from their parents. The Federal Magistrates Court or Family Court can remove children under the Family Law Act to a "better parent", or where it is deemed in "the best interests of the child". Children can also be removed under the child protection regime if there is evidence to prove they are being abused or neglected.

Of course, there are legitimate situations in which a parent's disability may result in the loss of their parenting rights. Such situations could include where the parent has a serious mental illness that cannot be stabilised, or where a parent may have a serious substance abuse disorder that results in abuse and neglect.

However, I am increasingly concerned that children are being removed from parents with a disability based solely on that disability, and not because the cases meet the relevant tests.

There is no readily available data to say how many Australians with a disability have had their child removed, but parents with a disability are up to 10 times more likely to have a child removed from their care under the child protection regime.

Very often their child is removed not because the parent has harmed or neglected them, but because the child is seen as being at risk of neglect. The appropriate response to this is to provide support, encouragement, help and education.

The Family Law Court can order that, if a person has had a parenting relationship with a child, such as a grandparent, and that person is judged to be a better parent, then the child can be raised by that person or members of the child's extended family. But the numbers of children removed from parents with a disability informally is likely to be much greater than those removed formally by courts.

My office supports the rights of parents with a disability to raise their children, and believes they should be encouraged and helped to do so. This stance is echoed by the Department of Human Services. It has developed "operating framework" principles, including that parents with a disability are parents first and foremost.

Children have a right to be raised by their natural parents, whether or not they have a disability. This right is enshrined by two United Nations conventions to which the Australian Government is a signatory: the Convention on the Rights of Persons with Disabilities, and the Convention on the Rights of the Child. Families are also protected under the Victorian Charter of Human Rights 2006.

There is substantial evidence that parents with cognitive disabilities (of which those with an intellectual disability make up 1 per cent of the parenting population) can successfully parent their children.

The law may be causing discrimination against parents with a disability if it does not consider the UN conventions. The family law case of "Rebecca" did not consider the UN conventions and, in a recent child protection matter, authorities failed to understand the impact of the mother's ability to communicate with them; they needed to find ways to help her do that.

My office would like to see the following reforms:

  • courts engaging disability experts to assess parenting capacity
  • empathy for parents with a disability with a presumption that, unless evidence suggests otherwise, they parent with good intentions
  • parents with a disability being supported by specialists when dealing with relevant courts
  • where children are removed, that parents with a disability have sufficient access to enable a flourishing relationship
  • a child be removed at birth only in extraordinary circumstances and, if so, then counselling and support be provided and contact with the parent be made as soon as practicable.

Australia has a sad record of forcible removal of children from their parents based on the personal characteristics of the parents, such as an indigenous background or marital status.

Removing a child from a parent because they have a disability is discriminatory, inhumane and breaches the human rights of both the parent and the child.

Laws, policies and practices must be reformed to remove this possibility. If they say it takes a village to raise a child, then where is a village for a parent with a disability? We must start building it now.

Colleen Pearce is Victoria's Public Advocate.