Part 3 Consequences of Removal Chapter 10 Children’s Experiences

In evidence to the Inquiry, Family Court Justice Richard Chisholm pointed out the difference between a Family Court residence order dispute and a welfare placement dispute (for example, relating to foster care or adoption). He concluded that the Aboriginal Child Placement Principle can be comfortably applied, consistently with the best interests of the child, in the latter case but not in the former.

I think there is a very important distinction to be drawn betweensituationsin whichachild welfare agency has to make a decision aboutplacing a childand they haveto decide which foster parents or adoptive parents … theymight place achild in, where the child hasbeen separated from the family forone reasonor another.And that’s a situation where the decision-makerhas to choose from a range of possibleplacements for a child. That seemstometo be quite a different situationfrom whatused tobe called ‘custody cases’ where you havegota competitionbetween twopeoplewho each claim the child and thedecision-makerhas to choose between them.

… if you are in a situation where you’ve gota range of possible placements to choose from it seems to me that it is much easier to have a rule that says, ‘Prefer some placements to others’ (evidence 654).

In other words, the guiding principle of the best interests of the child is easier to accomodate within the Child Placement Principle when there is a range of placement options than when the choice is between two biological parents.

Family Law Act 1975

The Family Law Act 1975 (Cth) was amended in 1996 (effective from 11 June). Two relevant provisions introduced co-operative parenting which means that, regardless of where the child resides, both parents share continuing responsibility for all decisions

relating to the child, except with respect to residence and contact and amended slightly the guidelines for determining the child’s best interests (previously the child’s ‘welfare’) (Lisa Young submission 816 pages 4-5).

Under the Family Law Act the best interests of the child are the paramount consideration in any decision about a child. Justice Chisholm explained how ‘best interests’ has been interpreted.

[It] covers a widerangeof matters. It ‘isnot tobe measuredby money only, norby physical comfort only … The moral and religious welfare ofthe child must be considered as well as its physicalwell-being. Nor can the tiesof affectionbedisregarded’ … [It includes] ‘all factors which affect the future of thechild’ … It includes the child’s happiness … It includesboth the immediate well-beingof the child and matters relevant to the child’s healthy development … (submission654 pages 5-6).

The fact that the child’s best interests are paramount means that the court’s orders will seek to secure those best interests even if this seems unfair to one of the parents.

… when the governingprinciple is that the child’s best interests are theparamount consideration, the court’s single task is to makewhatever orders it considerswill bestpromote the welfare of the childrenwho are the subjectof the proceedings.Itfollows that the courtwillmake the orders that it considers will best promote the welfareof the child, even if such orders lead to what might be regarded as injustice between theparties(Justice RichardChisholm submission 654 page7).

The guidelines Deciding what is in a child’s best interests is largely a matter within the discretion of the particular judge. However, the Family Law Act provides some guidance on what matters have to be taken into account in making that decision. Section 68F (paraphrased) lists, • the wishes of the child; • the relationship the child has with each parent and other people; • the likely effect of any change (for example, of residence); •the child’s right to maintain personal relations and direct contact with both parents regularly and the practical difficulty and expense of that; • the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs; •the child’s maturity, sex and background, including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders; • protecting the child from physical or psychological harm; • the parents’ attitudes to the child and to their responsibilities as parents; • whether there has been violence in the family;

• whether stability is to be preferred (that is, avoiding further litigation); and • anything else the court considers relevant.

The full significance of the inclusion of reference to Indigenous peoples specifically in the guidelines is not clear and will need to be spelt out by the court. Do the guidelines direct a judge to recognise an Indigenous child’s need to maintain a connection with his or her culture? Or do they simply invite the judge to decide whether the particular child has that need? A literal interpretation supports the latter view and Justice Chisholm tentatively came to this conclusion in evidence to the Inquiry.

My own tentativeview is thatthe significance of thatprovision[section68F] is probably more to set out a checklist of things to be looked at rather than an attempt to attach weight to particular factors (evidence 654).

Similarly, family law lecturer, Lisa Young, submitted that the list of matters to be taken into account ‘merely helps the Court keep at the forefront of its mind the sorts of issues that are relevant to such a determination’ (submission 816 page 4). This interpretation is supported, too, by the absence from the Act of any reference to the child’s right, ‘in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language’ (article 30 of the Convention on the Rights of the Child). The absence of reference to this right in the Act is odd in light of the fact that the 1996 amendments were largely driven by a desire to reflect more closely the Convention on the Rights of the Child (Lisa Youngsubmission816 page 4).

The court often obtains much of the evidence about the matters listed in the guidelines from a ‘Family Report’ (section 62G). The court can order a Family Report and it will be done by a family and child counsellor or a welfare officer, typically social workers or psychologists. The counsellor interviews all the people involved, including significant people in the children’s lives, and often visits the home or homes. The counsellor makes ‘a professional assessment of the emotional and psychological factors present in the two competing family systems set up by the separated parents, and the children’s and parents’ roles within those systems’ (Hume and Stewart 1996 page 14). Sometimes, too, the counsellor will ascertain the child’s wishes: children cannot give evidence in the Family Court and the parents are recommended not to prejudice the issue by presenting evidence themselvesof their child’s wishes (Hume and Stewart1996 pages 3 and14; underOrder 23 Rule 5 thecourt may take a child’s evidencein chambers but inpractice this is neverdone).

Long-term welfare of Indigenous children The Family Court has recently dealt emphatically with the related topic of how to decide the best interests of a child in the long-term when there is a dispute between an Indigenous parent (or family) and a non-Indigenous parent (or family). Previously there was a tendency to ignore the significance of Aboriginality and Aboriginal culture, some judges and magistrates taking the view that ‘the need to treat people equally before the

law prevents them giving much weight to [these] issues’ (Nicholson 1995 page 11).

However, following the 1995 case In the marriage of B and R, the court is more likely to understand the profound difficulties faced in adolescence and later life by the great majority of Indigenous children brought up in non-Indigenous families. The court in that case rejected the ‘equality’ argument as based on a misunderstanding of the true nature of equal treatment. It would in fact be unjust to treat as equals people who are not.

… all people should be treated with equalrespect. By recognising that this represents the essential content of the idealof equality, one realises that equaljustice is not always achieved through the identical treatment of individuals (B andR page621).

In B and R the Full Court of the Family Court held that ‘the Aboriginality of a child is a matter which is relevant to the welfare [now best interests] of the child’. The court summarised a wide range of research on the subject (page 605).

A.In Australia a child whoseancestry is wholly or partly indigenous is treated by thedominant white society as ‘black’, a circumstance which carrieswithit widely accepted connotations of an inferior socialposition. Racism still remains a marked aspect of Australian society …

B. The removal of an Aboriginal child from his/her environment to a white environment is likely to have a devastating effectupon that child, particularly if it is coupledwith a long term upbringing in that environment, and especially if it results in exclusion from contact with his/her family and culture.

C. Generally an Aboriginal child is better able to copewith thatdiscrimination from within the Aboriginal community because usually that community actively reinforces identity, self-esteem and appropriate responses …

D. Aboriginal children often sufferacutelyfroman identity crisis in adolescence, especially if broughtup in ignorance of orin circumstances which denyor belittle their Aboriginality. This is likely to have a significant impact upon their self-esteem and self-identity into adult life.

The court concluded that, because of the relevance of the child’s Indigenous ancestry to his or her future well-being, the Family Court should order the appointment of a special ‘separate representative’ for every Indigenous child involved in a parenting dispute. The role of the separate representative (that is, separate from the legal representatives for the mother and father or other family) would include ‘to examine these issues and ensure that all relevant evidence and submissions are placed before the court’ (page 624).

The court refused to import a presumption that, all other things being equal, an Indigenous child’s interests are best served by living with the Indigenous parent or other

family member. Thus there is still no automatic preference for the Indigenous parent and the court ‘will not assume that Aboriginalityis either an advantage or a disadvantage’ (Justice Richard Chisholm submission654 page 9). On the other hand, it was acknowledged that ‘many of the matters … referred [to] above are now so notorious that it would be expected that a trial judge would take judicial notice of them’ (page 624). At the same time, the judge will also need ‘the detail and thrust of that material to be marshalled and presented to the court by an appropriately qualified expert so as to avoid the risk that the case may turn upon varying degrees of individual [ie judges’] knowledge’ (page 624). This would be the role of the separate representative.

Effectively, then, the Full Court has directed that a separate representative is to be appointed in every case involving an Indigenous child to gather evidence relating, especially, to the relationship between the child’s Indigenous heritage and his or her future well-being and interests.

Justice Chisholm told the Inquiry,

Hopefully,the decision of B andR will nowputsome of that expert evidence … into the cases so that it will be available to judgeswhoread the cases. But that’s no substitute for expert evidence in the particular case and,of course the expertevidence in a particular case might relate to the precise community that’s involved.We canmake some generalisations aboutAboriginal people or Indigenouspeople,but there are often some quite significant differences from one community to another andyou might want specific evidence about a particular community (evidence654).

Lisa Young, however, raised a concern with the Full Court’s requirement in B and R that, ‘at least for the predictable future’, evidence establishing the relevant issues in each case will still need to be adduced (page 624).

There is an interesting analogy here with parenting cases involvinghomosexualparents.While the Courthas gone through in detail thekinds of prejudicialarguments used against suchparents, and largely discounted them, they still find the list ofquestions a useful checklist! In other words, they need to be reconvinced at every turn that homosexualparents are not naturally ‘bad parents’. My concern here is that the Court’s approach[in B and R] is similar in that it is saying they acknowledge thesefacts as notoriousbutwant them proved in everycase just in case they do not applyfor some reason in onecase.No doubt such a case may come up but there is no danger that the relevant arguments won’t be put when that happens.Asking every applicant to take responsibility for these issuesis thewrongsolution – this is simply a matterofjudicial education … Heterosexual parents arenot asked toprove that they are not naturally badparents, Caucasians arenotput to proof of matters of such notoriety, whyshouldAboriginal(or homosexual)parents be? (submission 816 page 8).

Kinship obligations The Family Court clearly has preferred the biological parent over a disputant extended family member in making custody (now residence) orders, although there is no presumption that that should be the case. Nevertheless, the Court, at least in reported cases, has yet to prefer an Indigenous child’s grandmother, for example, over the child’s natural, non-Indigenous father or mother.Moreover, section 61C recognises only the

parental responsibility of each of the biological parents and fails to recognise the child-rearing obligations of others.

By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child-rearing values. In Aboriginal societies child-rearing responsibilities are shared.

[In ArnhemLand, NT andMornington Island, Qld]it was the responsibilityforan Aunt or Uncle to grow up thechildof their sister orbrother. It is a belief amongst Aboriginal people living in these areas that because anAuntyor an Uncle are not too emotionally involvedwith the child that they are able to make the bestdecisionsforhis education needs and the future role of thechild in becominga responsiblemember of the Aboriginal familygroup (Randall1982 page 342).

By privileging stability of residence, the system similarly entrenches a bias against the Aboriginal practice of mobility of children among responsible adults and their households.

It seems that Indigenous families respondto the cultural inappropriateness of Australian family law by avoiding the Court and dealing with family disputes informally, or under traditional Law. As Chief Justice Nicholson recently acknowledged,

Historically, indigenous peoples havehad little contactwiththe Court and have beenreluctant to seekout the Court’s services, even in circumstances where their traditional methodsof resolving disputes have failed(1995 pages 11-12).

When a non-Indigenous parent seeks a residence or other parenting order, however, the Indigenous parent and family have no choice but to engage with the Family Court. Section 60B of the Act, which sets out the principles relating to children’s welfare, does recognise the child’s right of contact ‘with other people significant to their care, welfare and development’. This provision invites the submission of evidence in the particular case as to who those people are and how they might be involved in future. Judges familiar with Indigenous cultural values will be able to appreciate the significance of such evidence.

Judges, in common with all other professionals dealing with Indigenous families and children, require ongoing education comprising the history and effects of forcible removal as well as Indigenous cultural values, especially those relating to child-rearing. As Family Court Chief Justice Nicholson stated recently,

… if cases dogo to court, and obviously some of them will, justice will not be achievedunless the judicial officer dealingwith theparticular case has some understandingof the cultural backgroundof thepersons with whomheor she is dealing. Misapprehensiononthe part of the judicial officer as to the meaningof evidence is likely to be productiveofserious injustice … (1995 page7).

‘Cross-cultural’ training was planned for 1995 and 1996 for some Family Court

judges (Nicholson 1995 page 13, Cooke 1996 page 13). It was suggested to the Inquiry that judicial education needs to be ongoing.

… oneof the failingsofjudicial educationprogrammes is that they seem to beone-off affairs. Judges may only deal sporadically with cases involvingAboriginalparties (given the small numberof cases that actually reach afinal trial) and cannotbe expected tokeep at their fingertips knowledgepassedonover the course of a fewdays some years ago … Moreover, education involves more than placing information at someone’s disposaland judges should have the opportunity to engagewith the material in more depth in a more appropriate environment (Lisa Young submission 816page10).

All officers of the Family Court involved in parenting disputes will need ongoing training to ensure accessibility for, and to avoid discrimination against, Indigenous people. Relevant staff include counsellors and Registrars. The critical role of the counsellor or welfare office preparing a Family Report points to the need to ensure all such staff are thoroughly trained. Our recommendation relating to the role of separate representatives and Aboriginal and Islander Child Care Agencies will only be effective if implemented within an environment of heightened awareness and sensitivity on the part of counselling staff, registrars, judges and all other court officers.

Western Australia Unique among the States and Territories, Western Australia established its own State Family Court in 1975. The State Act allowed custody and access decisions about all children, whether born in a marriage or not, to be made in the same court on the same principles. Elsewhere in Australia children of a marriage were dealt with under the Commonwealth’s Family Law Act 1975 and ex-nuptial children under separate State legislation (except in the Territories where Commonwealth legislation applied). In the 1980s the other States transferred their jurisdiction over ex-nuptial children to the Commonwealth to permit those children to be dealt with under the Family Law Act.

A significant degree of uniformity has been maintained since between the Commonwealth Act and the WA Act. However the Commonwealth amending legislation in 1996 disturbed that uniformity. Legislation to restore uniformity is awaiting enactment in WA. The Inquiry’s recommendations are directed explicitly to the Commonwealth’s legislation on the understanding that Western Australia will amend the State Act in line with the Commonwealth.

24Juvenile Justice

Thejuvenile justice system is mimicking theseparationpolicies of thepast (Western Aboriginal Legal Service (Broken Hill) submission775).

The most distressing aspect about the levelof juvenilejustice intrusion in the lives of young Aboriginal and Torres Strait Islanderpeopleis the fact thatentry into the system is usually the start of a longcareerofincarceration for many (SNAICC submission309page 28).

The removal of Indigenous children and young people can occur by way of juvenile justice intervention either through the use of police custody or through the incarceration of a young person in a juvenile detention centre. The length of separation can vary from a few hours or days to months or years. However, as submissions to the Inquiry noted, the effects of the separation can last a lifetime.

The disproportionate number (or over-representation) of Indigenous children and young people in the juvenile justice system and in particular in detention centres has been recognised for two decades. One of the earliest attempts to assess its level occurred in 1977 during a symposium organised by the then Commonwealth Department of Aboriginal Affairs on the care and treatment of Indigenous young people in detention centres (Sommerlad 1977). During the 1980s there were numerous reports which outlined the over-representation of Indigenous young people in various State or Territory jurisdictions (Cunneen and Robb 1987, Semple 1988, Gale et al 1990, Cunneen 1990). These studies indicated Aboriginal over-representation in police interventions, in court appearances and in juvenile detention centres.

Aboriginal child care agencies and Aboriginal legal services throughout Australia consistently drew attention during the 1980s to the problems associated with the high levels of criminalisation of Indigenous youth (D’Souza 1990). Some commentators argued that the over-representation of Indigenous young people in juvenile corrections represented a continuation of earlier removal policies by way of a process of criminalisation (Cunneen 1990 and 1994, O’Connor 1994). Aboriginal organisations supported this interpretation in submissionsto the Inquiry (see ALSWA submission 127, Western Aboriginal Legal Service (Broken Hill) submission 775 and SNAICC submission 309). Also supporting this argument is research in most Australian jurisdictions indicating not only that Indigenous young people are over-represented in the juvenile justice system but that they are most over-represented at the most punitive end of the system, in detention centres (Gale et al 1990, Wilkie1992, Crime Research Centre 1995, Luke and Cunneen 1995, Criminal Justice Commission 1995). This phenomenon is now recognised by many governments (for example, QueenslandGovernment interim submission page 90).

During the 1980s and early 1990s many Indigenous communities grappled with developing alternative mechanisms for dealing with young people who offend. These alternative Indigenous mechanisms have tended to be localised, inadequately funded and

without any legislative base. However, a key principle in these developments has been implementing self-determination at the grass roots level. In other words, communities have continually sought their own solutions to the problem of the over-representation of Indigenous young people in the juvenile justice system (Dodson 1995, Dodson 1996, Cunneen and White 1995 pages 152-3).

The principle of self-determination and the need for the development of Indigenous community responses to deal with Indigenous young people were fundamental to the main recommendation from the Royal Commission into Aboriginal Deaths in Custody designed to prevent the removal of Indigenous youth through juvenile justice or welfare intervention. Recommendation 62 called on governments to negotiate with Aboriginal communities and organisations to find solutions. ATSIC has reminded the Inquiry of the importance of this recommendation (submission 684 page 42).

The processes of juvenile justice separations

Police custody The police play a pivotal role in the separation of Indigenous children and young people from their families and communities. The Inquiry has already documented this role in the history of removal policies. However, police still have a major function in bringing about separations. Most obviously, Indigenous children and young people are separated from their families and communities by being placed in police custody and held in watchhouses, lock-ups or cells.

The Australian Institute of Criminology specifically drew the links between past removal policies and contemporary use of police custody.

For many Aboriginal people, police officers taking children into custody and locking them in the cells, particularly in circumstances where this would not happen to a non-Aboriginal child, is a continuation of the practices of the past that have led to the Inquiry being established (submission 686 page 4).