Chapter 21 Child Welfare Care and Protection

• Child Welfare Care and Protection
• Australian welfare systems
• Aboriginal Child Placement Principle: State and Territory review
• Failure of the welfare approach

Child Welfare Care and Protection

• Overview
• Over-representation of Indigenous children in care
• Indigenous children in care in 1993
• Abuse and neglect notifications, investigation, substantiation and orders, 1995-96
• Categories of substantiated abuse and neglect involving Indigenous children
• Categories of substantiated abuse and neglect involving all children

The way present legislation responds ... is merely allowing Aboriginal community organisations to become part of the process ... There is no support for the development of genuine Indigenous child care or child welfare as, for instance, there has been in the United States under the jurisdiction of the Indian Child Welfare Act (Nigel D'Souza, SNAICC, evidence 309).

Overview

Indigenous children throughout Australia remain very significantly over-represented 'in care' and in contact with welfare authorities. Their over-representation increases as the intervention becomes more coercive, with the greatest over-representation being in out-of-home care. Indigenous children appear to be particularly over-represented in long-term foster care arrangements. A high percentage of Indigenous children in long-term foster care live with non-Indigenous carers.

Over-representation of Indigenous children in care

The following table provides an overview of the over-representation of Indigenous children in substitute care in 1993. The highest rate of placement for Indigenous children was in Victoria and the lowest was in the NT. On average Indigenous children were seven times more likely to be in substitute care than their population share would indicate. Indigenous children comprise only 2.7% of Australian children but they were 20% of children in care in 1993.

Indigenous children in care in 1993

	ACT	NSW	NT	Qld	SA	Tas	Vic	WA	Total
Total children in care	135	4,694	123	2,112	1,195	498	2,504	1,102	12,363
Indigenous children in care	12b	829	52	615	293	55	300c	353	2,419
% Indigenous children in care	8.9	17.7	42.3	29.1	17.0	11.0	12.0	34.9	19.6
% child population who are Indigenousa	1.0	2.1	33.7	2.0	2.0	3.5	0.7	4.3	2.7
Indigenous children in care per 1, 000 aged 0-17 years	15	26	3	19	28	13	40	18	20
Non-Indigenous children in care per 1,000 aged 10-17 years	1.6	3.0	2.3	2.6	3.3	3.9	2.2	2.2	2.7

1. Figures for the Indigenous child population in each State are taken from the Australian Bureau of Statistics (1993b 1991 Census of Population and Housing, Aboriginal Community Profile ABS Cat. No. 2722.0). The Aboriginal out-of-home care and census figures could well be underestimates because of missing information in both of these counts. For example, no information was available on Aboriginal/non-Aboriginal status for 19.5% of the NSW population of children under care orders.
2. Estimated from the percentage of children referred to care by the statutory agency.
3. The Victorian Department estimates that there are approximately 300 Aboriginal children in specialised, Aboriginal managed out-of-home care programs, with the possibility of 'some others' with other agencies.

Indigenous children are much more likely than others to be 'notified' to a welfare department on the ground of abuse or neglect as the following table shows.

Abuse and neglect notifications, investigation, substantiation and orders, 1995-96

(number per 1,000 children)

	NSW	Vic	Qld	WA	SA	Tas	ACTa	NT
Notifications
	Indigenous children	55	90	42	28	62	27	104	10
	All children	16	22	14	7	18	19	15	9
Finalised investigations
	Indigenous children	48	61	34	22	51	12	85	10
	All children	14	12	10	5	14	9	11	5
Substantiations
	Indigenous children	30	32	15	9	25	3	48	6
	All children	8	6	4	2	6	2	5	4
Care and protection orders, 30/6/96
	Indigenous children	17	16	19	8	na	8	26	2
	All children	3	3	3	2	na	3	3	2

Source: Government Service Provision 1997 Table 10.1 page 536.

1. The ACT rates are over-estimated due to the method of calculating the Indigenous population of the Territory.

Note: The table does not indicate what proportion of the children were in substitute care.

Indigenous children are more likely than non-Indigenous children to be removed on the ground of 'neglect' rather than 'abuse'. The graphs below contrast the proportions of Indigenous children and all children on care and protection orders nationally in 1992-93 on the grounds of neglect, sexual assault, emotional abuse and physical abuse. Substantiated cases of neglect constituted 40% of all cases for Indigenous children compared with 23% for all children.

There is broad agreement among commentators, State and Territory government departments and Indigenous organisations that Indigenous children who must be removed from their families in their best interests are best cared for within an Indigenous cultural environment. There is also broad agreement that Indigenous people have a right to look after their own children and thereby sustain their own culture. This right is expressed by most Indigenous organisations as a right to self-determination and is variously expressed by government departments as either a right to self-determination or a right to self-management. In spite of this, Indigenous children continue to be removed from their families at a disproportionate rate and continue to be placed into non-Indigenous environments including group homes and foster families (Gilbert 1993, Thomas 1994, Dingwall et al 1983).

Categories of substantiated abuse and neglect involving Indigenous children

Emotional	20%
Sexual	14%
Physical	26%
Neglect	40%

Categories of substantiated abuse and neglect involving all children

Emotional	25%
Sexual	23%
Physical	29%
Neglect	23%

Source: Angus and Zabar 1995 based on 1992-93 figures provided to WELSTAT

There is also a general recognition that the underlying causes of the over-representation of Indigenous children in welfare systems include the inter-generational effects of previous separations from family and culture, poor socio-economic status and systemic racism in the broader society. These causes combine to produce cultural differences between welfare departments and Indigenous communities, substance abuse, violence, poor nutrition, alienation from social institutions including the education system, family services and the criminal justice system, limited and poor housing options and a loss of hope, particularly among younger people.

In this chapter we evaluate the role of government welfare departments and children's care and protection legislation in the continuing separation of Indigenous children from their families and communities and in addressing the underlying issues identified.

Australian welfare systems

• Powers
• Philosophy
• Indigenous efforts to retain their children
• Welfare efforts to include the needs of Indigenous clients

Powers

In each State and Territory children's care and protection legislation authorises welfare departments to investigate allegations of child abuse and neglect and to respond with preventive measures and intervention. The grounds for intervention and removal in each jurisdiction are similar and cover categories of neglect and abuse and irretrievable breakdown in parental relationships with the child.

In all jurisdictions the policy is to work with the family in such a way that the child will not have to be removed or, if removed, can be rapidly returned. Bringing a care application is a last resort. Preventive strategies include provision of intensive home-based care, respite care and attempts at consensual arrangements where a problem is detected. Parents may make voluntary undertakings and these may be reached in the context of a family conference. The family conference has now become an established part of welfare practice. The format, formality and range of parties involved in these conferences vary considerably. Family conferences are usually mediated by a social worker from the welfare department. They may include the child, parents, extended family, an Indigenous child care agency and other professionals such as health workers and the police.

Where removal of the child cannot be avoided, family reunion is the primary objective in all jurisdictions. Where this is totally unfeasible, family contact at least should be maintained.

In all jurisdictions it is necessary to obtain a court order if a child is to be removed from the family under child welfare legislation, although temporary removal without a court order is lawful in emergencies. Care and protection applications are usually brought by the welfare department or the police. The proceedings take place in the Children's Court where the order made must be in the 'best interests of the child'. If the court finds allegations of neglect or abuse substantiated, a range of orders is available including parental undertakings, alternative care and supervision orders. Before placing a child in substitute care the court obtains an assessment report. At this point, in the case of an Indigenous child, the court may receive formal advice from an Aboriginal and Islander child care agency. Making the child a ward of the State is the last resort option.

Welfare departments fund family based services such as intensive home-based care and respite care. They provide and fund placement services for children found to be at risk. In all jurisdictions departmental policy is to deinstitutionalise out-of-home care, look for foster care options and, where institutions are used, support small home-like environments. Several out-of-home care options are commonly used including foster care, family groups homes, hostels and kinship care.

Philosophy

Many children suffer abuse or neglect. The State or Territory has an obligation to ensure their well-being and protection. The nature of the official response, however, has varied over time according to prevailing philosophies and ideologies.

In Western terms, welfare as a form of child saving has its origins in late 19th century middle-class concerns about the 'dangerous' classes, single mothers and working-class families in industrialised regions of England.

Many child-savers saw poverty, destitution and the illegal activities of the lower classes as signs of biologically determined character defects. Under the influence of Lombroso, Galtin, Spencer and Darwin, the child saving movement became a moral crusade, seeking to correct and control the poor ... The system [child welfare system] has been predicated on the view that children needed to be rescued from those parents who did not have the innate qualities, right values, correct attitudes and appropriate behaviours considered to be necessary for parents to act in a 'socially acceptable' way (Jamrozic and Sweeney 1996 pages 26 and 90).

In the 1970s the expectation that governments provide greater social equality and the recognition that inequalities underlie social problems gained currency. These understandings provoked a shift within welfare departments from protection to prevention and assistance. In the 1980s the re-emergence of a focus on abuse, particularly sexual abuse, in welfare work facilitated an ideological slip back into the notion of welfare workers as saviours of children from morally deficient individuals and families (Jamrozic and Sweeney 1996 page 98).

We have seen that Indigenous families were historically characterised by their Aboriginality as morally deficient. There is evidence that this attitude persists. A focus on child-saving facilitates blaming the family and viewing 'the problem' as a product of 'pathology' or 'dysfunction' among members rather than a product of structural circumstances which are part of a wider historical and social context (Gilbert, Thomas, Dingwall et al 1983). Indigenous families face both race and class prejudice among many welfare officers.

Indigenous efforts to retain their children

Indigenous communities have fought consistently to keep control over their children. Resistance to separations has taken various forms.

There are no studies solely devoted to opposition by Aboriginal people to the removal of their children. It is a history that demands to be written, one that would provide a fascinating and tragic account of a struggle that has been at the core of the battle for survival of Aboriginal people. It is a subject that would highlight the role of Aboriginal women - and men in the protection of the only guarantee for their survival when they had little or no material possessions and negligible civil rights. Resistance moreover, did not occur in confrontational ways alone; more often than not it was through evasive means, given the absolute lack of power of Aboriginal People ( SNAICC submission 309 page 4).

The formation of national Aboriginal organisations in the 1960s and 1970s followed localised struggles for Indigenous peoples' rights, including the rights of families and children. The effects of Aboriginal separations and placement with non-Aboriginal adoptive and foster carers were brought to general public attention at the first, second and third Australian Adoption Conferences in 1976, 1978 and 1982 and at the First Aboriginal Child Survival Conference in 1979.

During the 1970s the first Aboriginal and Torres Strait Islander Child Care Agencies (AICCAs) were established. In NSW the Aboriginal Children's Services was formed in 1975. Delegates at the First Australian Adoption Conference in 1976 encouraged the formation of the Victorian Aboriginal Child Care Agency.

The Agency is geared to service delivery and community development. It aims at ultimately providing an autonomous community centred service for children, based on the notion that there already exists within the Aboriginal community, multiple and diverse resources which can be integrated into the Aboriginal Child Care Agency Program ... Because it is an Aboriginal community organisation, the Aboriginal Child Care Agency can be easily sensitised to and reflective of the needs of Aboriginal families and children. This is vital as a breakdown between State welfare delivery and the participation of Aboriginal people, suspicious of programs stigmatised by child removal, has paralysed welfare operations. The Aboriginal Child Care Agency then, bridges this gap and operates outside the fear of 'Welfare' (Jackson 1979 page 3).

Aboriginal and Islander Child Care Agencies and Multi-functional Aboriginal Children's Services (MACS) are the two main Indigenous, community based, child care service providers in Australia. There are now approximately 100 such services across Australia. AICCAs fulfil a number of roles including provision of preventive services, involvement with children and youth under care and protection orders and provision of foster care and adoption services. MACSs provide services for 0 to 5 year olds including health services, child care, respite care, nutritional meals and play groups in one location. 'MACS offers a vital opportunity for early intervention and preventative assistance to take place' (SA Aboriginal Child Care Agency submission 347 page 27).

Welfare efforts to include the needs of Indigenous clients

State and Territory welfare departments have recognised that a very high proportion of their clients are Indigenous families and children. The historical and socio-economic context of Indigenous families and children and the nature of welfare practice leave Indigenous children at greater risk than any others of removal from their families and communities. In evidence to the Inquiry State and Territory governments stressed the need for Indigenous communities to exercise greater control over their children's welfare.

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. Collaborative decision making, co-operation and consultation between the Department of Families, Youth and Community and Aboriginal and Torres Strait Islander agencies are key themes guiding current protection policy and practice. (Queensland Government final submission page 18).

The NSW Government stated that its policy on Aboriginal Affairs 'is based on a philosophy of Aboriginal self-determination and will promote Aboriginal esteem in both Aboriginal and non-Aboriginal communities' (NSW Government interim submission page 111).

It is considered necessary that an Aboriginal program have the power to name its own components ... For example the concept of Foster Carer is not readily translated from mainstream to Aboriginal society. Aboriginal people do not think of themselves as foster carers for children of their own kinship or other Aboriginal children. There are also some distasteful associations with terms such as foster care, foster parents etc ... (WA Government submission Attachment 4 page 12).

Similar statements are found in each State and Territory Government submission (SA Government interim submission page 32, Victorian Government interim submission page 32, Tasmanian Government final submission page D-38, NT Government interim submission pages 58-9; see also ACT Government submission page 4).

The rhetoric of self-management, however, has not been matched by practical measures. The administrative, executive and judicial decision making about Indigenous children's welfare are controlled by child welfare authorities. Although Indigenous organisations in some jurisdictions have a right to be consulted, this typically occurs only at the final stages of decision making about a child, when recommendations are being made for a placement in substitute care.

In general, my impression is that the welfare authorities are most willing to encourage Aboriginal people to participate in ways that do not involve a major shift of power and responsibility (Chisholm 1985 page 8).

Decision making about Indigenous children's well-being falls well short of accepted notions of self-determination. Moreover, it continues to fall short of government claims of 'partnership' and 'collaboration'.

Welfare departments have made changes to their practices in an effort to reduce cultural biases leading to Indigenous over-representation. One common strategy has been to establish an Aboriginal section of the department. This strategy has been criticised on the ground that the section is ' tacked on to the system, without altering its philosophy, structures, practices or processes' (Thomas 1994 page 40).

Accompanying the establishment of Aboriginal sections have been increased employment of Indigenous staff and an attempt to enhance the cultural sensitivity of existing staff and procedures. Each of these strategies also has its critics.

Indigenous organisations criticise the incorporation of Indigenous staff into welfare departments on the ground that these talented people cannot simultaneously be community resources. Public service employment inhibits the capacity of Indigenous staff to represent and advocate for their communities. Funding to employ a community member as a community development worker would frequently be preferred. Ideally both should be ensured as State and Territory administrations have a responsibility to provide appropriate and accessible services to all clients.

During the 1980s and 1990s there has been growing awareness of the problems of cross-cultural service delivery and of the need for cross-cultural training. However, the goal of culturally appropriate service delivery remains elusive. Policy statements from head office do not translate into practice in the field. Popular cross-cultural training models have limitations.

Reliance on a view of culture as fixed rather than dynamic, and the tendency to stereotype whole groups by virtue of their ethnicity are the drawbacks of the simple pluralist model. Its promotion in the late 1970s and through the 80s - a highly successful enterprise - was largely achieved via a decade of so called 'cultural awareness' training, achieved through a 'cultural differences' approach. This is a process whereby you come to understand different ethnic groups by learning how they behave, eat, celebrate, raise their children and bury their dead. All these practices are quaint, interesting or even unbelievable: ultimately however, they serve to underline distinctness. This approach encouraged, even depended for its success, on the kind of generalisation that also leads to stereotyping of a negative kind (Kalowski 1992 page 4).

The single most significant change affecting welfare practice since the 1970s has been the acceptance of the Aboriginal Child Placement Principle.

Aboriginal Child Placement Principle: State and Territory review

• New South Wales
• Non-Indigenous care for Indigenous children in care: NSW
• South Australia
• Notifications of SA Indigenous children
• Northern Territory
• Victoria
• Western Australia
• Queensland
• Indigenous children on care and protection orders in Queensland
• Tasmania
• Indigenous State wards in Tasmania
• ACT
• Evaluation of the ACPP

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.]

New South Wales

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.

Non-Indigenous care for Indigenous children in care: 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

South Australia

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.

Notifications of SA Indigenous children

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).

Northern Territory

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.

Victoria

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).

Western Australia

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).

Queensland

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.

Indigenous children on care and protection orders in Queensland

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.

Tasmania

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.

Indigenous State wards in Tasmania

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%).

ACT

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.

Evaluation of the ACPP

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.

Failure of the welfare approach

• Definitions of welfare, well-being, need and neglect
• Systemic inequalities
• Bureaucratic procedures
• Children with disabilities
• Conclusions
• Endnotes

Although significant, the ACPP operates within a broader context of government welfare activities which have not been able to accommodate Indigenous perspectives and needs.

Definitions of welfare, well-being, need and neglect

... this year, in 1996, I was told by one district officer that an Aboriginal family was 'socially impoverished'. What the hell does that mean? No talk about how kind they are to grandkids. It's white values being placed on Aboriginal families once again, without even thinking about it. It's no wonder the gap between Aboriginal and non-Aboriginal continues to widen. You would think that we would have progressed more than this, but in our experience that's not the case (quoted by Link-Up (NSW) submission 186 on page 179).

The FACS [SA] came to check my grand-kids. If they have muscles they are deemed O.K. The FACS check on the kids' skins, muscles, if they tremble. They said they were O.K. and they left us.

We don't like Welfare. We don't want to give our kids to Welfare. I only see FACS come, but they don't help Anangu.

We want the FACS visitor to advise women's Council of when and why they are coming in, so that the whole of AP [the Anangu Pitjantjatjara peoples] can consider the future of kids in question. The entire extended family (Harrison 1991 pages 25-29).

In Aboriginal communities responsibility for children generally resides with an extended kinship network and the community as a whole. Children are important for the future of the culture and their community has a right to their contribution. Raising children in Aboriginal communities commonly involves children living with kin and the extended family taking responsibility for them.

Children are the responsibility of the entire family rather than the biological parents alone. Many Aboriginal people have been 'grown up' by members of the family other than their biological mother and father and this practice of growing up children is still very widespread today ... As a result of the children being encouraged to think and have responsibility at a very early age, they have a large degree of autonomy (Daylight and Johnstone 1986 page 27).

The involvement of extended kin networks, close supervision of very young children, a high level of autonomy among older children and an emphasis on providing comfort and affection rather than discipline are features of Aboriginal child-rearing that are widely recognised in communities in different geographic locations and living different lifestyles. Yolgnu children in the Northern Territory from the age of three begin to transfer their physical and emotional dependence from their mother to their camp group and that between the ages of five and fifteen years they have a great deal of independence (Healy et al 1985). Among the Maran people of the Western Desert 'children are free to do very much as they like most of the time and are given very few explicit instructions by adults' (Tonkinson quoted by Thorpe 1994 on page 161; see also Hamilton 1981, Sansom and Baines 1987).

There is, therefore, a conflict of values. In Western societies a child's absence from the nuclear family over a period of time or regularly is considered abnormal and indicative of a problem within the family. An assessment of Aboriginal children's welfare files created in Victoria in 1980 and 1990 found that while there was a greater willingness to use extended family foster carers in 1990 there was still a lack of understanding and lack of acceptance of extended Aboriginal family relations (Thomas 1994). '[T]he functioning of the extended family within an Aboriginal cultural context is seen as pathological or dysfunctional' (page 43). One 1990 file note recorded,

Concerns were expressed around the number of people who may attend the home while the children are present [for Christmas]. Mrs A agreed to request that all extended family members other than her mother, will be asked to leave while the children are there (quoted by Thomas 1994 on page 43).

Thomas concluded from her review of the 1990 files,

Extended family contact is construed as the source of potential conflict and abuse, and as such must be tightly controlled by the Department. In contrast with Aboriginal demands which label state practices isolating children from their families as abusive, Departmental concerns lie with the extended family itself (Thomas 1994 page 42).

'Normal' Aboriginal practice signals a problem to many welfare workers. The files created in 1990 continued to demonstrate welfare workers' perception of Aboriginality as a cause of delinquency and problems. Behaviour in both periods was frequently stereotyped in a racist way.

Potential foster mother can already sense that she may already have Aboriginal tendencies, as she can be happily playing in the school ground with the other children and all of a sudden cut off and 'go walkabout'.

I think failure as human beings may be an issue which will come up as that is a common experience with Aboriginal people (Thomas 1994 page 38).

Attitudes in 1990 were contradictory. In some files the child's Aboriginality and relationship with the community are seen as central and in others they are ignored. While recognition of the child's Aboriginality had improved by 1990, there was a continuing failure to contextualise the child's needs. There was also a failure to address racism in the education system, housing problems, lack of family relations where placement with a non-Indigenous family had broken down and more generally poverty and structural factors resulting in interventions.

A study of 335 children's case files in WA found that the exercise of discretion by welfare officers affects Indigenous children in an adverse manner (Thorpe 1994 page 170). Definitions of neglect are more subjective and culturally particular than definitions of abuse. This may contribute to the large number of Indigenous children found to be neglected. There has been no specific research into whether cultural bias contributes to the high percentage of substantiated neglect cases. However, cultural bias within welfare departments suggests that this is likely. A further factor is the high level of poverty in Indigenous communities.

Systemic inequalities

Submissions to the Inquiry reflected communities' grave concerns about social breakdown and its consequences, including alcohol, petrol and other substance abuse, domestic violence, poor nutrition, child abuse and other consequent problems. The primary reason for welfare intervention in Indigenous communities is neglect. Social inequality is the most direct cause of neglect. Adequate family assistance could make major inroads.

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

Aboriginal families continue to be seen as the 'problem', and Aboriginal children continue to be seen as potentially 'savable' if they can be separated from the 'dysfunctional' or 'culturally deprived' environments of their families and communities. Non-Aboriginals continue to feel that Aboriginal adults are 'hopeless' and cannot be changed, but Aboriginal children 'have a chance' (Link-Up (NSW) submission 186 page 85).

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

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

Despite changes of names from Department of Community Welfare to the Department of Community Development to the Department of Family and Children's Services (FCS) [WA] many Aboriginal people feel that the Department has remained a welfare institution reminiscent of Native Welfare. FCS still wields statutory control over families struggling to survive. Decisions which affect the lives of children are frequently made by staff without discussion with Aboriginal families. Many people facing crises with their families will often not seek assistance from the department because of their association with 'Welfare' who took the children away (Kimberley Land Council submission 345 page 28).

It is not surprising, given the experiences of present and earlier welfare policy and practices, that Aboriginal perceptions of the current role of DCS [NSW] remain overwhelmingly negative. Despite the employment of Aboriginal field workers most interviewees expressed suspicion of and antipathy towards, DCS. Despite changes to policy and legislation, DCS practice remains, in the opinion of those interviewed, culturally inappropriate (Learning From the Past 1994 page 58)

Families are concerned that any contact with FACS [SA] may result in their children being removed. Hence for programs involving the well-being of Aboriginal children to be successful, they need to be managed by and operated from Aboriginal organisations (SA ACCA submission 347 page 37).

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

Failure to address serious problems within communities has been identified as being 'fuelled' by systemic problems with the provision of child welfare services to Aboriginal communities (Atkinson and Memaduma 1996). Cultural distortion together with incapacity to cope with the extent of the problems has led to Aboriginal children remaining in abusive situations which non-Aboriginal children would not be left in. Further it has prevented a constructive approach being taken to addressing 'crisis' situations.

... too frequently in the area of child abuse, and similarly in the area of domestic violence there is a covert ideology that because these concerns are so significant among Aboriginal communities, their existence is presumed to be culturally sanctioned. This form of cultural reductionism, acts as a form of cultural apology, perpetuating and exacerbating the crises of child abuse in Aboriginal communities. Such a view has several critical attitudinal consequences amongst workers in their service understanding and intervention response.

The cultural apologist position enables planners and workers to adopt a position of inevitable resignation over the problem of child abuse in Aboriginal communities, 'what else can you expect, that's the way Aboriginal people go on - you cannot expect any better'. Such an approach is clearly, an extreme form of cultural determinism, where child abuse is seen as a function of Aboriginal culture and not a consequence of the structural context of Aboriginal life in this country (pages 13-14).

Welfare officers may feel uncertain about when it is appropriate to intervene in an Indigenous family in crisis. The Sydney Aboriginal Mental Health Unit complained of intervention occurring too late.

There is a failure to involve appropriate Aboriginal professionals at an early notification stage, involvement is always later ...

The recognition of the shameful legacy of the forced removal of children by government departments has led to a paradox of inaction. Community Services when notified of abuse or neglect frequently do nothing, hence compounding a situation of abuse and neglect.

As a result of critical inaction, a child will sometimes suffer for an unnecessarily prolonged period and when action is taken, removal ensues because of the established chronicity. Involvement of appropriate Aboriginal professionals is often not instigated at the early notification phase, when a situation could have been most easily remedied.

Hence the initial official neglect compounds the cycle of continued removal of children (submission 60 pages 4-5).

Ineffective responses to structural problems and individual circumstances lead not only to separations through late intervention but to loss of children through suicide, cultural breakdown and social disintegration. This loss is a serious concern to many communities.

A number of submissions to the Inquiry suggested that for many Indigenous children separation from land and kin was an extreme form of abuse and that the threat of children being removed was so frightening that the threat was abusive itself.

In relation to understanding the concept of abuse in Anangu terms, the women were emphatic that the most destructive and harmful form of abuse which could be inflicted on any child was removal from their country and loss of their cultural heritage. This was identified as a form of emotional and mental abuse which could result in physical illness for the child (Harrison 1992 page 11).

The WA Working Party on Guidelines for the Assessment of Aboriginal Caregivers similarly recognised,

Not telling children who their relations and country are is regarded by Aboriginal people as one of the most destructive and harmful forms of abuse (WA Government submission, Attachment 4 page 10).

Bureaucratic procedures

Indigenous people often see welfare departments as unable to assist them and their communities. They perceive the departments as bureaucracies which require a lot of paperwork, judge Indigenous people's lives and ultimately remove their children. The Inquiry was told repeatedly of the difficulty Indigenous carers encounter in obtaining the financial and other support they need to care for children. Kin care is often placed under stress because of a shortage of food and other necessities. Sometimes assistance which is provided does not go to the person caring for the child. Frequently women found the Department of Social Security inaccessible. They could not handle the paperwork required to obtain assistance. At a community level Aboriginal organisations are often not linked into grant and funding programs and hence miss out on the opportunity to access funds from the range of available sources.

Older Pitjantjatjara women on the AP lands describe their experience of Family and Community Services 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. This perception contrasts with the view of the Chief Executive Officer of SA Family and Community Services.

... the 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 (Mr Richard Deyell evidence).

The experience of Indigenous agencies contradicts government rhetoric of enhanced consultation and cultural sensitivity.

... the reality is that child welfare officers who had three months training in some diploma course at TAFE are the ones who are exercising the rights over the ultimate destination of Aboriginal children. They have no understanding of the Aboriginal community. They have no knowledge of the culture of Aborigines. They have no understanding whatsoever in those courses about the disadvantages that Aboriginal people suffer and yet ... they are the people who are exercising the delegated authority of the Director in determining what will happen to those kids (Michael Mansell, Tasmanian Aboriginal Centre, evidence 325).

Children with disabilities

Indigenous children with disabilities are over-represented in all welfare statistics, particularly in non-Indigenous substitute care. In May 1995 Aboriginal children represented 79% of all children with disabilities in care in the NT. Just over one-half (53%) of children in care were Aboriginal and almost half of these children had disabilities. Only 37% of Aboriginal children with disabilities were placed with Aboriginal carers (NT Government interim submission pages 54 and 56).

In August 1995 the first general meeting of people with disabilities, their carers and families took place on AP lands (South Australia). Anangu at the meeting said that disabled people on the lands are 'ngaltujara mulapa' - 'truly unfortunate' and the most disadvantaged.

Many people spoke about the needs of these children to learn their own culture and language, including 'mara wangkani,' Anangu hand signs, instead of Australasian sign or Makston. Anangu also talked about welfare policies sounding good, but not resulting in any action on a community or family level ... There was much discussion about Anangu starting their own welfare service based on the lands (Uwankaraku Meeting Report 1995 page 9).

The meeting set guidelines including,

• Compulsory cross-cultural training for non-Aboriginal foster families.
• Make plans for children with disabilities so everyone knows the story with families on top, not foster families and Welfare.
• More funds needed to make this work.
• Disability ngura (supported accommodation) for children with disabilities on the lands.
• Communities and Aboriginal organisations to take over more of the welfare role.
• Welfare needs to help families to visit their children by paying for the trips (Uwankaraku Meeting Report 1995 page 10).

These guidelines reflect the needs of many Indigenous communities, particularly remote communities or communities where disability facilities are not available. The NSW Council for Intellectual Disability pointed out in a submission to the Inquiry the incoherent and confused law, policy and practice affecting children with disabilities which have particularly negative effects on Indigenous children.

Aboriginal children and young people with intellectual disability are in a position of double jeopardy, being devalued not only on the basis of their disability, but also their Aboriginality. Where Aboriginal children and young people with disabilities originate from rural and remote communities they are multiply disadvantaged (submission 848 page 3).

The Council noted the low participation rate of Aboriginal people in disability services and suggested this may lead to inappropriate welfare intervention being the only support available (page 5). The Council also noted that Indigenous children easily disappear into long-term non-Indigenous residential care without being detected. Other matters raised included the failure of services under the Disability Services Act 1993 (NSW) to cater for Aboriginal children. The Act has established service principles which include the requirement to meet the needs of persons with disabilities who experience additional disadvantage including Aboriginal people to 'recognise the importance of preserving family relationships and the cultural and linguistic environments of persons with disabilities' and to establish transition plans where these needs are not met. However, the Council has reviewed several hundred of the 850 transition plans developed for specialist disability services and not a single plan addresses reunion of Aboriginal children with their families or takes steps to establish plans for substitute care arrangements for Aboriginal children with their family or community (submission 848 page 10).

In practice the Aboriginal Child Placement Principle appears to have only limited application for Indigenous children with disabilities. This situation urgently needs to be acknowledged and addressed.

Conclusions

Welfare legislation and the language of welfare policy have changed. However, submissions to the Inquiry from Indigenous organisations working with Indigenous families indicate little change in practice. Paternalistic attitudes persist in welfare departments. Indigenous children continue to be severely over-represented within all State and Territory welfare systems. Departmental attempts to provide culturally appropriate welfare services to Indigenous communities have not overcome the weight of Indigenous peoples' historical experience of 'The Welfare' or the attitudes and structures entrenched in welfare departments.

Submissions to the Inquiry urged that culturally-appropriate welfare-related services are most effectively provided by Indigenous organisations.

The Department of Community Services [NSW] should be reformed, or they should not have the responsibility of dealing with Aboriginal families. If DOCS is to be reformed then there needs to be drastic changes which ensure that the Aboriginal community is adequately consulted when any decision is made about the placement of an Aboriginal child. For example, a community panel could be created which sits as a consultative body when placement decisions are made. Alternatively a new organisation could be created which serves to empower the Aboriginal communities by providing the Aboriginal community with a real role to play in the management of child welfare within their own community (Western Aboriginal Legal Service (Broken Hill) submission 775 page 27).

Real control over the delivery of our citizenship rights needs to be handed over to Aboriginal organisations and legitimate representative groups ... Until this occurs then organisations such as Tangentyere Council will continue to struggle on shoe string budgets to deliver services to, and act as advocates on behalf of Aboriginal families whose lives are still impacted on by futile mainstream services, that use terms such as 'culturally appropriate' and have absolutely no idea what this means (Tangentyere Council submission 542 page 2).

All State and Territory governments have recognised the importance of Aboriginal self-determination or self-management in the provision of welfare services to Indigenous peoples. If the gap between intentions and experience is to be narrowed or closed these meanings and implications must be addressed.

For many Indigenous communities the welfare of children is inextricably tied to the well-being of the community and its control of its destiny. Their experience of 'The Welfare' has been overwhelmingly one of cultural domination and inappropriate and ineffective servicing, despite attempts by departments to provide accessible services. Past and current legislative and administrative policies together with bureaucratic structures and mainstream cultural presumptions create a matrix of 'Welfare' which cannot be reformed by means of departmental policy alone. If welfare services are to address Indigenous children's needs they need to be completely overhauled. Welfare services must be provided in a manner which is accepted by communities.

While broad schemes are administratively convenient, communities vary significantly in their aspirations, capacities and awareness of options. Child welfare models should be sufficiently flexible to accommodate these variations. Ultimately, child welfare appropriate to each community and region should be negotiated with those whose children, families and communities are the subjects of the system. Negotiation clearly implies empowerment of Indigenous parties and recognition of their true partnership in the reform process.

Endnotes

1. WELSTAT data are marred by inconsistency and variable quality between jurisdictions and overall are incomplete. All State and Territory welfare departments keep records of children in out-of-home care, whether placed by government or by private agencies. Varying definitions are used for the collection and collation of data. All agencies break down the figures into a range of categories including whether the child is Indigenous. The accuracy of this breakdown is not clear although it is known that a number of children who are Indigenous are not recorded as such. It is particularly difficult to make comparisons between States and Territories on the rate of children under departmental attention, and particularly in out-of-home care, because departments use different definitions and categories in the collection of data.

Nonetheless the data available clearly indicate serious over-representation of Indigenous children in all stages of contact with welfare systems. The level of over-representation increases as the level of intervention increases. Indigenous children are over-represented in all categories. Their over-representation is markedly higher among children removed for neglect compared with abuse. Torres Strait Islander children in Queensland - where the largest Torres Strait Islander population lives - appear to have higher rates of notification and substantiated findings of abuse compared with Aboriginal families.

Lance

Dad died when I was about two. My parents were married, but they often lived apart. When I was a little kid, they gave me to an Uncle and Auntie and the police took me away from them and put me in a Home. I have never been with my brothers and sisters at all. They were also put into the same Home. My brothers and sisters did not know that I existed until a nun said, 'Come and meet your little brother'. I have some contact with them now. I see them once every six months. To me they are like acquaintances.

If I was in a stable Aboriginal family, I wouldn't have the problems I have now - identifying myself as Koori. For ages I despised my parents; how could they just dump me in this Home? I hated them for what they were - Koories. I therefore hated Koories. I hated myself because I was Koori.

St Joseph's Home - Sebastopol - is where I grew up. It was run by nuns wearing black habits. The only Aboriginal kids there were just me and another bloke. There were girls there too. I stayed there for seven or eight years. I bloody hated it. I remember going to bed crying every night and wetting the bed every night and every day moping around unhappy. I hated authorities. The nuns were really strict on you. We had a big dormitory where the boys slept. I used to go to bed crying. I remember a nun with a torch saying, 'Stop crying'. I hid my head. She came back and hit me on the head with the torch. I still have the scar today.

I did not know I had brothers and sisters ...

I did not know I had brothers and sisters until I was aged twelve. I thought, 'How come I did not know about it? Where were they? How come they did not come and play with me?'. You did not really want to know them and find out Mum and Dad kept them and threw you away. You'd realise your fears were true.

Lake Condah Mission is where my parents came from. I suspect they grew up with their parents. My parents moved around heaps, although my mother doesn't now. We have a love/hate relationship. She loves me, but I hate her. I have never had a Birthday Card or Christmas Card. She is just a Mum in that she gave birth to me.

At age eight I was adopted out to these white people. They had three children who were a lot older - in their thirties and forties. I get on with them well. They send me Christmas Cards and Birthday Cards. It is good having people like that, but sometimes you know you are not really part of the family. You feel you should not really be there, eg, 'Come along Lance we're having a family photo taken'. I have not told them how I feel. They have tried real hard to make me feel part of the family, but it just won't work.

I got up to Year 11 at School. I got a lot of flak, 'How come your parents are white?'. On Father and Son Day, 'Is he the Postman or what?'. It was pretty awkward. It was always awkward. I was always a shy kid, especially among my Father's friends. 'Here is my son'. They would look at you. That look. 'You're still together?'. I remember waiting for my Mother at her work, which was a bakery. A bloke asked me, 'Where is your Mum'? He searched for an Aboriginal lady. I wished God would make me white and these people's son instead of an adopted son.

I still call them Mum and Dad. But when I go to my real Mum, I find it real hard to call her my 'Mum' because she has just been another lady - OK a special lady. Mum's Mum [ie adoptive mother] because she was there when I took my first push bike ride and went on my first date.

After Year 11, I got a couple of jobs. I got into heaps of trouble with the Police - drugs and alcohol. I could get my hands on it and escape and release my frustration. I saw Police ... their fault as well as with me being taken away from my family. Slowly that decreased because a couple of cops came to my place, just to see how I was doing and just to talk to me. You can see the effects of stuff, such as alcohol, so I don't drink anyway. Alcohol took me away from my parents, who are chronic alcoholics. Mum is and Dad was. It took my brother [car accident at 18 years, high blood alcohol reading].

Three years ago I started taking interest in Koori stuff. I decided at least to learn the culture. I did not find the stereotype. I found that we understood what we were and that we were on a wave-length. I made a lot of friends and I am yet to make more. It becomes very frustrating. I am asked about a Koori word and I don't know. You feel you should know and are ashamed for yourself. I feel Koori, but not a real Koori in the ways of my people.

It is hard to say whether I was better off being taken away because the alternative never happened. I think the people I went with were better off economically and my education was probably better than what it would have been otherwise. I might have ended up in jail. I may not have had two meals or none and fewer nice clothes and been less well behaved.

If someone tried to remove my kids - over my dead body. I'd pack them up and move them away. Not the shit I've been through - no.

Confidential submission 154, Victoria: removed 1974.