Part 3 Consequences of Removal Chapter 10 Children’s Experiences

48 14

61 12

34 10

22 5

51 14 12 9

85 11

10 5

30 8

32 6

15 4

9 2

25 6

3 2

48 5

6 4

17 3

16 3

19 3

8 2

na na

8 3

26 3

2 2

Source: Government Service Provision 1997Table 10.1page 536. aThe ACT ratesare over-estimatedduetothe method ofcalculatingthe Indigenous population ofthe Territory. Note:The table doesnot indicate whatproportionof thechildren were in substitute care.

Indigenous children are more likely than non-Indigenous children to be removed on the ground of ‘neglect’ rather than ‘abuse’. The graphs below contrast the proportions of Indigenous children and all children on care and protection orders nationally in 1992-93 on the grounds of neglect, sexual assault, emotional abuse and physical abuse. Substantiated cases of neglect constituted 40% of all cases for Indigenous children compared with 23% for all children.

There is broad agreement among commentators, State and Territory government departments and Indigenous organisations that Indigenous children who must be removed

from their families in their best interests are best cared for within an Indigenous cultural environment. There is also broad agreementthat Indigenous people have a right to look after their own children and thereby sustain their own culture. This right is expressed by most Indigenous organisations as a right to self-determination and is variously expressed by government departments as either a right to self-determination or a right to self-management. In spite of this, Indigenous children continue to be removed from their families at a disproportionate rate and continue to be placed into non-Indigenous environments including group homes and foster families (Gilbert1993, Thomas 1994, Dingwall et al 1983).

Categories of substantiated abuse and neglect involving Indigenous children

Categories of substantiated abuse and neglect involving all children

Source:Angus and Zabar1995basedon 1992-93 figuresprovided to WELSTAT

There is also a general recognition that the underlying causes of the over-representation of Indigenous children in welfare systems include the inter-generational effects of previous separations from family and culture, poor socio-economic status and systemic racism in the broader society. These causes combine to produce cultural differences between welfare departments and Indigenous communities, substance abuse, violence, poor nutrition, alienation from social institutions including the education system, family services and the criminal justice system, limited and poor housing options and a loss of hope, particularly among younger people.

In this chapter we evaluate the role of government welfare departments and children’s care and protection legislation in the continuing separation of Indigenous children from their families and communities and in addressing the underlying issues identified.

Australian welfare systems

Powers In each State and Territory children’s care and protection legislation authorises welfare departments to investigate allegations of child abuse and neglect and to respond with preventive measures and intervention. The grounds for intervention and removal in each jurisdiction are similar and cover categories of neglect and abuse and irretrievable breakdown in parental relationships with the child.

In all jurisdictions the policy is to work with the family in such a way that the child will not have to be removed or, if removed, can be rapidly returned. Bringing a care application is a last resort. Preventive strategies include provision of intensive home-based care, respite care and attempts at consensual arrangements where a problem is detected. Parents may make voluntary undertakings and these may be reached in the context of a family conference. The family conference has now become an established

part of welfare practice. The format, formality and range of parties involved in these conferences vary considerably. Family conferences are usually mediated by a social worker from the welfare department. They may include the child, parents, extended family, an Indigenous child care agency and other professionals such as health workers and the police.

Where removal of the child cannot be avoided, family reunion is the primary objective in all jurisdictions.Where this is totally unfeasible, family contact at least should be maintained.

In all jurisdictions it is necessary to obtain a court order if a child is to be removed from the family under child welfare legislation, although temporary removal without a court order is lawful in emergencies. Care and protection applications are usually brought by the welfare department or the police. The proceedings take place in the Children’s Court where the order made must be in the ‘best interests of the child’. If the court finds allegations of neglect or abuse substantiated, a range of orders is available including parental undertakings, alternative care and supervision orders. Before placing a child in substitute care the court obtains an assessment report. At this point, in the case of an Indigenous child, the court may receive formal advice from an Aboriginal and Islander child care agency. Making the child a ward of the State is the last resort option.

Welfare departments fund family based services such as intensive home-based care and respite care. They provide and fund placement services for children found to be at risk. In all jurisdictions departmental policy is to deinstitutionalise out-of-home care, look for foster care options and, where institutions are used, support small home-like environments. Several out-of-home care options are commonly used including foster care, family groups homes, hostels and kinship care.

Philosophy Many children suffer abuse or neglect. The State or Territory has an obligation to ensure their well-being and protection. The nature of the official response, however, has varied over time according to prevailing philosophies and ideologies.

In Western terms, welfare as a form of child saving has its origins in late 19th century middle-class concerns about the ‘dangerous’ classes, single mothers and working-class families in industrialised regions of England.

Many child-savers saw poverty, destitutionand the illegalactivities of the lower classes as signs of biologically determined characterdefects.Under the influenceof Lombroso,Galtin,Spencer and Darwin, the childsavingmovement became a moral crusade, seekingto correct andcontrol the poor …

The system [child welfare system] has beenpredicated on the view that childrenneeded to be rescued fromthose parents whodid not havetheinnate qualities, right values,correctattitudes

and appropriate behaviours considered tobe necessary for parents to act in a ‘socially acceptable’ way (Jamrozicand Sweeney1996pages26 and 90).

In the 1970s the expectation that governments provide greater social equality and the recognition that inequalities underlie social problems gained currency. These understandings provoked a shift within welfare departments from protection to prevention and assistance. In the 1980s the re-emergence of a focus on abuse, particularly sexual abuse, in welfare work facilitated an ideological slip back into the notion of welfare workers as saviours of children from morally deficient individuals and families (Jamrozic and Sweeney 1996 page 98).

We have seen that Indigenous families were historically characterised by their Aboriginality as morally deficient. There is evidence that this attitude persists. A focus on child-saving facilitates blaming the family and viewing ‘the problem’ as a product of ‘pathology’ or ‘dysfunction’ among members rather than a product of structural circumstances which are part of a wider historical and social context (Gilbert, Thomas, Dingwall et al 1983). Indigenous families face both race and class prejudice among many welfare officers.

Indigenous efforts to retain their children Indigenous communities have fought consistently to keep control over their children. Resistance to separations has taken various forms.

There are no studies solely devoted to opposition byAboriginalpeople to theremoval of their children. It is a history thatdemands tobewritten, one thatwould providea fascinating and tragic accountof a struggle that hasbeen at the core of the battle for survival of Aboriginal people. It is a subject thatwould highlight the roleofAboriginalwomen – and men in theprotectionof the onlyguarantee for their survival when theyhad little ornomaterial possessions and negligible civil rights. Resistance moreover,didnot occur in confrontational ways alone; moreoften than not itwas through evasive means, given the absolute lackof powerofAboriginal People ( SNAICC submission309 page 4).

The formation of national Aboriginal organisations in the 1960s and 1970s followed localised struggles for Indigenous peoples’ rights, including the rights of families and children. The effects of Aboriginal separations and placement with non-Aboriginal adoptive and foster carers were brought to general public attention at the first, second and third Australian Adoption Conferences in 1976, 1978 and 1982 and at the First Aboriginal Child Survival Conference in 1979.

During the 1970s the first Aboriginal and Torres Strait Islander Child Care Agencies (AICCAs) were established. In NSW the Aboriginal Children’s Services was formed in 1975. Delegates at the First Australian Adoption Conference in 1976 encouraged the formation of the Victorian Aboriginal Child Care Agency.

TheAgency is geared to service delivery and community development. It aims at ultimately providing an autonomous community centred servicefor children, basedon thenotion that there already existswithin theAboriginal community, multiple and diverse resources which can be

integrated intothe AboriginalChild Care Agency Program … Because it is an Aboriginal community organisation, theAboriginal Child Care Agency can be easily sensitised to and reflectiveof the needsof Aboriginal families and children.This is vital as a breakdownbetween State welfaredelivery and the participationof Aboriginalpeople, suspicious ofprograms stigmatisedby child removal, has paralysed welfare operations. TheAboriginal Child Care Agency then, bridges this gapand operates outside the fear of ‘Welfare’ (Jackson 1979 page 3).

Aboriginal and Islander Child Care Agencies and Multi-functional Aboriginal Children’s Services (MACS) are the two main Indigenous, community based, child care service providers in Australia. There are now approximately 100 such services across Australia. AICCAs fulfil a number of roles including provision of preventive services, involvement with children and youth under care and protection orders and provision of foster care and adoption services. MACSs provide services for 0 to 5 year olds including health services, child care, respite care, nutritional meals and play groups in one location. ‘MACS offers a vital opportunity for early intervention and preventative assistance to take place’ (SA Aboriginal Child CareAgency submission347page 27).

Welfare efforts to include the needs of Indigenous clients State and Territory welfare departments have recognised that a very high proportion of their clients are Indigenous families and children. The historical and socio-economic context of Indigenous families and children and the nature of welfare practice leave Indigenous children at greater risk than any others of removal from their families and communities. In evidence to the Inquiry State and Territory governments stressed the need for Indigenous communities to exercise greater control over their children’s welfare.

The essence of self-determination in this context is an understanding that only Aboriginalpeople canfind solutions to theproblems which confront them, and thatAboriginal peoplehavethe right to make decisions concerning theirown lives and theirown communities and theright to retain their culture and develop it.

Collaborativedecision making, co-operation and consultation between the Department of Families, Youth and Community and Aboriginaland Torres Strait Islander agenciesare key themes guiding current protectionpolicy andpractice.(QueenslandGovernment final submission page 18).

The NSW Government stated that its policy on Aboriginal Affairs ‘is based on a philosophy of Aboriginal self-determination and will promote Aboriginal esteem in both Aboriginal and non-Aboriginal communities’ (NSW Governmentinterim submissionpage 111).

It is considered necessary thatanAboriginalprogram have thepower to name its own components … For example the conceptofFoster Carer isnotreadily translated frommainstream to Aboriginal society. Aboriginal people do notthinkof themselves as foster carers for children of theirown kinshipor otherAboriginal children. There are also some distasteful associations

with terms such as foster care, foster parents etc … (WAGovernment submission Attachment 4 page 12).

Similar statements are found in each State and Territory Government submission

(SA Governmentinterim submissionpage 32, VictorianGovernment interim submission page32, Tasmanian Government final submissionpage D-38, NT Government interim submission pages 58-9; see also ACTGovernment submission page 4).

The rhetoric of self-management, however, has not been matched by practical measures. The administrative, executive and judicial decision making about Indigenous children’s welfare are controlled by child welfare authorities. Although Indigenous organisations in some jurisdictions have a right to be consulted, this typically occurs only at the final stages of decision making about a child, when recommendations are being made for a placement in substitute care.

In general, myimpression is that thewelfareauthorities are most willingto encourage Aboriginal people to participate in waysthat do not involve a majorshift of power and responsibility (Chisholm 1985page 8).

Decision making about Indigenous children’s well-being falls well short of accepted notions of self-determination. Moreover, it continues to fall short of government claims of ‘partnership’ and ‘collaboration’.

Welfare departments have made changes to their practices in an effort to reduce cultural biases leading to Indigenous over-representation. One common strategy has been to establish an Aboriginal section of the department. This strategy has been criticised on the ground that the section is ‘ tacked on to the system, without altering its philosophy, structures, practices or processes’ (Thomas 1994 page40).

Accompanying the establishment of Aboriginal sections have been increased employment of Indigenous staff and an attempt to enhance the cultural sensitivity of existing staff and procedures. Each of these strategies also has its critics.

Indigenous organisations criticise the incorporation of Indigenous staff into welfare departments on the ground that these talented people cannot simultaneously be community resources. Public service employment inhibits the capacity of Indigenous staff to represent and advocate for their communities. Funding to employ a community member as a community development worker would frequently be preferred. Ideally both should be ensured as State and Territory administrations have a responsibility to provide appropriate and accessible services to all clients.

During the 1980s and 1990s there has been growing awareness of the problems of cross-cultural service delivery and of the need for cross-cultural training. However, the goal of culturally appropriate service delivery remains elusive. Policy statements from head office do not translate into practice in the field. Popular cross-cultural training models have limitations.

Reliance on a view of culture as fixed rather than dynamic, and the tendency to stereotype whole groups by virtue of their ethnicity are the drawbacks of the simple pluralist model. Its promotion in the late 1970s and through the 80s – a highly successful enterprise – was largely achieved via a decade of so called ‘cultural awareness’ training, achieved through a ‘cultural differences’ approach. This is a process whereby you come to understand different ethnic groups by learning how they behave, eat, celebrate, raise their children and bury their dead. All these practices are quaint, interesting or even unbelievable: ultimately however, they serve to underline distinctness. This approach encouraged, even depended for its success, on the kind of generalisation that also leads to stereotyping of a negative kind (Kalowski 1992 page 4).

The single most significant change affecting welfare practice since the 1970s has been the acceptance of the Aboriginal Child Placement Principle.

Aboriginal Child Placement Principle: State and Territory review

All Australian jurisdictions now recognise, either in legislation or policy, that, when Aboriginal or Torres Strait Islander children are to be placed in substitute care, they should be placed within their own culture and community where possible. Each jurisdiction also recognises that Indigenous people should be consulted about placements.

In four of the eight jurisdictions the Aboriginal Child Placement Principle (ACPP) is established in legislation. In two jurisdictions the involvement of Indigenous organisations, notably Aboriginal and Islander child care agencies (AICCAs), is also defined by legislation.

[Unless otherwise stated the information and data detailed below were provided by governments in submissions to the Inquiry. For ease of reference we include recent data on Indigenous children in care for each State and Territory.]

New South Wales

Under the Community Welfare Act 1987 (NSW) the Director General of the Department of Community Services has ultimate power to place removed children.

Section 87 of the Children (Care and Protection) Act 1987 prescribes the ACPP’s preferred order of placement. If the child cannot remain with his or her current carers placement with the extended family as recognised by the child’s community must be explored. If that is not possible, then placement with another Aboriginal person from the child’s community should be explored. If that is not possible, then placement with a member of an Aboriginal family residing in the vicinity of the child’s usual home should be explored. Finally, if none of these options is practical or if they would be detrimental to the welfare of the child, placement with a person considered suitable by the Director General may be made. The last option is only to proceed after consultation with the child’s extended family and such ‘Aboriginal welfare organisations’ as are appropriate in relation to the child.

Indigenous children constitute 2.1% of the children in NSW yet they made up between 7.7% and 9% of notifications for neglect or abuse over the period from 1991-92 to 1994-95. Indigenous children have been between 3.5 and 4.5 times over-represented in notifications to the Department of Community Services. Indigenous children make up 21.3% of children in substitute care, approximately eleven times over-represented. The large increase in over-representation from the point of notification to substitute care orders is consistent with national trends.

Indigenous children in substitute care may still be placed in non-Indigenous care as the following table shows. However, there has been a recent quite substantial reduction of the use of non-Indigenous care for Indigenous children in NSW.

Non-Indigenous care for Indigenous children in care: NSW

1990-91 1991-92 1992-93 1993-94 1994-95 1995-96

% in non-Indigenous care 25.2 23.1 19.7 17.5 17.1 10.0

South Australia

In South Australia the ACPP is set out in section 5 of the Children’s Protection Act 1993. This provides that no decision or order about where an Indigenous child is to reside can be made until the department has consulted with a recognised Indigenous organisation. The Minister is required to consult with the Indigenous communities before ‘recognising’ an Indigenous organisation. These organisations are then gazetted for the purposes of participation in decisions under the Act. By 1995 22 organisations had been gazetted. The Act stipulates that not only must a recognised organisation be consulted but also that proper consideration must be given to its submissions. The venue and nature of the consultations are to be as ‘sympathetic to Aboriginal [or Torres Strait Islander] traditions as is reasonably practicable’. Family care meetings are provided for in the Act with a view to involving families in decision making about the care and protection of their children at risk (sections 27 and 28). A recognised organisation will also be involved.

Section 5(2) A person or court, in making any decision or order under this Act in relation to an Aboriginal or Torres Strait Islander child, must, in addition to complying with the requirements of section 4, have regard –

(a) to the submission made by or on behalf of a recognised Aboriginal or Torres Strait Islander organisation consulted in relation to the child; and

(b) where there has been no such consultation – to Aboriginal traditions and cultural values (including kinship rules) as generally expressed by the Aboriginal community, or to Torres Strait Islander traditions and cultural values (including kinship rules) as generally expressed by the Torres Strait Islander community, as the case may require; and

(c) to the general principle that an Aboriginal childshouldbe kept within theAboriginal community and a Torres Strait Islander child shouldbekept within the Torres Strait Islander community.

The ‘requirements of section 4’ are to be observed when dealing with all children. They are that the safety and best interestsof the child must direct all decision making under the Act, that serious consideration be given to keeping a child within his or her family and neighbourhood, preserving their religious, cultural, racial and ethnic identity and, taking into account the child’s age and maturity, that serious consideration be given to his or her opinion, among other matters. Section 42 also places weight on preserving and enhancing a child’s racial and cultural identity.

The order of placement preferences is set out in a departmental PracticePaper.

• In the child’s home locality,with members of the extendedfamily, or the same tribal language group,or anotherAboriginal family,

• In a family group home orhostel run by an Aboriginalfamily, in the child’s home locality for short term placements,

• In a different locality, with membersof the extended family, or the same tribal language group, or another Aboriginal family,

• In a foster home, family group home orhostel run by a non-Aboriginalfamily which is sensitive to the specialneedsof Aboriginal children, preferably in the child’s home locality ( Practice Paper December 1993 page 1).

Indigenous children constitute less than 2% of all children in South Australia yet they constitute around 8% of children about whom the department is ‘notified’ (that is, about whom it is alleged they have sufferedabuse or neglect) each year, a fourfold over-representation.

Notifications of SA Indigenous children 1992-931993-941994-95 7.1%8.2%8.0%

The extent of Aboriginal children’s over-representation increases with further interventions after notification. Aboriginal children constitute 14% of departmental case loads, 10% of substantiated abuse cases and 17% of children under the guardianship of the Minister (that is, State wards). As at June 1995 Aboriginal children constituted 17.1% of all children in substitute care.

A study of Aboriginal children in long-term foster care in SA in 1988 found that at least 25% of all children in this care were Aboriginal (although departmental records appeared incomplete). Just over one-half (54%) of Aboriginal children in long-term care