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Saying sorry isn't enough for Indigenous children

26 May 2016

All children should be supported to be safe in their families and communities, write Judy Cashmore and Teresa Libesman.

A child's shadow. Image:

The rate at which Indigenous children are removed from their families has increased steadily since the Rudd apology, which was nine years ago on Thursday.

The Abbott and Turnbull governments cut half a billion dollars out of Indigenous services prior to this budget, which failed to restore funding. These cuts affect vital services.

Take the story of Jenni, a young former ward of the state who, when six months pregnant, was punched and had her nose broken by her boyfriend.  She moved between full refuges seeking safe accommodation. As a teenager she used drugs and alcohol but had been clean for nearly two years. Jenni was committed to looking after her baby, who was born premature and in good health. But despite agreeing to urine testing and doing all she could to look after her baby, the Department of Family and Community Services applied for a guardianship order from birth until the baby was 18 years old.

While the department's application was contested and ultimately rejected, the outcome for many pregnant women and mothers of young children is different. Cuts mean some are unable to access legal services to even mount a challenge. Others with abusive partners can't find shelter because refuges are full. This means vulnerable mothers are in a catch-22 when doing all they can to meet FACS requirements and protect their children.

There is wide consensus that early intervention and support for families is the most effective way to address child protection issues. While Australian governments are in theory committed to early intervention, in practice by far the largest expenditure is on out-of-home care. In 2013-2014, of the $3.3 billion spent on child protection services nationally, $2.2 billion was spent on out-of-home care and only $300.8 million on intensive family support services. 

A recent report, Child Protection Australia 2014–15, found that Aboriginal and Torres Strait Islander children are 9.5 times more likely to be in out-of-home care than non-Indigenous children in Australia. Indigenous children were seven times as likely as non-Indigenous children to be receiving child protection services.

There is widespread agreement that the safety of all children is a non-negotiable priority. It is also one of the top priorities of the National Framework for Protection of Children, endorsed by the Coalition of Australian Governments, to reduce the over-representation of Indigenous children in out-of-home care and ensure children are supported and safe in their families and communities.

Yet reforms to child protection legislation in all Australian jurisdictions risk increasing the removal of Aboriginal and Torres Strait Islander children from their families. Permanency planning legislation sets short timeframes for the early permanent placement of children in out-of-home care.

These policies are, in effect, responding to poverty and the ongoing legacy of colonialism with the early removal of children.

In NSW, children under two years of age are to be permanently placed after six months of removal and other children after a year. While the benefits of stability are not contested, these reforms are being implemented without the necessary support services for parents. Before children can be returned home, parents like Jenni are required to show that they can be "good enough" parents, and provide a safe home. But the resources to help them overcome substance abuse and mental health problems, family violence and housing deficits are frequently not available, not culturally suitable and the referrals often take longer than the deadline time. 

The historical and ongoing inequality and disadvantage experienced by Indigenous peoples is well documented.

Child welfare law and practice operates within a broader framework of social, political and legal affairs. The services to support Aboriginal families and communities are being cut. It is these services, in conjunction with early intervention and family support, which are needed to enable families to look after their children at home.

The apology should mean not needing to say sorry twice. Acknowledgement of the contemporary impacts of past government policies and redress through implementation of the recommendations from Bringing them Home, the report of the Stolen Generations inquiry, are key to this.

Judy Cashmore is a professor of socio-legal research and policy at the University of Sydney's Sydney Law School. Dr Teresa Libesman is an associate professor in the faculty of law at the University of Technology, Sydney. This article was first published in the Sydney Morning Herald.

Luke O'Neill

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