‘We Looked and There Was No Safe Family’

To avoid allegations of creating another “stolen generation”, child protection workers are expected to place Aboriginal children with Aboriginal families and have the process managed by Aboriginal organisations. Despite decades of trying, these procedures have not solved the problem. A critical reflection by an Aboriginal Family Support Services officer to the South Australian Commissioner for Aboriginal Children and Young People Inquiry into the Aboriginal and Torres Strait Islander Child Placement Principle (Principle), “We looked, and there was no safe family,”¹ encapsulates the dilemma. The Principle gives precedence to the placement of an Aboriginal child who needs care with an Aboriginal family. The problems that the Commissioner struggled with were that the child’s best interests, as opposed to the Principle, remained supreme in the courts, that Aboriginal organisations were scarce on the ground, and that there was no proof they were any better than others at placing children.

Commissioner April Lawrie suggested that the Department of Child Safety try harder to find Aboriginal families. She said, “The future of our Aboriginal children needs to be in the hands of Aboriginal people.” A contemporaneous review of the child protection system in South Australia by Kate Alexander, “Trust in Culture” was similarly disposed. It commenced with “Trust in the love of the oldest culture on earth for its own children and its infinite wisdom to find ways and people to make them safe.”[1] How does the convenient heuristic, trust in culture, formulated in the Principle, stack up?

The problems these reviews hoped to solve are real and manifold. Massively more Aboriginal children in South Australia are in out-of-home care compared to non-Aboriginal children.

The proportions of Aboriginal children and young people placed in a relative or kin placement or with an Aboriginal foster carer have decreased, and the proportion of Aboriginal children who were reunified with their families has declined.

Something is awry in Aboriginal child protection in South Australia. The situation is dire and deteriorating. But is the Commissioner’s recommendation to hand control to Aboriginal organisations justified? Is fiddling with the Principle a solution, or are authorities simply running out of Aboriginal families? The South Australia Aboriginal Child Care Agency was formed in 1978, and the Department for Community Welfare in South Australia formally adopted the Principle in 1983. It is not as if these matters have not been reviewed in South Australia. Over the last decade, there have been three royal commissions, five inquests, three public reviews, standing committees and official reports. These inquiries have made more than a thousand recommendations, many of which concerned Aboriginal children.

Governments have introduced legislation and made significant machinery of government changes. Alongside the frenzy of activity sits external investigation through the South Australian Commissioner for Aboriginal Children and Young People, the Commissioner for Children and Young People, the Guardian for Children and Young People, the Child Deaths and Serious Injury Review Committee, and the South Australian Ombudsman.

The last resort in saving children is for the state to take them into care. For Aboriginal children, this occurs too often, and the numbers are increasing. Is that because of “systemic racism” among bureaucrats, historical interruption dating from colonisation, or more people identifying as Aboriginal? More likely is that there are not enough functional Aboriginal families to serve as carers for the children of the many dysfunctional Aboriginal families. The worsening situation may be no more than the passing of time because, for two or more generations, public policy has preferred to play to the notion of the specialness of Aboriginal culture, especially “child care practices”, thus leaving children in harm’s way. Children not taken out of harm’s way have children. The result is a catastrophe. No amount of shuffling the competing demands of the child’s best interests and the Principle will change that. Human dignity requires that children in harm’s way are made safe with whomever is competent. Significant efforts need to be made to intervene in dysfunctional families, whatever their cultural background.

Linguistic acrobatics

In much social science, fashionable theories trump evidence. The linguistic rhetoric has become almost acrobatic in the search to solve the problem of Aboriginal children taken by authorities for their protection. Commissioner Lawrie reported no analysis to demonstrate the use of the Principle in cases where it had failed or worked, making an objective assessment impossible. Instead of analysing the situations that confronted officers of the Department, Lawrie argued that the Principle should be applied to the standard of active efforts, which requires “purposeful, timely, and thorough action by child protection agencies”. Lawrie extended the linguistic device by recommending handing to Aboriginal organisations government responsibilities for taking children into care.

Lawrie also picked up devices expressed by others. Alexander, for example, recommended appreciative inquiry. Instead of focusing on problems, appreciative inquiry invites people to “describe stories of success and positive experiences”. That is a reasonable sentiment, but any responsible authority has to assess the negatives, that is, why a child has been placed at risk. Another group sought responsive regulation[2], which states that authorities should be responsive to the conduct of those they seek to regulate. This sounds sensible, except it is a device to acknowledge the “cultural authority” and “deep knowledge” of elders. A department charged with the enormous responsibility of taking a child into care (or guardianship) cannot assume an elder, if identified, has relevant authority and knowledge. If authorities are to be responsive, they must assess parents’ and potential carers’ behaviour, such as mental ill-health, drug and alcohol abuse, and incarceration.

Being active, appreciative and responsive in decision-making did not save Commissioner Lawrie from boldly stating that “Aboriginal people making decisions on Aboriginal issues yields better outcomes for Aboriginal children and their families.” Lawrie presented no evidence to support this conclusion, instead filling the void with an ideological proposition that the child protection system was built on “Eurocentric attachment theory”, where bonding differs between Eurocentric and Aboriginal cultures—the mother, as opposed to “multiple central caregivers”. In broad terms, the distinction may be valid. Still, it has to be proved in each instance, including the very high incidence of single parenting among Aboriginal families, as well as whether a family with some Aboriginal heritage exhibits any Aboriginal care attributes.

The Commissioner argued that there is a “yearning to have known a childhood with one’s own people”—but what people? Which Aboriginal families in South Australia exhibit this multiple-caregiver capacity? There were fewer than 4000 Aborigines in South Australia in 1908, and 502 of those were “half-castes”; that is, they were the product of Aboriginal and non-Aboriginal parents. Is it to be assumed that these 502 were in the Aboriginal child-rearing camp?

As early as 1826, at Kangaroo Island, “thirty men and forty black women, independent of a numerous progeny, have contrived to make themselves quite comfortable in their snug retreat”. In the period between 1848 and 1911, sections of Aboriginal reserve land in South Australia were granted to Aboriginal women who married non-Aboriginal men. The idea was to encourage marriage as opposed to cohabitation of Aboriginal women and non-Aboriginal men to regularise or moralise the situation. Several generations later, 43,000 people identified as Aboriginal, but births where both parents were of Aboriginal descent were only 22 per cent. Those Aboriginal parents were likely children of parents who were Aboriginal and non-Aboriginal. Substantial and prolonged outmarriage strains the credulity of the idea that the care of children in all such families is based on multiple caregivers.

In addition to deciding whether families were Eurocentric or Aboriginal in their child-rearing tendencies, Lawrie canvassed the thorny issue of who is Aboriginal. For example, she refers to a case where a family thought that they may have Aboriginal heritage but did not identify as Aboriginal and did not wish to identify the child as Aboriginal. Still, the child remained identified as Aboriginal in the system. Is this an instance of a department running scared in the face of a constituency intent on controlling the processes? Another case was where the child’s father and paternal grandfather identified as Aboriginal three months after the removal of the child. The Department heard from the paternal grandmother that the paternal grandfather had never previously identified as Aboriginal. Is this a case where there was a benefit in identifying?

A further case cited was where the child’s father had been diagnosed with mental illness and intellectual disabilities. The father had provided inconsistent accounts of Aboriginality, identifying with multiple Aboriginal groups across various states. The child’s paternal aunts and uncles, who shared the same parents as the child’s father, did not identify as Aboriginal and did not know of their brother’s Aboriginality. Why is this case cited? What would cause the Commissioner or the Department to want to force the issue of identity where it is so contestable and the claimed benefits of multiple caregivers are unproven? Is this an example of a department that should have been more active?

In a case where the mother had identified herself and her children as Aboriginal, the Department received information from the child’s older sibling and other family members that the mother was potentially misleading the Department and other organisations regarding her claims of Aboriginality. Is this case referenced because of a view that any claim of Aboriginality must be agreed to and, in addition, that Aboriginal child-rearing practices should be assumed, even where none existed?

Finally, the Department has occasionally sought DNA testing for confirmation. The Commissioner found this practice “deeply concerning” and argued this was evidence of the need for “cultural oversight” by the Aboriginal community. Perhaps she was unaware that Aboriginal litigants in native title disputes have for many years sought DNA tests to prove or disprove the claims of others.

Assigning behaviour into ready-made categories, whether by identity or alleged child-rearing practices, is bad enough. Doing so in a highly intermarried cohort is very bad form. Worse is to ignore the state of Aboriginal family life in South Australia. Neither the Commissioner nor Alexander reflected on the state of Aboriginal families. Words that did not appear in the reviews were “nuptial” and “father unknown”. In South Australia in 2020, ex-nuptial confinements were 37 per cent and paternity was not acknowledged in 3 per cent of cases. In 2022, ex-nuptial births to Aboriginal mothers were 88 per cent, and paternity was not acknowledged in 13 per cent of cases.

South Australian Aboriginal families are more likely than other families to be characterised by unstable marriages and children where the father is unknown.

Fathers are important, especially as children with absent fathers are prominent among homeless and runaway children, children with behavioural disorders, high school dropouts, and imprisoned youths.[3] The situation is surely worthy of comment. No such observation was made in the inquiries.

Another linguistic device was to avoid any discussion of “deficit-based thinking” and speak only of “strength, resilience, and success stories”. For example, some groups expressed concern that the number of people living in a home was seen as a risk factor rather than a protective factor for Aboriginal children. Overcrowding, regardless of race, is reliably associated with child neglect. Indeed, the constant refrain from Aboriginal advocates is the lack of housing in remote communities. Advocates can’t have it both ways, complaining about overcrowding and claiming it as a cultural strength. An officer undertaking a head and bed count does not suggest that other factors may not be part of an assessment, such as a severely distressed child. It seems that being active, appreciative, responsive and positive only works in one direction.

Handing over responsibility

In 2022-23, South Australia spent 81 per cent of its budget on care services and 19 per cent on support and intervention measures. The Australian averages are 63 per cent and 37 per cent. The Commission also decried the small proportion of expenditure on Aboriginal community-controlled services but noted that few existed. These are matters worth pursuing, but it does not follow that allocating to local-level Aboriginal community-controlled organisations the delivery of “culturally safe” and “appropriate” early intervention family support services will solve the problems of too many Aboriginal children in care. Why not recommend any service that proves it can deliver and evaluate such services regularly? Only then can the question of sufficient support be optimised.

The Commission suggested there was a lack of successful “family-finding” programs but attributed these to a reluctance of Aboriginal people to be recruited as carers. Barriers to Aboriginal people becoming carers included feeling that the Department was spying on them and that they feared their children being removed. The inquiry heard that the Department continued to hold the power, even when Aboriginal community-controlled organisations were managing the placement of a child in care and supporting the kinship carer. The problems of recruitment aside, the rationale for handing responsibility for children to Aboriginal groups will not relieve the state of responsibility if a parent or carer sues for the return of a child in the future.

The Commissioner characterised the “system” as: “the neoliberal state locates the impacts of colonisation, removal and cultural dislocation as being the responsibility of individuals rather than systems”. She took “evidence” from Aboriginal families and Aboriginal workers, who said that racism “is inherent in the way our systems work all the way from who gets notified to who gets removed”. These are nothing more than postmodern tropes. Her answer was predetermined: “The richness of Aboriginal cultures is best understood and embraced by Aboriginal workers and organisations who are able to uphold children’s and families’ rights to culture, while providing culturally led, solution-focused, empowering responses.” Again, this assertion is without evidence.

The Commission found that the Department’s staff reflected on how workers can be “fearful of working with Aboriginal families and fearful of being culturally inappropriate by saying or doing the wrong thing”. This is an extraordinary comment. Public servants are being bullied. Aboriginal trainers swoop in to teach public servants about culture, with no guarantee that such trainers know any more than what they have learned in their university course or that their training is relevant to any family the officers may have to deal with. Again, the rhetoric flowed: “What is required is a reversal of the balance of power and a change to who it is that determines outcomes for Aboriginal families, enabling children to be viewed as members of the entire community and not belonging to parents in a nuclear family.”

It is not as if the Department has not tried to incorporate an Aboriginal perspective. An Aboriginal unit, Yaitya Tirramangkotti, had been tried and dismantled. No reason was given for the dismantling of the unit. Perhaps it did not help? For example, the Queensland Department of Child Safety has created a Rigorous Family Finding Unit to operate a process called “connecting kin”. The fear among carers is that the unit officers plan to take Aboriginal children who are in the care of non-Aborigines and send them to Aborigines. Searching harder for kin suggests kin were not overly keen or involved in a child’s life. The officers will double down on the Principle even though it failed to stem the tide of Aboriginal children taken into care.

Wrestling competing rights

This policy field has had to balance the child’s best interests and the Principle for many years. Commissioner Lawrie sought to rejig the pecking order in three ways: interpreting the best interests within the context of the Principle, family group conferencing, and using the Federal Circuit and Family Court of Australia.

The Commission recommended that the Department balance the Principle with the child’s current circumstances, future needs, and placement options, and decide which placement is in the child’s best interest. The Commission recommended that the balance be achieved by having the best interests determined as a paramount consideration in the context of applying the five pillars of the Principle. At best, this means that all Principle options have to be exhausted before best interests are invoked. At worst, it seeks to place best interests as a subsidiary of the Principle. This reordering or reinterpretation of best interests may not help guide the Department when deciding whether to take a child into guardianship or out-of-home care.

The Commission also recommended that a referral to a family group conference be made as a matter of urgency before the Department can apply to a court for any guardianship orders for Aboriginal children. The Commission recommended the “effective” use of family group conferencing, which suggests it is already a system feature and sometimes fails. As for searching for kin who might be roped in, an Aboriginal community-controlled organisation worth its salt should know the families and children at risk in its area. The trouble is that the Commission knows that few exist, and the Department cannot create these.

The Commissioner also recommended the Children and Young People (Safety) Act 2017 (SA) be amended to require the Chief Executive of the Department to consider enabling Federal Circuit and Family Court of Australia proceedings to be taken by the Aboriginal family with whom the child is to be placed, before making an application for a guardianship order. Lawrie argued that a “family-led solution” is possible through the Family Court. Where Aboriginal kinship care is an option, the Family Court “can enable more flexible arrangements for children to be reached that secure the child’s cultural attachment relationships”.

There are two problems with this recommendation. As the Queensland Director General of Child Safety found to the taxpayers’ cost in 2006 in a case that ran for fifty days, the cost of litigation is massive.[4] The Department has not returned to court since. Moreover, the Family Court and other courts are bound to consider cultural attachment, but regardless of the Principle, the child’s best interests are consistently held to be paramount.

A 2023 New South Wales Children’s Court case is illustrative. An Aboriginal child with special needs was placed with non-Aboriginal foster carers. A family group conference indicated the family’s wish for the child to remain in the current placement. The Department of Communities and Justice Care Plan proposed that the maternal great-uncle and aunt be long-term kinship carers. The plan was refused because the long-term placement with the maternal great-uncle and aunt could not be recommended unless they had the skills and commitment to provide a long-term home for a child with special needs. The child’s safety, welfare, and well-being were paramount.

Juggling the child’s best interests and the Principle does not work in court. Administratively, departments should work hard to place children in good hands, but there are limits when few exist within the Aboriginal community. Forcing placements with Aboriginal kin can only work where there are willing and competent kin. Decades of trying have found that there is more need than remedies available.

Conclusion

There are so many commissions of inquiry and so much chaos in Aboriginal families. The desire to constantly blame the regulations and the regulators and ignore the behaviour of those causing the taking of children is sad. Understanding behaviour is not the same as blaming families. Seeking solace in identity-based solutions when identities are indistinct and possibly not a cause of family strife is foolish.

By all means, arm offices with the best insights into behaviour and culture, but a romantic desire to re-establish what is gone does not help a collapsed original society. It is time to move beyond the Principle and treat Aboriginal children as children with needs, not burden them with culture.

Gary Johns is chair of Close the Gap Research (closethegapresearch.org.au) and the author of The Burden of Culture (Quadrant Books).

Endnotes

[1] Kate Alexander. (2022). Trust in Culture: A Review of Child Protection in South Australia. Department of Child Protection, South Australia

[2] Sharynne L. Hamilton, Sarah Maslen, Nicole Ilich, Carol Michie. (2021). “We don’t want you to come in and make a decision for us”: Traversing cultural authority and responsive regulation in Australian child protection systems. Australian Journal of Social Issues 57 236-251

[3] Nancy Pearcey. (2023). The Toxic War on Masculinity – How Christianity Reconciles the Sexes, Baker Books

[4] AGF & LLS [2006] FamCA 923 (5 September 2006)