The NT Royal Commission’s final Report, released Friday, is an indictment of the NT government’s failure to protect the most vulnerable children and young people in its care. Importantly, it has also drawn attention to the national crisis in child protection for Aboriginal and Torres Strait Islander children.
While at risk of being overshadowed by its other findings and the horrifying abuse which took place in the Don Dale Youth Detention Centre, the Commission’s examination of systemic failures in child protection is compelling. And it is timely, given that the NSW Government is currently considering reforms to the child protection system here.
In addition to receiving countless witness testimonies and reports, the Commission conducted a detailed examination of the interaction of 12 families within the child protection system. The Commission obtained child protection files as well as education, health, police and court records in relation to each family, the majority of whom were Aboriginal.
The stories of those 12 families are harrowing. They tell of failure to sufficiently investigate kinship care options, multiple and unstable care placements, abuse by foster carers, inadequate contact with family, loss of culture, exposure to sexual predation and drug abuse and the spiral of many of the children into the criminal justice system.
Importantly, these stories also demonstrate the failure to provide crucial early support for parents to enable children to remain with their families and connected to their culture. Such early supports can divert children from entering a system that, in the words of the Commission, represents ‘a foreseeable pathway to later engagement with the youth justice system’.
As a lawyer in the Northern Territory, these were the stories of my clients. Now, as a lawyer in NSW, the similarities for families here are uncanny. The lessons of the Commission must be learnt across the country.
This is not to say that the Commission’s findings apply equally in every jurisdiction. There is no doubt that the situation in the NT is particularly dire. Nevertheless, in 2016 Aboriginal and Torres Strait Islander children were 9.8 times more likely than non-Indigenous children to be in out of home care nationally. In NSW, Aboriginal and Torres Strait Islander children children are over ten times more likely than non-Indigenous children to be in out of home care, a total of around 8,000 children across the State.
Based on current trends, modelling indicates that the numbers of Aboriginal and Torres Strait Islander children in out-of-home care nationally will almost triple by 2035.
More than 20 years after the Bringing them Home report, these statistics are unacceptable. They require urgent action.
The NT Commission has called for a fundamental shift in the focus of the child protection system, away from statutory intervention and towards early support for families. It has also recognised, as many reports before it, the need for the meaningful involvement of Aboriginal and Torres Strait Islander communities in the development of new policies and decision-making about children.
While the principles articulated by the Commission – early support, family preservation and Aboriginal participation – are accepted wisdom across the country in theory, in many ways the Commission’s specific recommendations show how far we still have to go in practice.
A number of the reforms proposed for the NT have already been implemented in NSW, such as a requirement that the Department file a care plan for the child before a court can make final orders placing a child in out-of-home care. And yet the rate of Aboriginal and Torres Strait Islander children in care in NSW continues to grow, even while numbers for non-Indigenous children plateau.
The Commission has identified more than 21 inquiries into child protection services across Australia since 2006. It has found that Governments have not acted on many of the bolder recommendations, preferring to maintain the status quo and ‘tinker with’ existing systems.
We must be more ambitious if we want to see real change.
In November last year, the NSW Government announced reforms to the State’s child protection system in a package titled ‘Their Futures Matter’. A suite of legislative amendments proposed to support the NSW reform agenda identifies early intervention as a priority. However, there are already legislative provisions in place designed to avoid the removal of children wherever possible. The problem is that they are woefully under-utilised.
Where it is possible, we know that working with parents and families to address protection concerns, this should always be the preference to court proceedings.
International examples demonstrate what is possible when Indigenous families and communities are involved in decision-making and when the Courts hold state systems accountable for assisting families at an early stage.
In the United States, the Indian Child Welfare Act has been labelled “the gold standard” of child welfare policy. This act requires caseworkers to satisfy the Court that ‘active efforts’ have been made to provide rehabilitative programs to American Indian and Alaska Native families and that these efforts have proved unsuccessful, before seeking foster care placement or the termination of parental rights.
Legislation in Australian jurisdictions falls well short of this standard.
The NT Royal Commission has issued a powerful call to action that should reverberate far beyond the borders of the Northern Territory. In calling for early support and increased Aboriginal engagement, the Commission’s report has identified the essential qualities needed to reform child protection across the nation.
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