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.]
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.
| 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 |
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 child should be kept within the Aboriginal community and a Torres Strait Islander child should be kept 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 interests of 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 Practice Paper.
* In the child's home locality, with members of the extended family, or the same tribal language group, or another Aboriginal family,
* In a family group home or hostel run by an Aboriginal family, in the child's home locality for short term placements,
* In a different locality, with members of the extended family, or the same tribal language group, or another Aboriginal family,
* In a foster home, family group home or hostel run by a non-Aboriginal family which is sensitive to the special needs of 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 suffered abuse or neglect) each year, a fourfold over-representation.
| 1992-93 |
1993-94 |
1994-95 |
| 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 were placed with non-Aboriginal foster parents and 51% had been in a long-term placement for four or more years. Just over one-third (37%) of the children in non-Aboriginal foster care were experiencing some negative or bad feelings about their Aboriginality whereas two-thirds (65%) of non-Aboriginal foster parents did not perceive racism as an important problem for their foster child (SA Aboriginal Child Care Agency Forum Inc 1988 pages 9, 10 and 17).
South Australia is still lagging behind national rates in the utilisation of Indigenous carers for Indigenous children in out-of-home care. Only 67% of children in such care were placed with Indigenous carers (Government Service Provision 1997 page 554).
Like the NSW legislation, the NT Community Welfare Act 1983 includes a presumption in favour of the ACPP. Section 69 obliges the Minister to ensure that every effort is made to place the child within his or her extended family. If this placement cannot be arranged to the Minister's satisfaction, placement with Aboriginal people who have the correct relationship with the child in accordance with customary law is the second preference.
Alternatives may be considered only where a placement according to either of these preferences would endanger the welfare of the child. At this stage the child's parents, other people with responsibility for the child's welfare under customary law and Aboriginal welfare organisations as are appropriate in the case of the particular child must be consulted. The aim is to find a placement that is in the best interests of the welfare of the child. In addition to consultations, the department must take the following factors into consideration in selecting a placement,
* preference for custody of the child by Aboriginal persons who are suitable
in the opinion of the Minister,
* placement of the child in geographical proximity of the family or other
relatives of the child who have an interest in, and responsibility for, the
welfare of the child, and
* undertakings by the persons having the custody of the child to encourage
and facilitate the maintenance of contact between the child and the child's
own kin and culture.
The NT welfare department requires workers to apply the ACPP in all cases and to prioritise cultural continuity. The Act further obliges the Minister to provide support and assistance to Aboriginal communities and organisations for the welfare of Aboriginal children and families, including the training and employment of Aboriginal welfare workers (section 68). However, no powers or functions under the Act are delegated to Aboriginal organisations. The final decision about placements rests with the welfare department alone.
The ACPP has been legislatively recognised for over a decade in the NT. It is the jurisdiction with the lowest level of over-representation of Aboriginal children in substitute care.
Decisions about children's welfare and child placement in Victoria are made in a process known as `case planning'. The Children and Young Persons Act 1989 (Vic) requires the welfare department to involve `relevant members' of the child's Aboriginal community in case planning (section 119(1)(m)(i)).
Placement of an Indigenous child must be with a member of the child's community unless such a person is not reasonable available. In that case the child is to be placed with another Aboriginal person.
In the event that no Aboriginal carer is reasonably available for the child, a non-Indigenous carer may be selected. The approval of an Aboriginal agency must be obtained before such a placement can proceed (section 119(2)). As in South Australia, Aboriginal agencies are accredited for the purposes of the Act. The Victorian Aboriginal Child Care Agency (VACCA) is the most notable example.
In 1992 a protocol between the Department of Health and Community Services (CSV) and VACCA was signed. It reiterates that CSV has statutory responsibility in relation to child protection services for all children in Victoria under the age of 17 years. While the protocol does not delegate authority to VACCA, it affirms VACCA's right to be consulted and involved from the point of notification (that is receipt of an allegation regarding an Indigenous child's well-being) and that VACCA should be invited to all case conferences.
VACCA must be involved in all significant decisions made about an Aboriginal child. The Act lists the following significant decisions:
* decisions made in the course of investigations conducted after a notification is reviewed,
* decisions made in the course of preparing a protection report or disposition report,
* decisions made in assessing whether or not a protection application should be made,
* decisions relating to the placement or supervision of the child whether made before or after a protection application or protection order is made, and
* the holding of meetings for the purpose of formulating a case plan (Children and Young Persons Act 1989 section 3).
No Aboriginal child is to be placed without VACCA's involvement in the decision although the department retains final decision making power. However, the Inquiry was told that VACCA is frequently not involved in decision making until very late in the process, sometimes only after the child has been in substitute care for more than two years (VACCA evidence 335).
The protocol also provides for CSV to contract out to VACCA the case management of an Aboriginal child on a protective order on a case by case basis. It also provides for mutual co-operation in training staff and a dispute resolution mechanism.
In addition to approving or vetoing the placement of an Indigenous child with a non-Indigenous carer, the agency has a role in the court process. A court cannot make a permanent care order for an Aboriginal child until it has received a report from an Aboriginal agency (section 112). VACCA advised the Inquiry that it is very reluctant to recommend permanent placements because they are contrary to the objective of family reunion (evidence 335). The court, however, is not bound to follow the advice of the agency.
Indigenous children constitute approximately 0.8% of all children in Victoria. In 1994 Indigenous children made up 8.7% of CSV clients. In 1994-95 Aboriginal children were three times more likely to be notified to the department than other children and as at June 1995 they were five times more likely to be on a protection order. As at 30 June 1994 Aboriginal children were twelve times more likely to be involved with placement and related support services than other children. Indigenous children are seriously over-represented at all stages of intervention and their rate of over-representation increases as the degree of intervention increases.
The rate of Victorian Indigenous children's over-representation in substantiated cases of neglect and abuse is similar to the national average for all children. However, the over-representation of Indigenous children in out-of-home care in Victoria far exceeds the national average for both non-Indigenous and Indigenous children in out-of-home care. The average out-of-home placement rate for children in the general population is 2.7 per 1,000. The rate of placement of Victorian Indigenous children in out-of-home care was 40 per 1,000 (Bath 1994 page 7).
Almost 80% of Indigenous children in out-of-home care in Victoria were placed with Indigenous carers at the end of June 1996 (Government Service Provision 1997 page 555).
Approval for the selection of placements for Aboriginal children removed from their families rests with the Director General of the State welfare department in WA. The ACPP is not specifically spelt out in legislation or policy but is covered by a general statement, inserted in 1984, under the heading of `Substitute Care Policy in Relation to Aboriginal Child Placement'. The `principles of Aboriginal children's welfare' are said to recognise the importance of customary roles and responsibilities of the Aboriginal extended family in child rearing. In pursuit of this objective, the maintenance of the child within his or her own family and community is to be the first priority of the department. The Principles are,
* ... To acknowledge the importance of maintaining and promoting the relationship between the child, the parents, guardians or persons having the custody of the child (and where appropriate, the extended family of the child).
* To maintain the continuity of living arrangements in the child's usual ethnic and social environment.
* To consult with the child's parents and other persons with responsibility for the welfare of the child in accordance with Aboriginal customary law; and such Aboriginal organisations as are appropriate in the care of the particular child.
* To encourage Aboriginal control in matters relating to the welfare and care of Aboriginal children and practice sensitivity and have respect for Aboriginal cultural issues in providing child welfare services to Aboriginals.
The policy directs the department that `[o]ther than in serious crisis situations, child removal should be a planned and co-ordinated action based upon a case conference which includes consultation with relevant Aboriginal organisations/community persons'.
The policy offers no guidance on the order of priority for placement decisions or on the weight to be placed on cultural factors. While the department claims that the ACPP is put into practice through its close working relationship with Aboriginal child care organisations, the Inquiry received evidence of strained relations or non-existent relations in some areas (ALSWA submission 127 page 324, Broome and Derby Working Groups submission 518 page 3, Kimberley Land Council submission 345 page 28).
Indigenous children constitute approximately 4.3% of children in WA. In June 1994 they constituted 34% of all children in care. They are therefore approximately eight times over-represented in care orders.
Thorpe analysed 325 cases arising in WA between March and June 1987. He found that Indigenous children represented 23% of all neglect/abuse notifications and 32% of substantiated allegations. Further, substitute care was the outcome in substantiated cases for 52.5% of Aboriginal children compared with 22.5% of other children. `The more coercive and intrusive the child protection operation becomes, so the over-representation of Aboriginal children increases' (Thorpe 1994 page 161).
WA recently reported that about 85% of Indigenous children in out-of-home care in the State were placed with Indigenous carers at the end of June 1996 (Government Service Provision 1997 page 555).
The ACPP was adopted as the policy of the Queensland welfare department in 1987, having been adopted in draft form in 1984. If placement in accordance with the ACPP is not possible then arrangements which allow for a continuing relationship with parents and community should be developed. O'Connor reviewed the implementation of the Queensland policy for the Royal Commission into Aboriginal Deaths in Custody. He found ignorance of the policy and/or of its significance among departmental staff and identified an urgent need for statutory recognition of the ACPP and for the development of Aboriginal care and support systems. The relevant legislation, the Children's Services Act 1965 (Qld), is currently under review.
Indigenous children constitute approximately 2% of Queensland children. The table below illustrates the proportion of children on care and protection orders who are Indigenous.
| 1992 |
1993 |
1994 |
1995 |
| 27.4% |
27.2% |
26.4% |
25.6% |
Indigenous children were approximately 13 times over-represented in care and protection orders in Queensland between 1992 and 1995. Indigenous children's representation in substitute care is higher again with Indigenous children constituting 29.1% of all children in substitute care.
The Aboriginal Child Placement Principle is set out in the Tasmanian Family Services Operational Manual 1993. The Manual uses the wording adopted by the 1986 Social Welfare Ministers' Conference.
When a child is to be placed outside his/her natural family, the Family Support Worker in the Aboriginal Centre, Family Support and Care Program must be contacted prior to placement. The order of priority of placement should be: A member of the child's extended family. Other members of the child's Aboriginal community who have the correct relationship with the child in accordance with Aboriginal customary law. Other Aboriginal families living in close proximity. This order of priority of placement is to be followed in the absence of good cause to the contrary at all times.
Departmental policy in Tasmania is to provide resources and engage the assistance of community organisations in the implementation of the ACPP. The Tasmanian Aboriginal Centre runs the Aboriginal Support and Care Program mentioned in the Operational Manual. The Centre advised the Inquiry that the department contravenes the policy by failing to notify it of Aboriginal children in care (submission 325 page 13).
Indigenous children constitute approximately 3.8% of the child population in Tasmania. The following table shows Indigenous children made wards of the State as a proportion of total children made wards of the State.
| 1991-92 |
1992-93 |
1993-94 |
1994-95 |
1995-96 |
| 7.6% |
9.4% |
17.9% |
10.4% |
3.4% |
In 1995-96, for the first time, Indigenous children were not over-represented in wardship statistics. At the same time, however, as at June 1996 Indigenous children were still over-represented among all children on care and protection orders (8.4%).
Although the ACT Government supports the ACPP in principle, the ACPP is not included in the Children's Services Act 1986 (ACT) which governs fostering. The legislation is currently under review and the Government expressed its commitment to include the ACPP in the new legislation (interim submission page 24). Neither the ACT welfare department nor any of the five non-government fostering services has been successful in recruiting any Aboriginal or Torres Strait Islander foster carers.
Indigenous children constitute approximately 1% of all children in the ACT. In 1994-95 Indigenous children constituted approximately 4.7% of abuse and neglect notifications and 7% of care and protection orders. This increasing over-representation with level of intervention is consistent with patterns in other jurisdictions.
Recognition of the ACPP has marked a great shift in child welfare practice. Indigenous people, however, cannot control its implementation. They are not assisted or permitted to determine the destiny of their children.
Incomplete legislative recognition
Despite government acceptance, the ACPP is still not legislatively recognised in Tasmania, WA, Queensland and the ACT. Legislative recognition has been recommended to governments on numerous occasions and in a range of reports and forums including the Australian Law Reform Commission report The Recognition of Aboriginal Customary Laws (1986). In 1986 the Council of Social Welfare Ministers' Conference passed a resolution supporting the ACPP. Recommendation 54 of the Royal Commission into Aboriginal Deaths in Custody called for legislative recognition of the ACPP and the role of AICCAs and all State and Territory governments have agreed to implement it. Only two States, Victoria and South Australia, have done so in full.
Inadequate consultation with AICCAs
The widespread acceptance of the ACPP has led to greater recognition of the importance of Indigenous children's cultural needs and to improved consultation processes with Indigenous people and agencies. In all jurisdictions Indigenous agencies in theory have an opportunity to advise on child welfare matters affecting Indigenous children. This advice is given, however, within an established bureaucratic framework that has its own requirements and approaches.
The legislative base which underpins the functions of departmental officers in relation to child abuse is neither an adaptation nor a reflection of Aboriginal Traditional law. Thus, the very basis of definitions of responsibility of individuals involved in ensuring child protection is culturally biased and should be recognised as such (Harrison 1991 page 37).
The extent and style of consultation varies across jurisdictions. In Victoria, legislation acknowledges the importance of Indigenous organisations' advice and their right to offer an opinion. VACCA has a right to veto placement of an Indigenous child with a non-Indigenous carer and to veto the making of an order for permanent placement.
In South Australia the impact of the inclusion of Indigenous agencies is limited by the minimal requirement that decision makers need only `have regard' to their opinions. Further, the Minister makes the final decision on which Indigenous organisations are to be gazetted.
In most jurisdictions the identity of `relevant' agencies and the timing and quality of consultations are not specified. The result is that discussions typically occur too late in the decision making process and in too cursory a manner to permit an effective contribution to be made. Indigenous agencies could contribute to working with the family to prevent the child being removed, working with the family to prepare it to receive the child back, locating, training and supporting an appropriate Indigenous foster carer. All of these tasks require at least that the agency is notified as early in the intervention process as possible. AICCAs are further constrained in the effectiveness of their contribution to retaining Indigenous children within their families and communities by limited funding (recognised in ATSIC submission 684 page 106).
Inadequate funding of AICCAs
Funding of AICCAs and MACS remains inadequate. Funding is often from three different sources, State or Territory Governments, the Federal Department of Community Services and Health and ATSIC. While the role of Indigenous organisations is recognised as crucial, funding is often insecure.
Services to Aboriginal children youth and families are fragmented, deficient in scope and of very limited quantity. Aboriginal families who are attempting to access services find that they may have to travel a large distance to access a particular service (SA ACCA submission 347 page 27).
Each jurisdiction has a process for consulting with Indigenous organisations about funding but Indigenous organisations are not included at all, let alone as partners, in the decision making. For example in Queensland the funding process enables contributions from Indigenous stakeholders. They are afforded the opportunity to offer an opinion but are not included in the group which makes the decision. They do not decide how money allocated to Indigenous groups will be spent or to whom it will be given (Queensland Government interim submission page 20).
Numerous submissions to the Inquiry from Indigenous and non-Indigenous organisations pointed out that reversing the disproportionate levels of Indigenous children in out-of-home care will require the provision of resources to enable Indigenous communities and organisations to address child neglect and abuse issues in a manner which they consider is relevant to the local context.
We contend that we have the right to choose our own destiny including control over our children. However we consider that the recent political shift towards non intervention does require a strong word of caution. With the current need to limit public spending, there is a tendency for Governments to `leave' Aboriginal families and communities to look after their children. We believe it would be a very cruel reform indeed for authorities to cease intervening into the lives of children who really are in need, without providing the urgently needed resources that are necessary to give Aboriginal children the care and attention they require. Government help is required, in an enabling role, providing finance, technical, social, and economic skills so that Aboriginal people can get on with the job (working party representing the welfare department, Manguri, Centacare Cottages and Yorganop, quoted by WA Government submission, Attachment 4 on page 6).
`Partnerships' between Indigenous children's agencies and government departments, where they exist, are unequal partnerships. Departments retain full executive decision making power and the power to allocate resources affecting Indigenous children's welfare. Judicial decision making occurs within non-Indigenous courts. In no jurisdiction are Indigenous child care agencies permitted to be involved in the investigation of an allegation of neglect or abuse. The difference between being allowed to participate and having the right to make decisions is evident in Indigenous communities' experiences of child welfare systems.
Inappropriate evaluation of prospective foster carers
The high percentage of Indigenous children who are placed in substitute care, in combination with ethnocentric foster carer assessment and high levels of poverty in Indigenous communities, has resulted in a great shortage of Indigenous foster carers. The research and data available clearly indicate that numbers of Indigenous children are still being placed with non-Indigenous foster carers.
Submissions to the Inquiry made recommendations to address this problem including increased training and support for Indigenous foster carers, alternative models of out-of-home care such as small cottage homes, more accessible and flexible financial support arrangements for foster carers and the recruitment of foster carers by Indigenous organisations (see for example South Australian Aboriginal Child Care Agency submission 347 pages 31-32, WA Government submission, Attachment 4). It is noteworthy that in the ACT, where no Aboriginal foster care agencies exist, welfare agencies have been unable to attract any Indigenous foster carers.
The assessment of prospective foster carers is commonly the responsibility of government welfare officers.
Past difficulties in placement practices involving Aboriginal children have arisen due to, in part, the imposition of white middle class standards and limited cultural sensitivity. Until now the selection criteria and the bureaucratic assessment processes have reflected the values of the dominant society which are alien to Aboriginal values and lifestyle (WA Government submission, Attachment 4 page 10).
The process itself operates as a powerful disincentive to Indigenous families to volunteer to be officially recognised, and subsidised, as foster carers.
... We first started fostering with a church-based organisation. We had to do a `fostering course' and they checked out our house and the rest of the family as well as a police check. That was a bit scary because you don't know what they are looking for. They asked about our financial position. We felt that was a bit unnecessary because Aboriginal people always have room for one more child. If we decided to be foster parents then we'll share whatever we have. We've never had a lot - but you can always spread another weetbix around! They sent a social worker who seemed to assess our mental state. They can't give kids to just anyone - they are just too precious, so we understood this. But it was unnerving, and we think this would probably turn potential foster parents away (quoted by Link-Up (NSW) submission 186 on page 179).
Delegation of assessments to Indigenous agencies is necessary to promote the acceptance of Indigenous carers for Indigenous children who must be removed from their families.