Cunneen, Chris; Libesman, Terry --- "Removed and Discarded: The Contemporary Legacy of the Stolen Generations" [2002] AUIndigLawRpr 55; (2002) 7(4) Australian Indigenous Law Reporter 1

Commentary

Removed and Discarded: The Contemporary Legacy of the Stolen Generations

Chris Cunneen and Terry Libesman*

Introduction

This article is based on an analysis of the NSW Department of Community Services case files of Indigenous children who were found to be neglected or emotionally abused in 1996-97. The research reviewed files from the date of initial contact with the Department up until 1999. The research was undertaken after the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families 1997 (NIATSIC) identified serious deficiencies in information about contemporary welfare removals of Indigenous children in Australia.

Data presented to the National Inquiry demonstrated a disproportionately high rate of Aboriginal and Torres Strait Islander children in contact with child welfare services compared with other children. The disproportion increased with the severity of welfare intervention. As at 30 June 1997 the rate of Indigenous children on care and protection orders in NSW was 25.6 per thousand children which is over six times the rate for other children in NSW.[1] The rate of Indigenous children on care and protection orders in NSW as at 30 June 2001 was 37 per thousand children which is over nine times the rate for other children in NSW.[2] This would suggest that the over-representation of Indigenous children within the child protection system is not ameliorating.

Submissions from Indigenous organisations to the Inquiry, as well as individual evidence and other anecdotal material, suggested a high level of dissatisfaction with the New South Wales Department of Community Services policies and practices in relation to Indigenous families. Very little quantitative or qualitative research evaluating departmental involvement with Indigenous families has been conducted and it is within this context that the following research was developed.[3] At a broader level the research has been undertaken to identify and evaluate how departments intervene in practice specifically where there have been allegations of emotional abuse or neglect. The research identified Indigenous children who had substantiated cases of emotional abuse and neglect before the New South Wales Children’s Court during 1996/97. The files of these cases were obtained from the Department of Community Services and formed the substance of the research.

While the research specifically identified substantiated cases of neglect and emotional abuse, many of the files raised issues with respect to identification of and departmental responses to sexual and physical abuse of children.

Methodology

The aim of our research was to systematically investigate contemporary cases of neglect and emotional abuse involving Indigenous children. We were interested in those cases where the court had found the complaint to be substantiated. The investigation involved both quantitative and qualitative research methods. Initial research involved matching the New South Wales Children’s Court database, held by the Department of Juvenile Justice, with the Department of Community Services database, the Client Information System (CIS). Neither database in itself held all the information we required so information on both systems was necessary. Matching the systems was also necessary so that the case files from the Department of Community Services, where the complaint had been successfully upheld in court, could be identified.

Children’s Court data for the financial year 1996-1997 was selected as the base for the research. There were 1632 welfare matters determined in the court during that period. Of the 1632 court matters, some 1384 records had corresponding Department of Community Services records. This constituted 84.8 per cent of the total number of court records. The matching between the two databases was conducted on the basis of surname, given name and date of birth. It is probable that the unidentified cases arose through various typographical errors and incomplete or inaccurate entries in these fields on the databases.

Of the 1384 cases, we initially identified 67 Indigenous children who had substantiated cases where they had been assessed by the Department for neglect or emotional abuse. Through the use of the CIS numbers we ordered the files relevant to these cases. Four files which had been identified as part of the relevant group could not be located. During the process of evaluating the files we became aware that the files in some cases related to or referred to other siblings. Thus in some cases there were a number of siblings involved in the matter before the Court either at the same time or during the research period (1996/97). In total the research assessed the files of 80 individual children. The assessment was completed using a standard template.

Aggregate data 1996/97

As noted above, the 1632 court records for 1996/97 enabled us to locate 1384 Department of Community Services data base records. We initially expected to be able to analyse reasonably comprehensive data from the data base system. However, many of the 1384 Department of Community Services records were incomplete. We were able to retrieve some quite limited aggregate data.

Cases involving Aboriginal children comprised 13.6 per cent of the total number. There were no significant gender differences. Males and females represented close to 50 per cent of both groups.

While acknowledging the limitation of the Department of Community Services data which was obtained for 1996/97 there were a number of areas where significant differences were apparent between Indigenous and non-Indigenous welfare matters.

The Department of Community Services records indicated significant differences in the assessment areas within NSW from where the child protection cases originated. Less than half (48 per cent) of the Indigenous matters came from within the Sydney metropolitan area (including Penrith and Campbelltown). Conversely, 64 per cent of the non-Indigenous matters came from within the area of Sydney. The fact that the majority of Indigenous cases originated outside of Sydney has implications for the adequate provision of services.

The Department of Community Services records the status of the notifier of the alleged abuse to the Department. Notifier status is grouped under 50 categories. In general terms non-Indigenous matters were more likely to be notified to the Department by health professionals, education personnel (teachers, social workers and so on) or a parent. Conversely, Indigenous matters were more likely to be notified by Department of Community Services’ workers, youth workers, refuge workers, police, a relative, a neighbour, or anonymously.

There were also differences in the nature of the actual matter before the court as shown below in Table 2.

Indigenous children had a greater proportion of matters under the category of ‘not provide adequate care’ (60 per cent of Aboriginal matters compared to 46 per cent of non-Aboriginal matters). Conversely, a greater proportion of non-Aboriginal matters involved child abuse (18.4 per cent of non-Aboriginal matters compared to 10.6 per cent of Aboriginal matters).

Perhaps surprisingly, the data showed no difference between Indigenous and non-Indigenous matters by the number of previous registrations to the Department. Nor was there any statistically significant difference in the court outcomes. The information from the Department of Community Services database was limited, and this, in itself, is a significant policy issue. However, the information which was available at the aggregate level does show some differences between Indigenous and non-Indigenous child protection cases. These differences also provide the broad context in which the specific analysis of the cases studies was undertaken.

Case file review

A number of issues characterise the intervention and case management work of the Department of Community Services (DoCS) with respect to Indigenous children emotionally abused or neglected in NSW. While the Department has a commitment to appropriate service provision to Indigenous families, they fail to translate this policy into practice. The reasons for this failure include limited resources, bureaucratic procedure, a lack of awareness of Aboriginal community experiences, and an entrenched method of casework that does not facilitate a holistic approach. The most significant of these factors is the failure by caseworkers to connect the community and personal history of Aboriginality with the families with whom they are working.

Departmental response

Limited departmental resources and the individual case method result in a crisis style response to particular incidents with a failure to treat the family’s circumstances holistically, in a community or historical context, or to deal with underlying issues. In many files which this research assessed, there seemed to be an abandonment of any real commitment to assisting the children or family. Many of the children live lives characterised by dysfunction, abuse and violence, with little or no intervention despite reporting their abuse. Many children live with constant fear of abuse and little or no security. It appears to the researchers that a process of objectification, to the point of dehumanising these children, is evident in the Department’s response to a number of families within their ‘care’. Interventions occur when it is far too late and appear to have greater bureaucratic than practical or humanitarian significance.

Many children in the file cohort examined are trapped in circumstances where they experience emotional, physical and sexual abuse as a ‘normal’ aspect of their daily lives. A lack of long term planning or initiatives to break this pattern of behaviour is evident. Some files examined had been under the Department’s attention for over a decade yet a critical incident approach remained the dominant approach. That people living in such despair may become frustrated, violent and antisocial should not surprise anyone. That these children should not perceive themselves to have a meaningful future is also not surprising. A number of young children in the file cohort have made serious suicide attempts.

The importance for Indigenous families of community rather than isolated family casework has been highlighted in a number of reports.[4] The systematic forced separation of Indigenous children from families, as well as the high levels of sickness and trauma in families, has led to many Aboriginal parents not experiencing their own cultural or family context. These experiences of loss need to be understood before outcomes of this loss can be addressed.[5] The Department’s crisis style response to child abuse precludes this understanding.

Assessment by the Department of the capacity of carers to provide adequate care is often functional. For example, the assessment may focus on appropriate furniture being in place, an adequately tidy home, the length of grass and other similar factors.

A common experience in files is the placement of children in foster care or with extended family carers where they face further abuse. In a few instances children have been placed in a home where notifications related to abuse by members of the carers’ family. For example, in file 68, A, a 10 year old boy was placed in a maternal uncle’s home when there had been notifications of sexual assault by the maternal uncle on a number of the children in the family including A. A few months later a further two siblings, T and W, were placed in the maternal uncle’s home. Less than a month after this placement T reported to a teacher that she was upset and did not want to go back to the carer’s home as she had been sexually assaulted by her maternal uncle and a friend of his the previous night.

In many files children with substantial problems are placed with foster carers with little Departmental assistance or support. Many family or foster carers in the file sample faced financial difficulties. These were exacerbated by failure on the Department’s part to provide the financial support which carers are entitled to. For example in file 44 the maternal grandparents were looking after the children. They were extremely poor invalid pensioners. They only received the payments which they were entitled to after they complained to the Department of Aboriginal Affairs. Only a year after this failure they were again not paid for five months after they moved to Sydney. Mistakes with their care allowance over a five year period caused severe deprivation. For example, at times the children could not afford to go to school. This case involved carers who were extremely persistent in following up all avenues to obtain the allowance which they were entitled to. Many other families, particularly those facing the pressures which are often associated with poverty, would not have the resourcefulness or energy to pursue the matter.

In other instances foster carers are not provided with adequate support or advice when taking on children. In a number of cases placements of difficult children are described as breaking down after further children are placed with the same carer. This may reflect the shortage of Aboriginal foster carers. For example in file 4 a child who at eight already had contact with the juvenile system, by nine was described as totally out of control and very emotionally damaged and disturbed, and by 12 had a substantial juvenile justice record, was placed with a carer who was already looking after seven children, two of whom were disabled. In other instances essential assistance such as housing with sufficient space to enable foster caring was denied by the Department of Housing.

A tragic feature of the files is the predictability of the escalation of problems for children who have long terms contact with the Department. The files are characterised by desperation and emergency/crisis responses to symptoms rather than dealing with underlying problems.[6] Major events in the family’s life such as serious parental illness, severe domestic violence including murder, death of siblings, sexual assault on mother, or father in jail, are mentioned only in passing. This frequently means that placement is sought for children at a stage when they have compounded behavioural problems and may have alienated all potential family or foster carers.

Identifying Indigenous children and Indigenous identity

A notable aspect of DoCS’ work is the incidental way in which Aboriginality is treated in case management. This was initially evident in the failure by the Department to keep records that would enable identification of Indigenous children under the Department’s attention. As described under methodology above, it was necessary to undergo a complex data matching exercise with DoCS and Children’s Court records in order to identify Indigenous children under the Department’s attention. While Departmental policy documents recognise the impact of previous welfare policies on Indigenous communities, this is treated as all but irrelevant to an understanding of, or response to, current child welfare issues in Indigenous families.[7] Each Departmental file includes a space for recording information about the implications of ethnicity for the child. The largest recording in the files reviewed stated ‘family is Aboriginal’. Frequently the file simply stated ‘none’. Within the body of the files Aboriginality is often only recorded in passing, and then usually after a substantial period of intervention. This is despite the extensive publicity which was given to issues pertaining to the separation of Aboriginal and Torres Strait Islander children from their families from the late 1980s onwards.

The issue of Aboriginal identity received least attention where there was no Aboriginal family involved in the care of an Aboriginal child. This is frequently the case where the father is Aboriginal but is no longer involved with the family. For example in file 14 the father of the child is Aboriginal. He was absent and had left the area; however, the mother had informed DoCS that he had ‘threatened to take the child away’. DoCS’ first contact with the child was on 27 January 1995. The Department’s first awareness of the child’s Aboriginality was when a notifier, 18 months after initial contact with the family, mentioned that the child is Koori. The Departmental Officer’s report after this notification records under implications of ethnicity, ‘This is not applicable, however note, that the child is of Aboriginal descent.’ A year later the child’s Aboriginality was no longer acknowledged in the file. The non-Aboriginal stepfather had custody over the child and her siblings who are not Aboriginal. He was resistant to acknowledging any difference between her and the other siblings. DoCS neither liaised with Aboriginal service providers or organisations nor attempted to make arrangements for her to have contact with her extended Aboriginal family or community.

A further issue arises where a parent or both parents are Indigenous but do not want the child placed with an Indigenous carer. In some instances parents have expressly noted their specific concern about the child being raised with an Indigenous family.[8] This raises many issues in terms of the child’s interest in the longer term, particularly in adolescence, in establishing a stable identity. Confused identity is frequently associated with earlier removals and with children brought up in racist environments without Indigenous role models. A number of the issues raised by the removal of Aboriginal and Torres Strait Islander children from their families and culture are summarised by the Full Family Court with reference to evidence presented to the Court in the Marriage of B & R, a custody dispute. These include the experience of racism and discrimination which permeates all aspects of life including schooling, forming relationships, seeking housing and employment; the enormous impact on children of their removal from family and an Indigenous community environment; and the greater capacity of Aboriginal people and communities to assist children to cope with discrimination and to reinforce self identity and self esteem, especially in adolescence, in the context of racist experiences.[9]

At the First Australian Conference on Adoption it was noted:

The major point which whites fail to grasp is that in a racist society an individual is either white or black. One cannot be part black, part white. An Aboriginal child will soon learn from his white classmates that he is not one of them, that he is different. And that he belongs to the black community. Even if he looks white. The position taken by Aborigines on this issue is therefore that any child of Aboriginal parentage, no matter what his physical appearance or degree of Aboriginality is an Aboriginal.[10]

While an Aboriginal Child Placement Principle is not applicable in family law disputes, the Family Court has recognised the significance of Aboriginality and the Family Law Act 1975 (Cth) requires the Court to consider, when assessing the best interests of the child, his or her background, ‘including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders’.[11] The Family Court has considered the relevance of a child’s Aboriginality in a number of cases and has indicated recognition that different family structures, values, and material standards of living may have to be taken into account, as well as the significant identity and esteem issues referred to above, when determining the best interests of Aboriginal children.[12] For many Aboriginal children raised in non-Aboriginal families, identity problems will surface at adolescence.

However, when administrative decisions are made with respect to child welfare matters by Departmental offices, such factors, on the files assessed, were not taken into account. The Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that Aboriginal and Torres Strait Islander families are to be given the opportunity to participate, by means approved by the Minister, in significant decisions which concern their children and young people.[13] The manner in which files are managed and kept by the Department would place serious impediments on effective implementation of this provision of the Act, the most obvious impediment being the failure to identify Indigenous children under the Department’s attention.

Ambivalence amongst children and adults towards their Indigenous identity was a feature in many of the files reviewed. For example in file 40 the Aboriginal father’s unstable identification with his Aboriginal background was a factor which contributed to the children not being placed in accordance with the Aboriginal child placement principle. The father was brought up as a white, by his Aboriginal mother, and he vacillates between identifying as Aboriginal and not identifying.

In the few cases where Aboriginality was recognised within the files it was on the insistence of an Aboriginal parent. In file 38 the Aboriginal father raised concerns about the child not being with an Aboriginal carer and with A’s need for contact with her Aboriginal culture if she was not to become part of the ‘lost generations’. The father was adopted at birth to a non-Aboriginal family and later was made a ward of the state. He made contact with his natural family who come from the northern NSW coast. The DO described A, at three, in her care allowance review report as aware of her Aboriginality but too young to understand and noted that ‘cultural education will be pursued as age appropriate’. The father requested a conference with DoCS with a view to obtaining more frequent access to his children. The arrangement in place was a four hour visit three times a month. The father explained to the conference that he was the only one who could pass on A’s specific cultural heritage as he is from a northern tribe which is culturally different from southern tribes. The DO challenged this stating that the father had only learned of his tribal identity in recent years, and that he spent most of his time in the local area associating with local Aborigines, and that he was at one time learning local ‘mysteries/totems’ from a local tribe leader. The DO claimed that the visits ‘traumatised the children’. The outcome of the case conference was that the Department psychologist was to assess whether increased access would have a traumatic effect on the children. No explanation for the claim of the children being traumatised after visits was provided. It is possible that children with such limited access to their father so infrequently would be disrupted after visits. This conference, while positive in that issues of cultural identity are raised and discussed which is not usually the case, also indicates the failure on Departmental officers’ parts to be informed of or understand the complex legacy of identity issues which inhere in most Indigenous families.

Later in file 38 a placement option was being sought for A. The report assessing the suitability of the father and his de facto noted, ‘house is large and unkempt in appearance, inside and out ... [on DO visits] there were always several adults and children in the house and yard’. The report noted that the father had failed to show up for access visits. It also notes that:

A is receiving studies in Aboriginal culture at the pre-school two days per week. Other Aboriginal children attend as well ... [F’s] objection to his daughter being raised without any knowledge of her cultural heritage is unfounded. Again, as mentioned above, the child’s cultural needs are being met.

The report cited overcrowding in the father’s home as the reason for non-placement with the father. A report two months later with respect to the father’s suitability for placement cited the father’s unstable accommodation as the reason for non-placement. This report referred to long grass and rubbish in the backyard. A was placed with her maternal uncle and aunt, and then with a Department foster carer as the uncle and aunt found her behaviour at six years old to be abusive and uncontrollable. She disclosed to the foster carer that her maternal uncle had sexually abused her. This was referred to the police but there was no investigation as the child did not make disclosures to the police or a Departmental officer.

File 44 is one of the few in which Aboriginality is referred to at the beginning of the file. On the intake summary the child is recorded as ‘half Aboriginal’. This reflects a lack of awareness of the historical use of blood quotas to define and control Aboriginal peoples lives, and the inappropriateness of defining Aboriginality in terms of genetic or blood quotas.

The case files also raise the significant issue of caseworkers merging the interests of children with the interests of parents, and possibly ignoring parent’s requests which may be in the best interest of the child because of judgments made about parents.

Indigenous and non-Indigenous Departmental officers (DOs) are limited by the same financial and institutional constraints. More responsive families and more effective intervention are evident where Indigenous DOs are used.[14] However, a limitation with the effectiveness of use of Indigenous DOs is that related intervention services required such as counselling or psychiatric assistance are either unavailable, or only available in a limited way. In most of the files reviewed where Indigenous DOs were involved they were not responsible for the family, and in common with case work by mainstream DOs, there was a high turn over of staff working with particular families. In the cases reviewed there was some involvement of Indigenous DOs with approximately half of the families. However the ethnicity of the DOs may not have been recorded in all files.

The aspect of case management where awareness of Indigeneity was most evident was in placement of children who were removed from their natural parents. Section 87 of the Children (Care and Protection Act) 1987 (NSW) required compliance with the Aboriginal child placement principle.[15] Section 87 has been replaced by s 13 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Both placement principles provide for placement of Indigenous children with an Indigenous carer unless this is not practicable or it would be detrimental to the child’s welfare. The child placement principle provides for a descending order of priority of placement which prioritises placement with extended family as defined by the community, then with a member of the child’s Aboriginal community, then with an Aboriginal family residing in the area where the child usually lives, and ultimately with a non-Aboriginal family if all the above are not practicable or would be detrimental to the child’s welfare. In most of the 80 files assessed the principle was acknowledged. However, consistent with the principle this did not mean that children were placed with Indigenous carers. A large number of children within the file sample were placed with non-Indigenous carers for periods of time. Children frequently faced multiple placements making it difficult to provide a breakdown within the file sample of those placed with Aboriginal carers.

In file 42 a formalistic and misguided application of the Aboriginal child placement principle led to a child being removed from his Aboriginal mother. The mother made an informal arrangement with two non-Indigenous carers to look after W for periods when she was unable to. While the standard of care provided by the informal carers was always acknowledged to be high the DO assessment report stated;

The situation was complicated by the fact that although the boys received good care from [N] and [E] and the boys are Aboriginal and the carers are non-Aboriginal. [The mother however, has stated she regards [N] and [E] as ‘mothers’ to her and her children.]

This seems to be a case where the Department confused their obligations under the Act and the capacity of a parent to make voluntary arrangements. Further, it is an example of how eurocentric notions of appropriate care, that is that good care is with a single carer, are applied. A neglect application was made to the Children’s Court and the mother made undertakings to maintain full time care of W and not to place him with other people without permission from the Department.

The failure to address children’s wellbeing in a community and family context leads to situations where children are often taken from one family context with similar intergenerational, health, and socio-economic problems to another, without the underlying grief and trauma being identified, let alone addressed. The shortage of willing or appropriate carers within communities, and a lack of adequate support for carers, are particular examples of issues which are related to the more general problem of an individual child rather than holistic family and community response to child welfare issues. The implementation of the child placement principle gives rise to a number of issues. Child placement out of home usually occurs after considerable involvement with the Department. It is perceived as the most serious intervention and should be an option of last resort. As was noted by the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, the application of the child placement principle is often a limited and belated gesture towards recognition of Indigeneity.[16]

In a number of files reviewed, Aboriginality is not recorded at all and the only indication of the child’s Aboriginality is in the Children’s Court’s recording of ethnicity. Matters that proceed to Court account for only a small percentage of children under the Department’s attention. For example in NSW between 1 July 1997 and 30 June 1998 there were 31223 notifications. As at June 1998 there were 5987 children on care and protection orders.[17] It is likely that a number of Indigenous children within the child welfare system are not identified. This has implications for the already unsatisfactory data available on child protection by Indigeneity. It suggests that the disproportionate levels of intervention in Indigenous families is likely to be even higher than that reflected in data compiled by the Department of Community Services or by the Australian Institute of Health and Welfare.[18]

Intergenerational experience of removal

The impact of colonial processes on Indigenous families has been both direct and indirect. The most obvious direct impact being the forced separation of children from their families under previous governmental assimilation polices.[19] The files reviewed demonstrate a serious lack of understanding of previous governmental policies of forced and unjustified separations of Aboriginal and Torres Strait Islander children from their families. Not a single file reviewed, explored, or explicitly questioned whether an intergenerational experience of previous removal was impacting on the family. This is despite the bodies of literature that document the intergenerational impacts of separations, their relationship to risk factors for child abuse and neglect, and programs designed to promote healing processes.[20]

As the Aboriginal and Torres Strait Islander Woman’s Taskforce on Violence noted:

Traumatisation occurs at individual, community and whole group levels ... It is important to remember that human reactions and behaviour in response to trauma are the natural reactions of normal people to abnormal situations, and that abnormal situations may, over time, appear to become the norm when inappropriate responses are made to human needs. However, the situations remain abnormal ... [21]

A failure to acknowledge or have an understanding of intergenerational trauma may contribute to the contempt, objectification, and apparent incomprehension of families whose lives are marked by these experiences.

Where intergenerational experiences of forced removal are recorded in the files, they are incidental, as a result of a parent volunteering the information.[22] In file 18 it was noted that the mother was removed from her natural Aboriginal mother at the age of seven months and placed with non-Aboriginal adoptive parents. Despite the mother demonstrating many of the problems associated with forced separation from parents at a young age, including alcoholism, this was never explored. The mother had little contact with her natural mother or siblings, and her two children, who were subject to substantiated neglect orders, have not met their Aboriginal relatives. Intergenerational impacts of forced removal often affect the emotional and mental health of those removed and both the attitudes of families to welfare agencies and the capacity of parents to adequately parent.[23] They are therefore directly relevant to departmental work.[24]

Little work on the intergenerational impacts of forced removal of Indigenous children from their families has been done. When examining stress factors in Aboriginal and Torres Strait Islander peoples lives it is difficult to separate out separation from land and culture, dislocation and dispossession of communities, and ongoing discrimination and marginalisation from mainstream society, from the specific impact of forced and unjustified separations of children from their families. However, extensive research across disciplines including the reports of the Royal Commission into Aboriginal Deaths in Custody,[25] research into drug and alcohol abuse in communities,[26] reports on mental health problems within communities,[27] and accounts by communities themselves,[28] point to the particular trauma caused by forced and unjustified separation of children from their families. Raphael et al referring to the stolen generations, noted:

Stressors experienced by these children included intense separation distress; searching behaviours; multiple grief, which was chronic and often unresolvable; emotional and behavioural disturbances in childhood, which arose naturally from their distress; dislocation stressors from loss of home and place; denial and stigmatisation of their Aboriginality and cultural heritage; and loss of identity.[29]

They noted that these experiences were for many children compounded by emotional, physical, and sexual abuse in foster homes and institutions. The impact of loss of parenting models, lack of appropriate carers, and frequent abuse is evident in the high levels of domestic violence, alcohol and drug abuse, and susceptibility to unplanned pregnancy among young Aboriginal women. The Aboriginal and Torres Strait Islander Women’s Task Force on Violence noted:

The effects of alcoholism, stress and traumatisation lie dormant in the minds of many Aboriginal people who are now parents and grandparents of the next generation. For many of these people, the ramifications are evident in their dysfunctional and dispirited state. A number of them have been further violated or have become the perpetrators of violence themselves.[30]

A significant feature in the files assessed is the lack of awareness of intergenerational trauma and grief and a lack of counselling services to address unresolved trauma and grief. This omission makes interventions which occur less likely to be successful, and the factors which make intervention necessary such as domestic violence and drug and alcohol abuse less likely to ameliorate. Many of the children and families in the files reviewed faced multiple and ongoing traumatic experiences which accumulated and compounded over the period of DoCS intervention to a point where their lives were characterised by dysfunction and abnormality.

Domestic violence

Domestic violence was present and recorded in 69 of the 80 case files reviewed. In a number of the files where no domestic violence was recorded there was no male present. Frequently women are recorded as moving from one violent relationship to another. Plainly whole families not just children need support. Domestic violence, although a pervasive factor in many families’ lives, is often treated within files as incidental.

In one of the few files where comments on the domestic violence are recorded by a Departmental District Officer (DO) a judgemental attitude is evident:

[T]he mother presented as lacking in her own self-care. She also appears lacking in her ability to adequately protect herself and stated a lack of awareness of her own rights despite having had many years of experience in various refuges. She impressed me as possibly borderline in intelligence.

This reflects a lack of understanding of the power dynamics that operate in domestic violence situations. The DO seems to blame the women for her incapacity to escape and demonstrates little understanding of the impact of low self-esteem and the practical difficulties which face a woman in her situation. The files frequently reflect contempt for families and little understanding of the complex practical and psychological problems that effect parents’ capacity to adequately care for children. It is evident that while a family centred approach to child protection is advocated by Aboriginal communities and organisations, in fact, the needs of parents, usually mothers, are very rarely considered. A policy of family reunion cannot work without a policy of family support.

Drug and alcohol issues

Drug and alcohol problems were present in 64 of the 80 files reviewed. Alcohol abuse problems were most frequently recorded. People facing unresolved trauma and grief often use drugs and alcohol as a coping mechanism. This would appear to be the case with many of the families involved in this case file review. In a number of files parental behaviour appeared to be appropriate except when under the influence of alcohol or other drugs. Drug and alcohol abuse is frequently associated with neglect and emotional and other forms of abuse.

In a number of files children were recorded as begging for food as all the household money had been spent on alcohol or other drugs. For example in file 17 various notifications related to two brothers aged two and three who were begging for food and scavenging in bins. Other notifications relating to the same children included the children being at the pub all day while their parents were drinking and that the children were left unsupervised while their parents were drinking. In file 38 notifications related to the parent’s alcohol and drug abuse which led to a failure to provide clothing or essential asthma medication. In a number of files children were left unsupervised or inappropriately supervised when parent/s binge drank.

Little attention is focused on the intergenerational aspect of many drug and alcohol problems. For example in file 38 the mother’s drug and alcohol problems led to the removal of her children. The mother had long term drug abuse problems and is recorded as having used drugs since she was 10. She is recorded in passing as having been sexually abused on a long term basis until she was eight by her father. While the mother attended a number of drug rehabilitation centres, the file records that she had received no counselling for the sexual assault which she faced as a child. Further, her substance abuse is complicated by and probably related to mental health problems. A psychologist’s report referred to her prior diagnoses as manic-depressive and described her as presenting with deep endogenous depression and as suicidal. The report noted that previous rehabilitation attempts had failed, and future attempts would fail, without attention to her mental health problems. This family situation is illustrative of what is more broadly apparent. A holistic and extended family response to child abuse and neglect is necessary if the underlying issues are to be addressed.

In file 46 the mother’s drug and alcohol abuse led to confirmed notifications that she was in a state unfit to look after the children and that her addiction also led to a failure to provide food and shelter for them. There was no evidence in this file of any referrals for the mother to address her drug and alcohol problems.

Alcohol abuse is often associated with domestic violence and violence on the children. In file 61 notifications related to the children’s repeated exposure to domestic violence and drug abuse, including seeing their father use intravenous drugs. There was often no food in the house, the gas was disconnected, and the mother reported that the father sold all the furniture as he was using drugs. The children were left unattended when the parents were drinking.

In file 4 the application for a care order over this 12 year old boy was ‘prompted by ongoing criminal activities; ie break and enters, stealing combined with his continued alcohol abuse and drug taking, and the appearance that neither parent was capable of controlling D’s behaviour’. The first notification for D occurred when he was seven and he was allegedly hit in the head by a door his father opened. His father was affected by alcohol and he had hidden his father’s methylated spirits. Between 1991 and 1996 there were eight notifications relating to the father’s drug and alcohol related neglect, including inadequate supervision, no food in the house, and D’s failure to attend school. Notifications also related to ongoing domestic violence in the family. At 11 years old D was admitted to hospital for alcohol abuse. He was found on a riverbank with a blood alcohol level of 0.28 and was unconscious for 36 hours. A few months later he was found unconscious under a bush in a local park. He was admitted to hospital with a blood alcohol level of 0.25.The file noted, ‘While in the ambulance he had to be revived twice. Later sedatives had to be administered by Dr H as D was running head first into brick walls.’

In cases where life circumstances would provide every indicator that the child is likely to be abusing drugs, this is not investigated. This includes cases involving children whose immediate and extended families have histories of severe drug abuse and where the child may be living an itinerant lifestyle with extended periods of homelessness. Alcohol and drug abuse is closely associated with child abuse and neglect. It is often associated with violence and sexual abuse, failure to provide essential material and social care for children, and intergenerational substance abuse. If drug abuse is to be addressed effectively the underlying causes of alcohol and other drug abuse need to be addressed.

Family planning

Nowhere in the files is family planning raised. Of the 80 files reviewed 47 had the mother’s age recorded. 31 out of 47 of these children were born into families where the mother was 19 years old or younger when the first child was born. The high proportion of teenage births among Aboriginal and Torres Strait Islander parents in the file sample reviewed is consistent with national findings. In 1994 5.7 per cent of all births were to women 19 years and younger, yet 26.8 per cent of Aboriginal and Torres Strait Islander births were to women in their teens and 63 per cent to women under 25.[31] The WEETAG project report noted that ‘ [t]eenage maternity is linked to factors associated with being “at risk” of long term economic disadvantage: low socio-economic status, premature exit from school, difficulties getting a viable job or returning to further education or training, reduced options, and characterised by dependence on public funds or incomes below the poverty line’.[32] A common feature of the files reviewed is young mothers, with substantial personal and financial problems, with many young children to look after. Little if any support networks are in place to assist them. Few Australian studies on teenage pregnancy exist and none of these specifically consider the needs of Aboriginal and Torres Strait Islander women.

Frequently mothers have children to numerous different partners who play no role, or no constructive role, in the children’s lives. A pattern of successive short term relationships characterised by violence and abuse are evident in many files. The women usually have low self-esteem, which is further eroded by the experience of successive relationships that are dangerous to themselves and their children. Often a large number of children are removed from the same family and further pregnancies occur while the Department is intervening in very serious matters. Within our file sample 33 files recorded information about siblings. Thirty-one of the 33 families had more than one child placed in out of home care. Twenty-three of the families had three or more children placed in out of home care. While the subject matter for this research was substantiated cases of emotional abuse and neglect, many files included incidents of physical and sexual abuse.

In many cases mothers’ or parents’ incapacity to cope with siblings and the risk which this placed both parents and children in was not addressed. A particularly stark example of this was file 58. There were six siblings in the family. Three siblings had died. One sibling was stillborn, another died at three months, and the third died at six months. The other three siblings were all under the Department’s attention and two had been placed in out of home care. Although the family had been under the Department’s attention for 10 years, only the computer print out information was available prior to 1996.

In file 72 the mother by the age of 28 had eight children. The first was born when she was 18 years old. There were 21 recorded notifications over an eight year period. By the time she was pregnant with the eighth child she was suicidal and reported no interest in the child she was pregnant with. By this stage there were numerous notifications relating to all her other children. Substantiated notifications include a repeated failure to protect the children from repeated sexual abuse by numerous relatives and visitors, failure to provide food or attend to the children’s health needs, and general neglect. A number of these children were unplaceable because of their level of disturbance, including sexual and physical assaults on other children.

It is clear that for many women in the file sample having large families was not a matter of choice. Many of these families would have benefited from early intervention including assistance with family planning.

Multiple placements

The children whose files were assessed have lives that are characterised by instability. This is exacerbated by numerous short term or failed placements. As the number of placements increases it would appear that behavioural problems deteriorate, and the chances of failure to settle into a placement increase. Clearly children who have been abused or neglected may feel rejected. Multiple failed placements can only compound identity and esteem problems. Further, where children are removed from an abusive situation and then placed in another or a number of other abusive situations, this can only have a severe impact on their capacity for trust and ability to form stable and appropriate relationships. Children are frequently living in poverty with consequent insecure and or inappropriate housing. Together with multiple moves, other aspects of stability in their lives are disrupted such as childcare centres and schools.

Housing

Shelter is a basic human right and the lack of adequate housing directly impacts on welfare interventions in children’s lives. The need to integrate housing assistance with other policy impacting on Indigenous peoples’ lives is recognised and well documented.[33]

The chronic lack of adequate crisis and long term accommodation is reflected in the files examined. In 30 of the 80 files reviewed periods of homelessness are recorded. In 66 of the 80 files periods in emergency housing, crisis accommodation and/or refuge accommodation are recorded. Many of the case files are characterised by insecure housing with numerous moves between caravan parks, housing commission accommodation, and a variety of crisis accommodations. Many of children in the file sample moved 10 and more times in the periods in which they were under DoCS attention. In a number of cases DoCS provided letters of support to the Housing Commission indicating that if the parent could not obtain shelter the child would be removed. In a number of files mothers have remained with children with an abusive partner, as they could not obtain any alternative accommodation.[34] In six case files a major reason recorded for children being placed in out of home care is inadequate shelter. In some files children are separated from their siblings as the out of home carer is unable to obtain accommodation to shelter more than one sibling.³⁵ The following provides an example of the inadequacy of available crisis accommodation. DoCS was approached by A, a homeless, pregnant mother of two children, who faced serious domestic violence from the father of her child. The Department attempted unsuccessfully to find refuge accommodation for her in Sydney, Wollongong, Nowra, Port Kembla, and Warilla. The Department persuaded her reluctant parents to allow her to stay with them for the weekend.[36]

Psychological assessment

Children are often subject to psychological testing which has spurious cross-cultural applicability. In many files clear indications of the child’s cultural alienation from tests and hence non-responsiveness is evident. The following example from case file 6 illustrates this problem.

C was placed with his paternal grandparent in an Aboriginal community when he was between eight months and two years old. Departmental records indicate notifications for neglect prior to this placement. He lived with his grandmother until 1991 when she became ill (he was about eight years old). C returned to the care of his mother who died two years later. C was in the house and one of the first family members to find his deceased mother’s body. He was 10 at the time. C lived with his sister after his mother’s death. She appeared to have unresolved grief issues and serious drug abuse problems. C was unsettled, and moved around between relatives and friends.

DoCS had extensive involvement with C from 1994. C had numerous unsuccessful placements including with relatives, foster carers, and short, medium and long term residential placements. From the age of eight to 15 (date when file assessed), C appeared to have had to rely almost exclusively on his own emotional resources and largely on his own physical resources. His most stable placement in this whole period appears to have been at a boarding school for Aboriginal children. C expressed the belief that he will be in prison when he grows up and that he will be dead by 20.

His need for grief counselling was referred to in many DoCS reports from 1994 onwards but was not acted upon. As at 1996 there was no detailed record of interview with C about the traumas and troubles in his life.

In July 1996 a psychiatric report was prepared on the request of the Department of Juvenile Justice for a magistrate at Cobham Children’s Court. The report is one and a half pages in length. The following are extracts from the Report:

C is unable to read or write. His schooling has been erratic and marked by poor attendance. Even taking this into account, his educational attainments fall a long way below normal for his age ... At interview I noted that C’s communications were vague, hard to follow and inconsequential. His general knowledge and reasoning ability are well below normal for a boy of his age. For example, he was able successfully to subtract 7 from 100 to give the answer 93, but when asked to continue successive subtractions of sevens he produced the answers 83, 73, 63 ... He named the Prime Minister as Bob Carr and had no knowledge of John Howard. He correctly answered ‘Melbourne’ when asked about the capital of Victoria, but he could not name the capital of South Australia or Western Australia. He could not identify prominent members of the aboriginal [sic] community such as Lowlitja O’ Donoghue, nor well known aboriginal [sic] footballers such as Cliff Lyons ... He did not appear severely depressed, nor did he discuss suicidal ideation at this visit ... I think he is not actively suicidal, though his poor self-esteem and poor impulse control place him at some increased risk.

In 1997 C was interviewed by an Aboriginal officer. She was able to engage him with shared understanding of Aboriginal culture and heritage. C appeared to be responsive to her and she reported that he had an extensive knowledge of his kinship ties. She was present during an assessment of C by another doctor. It is reported that in her presence it became possible to engage him much more readily. ‘It became evident through this assessment that [C] needs questions to be reframed by S using culturally specific phrases and terms to be able to respond in an elaborate manner.’

It is difficult to see how the psychiatrist’s report prepared for Cobham Children’s Court could either help with an understanding of C’s life or how it could assist in dealing with any of C’s problems.

The focus on psychological testing is in many instances at the expense of contextual consideration. Children are frequently labelled as developmentally delayed and in the lowest percentile for their age group for intellectual functioning. Tests such as the Wechsler Preschool and Primary Scale Of Intelligence — Revised (WPPSI-R) which provide standard psychometric measures of intelligence are used. This test measures IQ using exercises which measure verbal and performance ability. The WPPSI-R focuses on ‘the global nature of intelligence with which the individual understands and copes with the environment. Consequently, the aim has been to sample the person’s experiences through a series of tasks which are seen as representative of verbal and abstract abilities.’[37] It is well recognised that IQ scores measure a combination of ability and experience. Social, cultural and environmental factors play a significant role in test results.[38] Historically racist associations between intelligence and Aboriginality have been made. These have directly impacted on legislation and policy which was implemented to remove children from their families. An awareness of this historical context appears to be absent from current usage of testing. This is significant because the historical experience, at a personal and collective level, is directly relevant to test results.

Accepting that IQ is not immutable it is important to understand the factors which impact on results. It is also important that prejudices about intelligence are not reproduced through a lack of understanding of the context in which the results are generated. Benjamin Beit-Hallami noted:

If only psychology had been sufficiently developed in the 1840s ... we would have read a psychological analysis of slavery, describing slaves as ‘unable to delay gratification, low on frustration tolerance, having psychopathic tendencies, scoring lower on intelligence tests, and generally being unmotivated, impulsive and violent. An interesting conclusion would have been that slavery is a psychological syndrome, transmitted from generation to generation’.³⁹

While the tests are measuring culturally particular understandings of intelligence, contextualising and redressing poor scoring is significant because successful participation in education and many other institutions of society correlates with results. The Aboriginal and Torres Strait Islander Women’s Task Force on Violence noted:

Increased funding is needed for learning institutions to prepare training packages specifically designed to address the poor literacy levels of many Indigenous people. They have a critical need to participate in the broader community with equity and respect, and to qualify for employment.[40]

The Flower of Two Soils study, a longitudinal study of intellectual development, mental health and academic achievement among Native American children from North America, found lower average scores, using the Welsher test, than non-Indigenous children.[41] This study also examined prenatal, developmental, home, school, and linguistic factors which could help to account for the difference in scoring. This study noted that ‘socio-economic status is a particularly powerful IQ correlate. Low SES reliably predicts low IQ scores, both within and across ethno-racial groups’.[42] This study also noted that Indigenous populations in Canada and the US are among each country’s most economically disadvantaged groups. Likewise, Indigenous Australians are among, if not in, the lowest economic group within Australia. The socio-economic position of Indigenous Australians is a consequence of historical and ongoing processes of colonisation.

The Flower of Two Soils study results also point to the importance of breaking down barriers between home and school. ‘The barriers have multiple origins, including boarding school experiences that have created a legacy of distrust in Native communities and schools curricula that are perceived as assimilative rather than respectful of local cultures.’ These factors are again highly relevant to Australian Indigenous communities and even more directly so when welfare departments are conducting the IQ tests.

Often mothers as well as children are labelled as intellectually deficient. This may occur in incidental comment on a file. For example a social worker in file 40 suggests that the mother may be intellectually disabled. This assessment is not placed in the context of her facing severe domestic violence over a long period combined with poverty. When looking at the files as a group, it is evident that a contextualised approach will be necessary if effective remedial action is to be taken. The assessments indicate no awareness of the history of exclusion from educational opportunities or the broader issues that result in poor educational outcomes for Indigenous children. In many files the tests appear to be primarily used to demonstrate developmental delays and to illustrate neglect rather than as a tool for identifying the child’s needs. Few files demonstrate any follow up with educational, counselling or other assistance post testing. For example, in file 44 numerous recommendations are made for referral to a range of professionals including occupational therapists and speech pathologists with no follow up. This failure, together with frequent testing, may amount to systems abuse.

Many childrens’ prospects for recovery or life chances are predicted to be extremely poor at a very young age. For example the child in file 40 was assessed at five and half years old to be in the lowest 1 per cent of his age group for intellectual functioning and due to extreme emotional damage to have limited prospects for recovery. In files 17 and 18 two brothers aged three and five are described in the psychologists report as significantly developmentally delayed. The psychologist acknowledges his limited authority to ‘explore issues of aboriginality’ but finds that the advantages of placement with the non-Aboriginal maternal grandmother outweighed the disadvantages.

In file 39 the child had four assessments in a period of 10 months, which indicated that the child was abused. However, there was no follow up action recorded. The first test records the child as presenting as a ‘happy natured and co-operative testee’ who later became restless and less co-operative. By the fourth test he was hostile and unco-operative and is described as curled up in a foetal position on the floor and refusing to move. The Departmental Officer managed to get him to participate by offering him a bag of chips which he ‘insisted on munching on during the assessment’. The report noted that most tests were not completed due to non-compliance. He was diagnosed as having ‘Oppositional Defiant Disorder’. The psychologist noted that S has been ‘over-assessed’ and was distressed by being repeatedly asked the same questions but also recommended that he should be assessed by a child psychiatrist if his disturbing behaviour in care continued.

The failure to follow up with required assistance once a child has been assessed is often recorded as the cause of deteriorating behavioural problems. For example, in case file 38 by the age of six A already had four psychological reports on her file. She was described at the age of six as ‘a child who will present significant challenges to any caregiver’. A psychologist’s report nine months after she reported sexual abuse to her carer noted that it is ‘almost inevitable’ that A has been sexually abused, however no counsellor is apparently available for her. A case plan five months later proposed urgent sexual assault counselling for her but nothing happened. Her behaviour deteriorated. A repeated request for action to be taken in a letter from a paediatrician was recorded three months later. Counselling commenced five months later. A paediatrician placed A on stimulant medication Ritalin. A large number of children within the file sample are diagnosed as ADD sufferers and placed on stimulant medication. Eight months later when the child was placed with another departmental carer who, after consulting a doctor, stopped the Ritalin, it was noted that A’s appetite improved. This raises the question of whether stimulant medications are used to manage behavioural problems, which arise from underlying social and emotional problems.

The psychological assessments and psychometric testing specifically, like the files more generally, do not examine the children’s skill or development in a historical or social context. It is not entirely surprising that these decontextualised assessments tell little about why a child is behaving in a particular way or what might be done to change his or her situation. Historical and related current environmental factors exert an enormous impact on the development and behaviour of children. If the underlying causes of poor test results are to be addressed, these contextual factors, together with the broader context of Aboriginal relations with the institutions of the dominant society, will need to be addressed. The conditions under which many children are living impact on their intellectual, emotional and physical development. Awareness of these conditions, and the context in which they were created, will help to make the testing more meaningful.

Mental health

Common features in the files include a lack of safety or support for any family members, social isolation, and parents and children experiencing a lack of control over their own lives. Many people in the file sample live in circumstances of entrenched social and environmental disadvantage which frequently encompasses tense and emotionally dysfunctional home environments. This manifests in a large number of files on anger, anxiety, violence, depression, substance abuse, self- harm and harm of other family members, and a more pervasive sense of hopelessness. In most files mental health is dealt with primarily as a bureaucratic matter, with psychological assessments for the purpose of an assessment of neglect or for a court report for another purpose. Where psychologists or psychiatrists are used there is a serious shortage of both Indigenous mental health care workers and non-Indigenous workers who have an understanding of the factors which impact on many Indigenous peoples’ mental health. An important aspect of this understanding is the family and intergenerational experiences which frequently need to be addressed. An inward looking and individualistic psychological approach is frequently not suitable. Where children have faced trauma such as sexual assault, or loss of a parent, a notable feature in the files was a lack of counselling or other appropriate mental heath service per se.

Suicide

Suicidal intentions in parents and children are frequently recorded with no action, response or recommendation. For example, the father in file 40, who acknowledged that the children were neglected, reported at the point of their removal that he was suicidal. No recommendation or referral was recorded. In file 46 the mother made numerous suicide attempts. These included cutting her wrists and being taken for medical attention. She was admitted to Dubbo Hospital after a third suicide attempt; the second is not referred to in the file. She was admitted to a hospital in Orange for seven weeks after a nervous breakdown. She contacted the Department on another occasion indicating that she was suicidal. Despite the record of suicidal tendencies throughout the file there is no evidence of any referral or other action from DoCS apart from the removal of the children.

In file 53 a notification was made about L’s suicide threats and threats to harm other residents (L was 13 at the time). While a psychologist’s assessment of L was conducted just over a month later no follow up action was evident. The file indicates long term and extensive emotional and physical harm to L by successive stepfathers including over-dosing him with alcohol, which resulted in a hospital admission, attempting to suffocate him with a pillow, and beating him severely. It is plain that L requires considerable assistance.

Case File 57 provides an example of escalating trauma over the 11 year period of DoCS’ involvement with this family. The file was closed in 1997 with both the mother and child suicidal. B was conceived when M was raped by one of her brother’s friends. She was 16 when he was born. She was unable to live with her family because of conflict with her brothers and their heavy drinking and use of heroin. For the first year of B’s life M was homeless and moving between various friends and refuges.

The first record of M’s suicidal attempts was when B was one and she was homeless and living in an infant’s home facility. She was asked to leave after she attempted suicide and she threatened the staff with a knife. M’s capacity to look after B and her second child, C, born four years later, subsequently deteriorated with drug, alcohol and poverty related problems.

By 1992 the family was itinerant again and M could not cope with B’s behavioural problems. She requested assistance from the Department as she was afraid she would harm B. In 1992 M, who now had a third child, requested long term care for all her children. The Department officer’s report for the court hearing states:

[M] takes a negative and punitive attitude towards [B]. She is likely to continue to mismanage him ... this will lead to increasing acting out on [B’s] part. [M] will not be able to cope, may resort to aggression and he will have to be removed from her control ... She is not prepared to dedicate her time and energy to establish a functional family unit. She has no suitable accommodation and there is no real commitment to obtain it ... all efforts to change her attitude by this Department have been unsuccessful. There seems no alternative but for [M’s] three children to be removed from her care.

Between 1983 when B was born and 1992 when M requested long term care for her three children there is no record of substantial help being offered to M or the family to address underlying problems. She attempted, although unsuccessfully, to deal with some of these problems herself. B was eight years old at this stage, had been removed from a number of placements, and had disclosed that he was sexually assaulted in one of his placements. His behaviour had deteriorated and he was suspended from school for hitting teachers and pupils. He was referred to a paediatrician who diagnosed him with ADD and placed him on medication and weekly counselling which lapsed shortly after commencement. The aunt B was placed with was described as negative towards him and she reported that ‘the man living with her’ teased him with racist taunts. B was described as sad and angry and seeing his mother regularly whom he wanted to live with. B’s carer requested a review meeting as she could not cope with his behavioural problems which included violence at school and damage to property.

B went back to live with his mother for a short time who again faced numerous life problems including loss of her job and subsequently her house. B was 10 years old at this stage. He was permanently excluded from school for ongoing disruption and violence. The Department indicated concern that they would have to place B because his mother had no income, and this would involve considerable expense, as he would have to be placed in institutional care because of his behavioural problems.

In April 1996, when B was 11, M requested respite care for B who had attempted to jump under a train. A few months later the police were notified by B’s relatives who reported him as threatening suicide. On attendance his mother reported that he had attempted suicide using a rope prior to the railway incident and before that he had tried to kill himself on the road. B’s behaviour continued to deteriorate and he was charged with numerous offences. He also ran away from Minalli numerous times and abused and assaulted staff and residents. The Children’s Court magistrate ordered a psychiatric assessment of B and his mother, which recommended his reinstatement with his mother. The file was closed shortly after with the Departmental officer recording that, ‘no further action is possible’ as the last attempt to remove B failed due to a psychiatric report.

It is disturbing that this file was closed when the child of 11 had made three serious suicide attempts in the previous few months and appeared to pose a risk to other children. It is also a file where a very different outcome for B and his mother could have occurred had sufficient support been in place from an early stage, preferably from the point of prenatal care and counselling and assistance for M.

In file 58, a particularly badly kept file with almost all information missing for a 10 year period of involvement with the family, the mother attempted to commit suicide, and threatened suicide, and there is no evidence of follow up by the Department. In file 61 both parents demonstrated suicidal tendencies, and the father had attempted suicide at least twice, yet there were no referrals or action in relation to this. In the first two years of DoCS involvement with this family there are no indications on the file about the children’s emotional, language or other development other than notifications and records of the parents behaviour which indicate neglect. In the same period there was considerable concern and detail on file about the house being dirty. In file 4 D’s parents have severe drug and alcohol and domestic violence problems. The file has notifications relating to exposure to domestic violence, failure to provide care, failure to provide food, lack of supervision and general neglect. D was reported as having drug and substance abuse problems at a very young age. At the age of 12 the police picked D up after he threatened other children with a knife, smashed a window and was running head first into walls trying to injure himself. D was described by a paediatrician as having blind rages and the doctor expressed concern that he may kill himself during a rage.

In file 69 W is the fourth child in a family of eight children. Ongoing notifications relating to sexual assault by various parties on various children within the family are recorded through the file. At eight years of age it was very difficult to find a placement for W. Various placements of W break down because of his difficult behaviour and carers were pressured at times to try to keep him for a little longer until alternative arrangements could be made. By the time he was eight years old W had been suspended from school at various times for wrecking property, throwing rocks at the teacher, attacking the teacher, destroying the executive office at school, hitting the teacher with a steel rod and attempting suicide. There are also notifications on the file of W allegedly sexually assaulting a three year old child. He had threatened and attempted suicide on a number of occasions, including a time when he was nearly killed after he ran onto the road and lay down in the path of oncoming traffic.

Failure to follow through or adequately investigate

While the files assessed were identified as substantiated emotional abuse and neglect cases, notifications about physical and or sexual abuse were common. In many instances these notifications were not followed up. For example in file 68 a four year old girl disclosed sexual assault including penile and digital penetration. The parents reported the matter to the police. There was no follow up in the file until over a year later, when A (the brother) informed a Departmental Officer that the same maternal uncle had touched T ‘in a rude way’. When the DO interviewed the father about this disclosure, he informed the DO that he knew that the uncle has touched both A and T but that he allowed his ongoing presence in the family as he relied on him for transport. The parents signed informal undertakings not to allow the maternal uncle access to the home or children. The file progressed with further undertakings relating to protection of the children from lodgers, family and friends with no enforcement of undertakings and ongoing confirmed sexual assaults of the children by various relatives, lodgers and other parties over the next four years. A, then a 10 year old boy, was placed in the residence of a maternal uncle who allegedly sexually assaulted all the children in A’s family. Reports of A and his sister T being sexually assaulted by numerous parties including maternal and paternal uncles, and a half brother B, are on file from when the children were four years old. Seven years later sexual assault counselling had not been implemented.

Files are often chaotically kept, with significant information such as notifications about sexual abuse apparently lost in the paperwork. Often families move and cases are transferred to new CIS offices. DOs also change both by request of clients and for unspecified reasons. Where significant matters relating to children’s safety and wellbeing are at stake, secure and reliable records are necessary. This was not evident in the files assessed. In a number of instances later file notes indicate a lack of knowledge about the case history. In file 67 a female child is referred to as a male later in the file. In many instances important court documents, voluntary care agreements, and other material is missing from files.

A particularly poor example was file 58. The family consisted of the mother, father and two children under the Department’s attention and three children who had died. The family had contact with the Department from 1989 for 10 years but all file information prior to 1996 was missing. The only record of this period was a computer printout of general information from the Department’s CIS database. (This meant that the file consisted largely of notification reports recorded on the CIS database.) A number of the notifications related to injuries, with severe bruising noted, including an admission to hospital with the injuries recorded as non-accidental but cause not known. Very little information about the parents is recorded on the file other than, ‘It is understood that both parents were wards of the Department.’ While a note on the file indicated some concern about the parents’ caring skills, due to the death of J, with cause noted in file as ‘non-accidental injury,’ no follow up of either the circumstances surrounding the death of J or the parents’ caring skills is evident in the file. The file briefly notes that J’s death was being looked at by the DPP but that the case was later dropped because of a lack of evidence. While the mother and child are referred for various assessments, the follow up details are missing from the file. Important information such as court orders and court reports after 1996 are also missing. Investigation of notifications such as a notification in 1996 pertaining to the father knocking two of the children’s’ heads together was investigated two years after the notification.

Other programs which were recommended for the family by the DO, and which the mother seemed willing to participate in, such as the Montrose home-based assessment program, never took place because the Department did not provide the file to the Montrose program. Many communications are on the file from Montrose, indicating that they needed background information and reports from the file before an assessment could take place. The Montrose program is an intensive program aimed at increasing the possibility of families staying together through intensive assessment and identification of assistance needs.

However more routine failures to follow up matters included failures to follow repeated recommendations, such as in files 44 and 45, to get psychological assessments and for speech pathology. When assessments are made the recommendations are then not followed up. Frequently allegations of sexual assault are not followed up, and when in Departmental terms they are substantiated, damaging delays in follow up action such as counselling take place. For example in file 68 the first notification on record related to general neglect of the children, a lack of food in the house and failure to attend to their health. At this stage the mother reported that she was not allowed out of the house and faced domestic violence by the father. There was no record on file of any intervention to assist her. By 1996 her self-esteem was exceptionally low, she was suicidal, all eight of her children had allegedly been sexually assaulted by various relatives and people whom the father would not exclude from the house, and most of the children were so disturbed that it was impossible to find a placement for them. Numerous refuges refused to accept a number of her children because of their disruptive behaviour. In 1996 a Department court report recommendation was changed from wardship to supervision, not because the family circumstances were suitable for supervision, but because the Department could not envisage finding placements for the children. On an application for funding for intensive family support the following was noted: ‘The case for them to be removed from the family is apparent but at present no suitable placement can be found.’ At this stage the Department funded a full time refuge worker to work with the family at a cost of $56, 000 per annum. This is a family which now has what appear to be intractable problems when it is envisagable that early and appropriate intervention could have led to a much better outcome for the children, mother and the Department.

No standard forms or method for summarising detailed files has been established. A bureaucratic preference for maintaining ward as opposed to general files is apparent. Interventions often appear in response to an incident or crisis rather than a more consistent plan for the child and family.

Outcomes for children

Children are often engaged in substance abuse from a very young age, develop behavioural problems which make their placement almost impossible, and are at risk of moving from the child welfare system to the juvenile justice system. Little data is available on the relationship between children who are subject to substantiated Departmental or Court child protection orders, and those who are in the juvenile justice system. The Royal Commission into Aboriginal Deaths in Custody found that more than half of those whose deaths they investigated faced forced separations from their families when they were children. The Wards Project Final Report found that a causal relationship between wardship and involvement with the juvenile justice system could not be supported. However, research undertaken to explore the relationship between involvement with DoCS and the DJJ demonstrated a strong correlation between children involved with both departments. The research was conducted on two specific dates. A survey of Yasmar JJC on the 15 October 1998 against the DoCS database found that of the 24 young women in detention 18 were registered with DoCS. Twelve of the 18 young women were Aboriginal. A survey of Reiby JJC on 5 January 1999 found that of the 45 young men in the detention centre 39 were registered with DoCS. Eighteen of the young men in Reiby who were registered with DoCS were Aboriginal.[43] While our sample of files was limited, our research found little qualitative difference in the circumstances of children who were in long term foster care, placed frequently in out of home placements, and those children who were made wards of the state. A more accurate reflector of the relationship between the experience of Departmental intervention and contact with the juvenile justice system would be to look at the correlation between Departmentally substantiated findings of child abuse and experience of contact with the juvenile justice system and ultimately detention. This data is not available.[44]

Conclusion

The issues which underlie abuse and neglect of children have complex social and psychological roots. These need to be understood within the context of colonial policy, particularly polices of forced and unjustified separations of Indigenous children from their families. To adequately address the underlying causes of child neglect and abuse would require considerable governmental and community support. The failure to address Indigenous family wellbeing is short- sighted. It not only leads directly to breaches of children’s and families’ human rights, but frequently to the growth of unhappy adults whose problems impact on the whole community. The cost of a failure to support Indigenous families escalates in human as well as financial terms. In effect previous governmental practices of destruction of Indigenous families are being perpetuated through inappropriate policies and governmental neglect. Indigenous children are denied basic human rights including the right to adequate food, education, shelter and participation in their culture. It is plain that not only the Department of Community Services but the Government as a whole, including the Education, Health and Housing Departments has failed to work with Indigenous communities to overcome the intergenerational cycle of disadvantage, marginalisation and trauma which play a major role in perpetuating neglect and abuse within Indigenous communities.

As this research demonstrates, a crisis management, case based approach to child protection does not contribute constructively to children’s wellbeing. A whole of government approach to children’s wellbeing, with a large funding injection into early intervention, through provision of support to families at risk, preferably from the prenatal stage onwards, is needed. A whole of government approach would involve co-ordination of funding for health including drug and alcohol rehabilitation, housing, education and training, and legal services for families at risk or facing crisis. Repeatedly Australian and overseas literature has pointed to the benefits of decentralising and integrating Indigenous child protection programs into the local community which they are serving. This enables preventative and strengthening programs to be developed which are relevant and culturally appropriate to the community. In order to service those communities who have the greatest need for assistance targeted data collection by the Department of Community Services is necessary. This would enable a better understanding of the Department’s Indigenous client base and would enable planning and implementation of community based responses to children’s wellbeing. Such a process should be implemented in the context of the National Inquiry into the Separation of Aboriginal and Torres Islander Children from their Families recommendations for the staged devolution of authority for child protection to Indigenous families and communities in accordance with their capacity and desire to undertake this responsibility.[45] In the interim a mandatory minimum standard of practice which includes a system of file management and review, procedures for responding to, recording and acting upon family needs within a minimum timeframe, and a process for screening and provision of assistance to foster carers is required. Protocols to identify Indigeneity of clients from the point of initial contact and to train staff as to the significance of this identification should be undertaken as a matter of priority. This training should include the history and ongoing impacts of intergenerational experiences of forced removal of Indigenous children from their families at an individual and community level. ?

* Terry Libesman is a Lecturer in Law at the University of Technology, Sydney. Chris Cunneen is an Associate Professor in the Faculty of Law, Sydney University. This article is based on the authors’ Report into substantiated cases of emotional abuse and neglect against Indigenous children in NSW. We would like to thank and acknowledge: Mick Dodson and SNAICC for supporting the research, Peter Duncan Jones for his research assistance, Garth Luke for his statistical analysis, Karen Menzies and Greg Davies for advice provided, and The Law and Justice Foundation for providing the funding to undertake the research.

[1]Australian Institute of Health and Welfare Child Protection Australia ( 1996-97) AIHW Cat CWS 5 p 30.

[2]Australian Institute of Health and Welfare Child Protection Australia (2000-01) AIHW Cat No CWS 16 p 35.

[3]This research is part of a larger body of work looking comparatively at the delivery of child welfare services to Indigenous communities. The research was supported by SNAICC and the former Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Dodson, and received financial support from the Law and Justice Foundation of New South Wales.

[4]The Gungil Jindibah Centre Learning from the past Southern Cross University 1994, p 92-93; Wharf B, Mckenzie B Connecting Policy to Practice in Human Services Oxford University Press 1998.

[5]Training in the impact of colonial process on community and personal circumstances has been found to be valuable in the Canadian context: see Brave Heart, MYH ‘Oyate Ptayela: rebuilding the Lakota Nation through addressing historical trauma among Lakota parents’ (1999) 2 Journal of Human Behaviour and social Environment 109-126.

[6]Systemic problems with DoCS operations are discussed in a special report to parliament prepared by Bruce Barbour, Ombudsman DOCS: Critical Issues — Concerns arising from investigations into the Department of Community Services April 2002.

[7]For example the message from the Director General in the Department’s Policy Directions booklet begins with a reiteration of her apology on behalf of the Department for its role in the separation of Aboriginal and Torres Strait Islander children from their families in New South Wales.

[8]See files 27 and 28 where father is Aboriginal, mother non-Aboriginal and both parents have specifically indicated a preference for placement with a non-Aboriginal family.

[9]In the Marriage of B and R (1995) 19 Fam LR 604-605.

[10]Sommerland E (ed) ‘Homes for Blacks: Aboriginal community and adoption’ in Picton C (ed) Proceedings of First Australian Conference on Adoption (Sydney 15-20 February 1976) p 159 cited in New South Wales Law Reform Commission Research report 7 at 53.

[11]Family Law Act 1976 (Cth) s 68F(2).

[12] (1992) 15 Fam LR 757 at 768-769.

[13]Children and Young Persons (Care and Protection) Act 1998 (NSW) Pt 2 s (12).

[14]For example in case file 6 discussed under psychological assessment below.

[15]The Aboriginal Child Placement Principle has been replaced in the Children and Young Persons (Care and Protection) Act 1998 by section 13, the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles, which provides more detailed directions than s 87 but retains the priority of placement and the proviso that a the placement must be practicable and interestingly not detrimental to the welfare of the child, that is, it does not require that it be in the best interests of the child simply not detrimental.

[16]National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families HREOC Sydney 1997 p 459.

[17]Australian Institute of Health and Welfare Australia’s Welfare AIHW Canberra Cat No AUS 16 (1999) 275 and 286.

[18]The Australian Institute of Health and Welfare relies on data provided by State and Territory community services departments.

[19]Above note 16.

[20]See for example Raphael B, Swan P and Martinek N ‘Intergenerational aspects of trauma for Australian Aboriginal People’ in Danieli Y (ed) Intergenerational Handbook of Multigenerational legacies of trauma Plenum Press New York 1998. In the Canadian context see Morrissette P ‘The holocaust of first nation people: residual effects in parenting and treatment implications’ (1994) 16 Contemporary Family Therapy an International Journal at 381-392.

[21]Aboriginal and Torres Strait Islander Women’s Task Force on Violence (Chair B Robertson) The Aboriginal and Torres Strait Islander Women’s task Force on Violence Report DATSIPD QLD (1999) p 24.

[22]Usually within a report by a professional such as a doctor or psychiatrist in the course of an assessment.

[23]Gungil Jindibah Centre (1994) Learning from the Past; NISATSIC (1997); Cunneen C and Libesman T, ‘Postcolonial trauma: the contemporary removal of indigenous children and young people from their families in Australia’ (2000) 35 Australian Journal of Social Issues.

[24]See Cunneen C and Libesman T above note 23.

[25]Royal Commission into Aboriginal Deaths in Custody Final Reports Canberra 1990.

[26]Brady M The prevention of drug and alcohol abuse among Aboriginal people; resilience and vulnerability Research discussion paper No 2 (1995), Australian Institute of Aboriginal and Torres Strait Islander Studies.

[27]Hunter E Freedom’s Just Another Word: Aboriginal Youth and Mental Health The Bill Robinson Memorial Lecture 1994.

[28]Numerous testimonies to the National Inquiry.

[29]Raphael B, Swan P and Martinek N above note 20 p 330.

[30]Above note 21 p 79.

[31]WEETAG Project Pregnant Futures: barriers to employment education and training amongst pregnant and parenting adolescents AGPS Canberra 1996 p 2.

[32]As above.

[33]Above note 16.

[34]See for example files 49 and 50.

[35]For example in file 32 sisters were separated because the Housing Commission waiting list for the carer to get a larger house was three to four years. The sister represented H’s only close familial relationship.

[36]File 7.

[37]Boland L ‘Wechsler preschool and primary scale of intelligence-revised’ (book review) (1990) 3 Psychological Test Bulletin 100.

[38]See for example Suzuki L and Valencia R ‘Race-ethnicity and measured intelligence’ (1990) 52 American Psychologist 238 .

[39]Cited in Butler P ‘Psychology as history, and the biological renaissance: a brief review of the science and politics of psychological determinism’ (1998) 33 Australian Psychologist Volume at 40.

[40]Above note 21 p 152.

[41]Dauphimais P, Beals J, Jones M, Keane E, Manson S, Somervell P, Piaseck J, Redshirt R Flower of Two Soils Reinterview Study, Final report, NIMH Grant 2 R01 MH42473 (1990).

[42]Above note 38.

[43]Andrew Marsden The Wards Project Final Report (1999) Department of Juvenile Justice and Department of Community Services p 11.

[44]Some general research on the links between welfare intervention and later involvement in the juvenile justice system is available. See National Crime Prevention (1999) Pathways to Prevention: Developmental and Early Intervention Approaches to Crime in Australia National Crime Prevention Attorney-General’s Department Canberra.

[45]See recommendations 43 to 53, above note 16.