Part 3 Consequences of Removal Chapter 10 Children’s Experiences

The standing of Aboriginal and TorresStraitIslander parents, families andcommunities to actively participate in and shapejuvenile justice programs, whichhave such a disproportionate impact on our children,shouldbebeyondquestion (Dodson 1995 page27).

The Royal Commission into Aboriginal Deaths in Custody stressed the need for governments and Aboriginal organisations ‘to negotiate together to devise strategies to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems’ (Recommendation 62). The Royal Commission was not prescriptive. Instead ‘a conscious decision was made not to attempt to provide a blue-print for a “perfect” system, but rather to recommend a co-operative, negotiated, community-based approach to addressing problems’ (Dodson 1996 page 200). This was also the approach of the Canadian Royal Commission on Aboriginal Peoples in relation to criminal justice issues.

The approach adopted by the Inquiry is consistent with that of the Royal Commission. We recommend negotiations for nationally binding minimum standards of treatment for Indigenous children and young people. The negotiating partners should include the Commonwealth, State and Territory Governments and peak Indigenous organisations with responsibility for families and children, the Aboriginal and Torres Strait Islander Commission (ATSIC), the Secretariat for Aboriginal and Islander Child Care (SNAICC) and the National Aboriginaland Islander Legal Services Secretariat (NAILSS), together with the Aboriginal and Torres Strait Islander Social Justice Commissioner.

The national standards legislation should be applicable to all Indigenous children whether subject to Indigenous community jurisdiction, State or Territory jurisdiction or shared jurisdiction as negotiated between the Indigenous community and the State or Territory.

In the case of children remaining under State or Territory jurisdiction or subject to shared jurisdiction, we have cometo the conclusion, based on overwhelming evidence, that some provisions are essential as minima if the goals of eliminating unnecessary removals of Indigenous children from their families and communities and reversing their over-representation in child welfare and juvenile justice systems are to be achieved. Additional standards should be negotiated which are consistent with the minima recommended. Subject to the national standards legislation, individual communities, regions and representative organisations may negotiate the details of their particular relationships with the institutions of the State or Territory under Recommendation 43c.3.

The negotiation and adoption of minimum standards for juvenile justice, child welfare and adoptions applicable nationally will address the rights and needs of Indigenous children, prevent unjustified removals and provide an open framework in which Indigenous control over child welfare and juvenile justice can develop where this is desired. Minimum standards do not preclude development of higher standards in any one jurisdiction, region or community. They establish the benchmark from which particular systems can develop in ways which suit the requirements of Indigenous children and communities in different areas. This approach was advocated by the Anglican Social Responsibilities Commission.

The legislative control of childwelfare and juvenile justiceis in the handsof theStates. The States cannotbe assumed all tobeof one mind,or can thatmind be assumed to be ofgood intent. In the SocialResponsibilitiesCommission’s [SRC] viewaction by theCommonwealth is necessary … Any legislationby the Commonwealth shouldbedirected towardsproviding benchmarksby whichState provision will be regulated (submission 525 page10).

Under the Australian Constitution child welfare, juvenile justice and adoption have been matters within the exclusive legislative power of the States (with the Commonwealth exercising that power for the Territories until the grant of self-government). The Commonwealth’s responsibility for Indigenous children’s rights flows from Australia’s adoption of international human rights treaties. This adoption, moreover, has expanded the Commonwealth’s legislative power. Arguably the Commonwealth has constitutional power to legislate to protect Indigenous children’s well-being relying on its powers to legislate with respect to external affairs and for the people of any race (Wilkinson 1994, Nicholson 1995).

National standards for Indigenous children

Recommendation 44:That the Council of Australian Governments negotiate with the Aboriginal and Torres Strait Islander Commission, the Aboriginal andTorres Strait Islander Social Justice Commissioner, the Secretariat of National Aboriginal and Islander Child Care and the National Aboriginal and Islander Legal Services Secretariat national legislation binding on all levels of government and on Indigenous communities, regions or representative organisations which take legal jurisdiction for Indigenous children establishing minimum standards of treatment for all Indigenous children (national standards legislation).

National standards for Indigenous children under State, Territory or shared jurisdiction Recommendation 45a: That the national standards legislation include the standards recommendedbelow for Indigenous children under State or Territory jurisdiction or shared jurisdiction. Recommendation 45b:That the negotiations for national standards legislation develop a framework for the accreditation of Indigenous organisations for the purpose of performing functions prescribed by the standards.

Responsibility for children One objective of national minimum standards is the elimination of removals of Indigenous children from their families and communities consistently, in particular, with the Convention on the Rights of the Child and the right of self-determination. The standards should ensure both the human rights of Indigenous children including the best interests principle and the right of self-determination for Indigenous peoples. The development of Indigenous law and practice in accordance with existing human rights norms is recognised in the draft Declaration on the Rights of Indigenous Peoples.

Indigenous people have theright topromote, develop and maintain their institutional structures and theirdistinctive juridical customs, traditions,procedures and practices, in accordance with internationally recognised human rights standards (article 33).

Article 9(1) of CROC requires that state parties ensure children are not separated from their families except where separation is necessary for the best interests of the child. The Genocide Convention and the draft Declaration on the Rights of Indigenous Peoples prohibit the removal of Indigenous children from their people. ‘[E]ven where an Aboriginal child must be separated from his or her parents in the best interests of the child, that child should not be separated from his or her culture and should be placed as close to the parents as possible’ (Iorns 1996 page 6). In most cases the best interests of the child will require placement within his or her community. The right of self-determination and the elimination of removal are consistent with the requirement that the best interests of the child be served in the vast majority of cases.

Any aboriginal childgrowingup in Australian society today will be confrontedbyracism. His best weapons against entrenchedprejudice are a pride in his aboriginal identity and culturalheritage, and strong supportfrom other members of the aboriginal community. We believe that the only way in which an aboriginal child who is removed from the care ofhis parents candevelop a strongidentity and learntocope with racism is through placement in

an environment whichreinforces the social and culturalvalues characteristic of aboriginal society.We believe that white families are unable toprovide such a supportive environment (Aboriginal taskgroup reportto theFirstAustralian Conferenceon Adoption 1976,relied uponby theFamily Court in B and R 1995 page605).

In the contextof [high] adultmortality and high incidencesof imprisonment,other social problems and a generally hostile environment we have to ensure notonly that our children are taken care of,but that they also grow up with a strongbelief in themselves and their people.Wedothis because they are the inheritors of this land, they are its guardians and we must bring them up with thesame values and attitudes thatwehave tried to uphold(Butler 1989 page29).

Welfare departments in all jurisdictionscontinue to fail Aboriginal and Torres Strait Islander children. Although theyrecognise the Aboriginal Child Placement Principle, they fail to consult adequately, if at all, with Indigenous families and communities and their organisations. Welfare departments frequently fail to acknowledge anything of value which Indigenous families could offer children and fail to address children’s well-being on Indigenous terms.

Aboriginalfamilies continue tobe seen as the ‘problem’, and Aboriginal children continue to be seen as potentially ‘savable’ if they can be separatedfromthe ‘dysfunctional’ or ‘culturally deprived’ environments of their families and communities. Non-Aboriginals continue tofeel that Aboriginal adults are ‘hopeless’ and cannotbe changed,but Aboriginal children ‘havea chance’ (Link-Up (NSW) submission186page 85).

The needs of Indigenous families and communities are neglected while Indigenous children continue to be disproportionately involved with ‘the welfare’. Evidence to the Inquiry repeatedly indicated a community perception that the problems which result in removals need to be addressed in terms of community development. However, welfare departments continue to pathologise and individualise protection needs of Indigenous children. At the same time, recognition of past failures, under-resourcing and, in some instances, racist attitudes frequently result in a failure to intervene until the family crisis is of such proportions that separation is the most likelyor even only possible course.

Indigenous communities throughout Australia gave evidence to the Inquiry of their need for programs and assistance to ensure the well-being of their children. Not a single submission to the Inquiry from Indigenous organisations saw intervention from welfare departments as an effective way of dealing with Indigenous child protection needs. Departments recognise that they need to provide culturally appropriate services but they fail to develop them.

Despite changes ofnames from Departmentof CommunityWelfare to theDepartment of Community Development to the Department ofFamily and Children’s Services (FCS) [WA] many Aboriginal peoplefeel that theDepartment hasremained a welfare institution reminiscent ofNativeWelfare. FCS still wields statutory control over families strugglingto survive.Decisions which affect the livesof children are frequently made by staff without discussion with Aboriginal families.Manypeoplefacing crises with theirfamilies will often notseek assistance from the department because of their association with ‘Welfare’ who took the children away (Kimberley Land Council submission 345 page28).

It is not surprising, given theexperiences ofpresent and earlier welfarepolicy and practices, that Aboriginal perceptionsof the currentrole of DCS [NSW] remain overwhelmingly negative.Despite the employment of Aboriginalfieldworkers most interviewees expressed suspicion of and antipathy towards, DCS. Despite changesto policy and legislation, DCS practiceremains, in theopinion of those interviewed, culturally inappropriate ( Learning from the Past 1994 page 58).

Families are concerned that any contactwithFACS[SA] may result in their children being removed. Hence forprograms involving thewell-being ofAboriginal children tobe successful, they need to be managedby andoperated from Aboriginalorganisations (SA ACCA submission 347page37).

Evidence to the Inquiry confirms that Indigenous families perceive any contact with welfare departments as threatening the removal of their child. Families are reluctant to approach welfare departments when they need assistance. Where Indigenous services are available they are much more likely to be used.

Standard 1: Best interest s of the child – f actors

Recommendation 46a:That the national standards legislation provide that the initial presumption is that the best interest of the child is to remainwithin his or her Indigenous family, community and culture. Recommendation 46b:That the national standards legislation provide that in determiningthe best interests of an Indigenous child the decision maker must also consider, 1.the need of the child to maintain contact with his or her Indigenous family, community and culture, 2.the significance of the child’s Indigenous heritage for his or her futurewell-being, 3.the views of the child and his or her family, and 4.the advice of the appropriate accredited Indigenous organisation. Standard 2: When best interests are paramount

Recommendation47: That the national standards legislation provide that in any judicial or administrative decision affecting the care and protection, adoption or residence of an Indigenous child the best interest of the child is the paramount consideration.

Standard 3: When other factors apply

Recommendation 48:That the national standards legislation provide that removal of Indigenous children from their families and communities by the juvenile justice system, including for the purposes of arrest, remand in custody or sentence, is to be a last resort. An Indigenous child is not to be removed from his or her family and community unless the danger to the community as a whole outweighs the desirability of retaining the child in his or her family and community.

Standard 4: Involvement of accredited Indigenous organisations

Recommendation49: That the national standards legislation provide that in any matterconcerning a child the decision maker mustascertainwhether the child is an Indigenous child and in every matter concerning an Indigenous child ensure that the appropriate accreditedIndigenous organisation is consulted thoroughly and in good faith. In care and protection matters that organisation must be involved in all decision making from the point of notification and at each stage of decisionmaking thereafter including whether and if so on what grounds to seeka court order. In juvenile justicematters that organisation must be involved in all decisions at every stage including decisions about pre-trial diversion, admission to bail and conditions of bail.

In the context of family law, section 68L of the Family Law Act 1975 (Cth) authorises the Court to ordera separate representative for the child or children in a parenting dispute. The Full Court of the Family Court in the 1994 case Re K set guidelines for when a child should normally have a separate representative. One circumstance is ‘where there are real issues of cultural differences’ (Lisa Young submission 816 page 8). In all cases involving Indigenous children the court must ensure that the child is represented. Representation is essential to ensure that the child’s Indigenous heritage and associated needs and interests are understood by the court and properly taken into account.

The expertise of Indigenous community-controlled organisations providing services for Indigenous families and children, notably the Aboriginal and Islander Child Care Agencies (AICCAs) has been called upon by the Family Court. Separate representatives should be alert to the existence and expertise of these organisations and would be expected to consult them in every case.

Standard 5: Judicial decision making

Recommendation50: That the national standards legislation provide that in any matterconcerning a child the court must ascertain whether the child is an Indigenous child and, in every case involving an Indigenous child, ensure that the child is separately represented by a representative of the child’s choosing or, where the child is incapable of choosing a representative, by the appropriate accredited Indigenousorganisation.

Indigenous child placement principle The Indigenous Child Placement Principle provides the framework for the care of Indigenous children who cannot remain with their parents. It meets both the child’s best interests and the needs of the Indigenous community.

Becauseof the negative attitudes towardsAborigines that still exist in our community, it is inevitablethat an Aboriginal child will besubjected to racial tauntsby theirpeers and, if that child is isolatedfrom Aboriginal family andcommunity supports, it is most likely that he or shewill developpsychological and emotional problems ... In order to cope with these issues, andotherssurrounding his or her Aboriginal identity, it is of paramount importance that the childremain or be placed in anAboriginalfamily, preferably the naturalor extendedfamily. Thechild will be with people who haveexperienced the problems that he or shewill

inevitably face and be able to address them effectively (ACCA report submitted by the separaterepresentative and quotedby the Family Court in B and R 1995 page597).

This approach mirrors that adopted in Britain by the National Foster Care Association in 1989.

Denying a child’s colour, being ‘colour-blind’, isnot in the child’s long-term interests. It is one way inwhichwhite carers have attemptedto protect themselves and the children they care for from thereality ofracism. But denialmakes things worse for the child, who cannot share with their white carers theoffensive anddamagingracist behaviourthey may experience.

Becoming familiar with black people, learning about blackhistory and achievements, and knowing the music and languageof theirown culture will help the children to begin to build up an inner store ofself-worthof theirblackness. This will help them to combat the damage done by racism.Thechild or young person needs directcontactwith black people whoare positiveabout their own blackidentityand needs positive black rolemodelstocounteractthe negative images so often presentedby the media (excerpted inGaber andAldridge1994page 217).

There is a great deal of variation amongjurisdictions in the wording of their Aboriginal Child Placement Principles. Chisholm commended the NSW Community Welfare Act 1987 requirement that placement contrary to the ACPP must not occur unless application of the Principle would cause detriment to the child (1988). Only Victoria and SA provide statutory recognition of the role of Aboriginal organisations. Aboriginal people have noted the importance of ‘respecting law’, ‘keeping law strong’ by making correct skin placements and recognising blood ties as well as cultural ties in defining extended family and correct placements.

Many arguments can be made in favour of entrenching the Principle and the role of AICCAs in legislation. Where procedures and policy are legislatively provided for they are more likely to be adhered to. Their implementation can be reviewed and monitored by courts. Legislative recognition facilitates standing on the part of parties who may otherwise be excluded from proceedings (for example AICCAs). Statutory recognition of a right to participate in decision making would relieve AICCAs from dependence on the goodwill of the welfaredepartment or individual officers.

Legislation establishes a firmer and clearer foundation for lines of authority and the exercise of legitimate power (for example the demarcation of responsibilities between AICCAs and departments). It provides a sound basis for funding agencies to recognise services which require funding to fulfil functions.

Standard 6: IndigenousChild Placement Principle

Recommendation 51a: That the national standards legislation provide that, when an Indigenous child must be removed from his or her family, including for the purpose of adoption, the placement of the child, whether temporary or permanent,is to be made in accordance with the Indigenous Child Placement Principle. Recommendation 51b:Placement is to be made according to the following order

of preference, 1.placement with a member of the child’s family (as defined by local custom and practice) in the correct relationship to the child in accordance with Aboriginal or Torres Strait Islander law, 2.placementwithamember of the child’s community in a relationship of responsibility for the child according to local custom and practice, 3.placementwith another member of the child’s community, 4.placementwith another Indigenous carer. Recommendation 51c:The preferredplacementmay be displaced where, 1.that placement would be detrimental to the child’s best interests, 2.the child objects to that placement, or 3.no carer in the preferred category is available. Recommendation 51d: Where placement is with a non-Indigenous carer the following principles mustdetermine the choice of carer, 1.family reunion is a primary objective, 2.continuing contact with the child’s Indigenous family, community and culture must be ensured, and 3.the carermust live in proximity to the child’s Indigenous family and community. Recommendation 51e:No placement of an Indigenous child is to be made except on the advice and with the recommendation of the appropriate accredited Indigenous organisation. Where the parents or the child disagree with the recommendation of the appropriate accredited Indigenous organisation, the court must determine the best interests of the child.

Adoption Adoption for Indigenous children should be a last resort and, where it is desirable in the child’s best interests, should be within the Indigenous community except when the child’s best interests require some other placement. Culturally appropriate alternatives to adoption should be preferred. They include, 1.custody and guardianship arrangements short of adoption, 2.culturally appropriate counselling of prospective relinquishing parents and their families ensuring that alternatives are explored and adequate family support is offered to enable them to keep the child, and 3. ‘open adoption’ which secures continuing contact between the child and his or her parents, other family members and community.

While adoption is seen as the answer for some Aboriginalchildren, it certainly doesnot represent the total answer.Aboriginal values, culture andfamily life provide a verydifferent context or texture from that of the dominant society and adoption assumeddifferent meanings against this context. If adoption law and practiceis to be responsive to the particularneeds of the Aboriginal community, then it must beflexible in its application and be in harmonywith their family life, cultureand values. Viable alternatives to legal adoption through the white systemmust be available so that placement of each individual child is determined bythe needs of that child and his family, ratherthanby the straitjacketof

bureaucratic procedures (Homes forBlacks 1976 page 163 reportingthecollectiveview of Aboriginalparticipants at theFirst AustralianConference on Adoptionin 1976).

When adoption is determined to be in the child’s best interests, the child should remain in contact with his or her biological family and community. His or her cultural and native title entitlements and future rights and responsibilities may depend on the continuity of these ties. His or her spiritual and emotional well-being almost always does. ‘Open adoption’ is the most appropriate for Indigenous children (and possibly for all children). Open adoption has been variously defined.

There is no universally accepteddefinitionofopen adoption.Definitions range from ‘an adoption in which thebirthparent meets theadoptiveparents; relinquishes all legal, moral, and nurturing rights to the child; but retains theright to continuing contactand knowledge of the child’s whereabouts and welfare’ to ‘shar[ing] with thechildwhy a mother wouldplace the child for adoption’ (NSWLaw Reform Commission 1994 page 53).

The first definition reflects the Inquiry’s intentions. In addition the child should retain the right to contact and knowledge of the biological family’s whereabouts. The family as a whole, and not just the natural parents, should remain in contact. ‘Family’ for these purposes must be defined according to the customs and Law of the particular Indigenous community. To protect the best interests of the child the degree of contact between child and natural family would be determined ideally by agreement between the natural and adoptive families or, failingthat, by court order. The advice of the relevant Indigenous child and family service agency would be invaluable in either case.