Reforming the Australian and Canadian Child Welfare Systems: Sensitization and Accommodation

Chapter 3


Reforming the Australian and Canadian Child Welfare Systems: Sensitization and Accommodation


Introduction


Recent years have witnessed concerted efforts in both Canada and Australia to address the past failings of the non-native child welfare system and provide a more sensitive and effective service to Aboriginal communities. Growing judicial sensitivity to the issues surrounding Aboriginal child welfare has been underpinned by significant legislative reform aimed at entrenching the centrality of the ‘indigenous factor’ in all decisions concerning an Aboriginal child. The importance of protecting an Aboriginal child’s cultural identity and, wherever possible, keeping Aboriginal children within their families and communities is now afforded strong recognition throughout the Canadian and Australian legislation. The desirability of accommodating Aboriginal child-rearing norms and practices within the non-native system and securing greater community involvement in decision-making and service delivery are also common themes of the reforms. In Canada, the creation of Aboriginal-controlled child welfare agencies exercising delegated provincial powers provides a promising model for increasing Aboriginal community involvement in the administration and delivery of Aboriginal child welfare to the communities. These developments are now being supported by a more comprehensive programme of administrative re-structuring in Manitoba aimed at transferring the management of all Aboriginal child welfare services to devolved Aboriginal Authorities. Reforms such as these could be usefully adapted to the Australian context.


However, whilst reform initiatives aimed at sensitizing the non-native system to the cultural needs of Aboriginal children are important, Kline’s analysis suggests caution. Such is the strength with which the philosophy, norms and practices of the non-Aboriginal population are entrenched within the governing, legal and administrative framework of the non-native system, there are strong grounds for concern that reforms such as these may only ever enjoy qualified success. Indeed, those concerns are borne out by the limited impact of the recent reforms in Canada and Australia,1 providing considerable fuel for the argument that the only effective long-term solution for Aboriginal children and families is the autonomy and freedom promised by self-government.


Australian Reforms to the Non-Native Child Welfare System


Legislative Reforms

The current approach to Aboriginal child welfare in Australia is firmly entrenched within the rhetoric of self-determination. The Bringing Them Home report notes that in their evidence to the Inquiry the states and territories placed great emphasis on the need for Aboriginal communities to exercise greater control over their own child welfare. As it was put by the government of Queensland:


The essence of self-determination in this context is an understanding that only Aboriginal people can find solutions to the problems which confront them, and that Aboriginal people have the right to make decisions concerning their own lives and their own communities and the right to retain their culture and develop it.2


Whilst avoiding the more powerful language of self-determination, the Northern Territory Board of Inquiry premised its report on similar key principles, emphasizing the need for ‘decolonising attitudes’,3 ‘empowerment’4 and ‘genuine consultation’5 with Aboriginal communities. The need for ‘community ownership’ of solutions to child abuse problems is a recurring theme:


The thrust of our recommendations, which are designed to advise the Northern Territory Government on how it can help support communities to effectively prevent and tackle child sexual abuse, is for there to be consultation with, and ownership by the communities, of those solutions. The underlying dysfunctionality where child sexual abuse flourishes needs to be attacked, and the strength returned to Aboriginal people.6


The language of self-determination has also found its way into state and territorial legislation, with New South Wales, Western Australia, Victoria and the Northern Territories all placing their specific provisions on Aboriginal children within the context of Aboriginal self-determination. The Children and Young Persons (Care and Protection) Act 1998 (NSW), for example, enshrines the principle that Aboriginal communities should be able to participate in the care and protection of Aboriginal children in accordance with self-determination:


(1) It is a principle to be applied in the administration of this Act that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young persons with as much self-determination as is possible.


(2) To assist in the implementation of the principle in subsection (1), the Minister may negotiate and agree with Aboriginal and Torres Strait Islander people to the implementation of programs and strategies that promote self-determination.7


Similar provisions apply in Western Australia, Victoria and the Northern Territories.8


Unfortunately, although clear efforts have been made to ‘sensitize’ existing child welfare agencies to Aboriginal needs and cultural differences, the reality of Aboriginal child welfare in Australia is far removed from the principles of ‘self-determination’ and ‘community ownership’ that the rhetoric of governments would suggest. Recent legislative changes aimed at making the child welfare system more responsive to the needs of Aboriginal communities have been concerned with three major objectives: (1) ensuring greater recognition is accorded to the ‘indigenous factor’ and the particular cultural needs of Aboriginal children by the introduction of targeted provisions such as the Aboriginal placement principle; (2) improving the participation of Aboriginal people in the mainstream child protection system through more effective consultation procedures and, where deemed appropriate, the delegation of certain child welfare services to Aboriginal workers and agencies; and (3) ensuring greater sensitivity to Aboriginal child-rearing practices and traditions. All of the Australian states and territories now make specific legislative provision for Aboriginal children in accordance with these broad objectives.


Recognition of the ‘indigenous factor’ and the Aboriginal placement principle

The states and territories have taken clear steps to ensure that their much-maligned failure to ensure proper weight and consideration is given to the ‘indigenous factor’ when making child welfare decisions is effectively remedied. Most state and territorial legislation now makes explicit provision for the protection of a child’s cultural identity either as one of the Act’s guiding principles or as an integral part of determining the best interests of the child. The Children’s Protection Act 1993 (SA), for example, provides that in determining the child’s best interests consideration must be given to: ‘the need to encourage, preserve and enhance the child’s sense of racial, ethnic, religious, spiritual and cultural identity and to respect traditions and values of the community into which the child was born’.9 The Care and Protection of Children Act 2007 (NT) similarly provides that in determining the best interests of the child, consideration should be given to the child’s cultural, ethnic and religious background.10 The Act’s guiding principles also provide that the child’s family ‘should be able to bring up the child in any language or tradition and foster in the child any cultural, ethnic or religious values’. It goes on to state that decisions involving a child ‘should be made in a way that is consistent with the cultural, ethnic and religious values and traditions relevant to a child’.11


These now standard provisions protecting a child’s ethnic, religious and cultural identity, whilst of general application, are of importance in drawing attention to the significance of culture for Aboriginal children. However, to reinforce the particular and ‘unique’ significance of Aboriginal identity, most states and territories have also included more targeted provisions aimed at addressing the specific cultural needs of Aboriginal children. Thus, in determining the best interests of a child, the Children, Youth and Families Act 2005 (Vic) provides that consideration must be given to: ‘the need, in relation to an Aboriginal child, to protect and promote his or her Aboriginal cultural and spiritual identity and development by, wherever possible, maintaining and building their connections to their Aboriginal family and community’.12 The Act goes on to provide that ‘a cultural plan’ must be prepared for every Aboriginal child in out-of-home care, setting out how the child is to remain connected to his or her Aboriginal community and Aboriginal culture.13 Compliance with the plan by the child’s carers must be monitored.14 A similar emphasis on the cultural needs of Aboriginal children is enshrined within the statutory guidance on the application of the best interests principle in Queensland, the Child Protection Act 1999 (QLD) providing: ‘the child should be allowed to develop and maintain a connection with the child’s family, culture, traditions, language and community’; and ‘the long-term effect of a decision on the child’s identity and connection with their family and community should be taken into account’.15


The most prominent of these targeted provisions is what has come to be termed the Aboriginal placement principle. The gradual legislative endorsement of the Aboriginal placement principle with a view to preventing the unnecessary removal of Aboriginal children from their families and communities constitutes an important change in Australian policy and practice.16 All Australian jurisdictions now recognize in legislative form that when Aboriginal children require out-of-home care they should be placed, whenever possible, within their own cultural community and that placement with a non-Aboriginal family should only be considered as a very last resort.17 The precise wording of the principle differs between jurisdictions, but the formulation as contained in the Children and Young Persons (Care and Protection) Act 1998 (NSW) is fairly typical:


(1) … [A]n Aboriginal or Torres Strait Islander child or young person who needs to be placed in out-of-home care is to be placed with:


(a) a member of the child’s or young person’s extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or


(b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed-a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or


(c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed-a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child’s or young person’s usual place of residence, or


(d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed-a suitable person approved by the Director-General after consultation with:


(i) members of the child’s or young person’s extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and


(ii) such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person.18


The legislation thus envisages progression from a preferred placement within the child’s extended family or kinship group (as determined by community practice and tradition), to a ‘last resort’ position of placement with a non-Aboriginal carer. A placement with a non-Aboriginal carer is only permitted if placement with an Aboriginal carer would positively endanger the child’s safety, welfare and well-being (a different and more exacting standard than placement with a non-Aboriginal carer simply being deemed to be in the best interests of the child). Before such a placement can be approved, the child’s extended family and an appropriate Aboriginal organization must also be consulted. If a placement with a non-Aboriginal carer is deemed necessary, further statutory duties apply with a view to safeguarding the child’s relationship with his or her family, community and culture. Thus, reunification with the child’s Aboriginal family remains the overriding objective. Continuing contact must also be ensured between the child and his or her Aboriginal family, community and culture.19


The New South Wales and Victoria legislation are distinctive in providing specifically for mixed-race Aboriginal children. In other jurisdictions, the application of the Aboriginal placement principle to mixed-race children simply depends on whether or not the child is regarded as ‘Aboriginal’ for the purposes of the Act; the term ‘Aboriginal’ being fairly broadly and inclusively defined.20 However, NSW and Victoria treat mixed-race children differently, providing that in the case of a mixed-race child whilst the Aboriginal placement principle may be applied, the child is to be placed simply in accordance with his or her best interests.21 The NSW legislation goes on to provide that regardless of placement, contact with the child’s family, community and culture, both Aboriginal and non-Aboriginal, must be secured.22 The Victoria legislation restricts this protection to contact with the child’s Aboriginal community.23


The decision of the NSW and Victoria legislature not to make compliance with the Aboriginal placement principle mandatory in such circumstances is somewhat disappointing given the particular problems faced by mixed-race Aboriginal children.24 When placed within the wider context of a welfare test, the need for mixed-race Aboriginal children to be placed within an Aboriginal family can be easily displaced by other ‘more weighty’ considerations. This weakness is clearly illustrated by the decision of the NSW Administrative Appeals Tribunal in Jones v Minister, Community Services.25 In overturning the decision of the Minister to remove a mixed race Aboriginal child from her non-Aboriginal carer, about whom the Department had serious concerns given her apparent denial of the child’s Aboriginality, the Tribunal emphasized that placement with an Aboriginal family was not an overriding principle to be applied despite all other considerations: it was just one relevant factor, albeit an extremely important one, to be placed in the balance with all other relevant considerations, including the child’s psychological bond with the alternative carer. In this case that bond proved to be determinative.26 However, whilst the NSW legislation may be disappointing in this respect, it is alone in placing a clear and specific obligation on the relevant authorities to take reasonable steps to determine whether or not a particular child is an Aboriginal or Torres Strait Islander child and thus should be dealt with in accordance with the legislation’s specific protection for Aboriginal children.27


Consultation and participation in decision-making processes

The second major legislative change to occur in recent years has been the move to ensure improved participation by the child’s Aboriginal community in the decision-making process. Although often dressed in the guise of self-determination,28 what is intended by these legislative changes is not Aboriginal self-government or even self-management over child welfare but the much more limited vision of ensuring greater Aboriginal involvement in the decisions of the non-native child welfare authorities. Initiatives aimed at ensuring the participation of extended family members and members of the clan, tribe or group are now common. In Queensland, members of the extended family and representatives of the wider community are entitled to participate in the care planning process through their involvement in family group meetings.29 In New South Wales, the Department of Justice, Attorney-General’s Department and the Department of Community Services (DoCS) have developed a joint ‘care circle’ initiative aimed at securing the involvement of community elders before final orders are made.30 Many of the states and territories have also attempted to facilitate greater Aboriginal community involvement by affording a more formal role to Aboriginal childcare agencies including the delegation of some service provision.


It was thought that the creation of Aboriginal and Torres Strait Islander Child Care Agencies (AICCAs) would be the key to ensuring greater Aboriginal involvement in the child welfare system. First established in the 1970s, all AICCAs adhere to three basic principles: (1) Aboriginal children are best cared for within their own communities; (2) that the placement of Aboriginal children in non-native families must end; and (3) that Aboriginal families should be preserved and supported to achieve that end.31 According to the Bringing Them Home report, it was hoped that AICCAs, as community organizations, would be able to help bridge the gulf that existed between the state and territorial child welfare agencies by building on existing resources within the community and developing service delivery models that were sensitive to and reflective of the needs of Aboriginal children and families.32 There are now over 100 AICCAs across Australia performing a multitude of functions including the provision of preventative services, assisting with the care of children under care and protection orders and providing a range of adoption and fostering services.33 The input of Aboriginal communities into the general child welfare system through the medium of Aboriginal childcare agencies has, however, remained limited. The key problem remains the location of power and decision-making authority within the child welfare system as prescribed by the legislation. Although AICCAs provide a variety of services, their role is strictly limited to one of consultation and advice, with all decision-making authority from policy development and budget setting to day-to-day placement decisions, remaining in the hands of the non-native child welfare system. It is important to recognize that recent legislative reforms on consultation and participation have not changed that basic position.


Strong provisions on the need for consultation with Aboriginal communities are found in the legislation of South Australia, Queensland, the ACT and Victoria. In South Australia, s 5(1) of the Children’s Protection Act 1993 (SA) provides in clear terms that: ‘no decision or order may be made … as to where or with whom an Aboriginal or Torres Strait Islander child will reside’ unless a recognized Aboriginal or Torres Strait Islander organization has first been consulted.34 Further to this basic principle, a mandatory obligation is placed on all persons, including the court, to have regard to the submissions made by a recognized Aboriginal or Torres Strait Islander organization when making any decision with respect to an Aboriginal or Torres Strait Islander child under the Act.35 If no organization has been consulted then the decision-maker is directed to have regard to: ‘Aboriginal or Torres Strait Islander traditions and cultural values (including kinship rules) as generally expressed by the Aboriginal or Torres Strait Islander community’ and ‘to the general principle that an Aboriginal or Torres Strait Islander child should be kept within the Aboriginal or Torres Strait Islander community’.36 The relevant authorities under the Act are further directed when conducting any meeting involving an Aboriginal person to use ‘all reasonable endeavours’ to ensure the meeting is carried out in a manner that is respectful and sympathetic to Aboriginal traditions.37 Similar provisions apply in Queensland for mandatory participation by a ‘recognised Aboriginal entity’ in all ‘significant’ decisions concerning the child and for consultation regarding all other decisions.38 The Queensland legislation also more specifically provides that representatives from the agencies should be invited to attend family group meetings and any conferences held between the parties in the course of the child protection proceedings.39


The Victoria legislation has the most interesting consultation provisions in that it appears to confer on Aboriginal agencies a limited power of veto over the placement of Aboriginal children with non-Aboriginal carers. The Children, Youth and Families Act 2005 (Vic) enshrines the general principle that when making a decision or taking any action in relation to an Aboriginal child, an opportunity should be given to members of the child’s Aboriginal community or other respected Aboriginal persons to contribute their views.40 This obligation is strengthened in relation to a decision over the placement of a child or ‘other significant decision’ where a meeting must be convened by an Aboriginal Convener approved by an Aboriginal agency.41 The meeting should be attended by the child, the child’s parents, the child’s extended family and other appropriate members of the child’s community.42 The legislation goes on to specify that in making a decision to place a child in out-of-home care an Aboriginal agency must first be consulted43 and that the court will not be able to make a permanent care order placing an Aboriginal child with a non-Aboriginal carer unless the court has received a report from an Aboriginal agency recommending the order is made.44 In the absence of such a recommendation it would seem that the court has no jurisdiction to make the order.45


Other jurisdictions also provide for consultation with Aboriginal communities but such consultation is either more limited in scope, for example to placement decisions, or is expressed in weaker, more nebulous, terms.46


Beyond the need for greater consultation with Aboriginal communities, a common theme in the legislation is an apparent commitment to helping Aboriginal communities develop greater capacity for their own child welfare provision. In South Australia, for example, one specified function of the Minister under the legislation is to: ‘assist the Aboriginal community to establish its own programmes for preventing or reducing the incidence of abuse or neglect of children within the Aboriginal community’.47 Key to the development of Aboriginal community services is the possibility of Aboriginal agencies assuming increasing amounts of responsibility under the legislation. This is made possible by the inclusion of general provisions allowing the Minister or his/her equivalent to delegate certain of his/her powers and functions under the Act.48 The New South Wales legislation, for example, provides that: ‘the Minister may negotiate and agree with Aboriginal and Torres Strait Islander people to the implementation of programs and strategies that promote self-determination’.49 However, the possibility of delegating responsibility over all child welfare services to Aboriginal agencies or communities has not been properly explored in the Australian context. AICCAs currently remain strictly limited to an advisory role and the provision of out-of-home care and some preventative services. They do not provide a full range of child protection services and crucially do not hold decision-making powers. It is significant that, with only one exception, none of the states or territories have made provision for Aboriginal representation on key decision/policy-making bodies.50


Aboriginal child-rearing practices, traditions and values

Although there has been some progress of note in this area, the state and territorial legislatures have generally been much more cautious when it comes to the accommodation of specific Aboriginal child-rearing practices, traditions and values. Progress has therefore been patchy. To the extent that such recognition exists it tends to be limited to the role of the extended family; albeit that recognition is important. Thus, in the Care and Protection of Children Act 2007 (NT) the definition of a child’s family includes the extended family as determined by any customary law, tradition, custom or practice applicable to the child.51 The South Australia legislation similarly tries to take an inclusive approach, providing that the word ‘family’ means:


[T]he child’s immediate family (including all guardians) and the child’s extended family (that is to say, all other persons to whom the child is related by blood or marriage) and, in relation to an Aboriginal or Torres Strait Islander child, includes any person held to be related to the child according to Aboriginal kinship rules, or Torres Strait Islander kinship rules, as the case may require.52


More generally, the ACT legislation provides that in making any decision under the Act the decision-maker must take into account ‘Aboriginal and Torres Strait Islander traditions and cultural values (including kinship rules) as identified by reference to the child’s or young person’s family and kinship relationships and the community with which the child or young person has the strongest affiliation’.53


Adoption

Many of the recent changes to the Australian child protection legislation have been consolidated by similar legislative changes to the law on adoption. With its traditional emphasis on the absolute transfer of the child from the birth family to the adoptive parents, adoption represents the strongest challenge to the child’s cultural identity and need for a continuing relationship with his or her Aboriginal family and community. The risk of children being permanently alienated from their cultural heritage is particularly high in the adoption context. The states and territories, with the notable exception of Tasmania,54 have thus responded to this challenge by the introduction of an Aboriginal placement principle, very similar to that applied when a child is taken into care, aimed at ensuring that the adoption of an Aboriginal child into a non-Aboriginal family is only used as a measure of very last resort. The need for consultation with Aboriginal communities and/or Aboriginal childcare agencies before an Aboriginal child is adopted is also very firmly entrenched.


The Northern Territory’s adoption legislation contains perhaps the strongest recognition of the concerns of Aboriginal communities as to the adoption of Aboriginal children by non-native families. The need to have regard to the ethnicity and religion of the birth parents is specifically recognized when determining the best interests of the child.55 The various matters which the authorities are to take into account when applying this principle are then further elaborated in Schedule 1 of the Act. In general terms, it is stated that the Minister and the court must take into account that it is ‘preferable that the child should be placed with a family that has the same ethnic and cultural origins as the child’s birth parents in order to facilitate an environment that will promote the child’s cultural heritage and identity’.56 However, with specific regard to Aboriginal children, the Schedule goes on to provide that consideration must be given to the fact that adoption is alien to traditional Aboriginal cultures and that Aboriginal people have legitimate concerns as to the effects of practices such as adoption on the cultural integrity of their communities:


Where the child is an Aboriginal child, recognition is to be given to –


(i) the absence of adoption in customary Aboriginal child care arrangements, arrangements for the custody and guardianship of the child being made within the child’s extended family or with other Aboriginal people who have the correct relationship under customary Aboriginal law; and


(ii) the desire and effort of the Aboriginal community to preserve the integrity of its culture and kinship relationships so that efforts must be made to find placements within families, kin groups or ethnic communities as appropriate.57


In a provision unique in Australian child welfare legislation, the needs and interests of the child’s Aboriginal community are thus incorporated into the court’s determination of the best interests of the individual Aboriginal child.58 The Schedule goes on to provide for ‘appropriate consultation’ between the child’s parents or other relatives or appropriate Aboriginal representatives in order to ascertain how best to promote the ethnic welfare and development of the child.59


Beyond these extended provisions on determining the best interests of an Aboriginal child, the legislation also provides in explicit terms for an Aboriginal placement principle virtually identical to that found in the child protection legislation. Strong preference is thus given to arranging appropriate custody arrangements with the child’s extended family and kin before adoption outside the community can be considered. The need to act in accordance with Aboriginal customary law and to consult with the child’s parents and wider Aboriginal community (as determined by customary law) are also distinctive features of the Northern Territory’s statutory recognition of the Aboriginal placement principle within this particular context.60


Recent reforms to adoption legislation in New South Wales have introduced similarly strong provisions. The legislation contains clear recognition of the importance of cultural identity for all children.61 As in the legislation of the Northern Territory, strong and distinct recognition is also given to the particular concerns relating to the adoption of Aboriginal children. Strong obligations are imposed on the relevant authorities to consult with Aboriginal families and communities over the adoption and placement of an Aboriginal child. Section 33 thus makes it mandatory for the Director General to consult either an Aboriginal adoption consultative organization62 or a person with relevant expertise nominated by the child’s parents, extended family, kinship group or community, as to the placement of the child. The Act further directs that in placing an Aboriginal child for adoption, the ‘Aboriginal child placement principles’ will apply.63 Indeed, s 90 of the Act provides that the court cannot make an adoption order unless it is satisfied that the Aboriginal placement principles have been adhered to. In similar terms to those found in the child protection legislation, the child is thus to be placed in order of preference: (1) with a prospective adoptive parent or parents belonging to the child’s Aboriginal community; (2) a prospective adoptive parent or parents from another Aboriginal community; and (3) only if these first two options are not practicable or in the child’s best interests can the child be placed with a non-Aboriginal carer.64 Furthermore, before the child can be placed with a prospective non-Aboriginal adopter, the court must be satisfied that the prospective adoptive parent will support and encourage the child’s Aboriginal identity.65 As with the NSW child protection legislation, the Director General is placed under an obligation to make ‘reasonable inquiries’ as to whether a particular child is an Aboriginal child and thus should be placed in accordance with these principles.66 Furthermore, in an approach not taken anywhere else in Australia, the legislation provides that in order to ensure these principles have been properly satisfied and the court is not faced with a fait accompli, a preliminary hearing must be held in every case concerning an Aboriginal child where it is proposed he or she should be placed with a non-Aboriginal family.67


Similar extensive provisions on the adoption of Aboriginal children apply in the ACT,68 Queensland69 and South Australia.70


The Success and Limitations of the Australian Legislative Reforms

Important steps have clearly been taken in recent years to try and focus the minds of decision-makers on the specific cultural needs of Aboriginal children. To varying degrees, the ‘indigenous factor’ is now recognized in most state and territorial legislation, with some additional accommodation of Aboriginal child-rearing practices and traditions. Without doubt, the most marked success of recent years is the clear statutory grounding now given throughout most of Australia to the Aboriginal placement principle. The clear duty imposed on decision-makers to place Aboriginal children wherever possible with Aboriginal carers in order to protect their cultural identity should help increase understanding of the particular cultural needs of Aboriginal children. That understanding was, for example, evident in the case of UI & UJ v Minister for Community Services,71 one of the few reported decisions concerning the placement of an Aboriginal child.72 In upholding the decision of the Minister for Community Services (NSW) to move three Aboriginal children from non-Aboriginal carers to an Aboriginal placement in accordance with the NSW legislation, the NSW Administrative Decisions Tribunal accepted the relevance of the evidence regarding the general damage that has been done to Aboriginal people by past policies of assimilation, as well as the more specific research evidence regarding the identity problems experienced by Aboriginal children placed in non-Aboriginal homes, particularly during adolescence.73 The Tribunal also accepted the conceptualization of Aboriginal culture now securely established in other areas of Australian family law as an active lived experience requiring sustained and meaningful exposure.74 The provision of information about Aboriginal culture was thus deemed insufficient to safeguard the children’s cultural identity, the Tribunal observing: ‘culture is a matter of exposure and needs to be absorbed as a daily thing’.75 Taking a long-term view of the children’s best interests, the Tribunal thus held that given the risk that a non-Aboriginal placement would ‘de-culturalise’ the children, it was in their best interests to be moved to an Aboriginal family.76


However, even positive developments such as this are not without their difficulties. The clear focus of the Australian authorities on the much more limited, and less challenging step, of giving legislative status to the Aboriginal placement principle – a principle which only comes into play once a child has been deemed to be in need of care and protection and the initial crucial decision to remove the child from his or her Aboriginal family has been taken – has arguably deflected attention from the bigger, more difficult questions about the fundamental failings of the child protection system. Crucial questions such as how the initial need for apprehension and removal can be avoided, and the extent to which Aboriginal communities should have decision-making authority over Aboriginal child welfare restored, have been sidelined in recent years.


The application of the Aboriginal placement principle has also not been consistent, with cultural identity still given little weight in the welfare balance by some members of the Australian judiciary who maintain that whilst the child has a right to be placed in culturally appropriate care and to maintain relationships with his family and community, the primary consideration must be to ensure the child’s physical and psychological safety.77 Reconciling these two considerations remains exceptionally difficult when there are so few resources to provide safe alternative care within the Aboriginal community. A common theme in the few reported Australian child protection decisions is the difficulty of complying with the Aboriginal placement principle due to a continuing lack of culturally appropriate homes.78 There are complex reasons behind this continuing shortage in Aboriginal foster carers, including the reluctance of potential carers to subject themselves to the scrutiny of a system that is generally viewed with such strong suspicion and distrust. Those Aboriginal foster carers who do come forward are consequently being placed under intolerable pressure, with resulting concerns about the standard of care being provided.79 At the inquest into the death of Deborah Leanne Melville-Lothian, a 12-year-old Aboriginal girl who suffered ‘deplorable neglect’ at the hands of her great aunt, the coroner noted that the great aunt had been pressured into taking on the care of Deborah and her four siblings by the Department of Family and Community Services (FACS) who were very anxious to secure a culturally appropriate placement despite the fact the great aunt, a single parent, already had seven children of her own in her care.80 The ill-fated nature of this placement was then compounded by the absence of any proper monitoring of the care being provided, FACS taking the view that the ongoing assessment of kinship carers needed to be less rigorous as kinship carers would have a greater natural affinity for the children.81 Crucially, not only was kinship care regarded as needing less rigorous monitoring, kinship carers were assumed to need less in the way of support.82 This single parent of 12 children was thus left largely to her own devices, the placement being regarded as a ‘low priority’ for a grossly overstretched department.83 The inquest found that by the time of Deborah’s death her great aunt had ‘almost completely abandoned her legal and moral responsibilities as a carer’.84 Deborah had also been effectively abandoned by FACS.


As was clear from the Melville-Lothian Inquest, attitudes amongst front-line social workers remain problematic. Research conducted by Cunneen and Libesman on files held by the New South Wales Department of Community Services in the year 1996–1997 reveals that, amongst other failings, the Aboriginality of the child is often treated as of only incidental relevance and that in some cases the Aboriginal identity of the child is not recognized at all, thus undermining any ‘sensitization’ initiatives including consultation requirements.85 They also note that front-line workers displayed a lack of awareness of the effects of past colonial experiences on contemporary Aboriginal communities and individuals, including the inter-generational effects of past removals, and that biased, Euro-centric judgments continued to be applied against Aboriginal people when assessing their suitability as carers.


Limitations and problems with the recent reforms are also clearly evident in the provisions dealing with Aboriginal consultation and participation. There are strongly differing views between the Aboriginal communities and the state and territorial governments as to the success of the various legislative provisions aimed at securing greater community involvement in the decision-making process. Where the right of consultation arises only at the stage of placing the child, i.e. at the very final stages of child protection proceedings, it clearly comes too late. However, even where consultation is, in theory, to occur throughout the child protection process, its effectiveness is undermined by a myriad of problems. Some view consultation in accordance with the legislation as amounting to nothing more than empty rhetoric. The Pitjantjatjara women of the Anangu Pitjantjatjara lands described their experience of ‘consultation’ with Family and Community Services to the Bringing Them Home Inquiry as one: ‘where the department exercises blanket powers, fails to recognise AP protocols and fails to inform families when the department is visiting, why or what is likely to happen’.86 The Chief Executive Officer of SA Family and Community Services had a rather different perception:


[T]he challenge for us is to balance the legislative obligations we have and implementing these obligations in a way that gives Aboriginal agencies and people scope to ensure that we are meeting needs in terms that are appropriate for them, and in a way that enables Aboriginal families to make decisions about the future of their own young people, and in a way that enables Aboriginal agencies to play a significant part … it’s entirely consistent with our current legislation that [in] decisions we make that involve Aboriginal families and children, we should be actively seen to have taken the advice of appropriate Aboriginal leaders and agencies.87


As the Bringing Them Home report notes, the lack of clear guidelines as to when and in what form consultation should take place means that, ‘discussions typically occur too late in the decision-making process and in too cursory a manner to permit an effective contribution being made’.88 Moreover, without the non-native authorities being prepared to surrender real power and decision-making authority over child welfare to Aboriginal communities, consultation is often accurately perceived as paying little more than lip-service to the principles of participation and self-determination, exacerbating the sense of ‘consultation fatigue’ which has now set in within many Aboriginal communities.89


The limited role afforded to Aboriginal childcare agencies has also done little to secure meaningful consultation with Aboriginal communities. AICCAs clearly have the potential to play a significant role at all stages of the child protection process but their efforts are currently more narrowly focused on trying to secure the placement of Aboriginal children with Aboriginal families following apprehension. Consequently, not enough work is being done with communities at the earlier stages of the child protection process to prevent the initial intervention and removal. As the Bringing Them Home report points out, AICCAs could engage in preventative work with the family, help the family implement the changes required to prevent apprehension and play a crucial role in recruiting, training and supporting alternative Aboriginal carers. In order to perform this much wider role effectively, however, Aboriginal agencies must be consulted and involved throughout the child protection process.90 Moreover, as with the communities they serve, Aboriginal childcare agencies need to be given real decision-making power and authority. As things stand, with state and territorial authorities typically required to only ‘have regard’ to the submissions of the Aboriginal agencies, their views can be effectively ignored.91 The current position is neatly summarized in the Bringing Them Home report:


“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.92


It is striking that even the relatively conservative model of allowing Aboriginal child welfare agencies to exercise delegated decision-making authority within the framework of the existing state or territorial legislation (as has been the case in Canada for many years), has yet to gain any kind of acceptance within Australia. Furthermore, continuing progress on these issues at a state and territorial level cannot be assumed. It is sobering to note that in many ways the most recent 2007 legislation in the Northern Territory is less progressive than its predecessor, with a weaker Aboriginal placement principle, more limited recognition of Aboriginal customary law and less robust provisions on consultation with the Aboriginal community.93


Despite the reforms of recent years, serious problems therefore remain. The most fundamental difficulty is that none of the initiatives of the last 20 years have really challenged the basic conceptual framework of the non-native system and its relevance and suitability as a governing structure within Aboriginal communities.94 It is a problem not only of translating law and policy into practice, but the continuing limitations of the law itself. The limitations of the ‘sensitization’ and ‘accommodation’ reform agenda are clearly evidenced by the continuing disproportionate number of Aboriginal children represented at all stages of the child protection system. Media reports that non-native social workers are now reluctant to intervene in Aboriginal communities out of fears they will be accused of racism are not borne out by the statistics.95 Figures from 2009–2010 show that Aboriginal children were significantly more likely to be the subject of a substantiation96 than non-indigenous children in all states and territories.97 In New South Wales, indigenous children were 8.7 times more likely to be the subject of a substantiation than non-indigenous children, rising to 12.7 in Western Australia, 10.1 in South Australia and 6.1 in Queensland.98 Moreover, the rates of Aboriginal children involved in a substantiation have been steadily and quite markedly increasing year upon year. Interestingly, the distinctive pattern of justifying state intervention into the lives of Aboriginal families on the more nebulous ground of ‘neglect’ (as opposed to physical, sexual or emotional abuse) has continued. In Western Australia, for example, 48.8 per cent of substantiations of Aboriginal children were on the basis of neglect compared with 32.8 per cent of non-indigenous children.99


The disproportionate number of Aboriginal children caught up in the child protection process is repeated at the next stage of proceedings: the making of care and protection orders by the courts. A snapshot picture taken on 30 June 2010 reveals that across Australia there were 48.3 Aboriginal children per 1,000 subject to a care and protection order, compared with just 5.4 per 1,000 non-indigenous children.100 Aboriginal children are therefore nine times more likely to be the subject of a court order than their non-indigenous counterparts.101 The disproportionate use of care and protection orders with respect to Aboriginal children is fairly constant across the states and territories. In the ACT, indigenous children were 13 times more likely to be the subject of a care and protection order than non-indigenous children; in South Australia that figure stands at 9.2; in Western Australia 13; in New South Wales 10; and in Victoria 13.7.102 Again it is particularly disappointing that the disproportionate use of care and protection orders with respect to Aboriginal children is continuing to worsen. Taking the figures for Australia as a whole, the greater likelihood of an Aboriginal child being subjected to a care and protection order when compared with a non-indigenous child rose from 6.6 in 2006 to 9 in 2010.103


Perhaps, however, the most disappointing finding to emerge from these statistics is that, despite the recent legislative changes, there has been no clear discernible reduction in the disproportionate number of Aboriginal children removed from their families and placed with alternative carers. On 30 June 2010, the rate of Aboriginal children in out-of-home care across Australia was 48.4 per 1,000 children compared with 5.0 per 1,000 non-indigenous children.104 The disproportionate use of out-of-home care for Aboriginal children was highest in Victoria, with Aboriginal children 14.3 times more likely than non-indigenous children to be removed from their families.105 Figures were also high for Western Australia (13.5 times more likely); New South Wales (11.3 times more likely); South Australia (10.2 times more likely) and the ACT (12.4 times more likely).106 More encouraging are the figures concerning the nature of out-of-home care now provided for Aboriginal children. The snapshot picture taken of the placement of Aboriginal children on 30 June 2010 revealed that, with the exception of the Northern Territories and Tasmania, at least 50 per cent of Aboriginal children across Australia are now placed with an Aboriginal carer or relative, that figure being over 80 per cent in New South Wales.107 Implementation of the Aboriginal placement principle would thus appear to have made a positive difference to the placement of apprehended Aboriginal children in need of substitute care. The overall picture is, however, disappointing.


Canadian Reforms to the Non-Native Child Welfare System


Legislative Reforms

Recognition of the ‘indigenous factor’

The disappointing results of Australia’s various ‘sensitization’ measures are echoed in the Canadian context. Many of the Canadian provincial governments responded to the stringent criticism of their past policies and practices with the introduction of similar legislative measures to those found in Australia, the main aims of which were again to secure greater recognition of the importance of a child’s Aboriginal identity and to enhance Aboriginal community involvement in decision-making and service delivery. In many provinces, the reforms are much more far-reaching than those found within the Australian legislation. The failings are therefore all the more disappointing.


The premise from which many of the provinces begin is that the child protection system should afford respect to the cultural differences of Aboriginal people and respond sensitively to Aboriginal norms and practices in service provision.108 Recognition of the importance of a child’s Aboriginal identity is a central part of respecting those cultural differences and is now enshrined in most provincial legislation across Canada. The British Columbia, Child, Family and Community Service Act 1996,109 is typical, providing within its guiding principles that: ‘the cultural identity of Aboriginal children should be preserved’ and ‘kinship ties and a child’s attachment to the extended family should be preserved if possible’.110 It also stipulates that a child in care has the right ‘to receive guidance and encouragement to maintain their cultural heritage’.111 These general principles are reflected in several of the Act’s more specific provisions. For example, the importance of an Aboriginal child’s cultural identity is given explicit recognition when determining the child’s best interests112 and the legislation provides that the Director’s interim plan for a child in care must include details of the steps to be taken to preserve the child’s Aboriginal identity.113 Similar protection of an Aboriginal child’s cultural identity is found in Alberta, with the Child, Youth and Family Enhancement Act 2000 providing that any person coming to a decision under the Act relating to an Aboriginal child must respect ‘the uniqueness of Aboriginal culture, heritage, spirituality and traditions’ and take into consideration ‘the importance of preserving the child’s cultural identity’.114 Almost identical wording is found as part of the best interests principle in s 37(4) of the Ontario Child and Family Services Act.115 For those provinces which do not afford special protection to Aboriginal identity, the child’s cultural identity is protected in general terms.116


There is also clear recognition within the Canadian provincial legislation of the importance of keeping Aboriginal children who are in need of support or protection services within their family and community wherever possible. The importance of employing more culturally appropriate support mechanisms in order to realize this objective is also recognized. Thus, the British Columbia Child, Family and Community Service Act 1996 provides that in making arrangements for voluntary care, the Director may enter into an agreement with a person who has ‘a cultural or traditional responsibility towards a child’ and agree to provide some level of financial support for that placement.117 A family conferencing model is also used to enable the family to develop a plan of care which can take into account the role of the child’s family and community, and include provision, with the Director’s consent, for the child to be placed with a relative or some other person.118 The BC legislation also enshrines an ‘Aboriginal placement principle’ akin to that found within the Australian state and territorial legislation, providing:


(3) If the child is an Aboriginal child, the Director must give priority to placing the child as follows:


(a) with the child’s extended family or within the child’s Aboriginal cultural community;


(b) with another Aboriginal family, if the child cannot be safely placed under paragraph (a);


(c) in accordance with subsection (2), if the child cannot be safely placed under paragraph (a) or (b) of this subsection.119


The Ontario Child and Family Services Act 1990 similarly puts the Aboriginal placement principle on a statutory footing.120 Although the remaining Canadian provinces do not enshrine an Aboriginal placement principle as such, most recognize in general terms that when placing a child in out-of-home care, the child should be placed whenever possible with a member of the extended family or, failing that, with a member of the child’s community in close geographical proximity to the child’s family.121


Participation and consultation

The need for greater community involvement in decision-making about a child and, more generally, in the design and delivery of child protection services is also given legislative force in most of the Canadian provinces. Again, British Columbia and Ontario have some of the most progressive provisions, although most of the provinces make some provision for the involvement of the child’s Aboriginal community in any formal court proceedings concerning the child, either through an Aboriginal agency or more directly through a community representative such as the Band Chief. The Child, Family and Community Service Act 1996 (BC), for example, provides that the relevant Aboriginal authority122 must, if practicable, be given notice of the first presentation hearing after an Aboriginal child is removed from the family or deemed to be in need of supervised care.123 Thereafter, the Aboriginal authority is entitled to be served with notice of the proceedings124 and, if in attendance at the commencement of the proceedings, will be entitled to full party status.125