![Sample our Humanities journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5939/TOC-Subject-Sample-2021-Humanities.jpg"})
Abstract
This article documents my experiences with the state’s contemporary removal of Aboriginal children in Western Australia (WA) and the practice of Aboriginal Family Led Decision Making (AFLDM), a family led decision making process supported as best practice for Aboriginal families. Unfortunately, this practice of AFLDM is not implemented in the state of Western Australia, but is adopted in Victoria, New South Wales, and more recently Queensland. AFLDM is supported by the peak body for Aboriginal and Torres Strait Islander children in care — the Secretariat for National Aboriginal and Islander Child Care (SNAICC) — and is incorporated within the national Family Matters campaign to reduce the over-representation of Aboriginal children in care. In 2018, as a ‘relative foster carer’ I was able to experience the absence of AFLDM through an order of the WA Children’s Court (an order which was substantially opposed by the Department for Child Protection). I am a Noongar woman or yorga, and graduated with a law degree in 1995. Like most, if not all Noongar people, I have witnessed the increasing level of intervention into Aboriginal families lives by the Department for Child Protection (DCP), and am related to many children who have been placed in out-of-home care. For some years now I have witnessed a lack of commitment to principles of Aboriginal human rights, causing significant distress and disquiet amongst the Aboriginal communities of this state. This state of affairs has reached a flash point in 2020 during the COVID period which not only saw a sharp rise in Aboriginal child removals but also the introduction of legislative amendments which failed to respect the rights of Aboriginal families and communities. In this article I document the WA landscape of child removal and my own journey to improve human rights outcomes for Aboriginal children.
Notes
1 Children and Community Services Amendment Bill 2019 (WA). The Bill has been referred to the Standing Committee on Legislation in Western Australia for an Inquiry and Report by 15 September 2020. The Secretariat for National Aboriginal and Islander Child Care (SNAICC) and the Noongar Family Safety and Wellbeing Council have high concerns about the Bill in its current form and are opposed to the changes.
2 Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children and Their Families (HREOC 1997).
3 Native Welfare Act 1905 (WA) s 8.
4 Hannah McGlade, ‘Reading Follow the Rabbit-Proof Fence – Aboriginal Child Removal in 2017’ Reading Australia (online) 2017 <https://readingaustralia.com.au/essays/follow-rabbit-proof-fence-2/> (last accessed 25 July 2020); Hannah McGlade, ‘Reading Follow the Rabbit-proof Fence: Aboriginal Child Removal in 2017’ (2017) 62(1) Westerly 184–94.
5 SNAICC/Family Matters, The Family Matters Roadmap (online) September 2016 <https://www.familymatters.org.au/wp-content/uploads/2016/11/TheFamilyMattersRoadmap.pdf> (last accessed 25 July 2020) 3.
6 Australian Institute of Health and Welfare, Child Protection Australia 2015–16 (Child Welfare Series No. 66, 2017) <https://www.aihw.gov.au/getmedia/bce377ec-1b76-4cc5-87d9-d0541fca586c/20479.pdf.aspx> (last accessed 25 July 2020) 52. The most recent Child Protection Australia report (2018–2019) confirms that this trend is ongoing, with Indigenous children 11 times more likely to be in out-of-home care, compared with non-Indigenous children: Australian Institute of Health and Welfare, Child Protection Australia 2018–19 (Child Welfare Series No. 72, 2020) <https://www.aihw.gov.au/getmedia/3a25c195-e30a-4f10-a052-adbfd56d6d45/aihw-cws-74.pdf.aspx> (last accessed 25 July 2020) 53.
7 Melissa O’Donnell, Stephanie Taplin, Rhonda Marriot, Fernando Lima, Fiona J Stanley, ‘Infant Removals: The Need to Address the Over-Representation of Aboriginal Infants and Community Concerns of Another “Stolen Generations”’ (2019) 90 Child Abuse & Neglect 88; See also Calla Wahlquist, ‘Indigenous Babies Being Removed from Parents at Rising Rates, Study Finds’ The Guardian (online) 25 February 2019 <https://www.theguardian.com/australia-news/2019/feb/25/indigenous-babies-being-removed-from-parents-at-rising-rates-study-finds> (last accessed 25 July 2020).
8 The Australian Law Reform Commission in the Pathways to Justice Inquiry (2018) recognised this pathway and supported a national inquiry into Aboriginal child removal and juvenile justice. This has not occurred. Australian Law Reform Commission, Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Final Report No. 133, 2017).
9 Australian Institute of Aboriginal and Torres Strait Islander Studies, ‘Apology to Australia’s Indigenous Peoples’ (online) n.d. <https://aiatsis.gov.au/explore/articles/apology-australias-indigenous-peoples> (last accessed 25 July 2020).
10 Human Rights and Equal Opportunity Commission above note 2.
11 As above.
12 As above.
13 Hannah McGlade, ‘The Sister Kate’s Home Kids Healing Centre: Early Beginnings’ (2008) 12 Australian Indigenous Law Review 32–38; Hannah McGlade, ‘The “Fair-skinned” Children of Sister Kate’s: Negotiating for the Past and Future’ (2007) 26(1) Australian Feminist Law Journal 31–46.
14 Calla Wahlquist, ‘Indigenous Children in Care Doubled Since Stolen Generations Apology’ The Guardian (online) 25 January 2018 <https://www.theguardian.com/australia-news/2018/jan/25/indigenous-children-in-care-doubled-since-stolen-generations-apology> (last accessed 25 July 2020); Pat Anderson and Edward Tilton, ‘Bringing Them Home 20 Years on: An Action Plan for Healing’ (Report, Aboriginal and Torres Strait Islander Healing Foundation 2017) <https://healingfoundation.org.au/app/uploads/2017/05/Bringing-Them-Home-20-years-on-FINAL-SCREEN-1.pdf> (last accessed 25 July 2020).
15 See State of Victoria, Department of Health and Human Services, Wungurilwil Gapgapduir: Aboriginal Children and Families Agreement (April 2018) <https://www.dhhs.vic.gov.au/sites/default/files/documents/201804/Aboriginal%20Children%20and%20Families%20Agreement%202018_1.pdf> (last accessed 25 July 2020).
16 Katharine Murphy, ‘Indigenous Child Removal Rate Risks “Second Stolen Generation”, Warns Kevin Rudd’ The Guardian (online) 13 February 2017 <https://www.theguardian.com/australia-news/2017/feb/13/indigenous-child-removal-rate-risks-second-stolen-generation-kevin-rudd-warns> (last accessed 25 July 2020).
17 Children and Community Services Act 2004 (WA) s 7 (‘the Act’).
18 Children and Community Services Act 2004 (WA) s 12 provides: Aboriginal and Torres strait Islander Child Placement Principle. (1) The objective of the principle in subsection (2) is to maintain a connection with family and culture for Aboriginal children and Torres Strait Islander children who are the subject of placement arrangements. (2) In making a decision under this Act about the placement under a placement arrangement of an Aboriginal or a Torres Strait Islander child, a principle to be observed is that any placement of the child must, so far as is consistent with the child’s best interests and is otherwise practicable, be in accordance with the following order of priority – (a) placement with a member of the child’s family; (b) placement with a person who is an Aboriginal person or a Torres Strait Islander in the child’s community in accordance with local customary practice; (c) placement with a person who is an Aboriginal person or a Torres Strait Islander; (d) placement with a person who is not an Aboriginal person or a Torres strait Islander but who, in the opinion of the CEO, is sensitive to the needs of the child and capable of promoting the child’s ongoing affiliation with the child’s culture, and where possible, the child’s family.
19 [2016] WACC 8. [Editor’s note: This judgment of the WA Children’s Court, Magistrate Andrea Horrigan, appears to be unpublished on any legal database. A brief summary of the decision is provided in: Aboriginal Legal Service of Western Australia, Annual Report 2016 (June 2016) <https://www.als.org.au/wp-content/uploads/2015/06/2016-ALSWA-ANNUAL-REPORT-FINAL-PRINTERS-VERSION.pdf> (last accessed 25 July 2020)].
20 As above at 40, 70.
21 As above at 71.
22 As above at 63.
23 As above at 67.
24 Western Australia, Department of Child Protection and Family Support, ‘Signs of Safety Child Protection Practice Framework’ (online video, 17 March 2017) <https://videoportal.cpfs.wa.gov.au/media/Keeping+Children+Front+and+Centre+-+A+Signs+of+Safety+Approach/0_u8nchopt> (last accessed 25 July 2020).
25 Children and Community Services Act 2004 (WA) s 144 provides: Court to consider proposal. (1) Before making a protection order in respect of a child or extending a protection order (supervision) or protection order (time-limited) in respect of a child the Court must first consider any proposal for the child provided under section 143. (2) In considering a proposal that includes plans referred to in section 143 (4) the Court must have regard to the likelihood of those plans being achieved.
26 Children and Community Services Act 2004 (WA) s 143 provides: CEO to provide Court with proposal for child. (1) In this section – proposal means a document that outlines the proposed arrangements for – (a) the supervision of the wellbeing of the child if a protection order (supervision) is made or extended in respect of the child; or (b) the wellbeing of the child if a protection order (time-limited) or protection order (until 18) is made or extended in respect of the child. (2) If – (a) the CEO makes a protection application in respect of a child; and (b) the Court finds that the child is in need of protection, the CEO must, if the CEO has not already done so, provide the Court with a proposal for the child as soon as practicable after the finding referred to in paragraph (b).
27 Magistrate in Children’s Court proceeding regarding my relative. [Editors note: This judgment appears not to be published].
28 Magistrate in Children’s Court proceeding regarding my relative. [Editors note: This judgment appears not to be published].
29 O’Donnell and others above note 7 at 89.
30 Above at 91.
31 ANROWS, ‘Fast Facts – Indigenous Family Violence’ (February 2019) <https://d2rn9gno7zhxqg.cloudfront.net/wp-content/uploads/2019/02/19025923/Fast-Facts-Indigenous-family-violence-1.pdf> (last accessed 25 July 2019).
32 Meredith Griffiths, ‘Aboriginal Mothers 17 Times More Likely to Die from Homicide, WA Study Finds’ ABC News (online) 13 July 2016 <https://www.abc.net.au/news/2016-07-13/aboriginal-mothers-17.5-times-more-likely-to-die-from-homicide/7623052> (last accessed 25 July 2020).
33 O’Donnell and others above note 7 at 91.
34 As above at 92.
35 As above.
36 As above.
37 As above at 95.
38 As above.
39 O’Donnell and others above note 7 at 96.
40 As above at 96.
41 Commissioner for Children and Young People Western Australia, Parent’s Rights and Participation in Child Protection Practice (Issues paper, May 2018) <https://www.ccyp.wa.gov.au/media/2978/issues-paper-parents-rights-and-participation-in-child-protection-practice-may-2018.pdf> (last accessed 25 July 2020).
42 As above at 6.
43 As above.
44 As above.
45 As above at 7.
46 As above at 7–8.
47 As above at 8.
48 As above at 9.
49 As above.
50 As above at 10.
51 As above.
52 As above.
53 As above at 11.
54 As above at 15.
55 As above.
56 As above at 16–17.
57 As above at 18.
58 Commissioner for Children and Young People Western Australia, Speaking Out About Raising Concerns in Care (Report, October 2016) <https://www.ccyp.wa.gov.au/media/2327/speaking-out-about-raising-concerns-in-care-website-version.pdf> (last accessed 25 July 2020).
59 As above at 12.
60 As above.
61 As above at 29.
62 As above at 17.
63 As above at 29.
64 As above.
65 As above.
66 As above.
67 As above at 30.
68 As above.
69 As above at 44.
70 As above at 45.
71 As above.
72 As above at 49.
73 As above at 48.
74 As above at 49.
75 As above at 50.
76 SNAICC/Family Matters, Family Matters Report 2018 (2018) <https://www.familymatters.org.au/wp-content/uploads/2018/11/Family-Matters-Report-2018.pdf> (last accessed 25 July 2020).
77 SNAICC/Family Matters, ‘Family Matters Report 2018: The Family Matters Report 2018 Urges that Investment in Prevention is Critical to Stopping Our National Child Removals Crisis’ (online) 27 November 2018 <https://www.familymatters.org.au/family-matters-report-2018-the-family-matters-report-2018-urges-that-investment-in-prevention-is-critical-to-stopping-our-national-child-removals-crisis> (last accessed 25 July 2020).
78 As above.
79 Terry Libesman, Decolonising Indigenous Child Welfare, Comparative Perspectives (Routledge 2016) 216.
80 SNAICC/Family Matters, ‘Inquiry into the Children and Community Services Amendment Bill 2019 (WA)’ 10 July 2020 <https://www.snaicc.org.au/inquiry-into-the-children-and-community-services-amendment-bill-2019-wa/> (last accessed 25 July 2020).
81 Hon. Simone McGurk, Minister for Child Protection, ‘New Trial to Help Address Number of Aboriginal Children in Care’ Media Statement, 10 August 2020, Dept. Premier and Cabinet, Government of Western Australia. <https://www.mediastatements.wa.gov.au/Pages/McGowan/2020/08/New-trial-to-help-address-number-of-Aboriginal-children-in-care.aspx> (last accessed 26 August 2020).