Gallery

Paternalism in Aboriginal child removal

[Editor’s note: WBT does not usually post academic articles. However this article by Griffith University academic, Clare Tilbury, is helpful in understanding the level of aboriginal child removal since the Bringing them home report (1997) into the Stolen Generation. The article was first published on 10 JUL 2008, not long after the Kevin Rudd apology to the Stolen Generation (13 February 2008). It has useful references (included) to understand the scale of this issue. We sometimes see the raw numbers of Aboriginal kids removed in the media but this article shows the alarming rate of increase of  of Aboriginal kids in the DOCS system. Excerpts of the article are posted here, but a link to the original article  is provided in the title below. Please note that I have added my own emphasis in the text using this colour. Ian Curr, 22 May 2014.]

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The over-representation of indigenous children in the Australian child welfare system
by Clare Tilbury
Summary
Similar to other wealthy countries with colonised indigenous populations, Australia’s indigenous children, those of Aboriginal and Torres Strait Islander descent, are seriously over-represented in the child welfare system. The specific dimensions of this problem warrant detailed examination. It is useful to consider factors such as rates of entry to care, length of stay and the nature of services provided in order to understand the problem more fully. This article uses child protection, out-of-home care and juvenile justice administrative data to examine the levels of disproportionality at key decision points in the child welfare system. The data show that child welfare interventions are persistently more intrusive for indigenous children, and that levels of disproportionality have not improved over time. More comprehensive child and family welfare policies are needed to address indigenous disadvantage. Despite calls by indigenous community agencies for more input to decision-making, their participation in the Australian child welfare system remains marginal.

Background
Indigenous children and young people are significantly over-represented in child welfare systems in most wealthy countries with indigenous populations. This article examines the situation in Australia. For readers unfamiliar with the Australian context, it is important to set the scene. Australia has a population of approximately 21 million people. Around 3 per cent of the total population and 5 per cent of the child population (aged 0–17 years) is indigenous, but 24 per cent of the in-care population is indigenous. (Editor’s emphasis)

There are two groups of indigenous Australians: Aboriginal people and Torres Strait Islanders. They have very distinctive cultures but are linked by their histories and politics. The status of Aboriginal and Torres Strait Islander people as the original owners of the land has received limited recognition in Australian law. The High Court’s 1992 ‘Mabo’ judgment recognised certain rights to land and aspects of customary law, but there are no treaties with indigenous peoples, unlike in New Zealand and Canada. There are no formal structures for indigenous decision making in government and no mandated indigenous representation in Australian parliaments. Australia has a federal system of government, comprising the Commonwealth, six States and two Territories. The States and Territories are responsible for child welfare and consequently there are eight different child welfare systems, each with their own legislation. The Commonwealth has constitutional responsibility for indigenous affairs. There are no federal laws governing indigenous child welfare issues, such as the US Indian Child Welfare Act. …

Results

Reports and investigations

Indigenous children were three times more likely than non-indigenous children to be notified or reported to child protection authorities. Across Australia in 2005–2006, some 266,745 notifications involving 165,586 children aged under 16 years were recorded by jurisdictions. Fifteen per cent of all notifications related to indigenous children (Table 1). The rate at which indigenous children were notified or reported almost doubled from 52 per 1,000 in 2001–2002 to 101 per 1,000 in 2005–2006. The rate at which other (non-indigenous) children were notified also increased, from 21 per 1,000 non-indigenous children in 2001–2002 to 33 per 1,000 in 2005–2006 (Table 2). This increase in reports mirrors international trends and has been attributed to the expansion of mandatory reporting in some States, increased public awareness of child abuse and neglect, and changes in policy, practices and recording (AIHW, 2007a). Over that 5-year period, the rate of notifications about indigenous children compared with non-indigenous children increased from being two times more likely to being three times more likely (SCRCSSP, 2007).

Table 1.  Indigenous children as a percentage of total children at various points in the child welfare process, Australia, 2005–2006.
Percentage of total children
  1. Sources: AIHW, 2007ab.

Subject to notification 15
Subject to finalised investigation 16
Substantiated for abuse or neglect 18
Subject to child protection order 24
Placement in out-of-home care 26
Subject to juvenile justice supervision order 38
Table 2.  Rates per 1,000 for indigenous and non-indigenous children at various points in the child welfare process, Australia, 2001–2002 and 2005–2006.
Indigenous children Non-indigenous children
2001–2002 2005–2006 2001–2002 2005–2006
  1. Sources: AIHW, 2003, 2007ab.

Subject to notification 52 101 21 33
Subject to finalised investigation 34  55 10 14
Substantiated for abuse or neglect 18  30  5  7
Subject to child protection order 21  30  4  5
Placement in out-of-home care 20  30  3  4
Subject to juvenile justice supervision order  –  42  –  3

Indigenous children were four times more likely than non-indigenous children to be investigated for suspected abuse or neglect. Notifications are screened to determine if an investigation to obtain further information about a child’s safety or welfare is warranted. During 2001–2002, finalised investigations involving 50,653 children aged under 16 years were recorded. These included 6,115 indigenous children, 12 per cent of the total. The rate of indigenous children in finalised investigations was 34 per 1,000, compared with 10 per 1,000 non-indigenous children, making indigenous children three times more likely to be subject to finalised investigations than non-indigenous children in 2001–2002 (Table 2). During 2005–2006, finalised investigations involving 74,184 children aged under 16 years were recorded. These included 11,787 indigenous children, 16 per cent of the total (Table 1). As indicated in Table 2, the rate of indigenous children in finalised investigations rose to 55 per 1,000, compared with 14 per 1,000 non-indigenous children. Thus, by 2006 an indigenous child was four times more likely to be subject to a finalised investigation than a non-indigenous child.

Indigenous children were four times more likely than non-indigenous children to be substantiated for abuse or neglect.  Between 2001–2002 and 2005–2006, the number of children aged under 16 years subject to substantiated maltreatment increased from 25,313 to 34,336. In 2001–2002, indigenous children comprised 13 per cent of the total, and by 2005–2006 they comprised 18 per cent of all children subject to substantiation (Table 1). The disparity between indigenous and non-indigenous children has increased, as indicated in Table 2. The rate at which indigenous children were subject to substantiation increased from 18 per 1,000 indigenous children to 30 per 1,000 indigenous children over the period. Non-indigenous children were substantiated at a rate of five per 1,000 non-indigenous children in 2001–2002 and at seven per 1,000 in 2005–2006. Therefore, over that 5-year period, the rate for indigenous children increased from being three times more likely to be substantiated than non-indigenous children, to four times more likely (AIHW, 2007a).

The pattern of substantiated abuse and neglect for indigenous children differs from the pattern for other children. Indigenous children were more likely than other children to be subject to substantiation for neglect, with neglect substantiations comprising 36 per cent of all substantiations for indigenous children, compared with 27 per cent for non-indigenous children. A high proportion (37 per cent) of substantiations also involved emotional abuse (AIHW, 2007a). The high rates of neglect are significant, but should not be overstated. First, notification rates do not necessarily reflect incidence (e.g. substantiations involving sexual abuse are low compared with those involving non-indigenous children, but this may indicate family reluctance to notify or poor access to health and social services in some areas). Second, neglect is difficult to classify – it often co-occurs with other types of abuse and almost always has an emotional impact on the child. Third, these categories focus on parental behaviours rather than on harm to a child. Neglect is generally not less harmful and does not require less intervention, nor is it a straightforward equation of alleviating poverty and material disadvantage in order to tackle child neglect: interventions at multiple levels including the parents, the child, the extended family, the local community and broader social policy are indicated (Stevenson, 1998).

Children under orders

Indigenous children were six times more likely than non-indigenous children to be subject to a child protection guardianship or custody order. Court orders may be short-term or long-term and are the main signifier of state involvement in the care of children. Children may be subject to guardianship orders and remain at home. At 30 June 2002, some 20,557 children were under orders and 21 per cent of these children were indigenous. By 30 June 2006, some 27,188 children were under orders, an increase of 32 per cent over the 5-year period, with indigenous children comprising 24 per cent of all children under orders (Table 1). As indicated in Table 2, the rate of indigenous children under orders at 30 June 2006 (30 per 1,000) was more than six times higher than for other children (five per 1,000), although the rate varied across states and territories. There were differences in the types of orders obtained. A higher percentage of indigenous children were subject to guardianship or custody arrangements, and a smaller percentage subject to less intrusive supervisory orders, which do not interfere with parents’ legal rights, compared with non-indigenous children. This pattern persisted over the 5-year period.

Children in out-of-home care

Indigenous children were seven times more likely to be in out-of-home care than non-indigenous children. At 30 June 2002, some 4,199 (22 per cent) of the 18,880 children in out-of-home care were indigenous. The rate of indigenous children in out-of-home care at that date was 20 per 1,000 children aged under 17 years. There was a wide range across jurisdictions, but indigenous children were, overall, six times more likely to be in out-of-home care than non-indigenous children. However, at 30 June 2006, 26 per cent (n= 6,497) of the 25,454 children in out-of-home care were indigenous (Table 1). The rate of indigenous children in out-of-home care again increased markedly over the 5-year period to 30 per 1,000 indigenous children aged under 17 years, compared with the rate for non-indigenous children of four per 1,000 (Table 2).

The rates of out-of-home care placement are very high for indigenous children. During 2001–2002, 6,261 indigenous children had at least one placement in out-of-home care. This represented 22 per cent of the total number of children with at least one placement and a rate of 33 per 1,000 indigenous children. During 2005–2006, 8,494 indigenous children had at least one placement in out-of-home care. This represented 25 per cent of the total number of children with at least one placement and a rate of 40 per 1,000 indigenous children (SCRCSSP, 2003, 2007: table 15A.11).

Research using administrative data shows a strong and persistent relationship between the age of the child and the likelihood of involvement in the child welfare system. In most countries, infants (less than 12 months old) are the most likely age group to enter care and, once in care, remain in out-of-home care longer (Thoburn, 2007; Wulczyn, Hislop & Harden, 2002). There is a similar trend in Australia, with the base incidence rate for entry to out-of-home care for all children in 2005–2006 being 2.6 per 1,000 compared with 6.4 per 1,000 for children up to age 12 months (AIHW, 2007a). Unfortunately, there are few Australian data available by age, indigenous status and duration in care, so this aspect of disproportionality cannot be explored.

While the majority of children are subject to a child protection order when placed in out-of-home care, all jurisdictions except for the Northern Territory have provision for placing a child in out-of-home care with parental consent (known as ‘family support’ or ‘respite’ placements in some jurisdictions). The different pattern of use of these types of placements is relatively small: at 30 June 2006, 14 per cent of indigenous children in out-of-home care were not subject to an order, compared with 11 per cent of non-indigenous children in out-of-home care not subject to an order. This pattern is a reflection of that in previous years.

The Aboriginal and Torres Strait Islander Child Placement Principle has been the policy guiding decision making and placements for indigenous children in most Australian child protection jurisdictions for over 20 years. The Principle is that Aboriginal and Torres Strait Islander children have a right to be brought up with knowledge of their indigenous culture. It aims to preserve and enhance indigenous children’s sense of identity as Aboriginal or Torres Strait Islander through maintaining children within their own family, community and culture. It seeks to strengthen family life through maintaining the value of the extended family, kinship arrangements and culture in raising Aboriginal and Torres Strait Islander children. The principle is incorporated, to varying degrees, in child protection legislation in all states and territories. It requires indigenous community input to all child protection decision making involving indigenous children, and sets out a placement hierarchy to be followed when placing an indigenous child in out-of-home care. The first preference is for them to be placed with extended family or, if that is not possible, with an indigenous carer. Consequently, the placement of children with relatives or kin is consistently higher for indigenous children than for non-indigenous children. Over the last 5 years, just over 50 per cent of indigenous children have been placed with relatives or kin compared with around 35 per cent of non-indigenous children. Proportions vary across jurisdictions. Over the last 5 years, around 70 per cent of children in out-of-home care in New South Wales at 30 June have been placed with relatives. However, placements of indigenous children with relatives are less utilised in the smaller jurisdictions of Tasmania and the Australian Capital Territory (ACT). These data relate only to formal kin placements involving the payment of a State subsidy to a carer, not informal arrangements made between relatives for the care of a child.

Despite relatively high levels of kinship care, there are still many indigenous children, about one-quarter of those in out-of-home care, placed in ‘stranger’ foster care with non-indigenous carers. The cultural appropriateness of placements is an important indicator of placement quality; however, compliance with the Child Placement Principle has been steadily declining. Whereas in 2002, 79 per cent of indigenous children in out-of-home care were placed in accordance with the Principle, by 2006 this had declined to 74 per cent. At 30 June 2006, 44 per cent of the 4,896 indigenous children in out-of-home care were placed with relatives or kin, including 10 per cent with non-indigenous relatives. Approximately 22 per cent were placed with non-related indigenous carers or in indigenous residential care. The proportions of placements of indigenous children with unrelated, non-indigenous carers ranged from 12 per cent in Western Australia to 59 per cent in Tasmania with the Australian average at 22 per cent. At 30 June 2006, placements with unrelated, non-indigenous carers had increased over previous years in four jurisdictions (New South Wales, Queensland, Tasmania and the Northern Territory).

In addition, indigenous children tended to be in out-of-home care for longer periods. This may partly be explained by the greater use of kinship care, which tends to be associated with longer and more stable placements (Ainsworth & Maluccio, 1998). At 30 June 2002, 17,808 children were placed in out-of-home care. Approximately 22 per cent of these children were indigenous.

Overall, placements appear to be getting longer, especially for indigenous children. In 2005–2006, some 6,118 children exited out-of-home care, including 22 per cent of whom were indigenous children. Of the indigenous children exiting care, 40 per cent exited care after a placement of between 1 and 6 months, which is a 6 per cent decline over the 5-year period. Approximately 70 per cent exited after less than 2 years, a decrease of 4 per cent over the 5-year period. Approximately 15 per cent exited after 5 years or more. Although there was an increase in the percentage of non-indigenous children exiting out-of-home care after 5 or more years, the increase was smaller than for indigenous children.

Juvenile justice

Indigenous young people were 14 times more likely to be on youth justice supervision orders and 23 times more likely to be in a detention facility than non-indigenous young people. There has been a trek from protective measures to punishment for many indigenous children, who experience high levels of criminalisation and subsequent incarceration. During the period 2001–2002 to 2005–2006, there was a gradual increase from 29 per cent to 38 per cent in the proportion of young people under juvenile justice supervision who were identified as being Aboriginal or Torres Strait Islander. This may reflect an actual increase in the number of indigenous young people under supervision, as well as more reliable data on indigenous status. In 2005–2006, indigenous youth were 14 times more likely to be on youth justice supervision orders: a rate of 42 per 1,000 compared with 3 per 1,000 for non-indigenous young people aged 10–17 years (Table 2). Indigenous young people under juvenile justice supervision are also younger than non-indigenous young people: within this category, the median age for indigenous young people is 15 years and 16 years for non-indigenous young people (AIHW, 2007b).

The over-representation of young indigenous people intensifies at the most punitive end of the system: youth detention (Cunneen, 1997). Youth detention rates have been declining since 1994, with the indigenous rate down by 25 per cent and the non-indigenous rate down by 44 per cent. However, the over-representation of indigenous young people aged 10–17 years in detention remains high and has not decreased, with indigenous young people being 23 times more likely than non-indigenous young people to be in detention as of 30 June 2005 (Taylor, 2006).

Discussion

The ineffectiveness of government responses to indigenous family violence, including child maltreatment, continues to be a major obstacle to achieving social justice for these communities. These data show that levels of indigenous over-representation in child welfare and juvenile justice systems remain alarmingly high, considerably higher than in some other jurisdictions. For example, in New Zealand approximately 24 per cent of the child population and 35 per cent of the in-care population is Maori, in the USA 2 per cent of the child population and 8 per cent of the in-care population is Native American, and in Alberta, Canada, 23 per cent of the child population and 54 per cent of the in-care population is aboriginal (Thoburn, 2007; US Department of Health and Human Services, 2005). In comparison, in Australia 5 per cent of the child population and 24 per cent of the in-care population is indigenous a disproportionality rate of 4.8. The extent of government intrusion in indigenous family life far exceeds that which occurs in non-indigenous families, and yet levels of child maltreatment remain high. It has been suggested that a legacy of concern about the ‘stolen generations’ is that authorities are reluctant to intervene to remove indigenous children from inadequate parental care, and that indigenous family violence has been accepted or excused on the grounds that it is part of Aboriginal culture (Crime and Misconduct Commission, 2004). Although this may happen in individual cases, child welfare administrative data in aggregate demonstrates that there is no reluctance to intervene. Indigenous children and families are receiving different, and more interventionist, treatment. Having come to the attention of statutory authorities, indigenous children are more likely to be substantiated for abuse or neglect, more likely to be placed on an order, more likely to be placed in out-of-home care, more likely to stay longer, and more likely to be on juvenile justice orders and in detention.

Clearly, government action is required to remedy this situation. It is not the fact of government intervention in indigenous family life that is problematic, but the nature of the intervention. The standard government strategies to develop more effective and culturally sensitive responses to improve the welfare of indigenous children in Australia in the main have not achieved desired outcomes. The Child Placement Principle is routinely not followed. The number of indigenous carers is seen as the source of this problem, rather than other factors such as the large numbers of children being removed from home, inadequate resources, and the ever-tightening regulatory framework for out-of-home care (Tilbury, 2007; Valentine & Gray, 2006). In a similar vein, workforce development initiatives such as employing indigenous staff and cultural awareness training for non-indigenous staff are no doubt essential, but they are tangential to addressing a problem of this scale. They represent a narrow conceptualisation of the problem of racial disproportionality, setting out narrow parameters for intervention and proposing that a practitioner can make adaptations within that framework, rather than challenging the entire way that the child welfare system addresses child abuse and neglect in indigenous communities. This latter path would involve adopting more preventative approaches, providing more intensive support to parents and extended families, community development initiatives and ceding more control and authority to indigenous communities (Libesman, 2004). Certainly, the evidence based on effective strategies to improve outcomes for indigenous children and families in Australia is limited. Few rigorous evaluations of interventions have been conducted. This suggests the need for carefully considering the results of research and evaluation on promising international and local approaches, in conjuction with ‘bottom up’ indigenous community engagement in the selection, implementation and evaluation of programmes.

Most state and territory governments in Australia provide funding to indigenous community agencies to carry out certain child welfare tasks. Aboriginal and Torres Strait Islander child and family welfare agencies were established in the early 1980s throughout Australia. These are community-controlled agencies, managed and staffed by indigenous people and funded by government. They generally provide preventative family support services, as well as assisting Aboriginal and Torres Strait Islander families who are subject to statutory intervention. The agencies recruit, train and support kinship and foster carers for Aboriginal and Torres Strait Islander children and aim to ensure that when indigenous children are removed from their family they maintain their identity and links to family, culture and community. Many agencies also work with young indigenous people who are involved in the juvenile justice system. Yet indigenous agencies remain a relatively minor part of the child welfare service response, certainly compared with the numbers of indigenous clients. They are few in number and receive low levels of funding (Valentine & Gray, 2006). Despite the policy rhetoric about consultation and partnerships, in practice indigenous agencies have very limited powers in relation to decision-making. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families recommended the establishment of a national legislative framework to implement self-determination in relation to the well-being of indigenous children. It was recommended (subject to consultation) that the legislation include the transfer of legal jurisdiction in relation to children’s welfare and/or juvenile justice to an indigenous community, region or representative organisation; the transfer of police, judicial and/or departmental functions; specification of the relationship between the community, region or representative organisation and the police and/or court system in matters relating to children and families; and/or funding of programmes and strategies developed or agreed to by the community (Human Rights and Equal Opportunity Commission, 1997). These recommendations were ignored by governments at all levels.

Recent public inquiries into abuse of indigenous children in Queensland, Western Australia and the Northern Territory have revealed the extent of family violence and child maltreatment (Crime and Misconduct Commission, 2004; Gordon, Hallahan & Henry, 2002; Wild & Anderson, 2007). They have also pointed to the limitations of socio-legal investigative responses, particularly in geographically remote townships where there are few social service agencies on the ground. In 2007, the Northern Territory inquiry found that there was widespread sexual abuse of children in some indigenous communities. This then provided the rationale for the commonwealth government to take unprecedented action, employing constitutional powers to impose ‘emergency measures’ in certain townships. These measures include:

  • Withholding income security payments from parents who do not enforce school attendance and comply with other behavioural requirements.
  • Medical teams to conduct health assessments for indigenous children.
  • Increasing policing and deploying the armed services to ‘make communities safe’.
  • Making the supply and purchase of alcohol illegal.
  • Banning the possession of pornography.
  • Taking control of governance in some areas.

. . . Although introduced by the previous conservative government, these measures have been continued by the New Labor government, pending a review after twelve months of implementation.

These responses are indicative of an emphasis on individual pathology or criminality as the causes of child maltreatment. They are consistent with, albeit more extreme than, the existing government responses to child abuse and neglect in indigenous communities that concentrate on individual factors, with interventions aimed at removing the child from the sphere of control of the ‘dangerous’ adult (often a parent). The limitations of this ‘child saving’ approach are evident, especially when considering the position of indigenous people living in rural and remote communities characterised by poverty, high unemployment, poor housing, limited social infrastructure and high levels of violence, alcohol and drug use. Research has established the link between higher levels of socioeconomic disadvantage and related problems, and the over-representation of minority racial groups in the child welfare system (Trocme, Knoke & Blackstock, 2004). These systemic problems need to be addressed, alongside parental factors, if child abuse and neglect is to be reduced. Governments need to look beyond the child protection and criminal justice systems for solutions – to health, housing, employment, mental health, education and domestic violence services – in order to develop more comprehensive responses for children and their families.

The commonwealth government measures can also be characterised as ‘more of the same’ on another level: they are a continuation of centralised, imposed programmes. They were apparently devised and announced without any indigenous contribution. Yet increasing the level of indigenous input and control should be considered feasible, based on the examples of the USA and Canada. The history and treatment of indigenous peoples in these countries has been similar to Australia’s, but they have very different approaches to child welfare legislation and policy. They have been much more willing to consider models involving indigenous participation and authority in decision making. Examples of this include the US Indian Child Welfare Act, which grants jurisdiction to tribal courts in child welfare proceedings about Indian children who live on a reservation, and the expansion of authority for First Nations child and family service agencies in Manitoba, Canada (Hudson & McKenzie, 2003; Human Rights and Equal Opportunity Commission, 1997; Libesman, 2004).

Conclusion

Developing effective responses to indigenous children’s over-representation in the child welfare system needs to be informed by a thorough understanding of the scale and nature of the problem. As a starting point, it is important for all jurisdictions to collect reliable administrative data in order to better plan and provide the child welfare services that best fit the needs of their populations and contexts (Thoburn, 2007). While it is recognised that local solutions are required and indigenous peoples in different countries are unique, there is considerable interest in what can be learned from international developments and approaches (Libesman, 2004). In Australia, a substantial change in direction is required, but not a return to the paternalism of the past, which presages yet more, not less, coercive government intervention into indigenous family life. Data presented in this article show that government action of this type has not been effective in protecting children and strengthening family functioning. Alternative policies and programmes would focus on children’s quality of life and family living conditions, community development and genuine collaboration with indigenous communities and agencies.

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