9 minute read
Reforms to improve outcomes for Aboriginal youth need to be driven by self-determination – By Commissioner
Reforms to improve outcomes for Aboriginal youth need to be driven by self-determination
Advertisement
“Our children are alienated from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness” - Uluru Statement from the Heart
As the inaugural Commissioner for Aboriginal Children and Young People in South Australia and as a proud Mirning and Kokatha woman I have reflected many times on this powerful statement about the position that we, as Aboriginal people, find ourselves in.
I have been privileged over the past two and half years to hear the voices of Aboriginal children. When I hear the voices of these children and young people, some of the most marginalised and disadvantaged children in our State, I am continually reminded of the importance of family and community to them. I see the support that endures for them in their families and community despite all deprivations and I feel the strength of Aboriginal ways of knowing and being. This strength bears a simple truth; Aboriginal people know how to overcome the problems that face them and their children.
Ownership of decision making is a true act of self-determination, of pride, of collective self -esteem and without it the struggle to overcome disadvantage is destined to be mired in systemic racism (both conscious and unconscious). My very reaI fear is that without giving Aboriginal people a voice, as a Nation we will be destined to repeat the past, shamefully and continually.
There is no question that one of the most egregious acts of our past was decades of forced removal of Aboriginal children from their families; the assimilationist policy that created the blight of the Stolen Generations. The effect of this cruel policy is still being acutely felt by Aboriginal people and has been transmitted as intergenerational trauma to the children of today - and the removals continue.
What I know from my own experience and have heard from children and their families is starkly revealed in the data. In South Australia, one in every 11 Aboriginal children will be removed and placed in out of home care. Tragically, these children comprise only 5% of the population but make up 36.7% of children in care.1
In the recent National Closing the Gap Agreement (2020) it was agreed to reduce the over-representation of Aboriginal children in care by 45% by 20312 including by the using the priority reforms of formal partnerships and shared decision making.3 Despite this laudable aim, I believe that unless radical approaches are taken to achieve this target the removal rate for Aboriginal children will continue tracking as it is and will double by 2031.4
The Closing the Gap Agreement (CTGA) in conjunction with reforms to the Children and Young People (Safety) Act 2019 ( the Child Safety Act) provide an opportunity for a radical response that can enable Aboriginal children, their families and communities to lead decision making. But these measures alone will not work without a serious investment in early intervention programmes led by Aboriginal community-controlled organisations (ACCOs).
To achieve the CGTA partnership aims requires a strong strategic implementation plan developed with the lead of Aboriginal people. In child protection the principle central to the establishment of all partnerships and shared decision making and the driver to investment in early intervention is the implementation of the full Aboriginal and Torres Strait Islander Child Placement Principle (the ATSICPP) and its application at the earliest possible stage.
The ATSICPP as currently enacted 5simply provides for a limited placement hierarchy considered by the Chief Executive, after a guardianship order
is made by the Youth Court.6 A family member is the optimum placement, continuing contact with family and community is a final measure7 .
The data shows that the current application of the ATSICPP is wanting. Of all Aboriginal children placed in care last year only 31% were placed with Aboriginal kin.8 This lines up with what I have heard from the extended families of many Aboriginal children. They did not know that their niece, nephew, or grandchild was being removed until it was too late, then they are told attachments have formed or time has run out to make an application for review. They have told me that even contact has been denied or that it is heavily supervised; that the Contact Assessment Review Panel (CARP) process9 lacks transparency and no reasons are provided. (I note that there is no merits review to the SACAT and even so I fail to see why contact is not still a rights-based decision).
I am told that consultation about the application of the ATSICPP between decision makers and a recognised Aboriginal Torres Strait Islander Organisation (RATSIO)10 which should open the pathway to family and community, is done without contacting them. I am told that Family Group Conferences11 which can be called at any time by the Chief Executive, are not used to open up the decision-making process to family and community before guardianship orders are sought or during that process.
Many Aboriginal children are not aware of their rights to seek contact with family post-removal or challenge placement decisions and even if they are, do not exercise them. ALRM is not currently funded to take any matters on behalf of children.
What must be said is that generally Aboriginal children, their families and communities are beset with system fatigue in a system that is not culturally safe. It is a system that applies the ATSICPP to marginalise them from decision making and only applies it at the acute phase, after a child is removed.
It is my very firm belief that ultimately one of the main system failures for Aboriginal children in child protection is not only the poor application of the limited ATSICPP in the Child Safety Act at the acute point of removal, but also the failure to have the full ATSICPP apply and apply properly well before this point. And this means expenditure on intensive family support.
Dysfunction in families can be addressed by allowing extended families and communities to take the lead in decision making before notification and encouraging the family to receive intensive family support from an ACCO. Fear of removal is allayed. Families and communities should also be allowed to lead decision making at the first point of notification/substantiation and develop a plan to ensure the child is not lost from family and community. They should remain with the child at all subsequent decisions. This is a true culturally safe response. It is an act of self determination.
The Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020 (the Bill) is currently before the parliament. It seeks to incorporate the full five pillars of the ATSICPP (prevention, partnership, placement, participation, connection) into the Child Safety Act and extend its application to all decisions made under the Act. The placement hierarchy pillar remains applicable to placement decisions after guardianship, but these are informed by the four other pillars that have equal application. Amendments have been proposed to the current Bill that make Family Group Conferences mandatory where decisions are made about Aboriginal children and to include family and community-based mechanisms in decision making. These latter amendments are still being debated.
The Bill and the CTGA reforms provide a foundational opportunity to include Aboriginal children, their families and communities in family led decision (FLDM) making at an early intervention stage, through to removal where that is necessary. Reunification can be considered as part of a family strategy and incorporate Aboriginal attachment theory and Aboriginal child rearing practices. With the inclusion of all potential kin and community carers at the table there will always be a strong decision-making family link to the child.
I have heard from Aboriginal children their families and communities that this is what is needed and that it will only work if there is a proper structured conduit between the child, family and community to enable them to take the lead in decision making.
In 2019 I undertook an extensive consultation across the State. My Annual Report 2019 details the finding that families and communities see the establishment of Aboriginal family care panels (AFCPs) as the mechanism to ensure that family and community can effectively engage in FLDM at all key decision-making points. I have recently taken back a more refined AFCP model to community around the state and received enthusiastic support for the concept. The lynchpin is to have a dedicated community position in an ACCO in each community who can gather the child’s family, extended family and community early to lead decision making. It is possible for a form of these AFCPs to become gazetted RATSIOs12 as the consultation mechanism for the ATSICPP.
I urge the SA government to hear the voices of Aboriginal children and families and take up the reforms needed. But for structural reform to succeed the need for expenditure on early intensive family intervention is essential. The 2016 Nyland Report strongly recommended this approach.13 Tragically it has not been heeded. Current expenditure on family support services is only 8.7 % of DCP budget and expenditure on ACCOs will only increase to 7% of over two years.14 This is a start but is nowhere near enough.
The SA Commissioner for Aboriginal Children and Young People is soon to be given strong powers to inquire into system failures that affect Aboriginal children and young people.15 I hope to be the first Aboriginal Commissioner in Australia to receive these powers. I have listened and I have heard the voice for reform in a child protection system that is failing our Aboriginal children. I have seen “the structural nature of the problem” and I am looking for change. B
Endnotes 1 Page 2 Snapshot Report of South Australian
Aboriginal Children and Young People in Care and Detention from the Report on Government Services.
Guardian for Children and Young People (SA)
May 2021 (Snapshot Report) 2 https://www.closingthegap.gov.au/closing-gaptargets-and-outcome Outcome 12 3 https://www.closingthegap.gov.au/nationalagreement/national-agreement-closing-the-gap 4 Table 16A.2 Report on Government Services 2021 (ROGS) 5 Section 12 Children and Young People (Safety)
Act 2019 (Child Safety Act) 6 Although the Youth Court does not have power to make a placement decision, the ATSICPP may be considered by when making a guardianship order. Section 12(7) Child Safety Act. 7 Section 12 (6) Child Safety Act 8 Table 16A.22 ROGS 2021 9 Section 94 Child Safety Act 10 Section 12(3)(c) Child Safety Act 11 Part 2 Child Safety Act 12 Pursuant to section 12(7) Child Safety Act 13 Xiv Summary CHILD PROTECTION
SYSTEMS ROYAL COMMISSION REPORT
The Hon Margaret Nyland AM Commissioner
August 2016 14 Page 17 Family Matters Report Card 2020.
Family Matters Report 2020.(SNAICC) https:// www.familymatters.org.au/wp-content/ uploads/2020/11/FamilyMattersReport2020_
LR.pdf 15 Children and Young People (Advocacy and Oversight
Bodies) (Commissioner for Aboriginal Children and
Young People) Amendment Bill 2020
Servedoc Pty Ltd is an innovative and creative company that process serves Court documents across Australia from any Court Jurisdiction.
We provide expeditious, reliable and professional field agent services for law firms.
We are specialists in our field and are able to meet all of your process server needs Australia wide.
Some of the services that we offer include but are not limited to:
• Process Serving & Field Calls; • Skip TracingServices; and • Urgent Service 28 THE BULLETIN July 2021
