The architect of the contentious section of the Children’s Protection Act that has put the Weatherill Government on a collision course with the state Coroner was now-Senator Nick Xenophon – and he says he’s “sick to his stomach” that the law was ignored.

In last week’s damning inquest findings on the death of four-year-old Chloe Valentine, who suffered horrific neglect at the hands of her mother Ashlee Polkinghorne, coroner Mark Johns slammed Families SA’s “flagrant disregard” of section 20(2) of the act and demanded strict and urgent compliance.

Johns argued “there was ample evidence … Chloe was at risk as a result of the abuse of methamphetamines and cannabis by her mother” and “had Families SA complied with its obligations under section 20(2)…there is a very real possibility that Chloe’s life might have turned out differently”.

It was Xenophon who moved to amend the Children’s Protection Act by inserting section 20(2) a decade ago, dictating that if there is suspicion a child could be at risk because of parental drug abuse, the chief executive of Families SA “must apply for an order” for a drug assessment from the Youth Court.

Xenophon told InDaily the amendment was inserted to address “these very instances”.

“The issue is, what’s the state done about that?” he said.

“I want to know why the law appears to have been ignored.”

He said when he realised it was his amendment that the Coroner found might have saved Chloe’s life, “I felt sick in my stomach”.

“I did what I could as a member of parliament to put in a mechanism to make children safer, but it appears to have been ignored,” he said.

“I can’t accept it would have been too difficult to carry out these assessments … the cost of assessment pales into insignificance when you consider the price paid by children who are abused or neglected.”

Xenophon is determined to get to the bottom of “many unanswered questions”, including “what directives there were (at the time) to comply or not comply with the changes to the law”, as it “clearly hasn’t been complied with all these years”.

Indeed, Johns found Xenophon’s amendment was “culturally resisted” by Families SA, which he deemed a “systemic failing”.

“Section 20(2) is quite clear in its terms,” he said.

“There is no ambiguity and there is no discretion.”

As the Coroner notes: “It will be seen immediately that this provision is mandatory upon the Chief Executive coming into possession of evidence sufficient to found a suspicion on reasonable grounds that a child is at risk as a result of the abuse of an illicit drug by a parent.”

But there is a caveat in 20(2): an application for a drug assessment order “must” be made, “unless the Chief Executive is satisfied that an appropriate assessment of the parent, guardian or other person has already occurred, or is to occur”.

Harrison has defended himself against the Coroner’s criticism by arguing Families SA gives greater weight to the preceding section of the Act, 20(1), which allows for an application for a court order to be made if there is “reasonable suspicion that a child is at risk”, further investigation warranted or it’s “desirable that the child be protected while the matter is being investigated”.

The order need not be to remove the child (in any case only for a maximum of 10 weeks), but could also provide for the child to be examined or assessed, or for the family to be relocated.

The phrasing of section 20 is significant, and may warrant further attention in the current Governmental review of the act: under 20(1), Families SA “may apply to the Youth Court for an order”, however under 20(2) – Xenophon’s amendment – the Chief Executive “must apply for an order”.

The implication is that the first is up to departmental discretion, the latter a legal responsibility.

The Hansard debate in November 2005, when Xenophon moved his amendment, is instructive, and throws very clear light on the ideological assumptions underpinning the Government’s child protection agenda.

The late Terry Roberts, speaking only three months before his death from pancreatic cancer, outlined Labor’s opposition to the motion: “We would not like to see the heavy hand of the state interfere in removing children from parents …”

When Xenophon interjected that he is “only talking about a drug assessment, not about removing children”, Roberts replied: “What tends to happen in the real world is that well-meaning people register people for assessment and make notifications of abuse.”

“You then get arguments … about whether a person has the right to have the care and control of their children … It is not a situation that makes it any easier to develop trust within those family units.”

Xenophon again interjected: “And if it is causing risk to the child?”

Roberts replied: “But whose opinion is it that the drug abuse is so bad or the drug-taking is of such a concern that the children must be removed or put in care?

“The Government is saying that a range of issues need to be examined, not just the issue of the individual’s drug or alcohol problem.

“(Xenophon) has highlighted the gaps in the existing child protection legislation … currently (Families SA) staff cannot apply for orders compelling parents to undergo an assessment in respect of their ability to care for their children.”

That gap had been already identified in Robyn Layton’s 2003 review of child protection, and the act now allows for an order under section 20 “authorising or directing the assessment … of a parent, guardian or other person responsible for the care of a child to determine (their) capacity to care for and protect the child”.

However, Roberts argued, while there may be instances wherein children have been left “hungry and neglected” while “the parents are out of it”, “I would not intervene in a situation like that on the basis of one case, based on an assessment or a report made by someone else”.

“Those parents are quite capable, at all other times of the day and night, of looking after their children,” he said.

It’s worth noting that while Roberts was the lead speaker for the Government against the motion in the Upper House, the Minister for Families and Communities at the time was Jay Weatherill, whose cabinet this week quickly endorsed the coroner’s recommendations in relation to the Children’s Protection Act.

The cabinet’s response, however, did note that compliance with Xenophon’s 20(2) was necessarily “limited”, given the preceding section 20(1), and pointed out a large number of successful applications to the Youth Court under that section – including 338 care and protection orders in the 2013-14 financial year. The Coroner, however, argued that those same successful applications belied Harrison’s claim that “resourcing (was) an issue in relation to Families SA complying with section 20(2)”.

But if the Government wanted to argue points of law with the Coroner, it might have been better served highlighting Section 14 of the Children’s Protection Act, which states: “Nothing in this Act requires the Minister or the Chief Executive to take or initiate any action under this Act in relation to a notification of suspected abuse or neglect of a child if the Minister or the Chief Executive is satisfied that the information or observations on which the notifier formed his or her suspicion were not sufficient to constitute reasonable grounds for the suspicion; or that … proper arrangements exist for the care and protection of the child and the matter of the apparent abuse or neglect has been or is being adequately dealt with.”