”It wasn’t just her child they took away, it was also her voice…” An unnamed litigation guardian.EXCLUSIVE
It is more than three months since Rebecca’s child was taken from her, but the pain is still raw and the decision still impossible for the grieving young mother to fully comprehend.
She had fought hard during the court hearing to keep the little girl who had been the centre of her world for eight years. She had stayed strong through the long days in front of the magistrate and the lawyers, and had kept her composure over more than three hours of testing cross-examination.
But the decision, when it came, cut like a knife. At first, she was speechless with shock. The moment she stepped from the courtroom she collapsed in grief.
“I tried to comfort her like any other decent human being would but she was totally stricken,” says a veteran litigation guardian, who had been at Rebecca’s side throughout the case.
“I told her she was a wonderful person and that she was a good mother but I just felt powerless to help her.”
Rebecca did not lose her child because she was an incompetent or abusive mother. Indeed, the reports from the paediatrician, the psychologist and the family support worker presented in court all acknowledged her love, dedication and capability.
Rebecca has a mild intellectual disability and she lost her child because it was determined that the elderly relatives of her estranged partner – who had challenged for custody of her daughter – would make better parents.
Now Rebecca has access to her daughter only on alternate weekends and for part of school holidays – a decision which she cannot appeal and about which she must remain publicly silent.
Rebecca’s advisers believed they could not resist a decision in favour of her former partner’s family and accepted a consent order. There can be no legal challenge to that order. Their decision was based on potential legal liability and restrictions on the role of a litigation guardian, an appointee whose job is to “stand in the shoes” of a disabled person during court proceedings.
Because of the rules around media reporting of family law matters, we cannot tell you Rebecca’s real name, or that of her daughter. And she is prohibited from speaking to the media about the case and the turmoil she is going through.
After she made a number of anguished and angry phone calls and sent text messages immediately after her daughter was removed, Rebecca was called back to court. There, she was subjected to a further order forbidding her from talking about the case to anyone other than social workers, lawyers and counsellors.
“It wasn’t just her child they took away, it was also her voice,” says her litigation guardian, who also cannot be named. “She was distressed. There was a bit of language but it wasn’t threatening.”
The case has deeply concerned lawyers and human rights workers, who believe Rebecca is the victim of an inflexible Australian Family Law Act that discriminates against disabled parents in breach of United Nations conventions protecting the rights of the disabled and children.
For some, there are disturbing parallels with the “stolen generations” – the Aboriginal children forcibly removed by the state because their parents were deemed incapable of properly caring for them.
Victoria’s Public Advocate, Colleen Pearce, has written to the Human Rights Commission and the federal Attorney-General raising alarm at the separation a child and her natural mother when no evidence was produced that the child was at risk of harm or neglect.
She told Disability Discrimination Commissioner Graham Innes of her “serious concerns that the processes and outcome of the case breach the human rights of this young woman and her child”.
Rebecca’s litigation guardian believes Rebecca and her daughter have suffered a serious miscarriage of justice.”I think this is an appalling way to treat a person with a very mild disability who is doing her best and her best is judged to be not good enough,” says the woman, one of the most experienced in her field in Victoria.
She described Rebecca as an “average young mother”, a sociable person with a strong network of friends and a supportive mother of her own. “She does not come across as having a disability.”
The child’s paternal relatives, who had shared parenting responsibilities before the relationship between Rebecca and the girl’s father ended, had applied to the Federal Magistrates Court for an order granting them “residence” and parenting responsibility for the child.
“Reports from the paediatrician, the psychologist and the family support worker all indicated that things were going well, that she was a good mother, a caring mother and that this little girl was not at risk,” the guardian says.
The case had then turned on the “better parenting standard” under the Family Law Act, which requires a court to determine what is in the best interests of the child.
“That’s where we got caught. The act assumes the parties are normally the natural parents and where that is not the case it doesn’t give preference to a natural parent. And it does not give protection to someone with a cognitive disability. It treats disability as a barrier to parenting just like drug addiction is a barrier.
“If she didn’t have a mild intellectual disability, I am sure that her child would still be living with her. It is wrong at every level.”
She says Rebecca has now lost her supporting parent’s benefit, and been forced to move from the country to be closer to her child, who is struggling to cope with the change in her life.
“This has been a devastating experience, but people with disabilities get used to being beaten up by systems. They get used to being denigrated and being treated as incapable. They come to expect it.
“At times during the court hearing she would say, ‘I just can’t do this. It is too difficult’. But she did because she loved and wanted to keep her child. That’s what has made this all the more devastating. She hung in there, but she lost her child anyway.”
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