Editors --- "Protecting Children: An Inquiry into Abuse of Children in Foster Care - Digest" [2004] AUIndigLawRpr 17; (2004) 8(4) Australian Indigenous Law Reporter 81

Inquiries and Reports - Australia

Protecting Children

An Inquiry into Abuse of Children in Foster Care

Queensland Crime and Misconduct Commission

January 2004

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Chapter 8: Indigenous Children

This chapter examines particular issues that Indigenous children and their families face when drawn into the child protection system in Queensland. ... [Many of the] recommendations made here ... apply as much to non-Indigenous children as to Indigenous.

The chapter begins with a brief demographic profile and a reminder of the historical treatment of Indigenous people in Queensland, which provides a useful context for many of the concerns raised by Indigenous people during the Inquiry. The chapter also outlines the provisions of the Child Protection Act 1999 that specifically relate to Indigenous children, before addressing the specific concerns that came to the foreground during the Inquiry.

Central to this chapter is a discussion of the role of the Aboriginal and Islander Child Care Agencies (‘AICCAs’) in providing child protection services for Indigenous children. The Commission acknowledges that the integration of AICCAs within the broader child protection system requires further attention, but is nevertheless persuaded that without the cooperation of AICCAs, or equivalent agencies, it will not be possible to provide the level of service Indigenous children are entitled to receive.

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Historical Overview

The treatment of Indigenous people since the colonisation of Australia has been both dramatic and traumatic. As Justice Michael Kirby noted, in terms of Aboriginal people and the law:

A charitable interpretation of the relationship between the Australian legal system, post-1788, and the Indigenous Aboriginal people of the continent is that it is a tale of indifference and neglect. A less charitable interpretation is that it represents a cruel assertion of power: sometimes deliberate, sometimes mindless, resulting in the destruction of Aboriginal culture, unparalleled rates of criminal conviction and imprisonment and massive deprivation of property and land. (Hazelhurst 1987, p 15.)

Since colonisation, laws have been passed by various Australian governments to monitor relations between Indigenous people and other Australians. State governments sanctioned the removal of Indigenous children from their families, particularly half-caste children. This forcible removal of children from their families became, in the experience of many Indigenous people, the dominating intervention practice characterising the child welfare system. (The children so removed are now referred to as the ‘stolen generation’.)

In 1865 the Queensland Industrial and Reformatory Schools Act was passed, which defined ‘any child born of an Aboriginal or half-caste mother’ as a ‘neglected child’. ‘Aboriginality’ therefore constituted neglect and provided a legal justification for the forcible removal of Indigenous children, who could then be placed in the ‘dormitory system’ on mission stations, industrial schools, homes and reformatories.

In 1897 the Queensland Aboriginal Protection and Restriction of the Sale of Opium Act was passed; this provided that any person of Aboriginal descent, except mixed race males over 16 years and living as Europeans, could be declared wards of the state and exiled to a reserve, effectively abolishing their legal rights. This Act also established the position of ‘Protector of Aborigines’ and empowered the position with almost total control over Indigenous people. By the early 1930s about one-third of Indigenous people in Queensland were living on missions and settlements (HREOC 1997).

In 1939 the Queensland Aboriginal Preservation and Protection Act and the Torres Strait Islander Act were passed. These Acts established the Office of the Director of Native Affairs (who was the legal guardian of every Aboriginal child in the state), as well as the policies of preservation and protection. The director, who replaced the Protector of Aborigines, was made guardian of all Indigenous children under 21. At that time there were approximately 16 500 Indigenous people within the control of the government on settlements, missions and camps (Queensland Government 2001). It was not until the 1960s that the policy of ‘assimilation’ was formally abandoned by the Commonwealth Government. In 1965 the Queensland Government passed the Aboriginal and Torres Strait Islander Affairs Act. This Act provided that each Queensland Aborigine would be born a ‘free citizen’ unless in need of ‘assistance’. Community residents now needed official permits to live on a reserve, although these could be revoked by the director (who retained the power to transfer people arbitrarily between communities).

The Human Rights and Equal Opportunity Commission report on the stolen generation noted that:

Nationally we can conclude with confidence that between one in three and one in ten Indigenous children were forcibly removed from their families and communities in the period from approximately 1910 until 1970. In certain regions and in certain periods the figure was undoubtedly much greater than one in ten. In that time not one Indigenous family has escaped the effects of forcible removal. Most families have been affected, in one or more generations, by the forcible removal of one or more children. (HREOC 1997, p 37.)

It was not until 1971, with the passing of the Aborigines Act and the Torres Strait Islander Act, that the powers of removal were abolished.

Child Protection Today

Child protection within Indigenous communities continues to be affected by the legacy of the stolen generation. There is much evidence of the existence of ongoing suspicion within the Indigenous community about the motives of government officials, who are still frequently viewed as coming to ‘take the children away’. This suspicion, although understandable, complicates child protection matters within the Indigenous community where the long-term consequences of colonisation and socioeconomic disadvantage have contributed to a ‘dysfunctional community syndrome’. Communities plagued by high rates of alcohol and substance abuse and disturbing levels of family violence are not surprisingly also characterised by having unacceptably high numbers of children who are vulnerable to neglect and abuse. The consequent over-representation of Indigenous people in the child protection system is evident in all Australian states.

According to recent figures provided to the CMC for the Inquiry ... in Queensland as at 30 June 2003 there were 3642 children on long- and short-term guardianship, short-term custody and temporary custody orders, 23 per cent whom were identified as Aboriginal or Torres Strait Islander.

The Queensland Government submission to the Inquiry also states that ‘Aboriginal and Torres Strait Islander children continue to represent a quarter of those in care, despite forming 5.7 per cent of their age range’ (2003).

Further data from the department show that 145 notifications about children in care concerned Indigenous children in 2003 (24 per cent of the total of 605 cases notified) and that these figures have increased steadily over time, as have the figures for non- Indigenous children ...

On 13 November 2003, the Productivity Commission released its report Overcoming Indigenous Disadvantage: Key Indicators 2003. In Queensland there were 7348 cases of substantiated notifications for children (aged 0–16 years) in 2001–02; 795 of these were in relation to Indigenous children, which equates to over 10 per cent of the total number of substantiations.

The Productivity Commission’s report further notes that 50 per cent of the substantiations in Queensland for Indigenous children (aged 0–16 years) were for neglect, compared with 37 per cent for non-Indigenous children. The remaining substantiations were 23 per cent for physical abuse (24 per cent for non-Indigenous children), 21 per cent for emotional abuse (33 per cent for non-Indigenous children) and 5 per cent for sexual abuse (6 per cent for non-Indigenous children).

The Australian Institute of Health and Welfare (2000) noted the following factors as ‘significant’ in the over-representation of Indigenous children in substantiated cases of child abuse and neglect, and in alternative care:

• poverty
• poor socioeconomic status
• differences in child-rearing practices
• intergenerational effects of previous separations.

In relation to the last factor, it is said that the stolen generation has created a disruption to the normal process whereby children learn parenting skills from their own parents:

Social justice measures taken by governments should have special regard to the inter-generational effects of past removals. Parenting skills and confidence, the capacity to convey Indigenous culture to children, parental mental health and the capacity to deal with institutions such as schools, police, health departments and welfare departments have all been damaged by earlier policies of removal. (HREOC 1997, p 557.)

Although Indigenous children are over-represented within the child protection system, the evidence indicates that there is a serious under-reporting of cases of harm to children. Many factors have been identified in research as to why individuals are reluctant to make notifications. They include:

• a fear of retribution from the perpetrator for the disclosure
• shame about the abuse
• fears that children will consequently be ‘lost’ to the community
• a conviction that no action will be taken about the notification
• a belief that effective protection for the child will not occur because of a lack of appropriate services
• inadequate therapeutic assistance or support offered to victims of abuse.

In 1999 the report of the Aboriginal and Torres Strait Islander Women’s Task Force on Violence noted:

Although sexual abuse against children was discussed when the Task Force raised the subject, the reluctance to discuss it is a serious concern. A number of the male and female Elders acknowledged that sexual abuse was occurring, but they said ‘much of it is still not being discussed’.

Of paramount concern was the fact that a number of people had reported the sexual abuse of children to the police and to the Department of Families, Youth and Community Care, to no effect ... The primary concern, however, is the flaw in the current statistics regarding child abuse or child sexual abuse, due to the lack of response when cases are reported. Many Aboriginal woman believe that ‘it’s no use reporting sexual abuse because they don’t believe you anyway’. (Queensland Government 1999, p 99.)

This perception that government is less than fully committed to addressing child abuse issues continues to be held in many quarters.

The prioritisation system means that some cases which could benefit from early intervention are not responded to ... some notifications are not followed up on, or left for up to three months – depends on budget – there is a price on child protection. The department says they don’t have enough staff. (confidential consultation)

Child Protection Act 1999

There are a number of provisions in the Child Protection Act 1999 that refer specifically to Aboriginal and Torres Strait Islander children and their families. Section 6 is entitled ‘Provisions about Aboriginal and Torres Strait Islander Children’. Subsections (1) and (2) of that section apply to ‘decisions’ (the term is not defined in the Act) by the director-general or an authorised officer of the Department of Families, under the Act, about an Aboriginal or Torres Strait Islander child. Section 6(1) effectively provides that such decisions must be made only after consultation with the ‘recognised Aboriginal or Torres Strait Islander agency for the child’. If consultation is not possible before making the decision, then it must take place as soon as practicable after making the decision (see s 6[2]). The Act further states (see s 6[3]) that, where the director-general or an officer of the Department of Families or the Children’s Court exercises a power under the Act in relation to an Aboriginal or Torres Strait Islander child, the person exercising the power must have regard to:

(a) the views of the recognised Aboriginal or Torres Strait Islander agency for the child and Aboriginal traditions and Island custom relating to the child; and

(b) if it is not practicable to obtain the agency’s views — the views of members of the community to whom the child belongs; and

(c) the general principle that an Aboriginal or Torres Strait Islander child should be cared for within an Aboriginal or Torres Strait Islander community.

Section 7 sets out the general functions of the director-general, which include helping Indigenous communities establish programs for preventing or reducing incidences of harm to children in the communities (s 7[f]); and consulting with recognised Aboriginal and Torres Strait Islander agencies about the administration of this Act in relation to Indigenous children (s 7[o]).

Additionally, and importantly, when placing an Indigenous child, the director-general must consult with the recognised Aboriginal and Torres Strait Islander agency for the child before a decision is made about where or with whom the child will live (see s 83). If this cannot be done prior to placement, it must be done as soon as practicable after the decision. Under section 83(4), when placing an Indigenous child the chief executive must:

give proper consideration to placing the child, in order of priority, with:



(a) a member of the child’s family; or



(b) a member of the child’s community or language group; or



(c) another Aboriginal person or Torres Strait Islander who is compatible with

the child’s community or language group; or



(d) another Aboriginal person or Torres Strait Islander.

Additionally, the director-general must give consideration to (see s 83[5]):

(a) the views of the recognised Aboriginal and Torres Strait Islander agency for the child; and



(b) ensuring the decision provides for the optimal retention of the child’s relationship with parents, siblings and other people of significance under Aboriginal tradition or Island custom.

Key Concerns Raised at the Inquiry

The remainder of this chapter deals with the concerns that came to the foreground during the Inquiry. They are grouped under the following six headings:

• the role of Aboriginal and Islander Child Care Agencies (AICCAs)
• the Indigenous child placement principle
• placement options
• recruitment of specialised carers
• children and biological parents
• issues from Cape York, the Gulf and Torres Strait regions
• consultation.

Before turning to these issues, it is important to bear in mind the following points about how the new Department of Child Safety (‘DCS’) could respond to concerns relating to Indigenous children in care. It is not the view of the Commission that there need be separate regimes for protective services applying to Indigenous and non-Indigenous children. While there are clearly issues specifically relating to Indigenous children that are not present (or not to the same degree) for most non-Indigenous children, this does not mean entirely separate services and/or delivery mechanisms need to be established.

Central to service delivery of the DCS will be an expanded range of response options for the needs of children in care. The ‘mix’ of the response options drawn upon will vary (sometimes markedly) in different communities, but the general suite of response options available to the DCS will, as far as practicable, be consistent and applied on the basis that all children are entitled to an equivalent quality of service provided by the DCS.

Having said this, however, there is one clearly important service delivery mechanism that will continue to apply only to Aboriginal and Torres Strait Islander children: the Aboriginal and Islander Child Care Agencies (‘AICCAs’), the role of which is discussed in detail below.

The Role of Aboriginal and Islander Child Care Agencies (AICCAs)

The Commission is convinced that the AICCAs, or equivalent community-based bodies, will need to play a pivotal role in the reformed system of child protection in Queensland.

Essential to the success of a new approach to protecting children is for that approach to be accepted by the affected communities. For this to occur, service delivery must be genuinely sensitive to the complexities of the communities in the light of a longstanding (and entirely understandable) distrust of government agencies with extraordinarily intrusive powers.

The Commission believes that AICCA-type organisations currently provide the only logical mechanism for delivering key aspects of child protection services for Indigenous children. There are no other mechanisms available at present that satisfy the two vital criteria of sensitivity to cultural factors and acceptability to the communities concerned. Complicating this view, however, is the evidence that the Department of Families is currently dissatisfied with the capacity of some AICCAs to operate transparently and in accordance with their service delivery agreements.

The Commission is not in a position to reach conclusions on these issues and does not believe AICCAs should be in any way exempted from standard accountability requirements pertaining to the expenditure of public monies. However, the Commission is persuaded that AICCAs have the potential to be crucial to the success of child protection for Indigenous children, and, therefore, if these organisations need help in complying with accountability requirements, such help should be provided.

The concept of Aboriginal and Islander Child Care Agencies originated from the Aboriginal Legal Service in Victoria in the 1970s, following the successful implementation of similar agencies by Native Americans, which reduced the rate of child removal in their own communities. The first AICCA was established in Victoria, with other AICCAs set up soon after in the early 1980s in all other Australian states and territories (Briskman 2000). The basic principles behind the agencies are:

• self-determination
• the right to bring up children as Aboriginal and Torres Strait Islander children, and the right to rear children in a way that is uniquely Aboriginal and Torres Strait Islander in relation to their particular community, language, custom, culture and religion
• the need for additional assistance to families and children arising from the comparative socioeconomic disadvantage of Aboriginal people (Butler 1993).

The specific responsibilities of each AICCA in child protection vary from state to state, according to the capacity of the organisation, the level of demand, and the support the AICCAs receive from their respective funding bodies. Typically, they provide community and family input into decisions regarding the welfare of the children (Butler 1993). Within Queensland there is some regional variation, but the main objectives are to:

• support families
• keep families together
• reduce the need for children to be removed
• ensure that children are kept close to family and within their Indigenous community if they are removed
• provide advice to the department on placements.

It is not the role of the AICCAs to remove children from their families or to investigate reported cases of abuse or neglect.

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Recommendations

8.1 That the government recognise the ongoing need for independent community-based Indigenous organisations, and that these organisations be provided with the necessary support and resources to provide culturally appropriate child protection services to the Indigenous community. This support should include training and professional development, as well as assistance complying with service agreements and accountability requirements.

8.2 That, where AICCAs have been de-funded, they be replaced by appropriate independent Indigenous organisations that have the support of their local community and that, wherever possible, these organisations employ staff with backgrounds in child protection.

Reason (8.1 and 8.2): The new child protection system envisages a continuing role for independent Indigenous organisations, operating in an effective and culturally appropriate manner within local communities.

8.3 That, in acknowledgment of the extent to which cultural factors draw AICCAs into the delivery of prevention services, the nature of both the service agreements and the funding of individual AICCAs be carefullyreviewed.

Reason: Clear links between funding and the performance of child protection services are necessary, in order to support the enhanced focus on child protection work in the new DCS. The evidence suggests that the lines between prevention initiatives and alternative care services are frequently blurred in Indigenous communities. AICCAs cannot realistically be expected to operate effectively in delivering child protection services unless expectations about their delivery of these different types of services are clearly delineated.

Indigenous Child Placement Principle

As noted earlier, section 83 of the Child Protection Act states that, in deciding where to place an Aboriginal or Torres Strait Islander child, the director-general must give proper consideration to placing the child with (in order of priority):

• a member of the child’s family
• a member of the child’s community or language group
• another Aboriginal person or Torres Strait Islander who is compatible with the child’s community or language group, or
• another Aboriginal person or Torres Strait Islander.

Submissions made to the Inquiry highlighted the fact that, despite the provisions of the Act, the number of Indigenous children placed with non-Indigenous carers is relatively high, as is the number of children placed outside the community to which they belong. As at June 2003 there were 723 Indigenous children in out-of-home placements; and 245 (or approximately 34 per cent) of these were placed with non-Indigenous carers (data provided by the Department of Families 2003). It is important that the DCS work to improve the proportion of Indigenous children placed with Indigenous carers.

A number of Indigenous and non-Indigenous organisations called for independent monitoring of the department’s compliance with the child placement principle. The Commission is persuaded that independent auditing would be advantageous in informing the DCS’s operations, and that the Child Guardian should be responsible for monitoring DCS compliance with the Indigenous child placement principle. This function would readily fit within the new functions of the Child Guardian. Where the Child Guardian considers there has been inadequate compliance with the principle, that information should be raised with the DCS for explanation.

If resolution cannot be achieved between the Child Guardian and the DCS over a particular case, the matter could be referred to the Children Services Tribunal, as noted in Chapter 5.

The 2002–03 annual report of the Children Services Tribunal noted that there is only one Indigenous member on the 16-member tribunal, despite the fact that 30.5 per cent of tribunal matters involve Indigenous children (CST 2003). The tribunal acknowledged the need for increased Indigenous membership to reflect the growing number of matters involving Indigenous children brought before it. The Commission supports that call.

Important as the child placement principle is, the paramount consideration, in making a placement decision, must always be the welfare and best interests of the child. While section 5 of the Act says that the whole of the Act is to be administered in accordance with this ‘best interests’ principle, the CMC believes that section 83 should be amended to state specifically that, in giving proper consideration to the range of placement decisions expressed in the section, the best interests of the child remain paramount.

Recommendations

8.4 That DCS compliance with the Indigenous child placement principle be periodically audited and reported on by the new Child Guardian.

Reason: The child placement principle constitutes a fundamental recognition of the important and unique aspects of Indigenous culture. Giving effect to this recognition is central to a viable child protection service.

8.5 That the Indigenous child placement principle specifically state that a placement decision can only be made if it is in the best interests of the child.

Reason: The best interests of the child should be paramount in any decision, regardless of whether the child is Indigenous or non-Indigenous.

Placements with Non-Indigenous Carers

On 19 September 2003 the United Nations’ Committee on the Rights of the Child devoted its 2003 day of general discussion to the rights of Indigenous children. The recommendations of the committee included the following:

The Committee reminds States parties, in cases where it is in the best interest of the child to be separated from his or her family environment, and no other placement is possible in the community at large, institutionalization should only be used as a last resort and be subject to a periodic review of placement. In accordance with art. 20.3 of the Convention, due regard shall be paid to ensuring continuity in the child’s upbringing and to his or her religious, cultural, ethnic and linguistic background. (United Nations 2003.)

Given that a third of Indigenous children placed in foster care are placed with non-Indigenous carers (data provided by the Department of Families 2003), consideration could be given to amending section 83 of the Act so that it specifically provides for the situation where an Indigenous child is placed with a non-Indigenous carer. One instructive model is section 13(6) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), which provides:

The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander:

(a) Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community.

(b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.

Currently, section 83(5)(b) of the Child Protection Act requires the director-general, when making a placement decision, to give proper consideration to (in addition to the views of the recognised Aboriginal or Torres Strait Islander agency for the child):

ensuring the decision provides for the optimal retention of the child’s relationships with parents, siblings and other people of significance under Aboriginal tradition or Island custom.

It needs to be emphasised here, however, that any ongoing contact between children in care and their families must only be retained where it is in the best interests of the child.

Recommendation

8.6 That in situations where Indigenous children are placed with non-Indigenous carers, the child protection legislation should specifically provide that contact be maintained with their kinship group, where that is in the best interests of the child.

Reason: Separating any child from their biological parents is a dramatic intervention in the life of a child. The magnitude of this intervention should not be unnecessarily increased for Indigenous children by simultaneously removing the child from their cultural community.

Placement Options

Community groups consulted throughout Queensland consistently identified limited placement options as a particularly pressing concern, as noted in Chapter 7. The majority of Indigenous organisations also suggested that a much wider range of placement options needed to be made available in order to resolve the present problems. Some of the options identified were:

• safe houses
• emergency shelters for short-term placements
• group homes
• family-based care options
• children’s residential shelter for longer-term placements
• recruitment of specialised carers for children with high or complex support needs.

Safe houses

Potential placement options identified here included individual family safe houses (which are already operating informally in some communities), where alternative placements were limited or non-existent. Groups consulted stated that the children knew where the ‘safe houses’ were located, if they ever needed to use them.

Emergency shelters for short-term placements

Community groups advised the CMC of the need for emergency shelters for the temporary care of children who had to be removed immediately from their homes. Indigenous people said that using a facility such as this would allow more time for proper consideration of suitable longer-term placement options.

Group homes

Another option arising during the consultations was for properly funded group homes with appropriate carers to accommodate six to eight children, which would be suitable for short-term placements and of particular value for keeping sibling groups together.

Family-based care options

Community groups identified the need for family-based care options, which would incorporate working with the whole family on a range of issues such as parenting, and drug and alcohol issues. This option would have families with children living together, but under supervision and/or accessing therapeutic services such as a substance abuse management program. The option could also be used for transitional phases of family reunification programs.

This option would need to be resourced with support from appropriate professional specialist workers such as drug and alcohol counsellors, and psychologists. Professional staffing of the units was considered a very important issue:

Need residential facilities for mums and dads for prevention/intervention, eg units connecting into one – where they have to stay and care for children – have staff help to teach – drug and alcohol counsellors on hand, psychologists – drugs are a big problem in the community – there have been quite a few hangings. (confidential consultation)

Children’s residential shelter for longer-term placements

This option had widespread community support because appropriate long-term placements were non-existent in some communities. Like the family-based units/centres, these shelters would need to be professionally staffed. They would also need to define their functions carefully, to ensure that their usefulness did not suffer as a consequence of confusion about their actual purpose.

Recruitment of specialised carers

The CMC was told that the ability to find suitable carers (both general and relative) is difficult in the general community and very difficult in some Indigenous communities, for various and complex reasons. Those reasons include:

• inadequate training, support and respite for carers
• criminal history checks preventing approval of some carers.

The CMC consultations indicated that in some communities training for carers is nonexistent or inappropriate. Again, in the Indigenous community context, there is a pressing need for more appropriate training and support for foster carers. In particular, carers need specific training to deal with especially challenging placements such as children with disabilities and special needs.

A further reason why it may be difficult to recruit Indigenous carers may be the lack of respite in some communities. Comments made to the CMC included the following:

If carers ask for respite, the department will put it on their record as not being able to look after kids. The department offers no respite to carers.

Relative carers are treated like victims — asking for respite — the department uses this against them. The department responds to carers who want respite with ‘You obviously can’t look after them.’ It seems they are trying to cut carers altogether. (confidential consultation)

As recommended generally in Chapter 7, provision should be made for Indigenous carers to have enhanced access to respite care, and for adequate training and support (both financial and non-financial) to be made available to them.

It was also suggested to the CMC that the lack of Indigenous carers may in part be a consequence of the rigour of the criminal history checks conducted by the department. Departmental policies provide a framework for interpreting personal history information (Department of Families 2003). While the policy states that information must be considered in a fair and consistent way, the CMC heard that this did not always appear to be the case to those concerned.

Other consultations, however, suggested that the department will make inappropriate allowances when carrying out criminal history checks on Indigenous relative carers. This was not always seen as being in the best interests of children. The CMC was told of instances where the department has allegedly placed children in high-risk placements where there is known violence occurring in that family.

Recommendations

8.7 That, subject to consultation, provision be made for Indigenous carers to have enhanced access to respite care, and adequate training and support be made available to Indigenous carers (as recommended generally in Chapter 7).

8.8 That urgent attention be given to identifying ways of encouraging more Indigenous people to become carers.

Reason (8.7 and 8.8): Fundamental to the success of child protection services for Indigenous children are the services of Indigenous carers equipped to draw upon various placement options to meet the full range of needs of children in care.

Children and Biological Parents

There was widespread agreement during consultations that Indigenous children and parents had little or no knowledge of their legal rights once they had come to the attention of the child protection system. Indigenous groups frequently put forward the view that the Department of Families was taking advantage of this situation and not informing clients of their legal rights, or in some cases providing them with incorrect information. It frequently appeared to be the case that Indigenous children were largely unaware of what was happening to them once the department had intervened in their lives. It was also commonly reported that ‘the jargon’ or terminology regularly used by departmental representatives unnecessarily caused confusion and stress:

• The department’s terminology TAO, CAO, CPO etc. needs to be in basic English. The court process to determine orders alienates families and this sometimes occurs without parents being present, leading to powerlessness and confusion.

• The department has complicated orders — people are signing orders they don’t understand. People don’t know their rights regarding appeals/decisions. The department does not inform them.

• People are not informed of their legal rights before court proceedings [problems with Legal Aid forms]. This must be a priority. Because of the power imbalance with the department, clients don’t feel ‘they can put up a fight’.

• No-one tells the kids what’s happening. They are in oblivion. Emotional harm — more kids are traumatised in care.

• They don’t tell the parents their rights at the family meetings. Biological parents have no knowledge of their parental rights. (confidential submissions)

The new department will need to work in conjunction with biological parents, local community organisations and the recognised Indigenous child protection agencies to develop suitable case plans and communicate effectively with the children and other participants.

Recommendation

8.9 That departmental policies and practices recognise the rights of children and biological parents and reflect this recognition in culturally appropriate ways that allow for all parties to be fully informed of, and involved in, case planning for children.

Reason: It is undesirable to unnecessarily exclude biological parents from involvement in case planning because of a reluctance or inability to use culturally appropriate language and communication idioms.

Issues from Cape York, the Gulf and Torres Strait Regions

The culture of Cape York, the Gulf of Carpenteria and Torres Strait regions is especially characterised by isolation and remoteness. Living in these remote areas presents very particular challenges in terms of access to services and facilities for children and families. Community groups consulted expressed frustration and anger about the lack of appropriate and equitable child protection services, associated community services and general infrastructure characterising these remote regions:

• There has been no real increase in child protection funding in the Cape and some communities get little or no funding (eg, family support workers are given $12/hour) so it is difficult to attract workers within or outside the community.

• There is Shared Family Care in Cairns, yet nothing is set up for the communities or the Torres Strait. (confidential consultations)

Disproportionately high levels of alcohol consumption and violence in these communities markedly compounds child protection issues.

The issue of alcohol and violence is extremely prevalent in some of the communities, and the impact on the community and children is profound. Some stakeholders suggested that the introduction of individual alcohol management plans (in accordance with the recommendations of the Cape York Justice Study) had made a difference with regard to some of these issues. Reportedly, the level of violence and attendances at hospitals for trauma has been reduced where alcohol management plans (‘AMPs’) have been introduced in communities. It was further stated that the level of crime had also been reduced in one community (Courier-Mail, 11 August 2003).

During consultations the CMC also heard that:

Some of these communities have among the highest rates of foetal alcohol syndrome in the world.

The tragedy is downstream effects in terms of damaging education opportunities for those kids who would otherwise have potential and implications for the whole community.

We are getting a population of Aboriginal children who are never going to reach their full potential because of poor nutrition — poor brain growth. We have different standards for Aboriginal children, ie, if we were to report all of these kids with failure to thrive what would we do with them all? Currently just doing band-aid stuff and statistics show no improvement since 1997 with failure to thrive.

The children who are affected by foetal alcohol syndrome are often ‘disinhibited’, have higher rates of alcohol and drug abuse — therefore they are more vulnerable to sexual abuse — 7–14 per cent are failure to thrive, 34 per cent children have chronic malnutrition. Alcohol abuse is an underlying issue. (confidential consultation)

Some community groups stated that the problems in the communities were not just alcohol-related; there were also concerns regarding nepotism within some of the local Indigenous community councils, which had direct implications on how resources were allocated within the local community, including housing.

Overcrowding of the family house creates another plethora of problems. It is not uncommon to have 20 people living in a three bedroom house with one bathroom. (Courier-Mail, 6 August 2003.)

Notwithstanding these difficulties, it is important to recognise that the Inquiry was also told of communities with high levels of resilience and significant numbers of people who currently work with children and families on a voluntary basis who are keen to continue contributing to protecting children and supporting families.

The CMC is of the view that there are substantial community resources that could be drawn upon by the new DCS in partnership with these communities.

Recommendation

8.10 That the DCS provide culturally appropriate child protection services that take account of the drug- and alcohol-related problems besetting some remote communities. This will require the provision of specific support services to address the special needs of children requiring DCS intervention in these communities.

Reason: Geographical isolation should not mean that children in remote communities have unnecessarily limited access to the range of protective services available to children in more populous regions. This is particularly important given that some of the very remote communities are faced with problems so serious that only major interventions by government can be expected to resolve their difficulties.

Consultation

The Child Protection Act 1999 and associated departmental policies and procedures reflect the need to consult with the Indigenous community. Nevertheless, submissions made to the Inquiry consistently advanced the view that Indigenous organisations are not consulted in relation to Indigenous children, and that departmental officers fail to effectively and appropriately engage Indigenous community members (including biological parents) when an Indigenous child comes into the protection system.

The Act does contain confidentiality provisions and penalties for breaching them, but there are important exceptions to these, as noted in Chapter 7. The provisions in the Act are quite clear and allow the sharing of information that is directly related to a child’s protection or welfare.

Given an apparent reluctance or inability on the part of some departmental employees to share information with other stakeholders, it is considered that the governing legislation should explicitly regulate the department’s performance in relation to this issue.

Recommendation

8.11 That the child protection legislation reflect the importance of Indigenous participation in decision making. So as to remove any ambiguity, the legislation should explicitly state the types of ‘decisions’ requiring consultation. The department, in consultation with Indigenous agency stakeholders, should develop an agreed protocol for sharing information about children and families involved in the child protection system.

Reason: Indigenous people are entitled to informed participation in the decision making process when Indigenous children come in contact with the child protection system.

Placement Decisions

As stated in section 83 of the Act, the director-general must consult with the Indigenous agency for the child before a decision is made about placing an Indigenous child in care.

Once again, the CMC was told by many organisations that placement decisions were often made without reference to the Indigenous child care agency for that child. The Esther Centre, after consultation with Indigenous children and young people, noted:

in some cases the appropriate Indigenous agency or community member was not consulted during decision-making processes. (CMC 2003, p 252.)

Placements should not take place until the Indigenous organisation/agency has been included in the decision-making process and has provided advice regarding that child to the DCS. The Indigenous agency consulted must have a background in child protection issues and be sufficiently familiar with the family. For example, the agency must establish links within the community in order to fulfil this requirement. Priority must be given to advising the DCS of possible placement options for a child.

Where placements are urgent, and the appropriate agency cannot be consulted, a genuine effort must be made to do so as soon as practicable. There should be additional options available for Indigenous children — for example a children’s shelter within the community or a residential facility (as discussed earlier in this chapter), so that children do not have to be placed inappropriately.

There is a need to ensure that funding is provided to the Indigenous agency so that there will always be a person available to fulfil this consultation role. There may need to be a full-time or part-time position within the Indigenous agency dedicated exclusively to this function. The necessity for this will depend on the number of clients within the region, the geographical spread of clients and any other functions performed by the agency.

Recommendation

8.12 That the DCS ensure its officers comply with the department’s statutory obligation by consulting with an Indigenous agency before removing or placing an Indigenous child. A protocol (agreed between the department and the Indigenous organisation) must be developed to establish clearly how this consultation will occur.

Reason: Indigenous people are entitled to informed participation in the placement of Indigenous children, to ensure that placements are not only in the best interests of the child but also, where possible, in accordance with the Indigenous child placement principle.

Case-Management Plans

It was evident from consultations with various Indigenous communities that case planning for Indigenous children in care was too often inadequate or absent. The evidence here reflected the problems inherent in the child protection system as a whole. Comprehensive and appropriate case planning is considered fundamental in ensuring that decisions are always made in the best interests of the child and in accordance with the child placement principle.

Legislation in other Australian jurisdictions ensures not only that case plans are developed but also that they prescribe involvement from the Indigenous community where the child is of Aboriginal or Torres Strait Islander descent. In Victoria, where the Children’s Court makes a supervision, supervised custody, custody or guardianship order, a case-management plan is required (see s 120 of the Children and Young Persons Act 1989 [Vic]). The Act goes on to state that any decisions made as part of the case-planning process must, as far as possible, be made according to specific principles (see s 119[1][m]):

in the case of an Aboriginal child:

(i) decision-making should involve relevant members of the Aboriginal community to which the child belongs; and

(ii) in recognition of the principle of Aboriginal self-management and self determination, arrangements concerning the child, and his or her care, supervision, custody or guardianship, or access to the child, must be made in accordance with the principles listed in sub-section (2).

The principles listed in subsection (2) of section 119 are:

(a) persons involved in the arrangements mentioned in sub-section (1)(m)(ii) must be, or at least one of them must be, a member of the Aboriginal community to which the child belongs;

(b) if a person or persons of the class mentioned in paragraph (a) is or are not reasonably available for that purpose, the persons involved in those arrangements must be members of, or at least one of them must be a member of, an Aboriginal community; or

(c) if a person or persons of the classes mentioned in paragraphs (a) and (b) is or are not reasonably available for that purpose, the persons involved in those arrangements must be persons approved by the Secretary and by an Aboriginal agency as suitable persons for that purpose.

The CMC has not had the opportunity to engage in sufficient consultations to determine whether such provisions, if enacted in Queensland, would be of practical benefit to Indigenous children. However, the Victorian provisions do appear to have merit. The Commission recommends that the DCS consider these issues at further length and that DCS officers, wherever possible, consult with appropriate community members in the interim about relevant case-planning decisions.

Administrative measures would need to be established to allow this action to be properly implemented. For example, if case plans are to be regularly reviewed (say every six months, as recommended) DCS might determine to consult by notifying the AICCA, as well as other Indigenous people involved in the process, such as parents and carers.

Recommendation

8.13 That the DCS consult with appropriate community representatives in the case-planning processes for Indigenous children.

Reason: The involvement of Indigenous people in the case-planning process should ensure that the best decisions are made for the child.

...

Endnotes omitted.

A full copy of this report is available online at

<http://www.cmc.qld.gov.au/FCINQUIRY.html> .