Chapter 1 - Introduction
1.1
This introductory chapter briefly describes the conduct
of the inquiry, outlines some early responses to the Committee's first report
on this inquiry, Forgotten Australians[1],
adds further information on a number of issues raised in that report,
describes perspectives on out-of-home care and provides a short summary of a
number of recent reports on inquiries examining issues of child care and
protection.
Terms of reference
1.2
On 4 March 2003,
the Senate, on the motion of Senator Andrew
Murray, referred the following matters to
the Committee:
1. (a) in relation to any government or non-government institutions, and
fostering practices, established or licensed under relevant legislation to
provide care and/or education for children:
(i) whether any unsafe, improper or unlawful care or treatment of
children occurred in these institutions or places,
(ii) whether any serious breach of any relevant statutory obligation
occurred at any time when children were in care or under protection, and
(iii) an estimate of the scale of any unsafe,
improper or unlawful care or treatment of children in such institutions or
places;
(b) the
extent and impact of the long-term social and economic consequences of child
abuse and neglect on individuals, families and Australian society as a whole,
and the adequacy of existing remedies and support mechanisms;
(c) the
nature and cause of major changes to professional practices employed in the
administration and delivery of care compared with past practice;
(d) whether
there is a need for a formal acknowledgement by Australian governments of the
human anguish arising from any abuse and neglect suffered by children while in
care;
(e) in
cases where unsafe, improper or unlawful care or treatment of children has
occurred, what measures of reparation are required;
(f) whether
statutory or administrative limitations or barriers adversely affect those who
wish to pursue claims against perpetrators of abuse previously involved in the
care of children; and
(g) the
need for public, social and legal policy to be reviewed to ensure an effective
and responsive framework to deal with child abuse matters in relation to:
(i) any systemic factors contributing to the occurrences of abuse
and/or neglect,
(ii) any failure to detect or prevent these occurrences in
government and non-government institutions and fostering practices, and
(iii) any necessary changes required in current
policies, practices and reporting mechanisms.
2. In undertaking this reference, the
committee is to direct its inquiries primarily to those affected children who
were not covered by the 2001 report Lost
Innocents: Righting the Record,[2]
inquiring into child migrants, and the 1997 report, Bringing them Home,[3]
inquiring into Aboriginal children.
3. In undertaking this reference, the
committee is not to consider particular cases under the current adjudication of
a court, tribunal or administrative body.
4. In undertaking this reference, the
committee is to make witnesses and those who provide submissions aware of the scope
of the inquiry, namely:
(a) explain the respective responsibilities of
the Commonwealth and the States and Territories in relation to child protection
matters; and
(b) explain the scope of the committee's
powers to make recommendations binding upon other jurisdictions in relation to
the matters contained in these terms of reference.
Conduct of Inquiry
1.3
The inquiry was advertised in The Australian, Daily
Telegraph and Herald Sun, and
publicised through other print and electronic media, through newsletters
circulated by support groups and service providers, and on the Internet. The
Committee invited submissions from Commonwealth and State Government
departments and other interested organisations and individuals. The Committee continued
to accept submissions throughout the inquiry and especially following the
tabling of Forgotten Australians
which generated further interest in the inquiry.
1.4
The Committee finally received 537 public and 210 confidential
submissions. A list of individuals and organisations who made a public
submission to the inquiry together with other information authorised for
publication is at Appendix 1.
1.5
Many people who had lived in a broad range of
institutional and out-of-home care settings and those representing many
organisations gave evidence at public hearings held in Melbourne on 11-12 November
2003; Adelaide on 13 November 2003; Perth on 8-9 December 2003;
Sydney on 3-4 February 2004 and in Brisbane on 12 March 2004.[4]
1.6
The Committee tabled its first report on the inquiry, Forgotten Australians, on 30 August 2004. The report covered the majority of the
terms of reference, focussing on children who were in institutional and
out-of-home care, mainly from the 1920s until the 1970s when
deinstitutionalisation began to see large institutions replaced by smaller
residential homes, foster care or other options such as placements with
families for accommodating children in need of out-of-home care. The report
included background information on institutions and the governments' and Churches'
roles in placing children in care, the treatment of children in care and the
long-term effects of experiences while in care. The issues of responsibility,
acknowledgement and reparation were also canvassed, as were issues relating to
accessing records and information, and the provision of wide ranging services
for care leavers which are critical in ensuring that they and their families
can improve their quality of life.
1.7
This second report covers the terms of reference
relating to foster care, including information from earlier times but with its
main focus on contemporary foster care issues, and the contemporary government
and legal framework in which child welfare and protection issues operate. The
report also discusses children and young people with disabilities in care, and
children and young people in juvenile justice and detention centres.
1.8
The Committee made a series of recommendations in Forgotten Australians relating to
statements of acknowledgement and apology; addressing legal barriers;
establishment of a national reparation fund; internal Church redress processes;
a Royal Commission; the location, preservation, recording and access to
records; funding for advocacy and support groups; the provision of comprehensive
support and counselling services for care leavers; the provision of health
care, housing, aged care and education programs; data collection and the need
for a whole of government approach to program and service delivery; recognition
through memorials and exhibitions and collecting oral histories; and the
funding of research and the establishment of tertiary study courses on a range
of issues relevant to the role and impact of institutional care in Australia's
social history through to a focus on child protection and related issues.
1.9
The Committee acknowledged that some of its
recommendations were beyond the Commonwealth's jurisdiction. The Committee
considered that the Commonwealth should encourage the States and Territories to
adopt recommendations through the Council of Australian Governments and Ministerial
Council discussions. The Committee expected that the Churches and agencies
would also acknowledge and accept responsibility for their involvement and
adopt the recommendations that have been directed towards them.
Responses by some Churches and agencies to Forgotten Australians
1.10
The Committee is aware of a number of Churches and
agencies that have responded to Forgotten
Australians by issuing apologies and establishing processes to review their
procedures and implement the recommendations contained in the Committee's
report.[5] These are a small but
promising start, though there is still a long way to go and many others to
respond.
Anglican
Church
1.11
In September 2004, the Synod of the Anglican Diocese of
Canberra and Goulburn issued an unreserved apology to people cared for by
Church institutions in the Diocese. The Synod expressed its deepest remorse to
any people who had been abused or assaulted in any way. The Diocese's
Professional Standards Reference Group was 'assessing our existing processes in
the light of the [report's] recommendations and developing a considered
response, possibly working with other dioceses and also with government'.[6]
1.12
On 6 October, the Anglican Church's General Synod
issued an apology to the children who experienced neglect, harm or distress in
institutions conducted by the Anglican Church and its agencies. The apology
stated:
The Anglican Church of Australia sincerely apologises to the
children whose experiences in institutional and out-of-home care provided by
the Anglican Church caused them hurt, distress, and harm.
With deep sadness and regret, this Church acknowledges that many
of these children suffered abuse and neglect, and a lack of appropriate care
and nurture while in institutional care; and a significant number also suffered
physical and sexual assault.
The Church deeply regrets that its institutions and personnel
did not always provide environments in which these children were protected and
nurtured.[7]
1.13
The General Synod also requested that each diocese
involved in the provision of institutional care to children extend an apology
in similar terms. The Sydney Diocesan Synod issued a statement of apology on 25 October 2004 to victims of abuse
in out-of-home care institutions owned by the Anglican Church. Archdeacon
Geoff Huard,
a member of the Anglicare Council, told the Synod:
Over 1000 children have passed through the doors of these
institutions...Anglicare recognises that there may indeed have been some who
received a poor level of care over the history of our institutions for which we
are very sorry and we do sincerely apologise. [We are] keen to assist any who
have had these experiences.[8]
1.14
The Sydney
Synod resolved that the Archbishop of
Sydney, the Standing Committee of the Synod and Anglicare's Council will be
presented with Anglicare's response to the Inquiry. A report of action taken will
be brought to the 2005 Synod. The Synod also affirmed the work of Care Leavers
Australia Network (CLAN), as well as a new pastoral care and assistance scheme
that is being administered by Sydney
Diocese's Professional Standards Unit.
Australian
Catholic Bishops Conference
1.15
On 14
December 2004, the Australian Catholic Bishops and the Leaders of
Religious Institutes issued a statement on the report into children in institutional
care. They formally renewed the apology, first made in the 1996 document
'Towards Healing', to those whose abuse was perpetrated by Catholic Church
personnel. The statement said:
We are also deeply regretful for the hurt caused whenever the
Church's response has denied or minimised the pain that victims have
experienced. And we regret the hurt and distress caused to the many good people
who have worked in this area.
1.16
The formation of a 'Senate Inquiry Action Group' was
also announced. The mandate of the Action Group is:
The Senate Inquiry Action Group shall make an analysis of the
recommendations of the Senate Inquiry, with particular reference to how they
apply to the structures, institutions and personnel of the Catholic Church, and
provide the bishops and religious leaders with advice concerning the
implementation of the recommendations.
The Action Group shall present a preliminary report to the May
2005 meeting of the Australian Catholic Bishops Conference and the June meeting
of the Australian Conference of Leaders of Religious Institutes, together with
a report on the work still to be done and an estimate of the time needed to
present a final report.[9]
Benevolent
Society
1.17
The Benevolent Society provided residential care for
children in Sydney.
In a response to Forgotten Australians dated
15 October 2004, the
Society apologised 'unreservedly for any abuse, mistreatment or harm
experienced by children in our care'. The Society went on to state that:
The Benevolent Society feels deep sadness and regret for the
children in our care who did not receive the consistent, loving care that they
needed and deserved.
We welcome the Senate Inquiry into Institutional Care and its
recommendations. It gives agencies such as our own the opportunity to
acknowledge past wrongs and to try to address them appropriately. In
particular, we are putting in place services to ensure that we will respond
promptly, compassionately and respectfully to anyone who wishes to approach us
to talk about their time in Scarba House as children.[10]
Uniting Church
in Australia
1.18
The Uniting Church
in Australia
issued a statement on 27 September
2004 which 'expressed regret and sorrow to the children who
suffered neglect and abuse while in institutional care provided by the Uniting
Church and its agencies during the
last century'. The National President, Rev. Dr Dean
Drayton, said:
On behalf of the Uniting
Church and our agencies, I
apologise unreservedly for any physical, psychological or social harm that
might have occurred.
I deeply regret that some children were let down while in the
care of the Uniting Church
and former Methodist, Presbyterian and Congregational Churches.
1.19
Rev. Drayton
noted that the Uniting Church,
through its family and community networks, had developed new models for
providing care and services to children. The Church was committed to ensuring
that children and families receive the best facilities and care possible and
that it was working constantly to improve them. Rev. Drayton
also stated that the unreserved apology was only the beginning of a staged process
and that the Uniting Church
was 'committed to working with government to respond to the issues raised
during the Inquiry'.[11]
1.20
The lead of the national Church was followed with the Synod
of the Victorian and Tasmanian Uniting
Church reported to have made its
own apology to all children who had suffered physical, psychological or social
harm in church-run institutions at a meeting on 28 September. The apology
was made by the Victorian Moderator Rev. Sue
Gormann. The Western Australian Synod was
also reported to have made a similar apology.[12]
Further information on matters discussed in Forgotten Australians
1.21
The Committee has received additional information that
expands on or clarifies a number of matters raised in the first report.
Legacy homes and repatriation wards
1.22
The Committee received submissions from former
residents of homes who indicated that they were placed in institutions by
Legacy or were 'repatriation wards'. In Forgotten
Australians, the Committee noted advice from the Department of Veterans'
Affairs that the Commonwealth had never had a role in the placement of children
in care and that the Repatriation Commission did not own or operate orphanages.
The Repatriation Commission and the Department paid pensions, benefits and
allowances to ex-servicemen and women and their dependents. The care and
responsibility for children was a matter of State legislation.[13]
1.23
Sydney Legacy
provided the Committee with further information on 'war orphans' and advised:
There is no record of Sydney
Legacy having accepted Legal Guardianship
for War Orphans.
Normally in NSW, placement of Orphans in homes or institutions
would have been arranged by the NSW Child Welfare Department at the instigation
of relatives or representations from non Legacy persons or organisations. In
many instances, it would come to Sydney
Legacy's attention that Orphans in
institutions were the children of Veterans with Legacy prescribed war service.
In such cases Sydney Legacy
would take an active role in the child's welfare and liaise directly with those
children through their home or organisation and supplement any financial
assistance.[14]
1.24
Sydney Legacy
provided hostel accommodation for children and students in need. There were
four hostels:
- Glen Mervyn Legacy House, Randwick – operated
from 1946 to 1973 to accommodate up to 30 students, generally ranging in age
from 14 to 21 years, being educated in Sydney;
- Fred and Ada Cull Legacy House, Ashfield – operated from 1952 to 1970 to accommodate boys undertaking trade certificates;
- Kyle Williams Home, Blakehurst – operated from
1948 to 1983 as a convalescent home for children; and
- Milne Legacy House, Strathfield – operated from
1964 to 1975 as a transition home for children including total orphans or
children permanently or temporarily separated from their mothers. Up to this
time, Legacy had relied on institutions run by other organisations to care for
children. However, concern that children destined for institutions, or on
discharge from them, required a period of adjustment which should be directly
under Legacy's care led to the establishment of the home. The home also
provided accommodation for children when the mother was hospitalised; when the
child was sent to Sydney for medical treatment or while awaiting a final court
decision in cases of neglect or some other offence not involving a criminal
element.
1.25
Sydney Legacy
also indicated that from 1950 its Juvenile Institutions Committee provided
support to children in institutions including the Church
of England Boys' Home at Glebe where
a section was reserved for Junior Legatees. It was arranged for children to
attend Legacy activities and Legacy provided pocket money, Christmas and
birthday presents and clothing and incidental requirements. By 1962 the
Juvenile Institutions Committee supported 100 children in homes including
Carlingford Home for Boys and Girls, Masonic
Schools at Baulkham Hills and St Vincent's
Home at Westmead. The Committee was no longer active after 1974 as the number
of children in institutions declined.
1.26
In relation to children in foster homes Sydney
Legacy stated:
Occasionally Legacy would become aware of foster children in
private homes. Invariably the foster parents did not want to accept Legacy's
assistance. This was apparently because of the foster parents direct responsibilities
to the NSW Child Welfare Department.[15]
1.27
Similarly, Brisbane and Melbourne
Legacy maintained residential accommodation for children. In Brisbane,
Moorlands was established in 1946 as a children's hostel. It accommodated total
orphans, children whose mothers were unable to look after them, children from
country areas who came to Brisbane for educational purposes including
undertaking apprenticeships and children seeking emergency accommodation when,
for example, their mother was in hospital. Moorlands closed in 1972.[16]
1.28
Melbourne Legacy purchased its first residential
hostel, Holmbush in late 1942. This was followed by Stanhope in 1945. Both
these homes were used by children aged nine and above attending school or some
form of tertiary education. Early in 1946, the trustees of Blamey House agreed
that their funds could be put to acquiring a property to be used as a toddlers'
home. In 1947 a large house and grounds were purchased at Beaumaris. This was
renamed Blamey House. In 1950, in response to increasing pressure from country
Legacy clubs for city accommodation, a fourth hostel, Harelands, was purchased
at Kew.
1.29
In 1956 Blamey House was sold and the name transferred
to the Holmbush property which then became the 'toddlers' home'. As numbers
were decreasing, the older boys were transferred to the same property in 1960.[17]
Statutes of limitation
1.30
The Committee highlighted in Forgotten Australians the specific difficulties faced by people
who have suffered abuse within institutions in successfully pursuing compensation
through the civil court system, especially the limitation periods.[18] The problem posed by statutes of
limitation in all jurisdictions is that civil proceedings can generally only be
bought by these survivors within three years of turning 18 years. This means
that individuals cannot bring a civil action if the State or religious
institution and/or the individuals responsible for the injury pleads the expiry
of time as a defence to the institution of civil proceedings. Consequently
survivors of institutional abuse are generally blocked from gaining access to
the courts to bring their own civil proceedings to gain damages. In general,
limitation statutes do not apply to bringing criminal proceedings.
1.31
While the limitation statutes do not apply to criminal
proceedings, it is rare for the cases of those seeking justice through the
criminal courts to proceed, or if they do, to reach judgement. Cases to
prosecute alleged perpetrators of abuse are usually refused on the basis that
there are insufficient grounds to do so, the reasoning being that the passage
of time renders memories unreliable or vague, the advanced age or mental or
physical incapacity of the accused and the lack of corroborating evidence.
1.32
In Forgotten
Australians, the Committee expressed the view that alleged perpetrators of
sexual and/or physical abuse should not continue to evade prosecution by hiding
behind the limitations of actions provisions. In terms of future survivors of
institutional child abuse, Dr Ben
Mathews argued that amendments to State
civil litigation statutes should be made in line with those made by NSW in 2002
and Victoria in 2003 regarding child abuse
claims generally. These changes effectively give such survivors until the age
of 37 years to institute proceedings.[19]
Mothers and children in
institutional care
1.33
Evidence received by the Committee, reflected
throughout Forgotten Australians,
concentrated on the emotionally charged stories of the breaking of mother-child
relationships and the subsequent search for reconnection and identity. Much of
this evidence discussed the relationship from the child's perspective. However,
a number of submissions emphasised that mothers also struggle to complete their
own stories, to correct the official historical record and to receive an acknowledgement
of the injustices they have experienced.
1.34
MacKillop Family Services commented on the need to
understand and acknowledge the experience of, and central place of, mothers
whose children were adopted and/or placed in institutional care. They noted
that during the time of the operation of the St Joseph's
Homes in Broadmeadows and Carlton
over 12 500 mothers were resident. Most of these women were resident prior
to and/or following the birth of their babies, some others came for respite.
Some babies remained with their mothers, some babies were placed for adoption
and some were placed in institutional care.[20]
1.35
Origins Victoria
commented on the specific abuse suffered by young mothers of the 1950s to 1980s
whose children were taken from them for adoption.[21] Origins described that the abuse of
these mothers has been an emotional abuse, including 'psychological, verbal and
mental abuse, humiliation and isolation'. The loss of their babies has
'culminated in lifelong post traumatic stress, depression and loss for which
there is no recognition'.[22]
1.36
MacKillops submitted that:
Mothers have the right for their anguish and pain to be heard,
and are similarly in need of support and acknowledgment. Their suffering will
continue until it is acknowledged and addressed and adequate support services
are in place...We support the call for an inquiry into past adoption practices to
aid in the story of mothers being heard, to effect reconciliation where
possible, and to enable people (mothers, children and carers) to move forward
constructively.[23]
Recruitment into religious orders
1.37
The Committee received evidence from people who had
entered religious orders as young people aged 14 or 15 years. Some had entered
orders straight from school or after attending religious institutions such as
schools or hostels. Their graphic stories of a harsh and repressive regime that
destroyed self-esteem, typically through humiliation, and the longer term
impact on their lives, often after much traumatic struggle to leave the order,
provide another perspective into institutional care.[24]
1.38
One lady outlined her experience in a religious order,
submitting that while staying at the Pastorelle Sisters Girls Hostel, the
Sisters 'had convinced me I had a vocation to religious life and they had been
very persuasive indeed. They had me leave my job and cease going to College and
I had become totally dependent on them for everything.' The young girl was sent
to Italy as a
novitiate without her mother's consent. She stated that 'my passport documents
had been falsified by the Sisters' agent, a solicitor – my Mother had not
signed them'. After seven years the lady returned to Australia working for the
Sisters until after long, debilitating illnesses she left the Convent on an
Invalid (Disability) pension and with no home, no family and absolutely no
experience of the outside world. She described the impact on her life:
When I left the Sisters I was a nothing and a nobody a reject...I
had no educational qualifications at 30 years of age and I was very ill indeed...
My experiences in the 'care' of the Sisters have impacted adversely on my life
as an adult. Illness, depression, loneliness, reclusiveness and all the
consequences of these things. I have suffered as an adult because of how I was
treated as a child.[25]
1.39
The Committee received other evidence that those going
into orders often found the experience very difficult and that life after
leaving orders was equally difficult. One witness, who is in contact with
others who were in Orders, submitted:
I was recruited as a child straight from school into a lifestyle
of harsh living conditions, sexual repression, social isolation from my family
and friends and constant humiliating practices aimed at breaking my will and
destroying my self esteem...
[Many others who were in Catholic institutions] are left scarred
by this experience and are now over fifty and suffering poor mental and
physical health, unemployment, insecure housing and social isolation,
etc...Others took their own lives or died younger than average from stress
related disorders.[26]
Experimentation on children in care
1.40
In addition to the specific medical experiments and
research conducted on children in orphanages and babies homes in Victoria
referred to in Forgotten Australians,[27] further trials involving children in
care have come to light. The Age has
reported that Commonwealth Serum Laboratories' (CSL) records in the National
Archives show that 56 babies aged under 12 months in five Victorian
institutions were used for trials between December 1959 and early 1961 to test
a new quadruple antigen vaccination including Salk polio
vaccine. It is known batches of the Salk vaccine were contaminated with a
monkey virus, SV40, which has been linked to cancer.[28] These trials were much later than the
experiments previously referred to in Forgotten
Australians. One baby who was a part of the trial died in August 1960 from
meningitis. There was no coronial inquiry into the child's death.[29]
1.41
While there is no indication of who gave formal consent
for the children and babies to be used in the experiments conducted between
1945-1970, a 1997 report by the Department of Human Services found there are no
records available to identify whether specific formal written approval was
sought and obtained from either parents (in the case of babies placed voluntarily
in homes), the Department (for wards of the State) for involvement in the
medical research or staff responsible for the management of the babies' and
children's homes. However, the report found that 'it is likely that the
research institutes gained consent to conduct the research from staff
responsible for the institutions and possibly in one case, from a Departmental
employee'.[30]
1.42
Clinical trials involving vaccines and using the
residents of children's homes also occurred in Ireland
during the 1960s and 1970s. A report prepared by the Chief Medical Officer of
the Department of Health and Children was tabled in the Irish Parliament in
November 2000. The Minister, Mr Martin, noted
that 'questions of ethical propriety, consent and responsibility have been
raised. These children were in the care of the State and it is important to
establish if the State fulfilled its obligation to them'.[31] These same issues have been raised in
relation to the trials conducted in Australia.
A comment by the Irish Minister is equally pertinent to the Australian trials when
he wondered, who was minding the rights of the child?
Perspectives of institutional and out-of-home care
1.43
As noted in Forgotten
Australians, institutional care involves a variety of living arrangements.
Residential care for children includes placing children in residential buildings
where children are cared for by paid staff, who may or may not live on the
premises. Home-based or out-of-home care may include foster care (where the
child is placed in a family setting), or community care or relative/kinship
care where the caregiver is a family member or a person with a pre-existing
relationship to the child.[32] In this
report the Committee has examined care and experiences in residential and
out-of-home care (foster and kinship care), juvenile justice centres, migrant
detention centres and the care of children with disabilities.
1.44
Many respondents to the inquiry have called for
policies that would meet the 'best interests' of children as defined in the
United Nations Convention on the Rights of the Child (UN Convention).[33] Underlying Australia's State and
Territory Acts for the care and protection of children and young people is the
principle that actions and decisions regarding children and young people should
be undertaken in the 'best interests' of the child, a principle which has been
developed by reference to court decisions and social welfare attitudes both
from the past and contemporary society, as well as from current global child
care philosophies. The Commonwealth's Family
Law Act 1975 promotes actions in the 'best interests of the child' and
provides an influence on more recent Australian child welfare legislation.[34] What constitutes best interests can be
a nebulous concept. It may entail many stipulations to be met which could
perhaps be met by ensuring that a child is raised by his or her own family or
that he or she be provided with an out-of-home care option.
1.45
Article 3 of the UN Convention sets out the best
interests of the child as:
In all actions concerning children by social welfare
institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be the primary consideration.
States Parties must ensure such protection and care as is
necessary for his or her well-being, taking into account the rights and duties
of his or her parents, legal guardians or other individuals legally responsible
for him or her, and take all appropriate legislative and administrative
measures.
States shall ensure that the institutions, services, and
facilities responsible for the care or protection of children shall conform
with the standards established by competent authorities, particularly in the
area of safety, health, in the number and suitability of their staff, as well as
competent supervision.[35]
1.46
While the UN Convention does not precisely define a
child's 'best interests', significant indicators are outlined in the Convention
including those relating to ensuring that children are in conditions where they
can develop their full human potential, with human dignity and can enjoy the
rights and freedoms set out in the Convention and other human rights
conventions, treaties, and guidelines. These include principles relating to
children being given opportunities to participate and express their views (if
capable of forming a view); have rights to freedom of expression, thought,
conscience and religion; the recognition that children require special
protection because of their vulnerability and stage of maturation (eg,
prohibitions on sexual or economic exploitation, or special requirements before
the law); and the recognition that it is in the best interests of indigenous
children to be raised in the indigenous community.[36] Under Article 20 of the UN Convention,
children have the right to special protection from the state, including
alternative care if necessary.[37]
Recent reports on the care and protection of children in out-of-home care
1.47
In recent years, various inquiries have been or are
being conducted into the activities of some State and Territory government
agencies with responsibility for the care and protection of children. The
findings of these inquiries show that jurisdictions across Australia
are experiencing similar problems in matters related to the care and protection
of children. The brief discussion that follows of the most recent reviews and
reports is by no means comprehensive as many other inquiries and studies have
been undertaken in recent years.[38]
NSW - Care and support: final
report on child protection services
1.48
During 2002 the NSW Legislative Council's Standing
Committee on Social Issues conducted an examination of the NSW Department of
Community Services (DoCS) regarding aspects of the care and protection of
children and young people at risk of harm, systems to deal with children, young
people and families, out-of-home care placements and departmental staffing and
resource issues. Their report, Care and Support:
Final Report on Child Protection Services released in December 2002,[39] concluded that there was a 'lack of adherence
by [DoCS] staff to policy and procedures', inconsistency about practices within
the Department and no clear staff guidance on policies and procedures.[40] The State's out-of-home care system
was described as the 'overlooked arm of the New South
Wales child protection system', and was said to have
poor long-term outcomes for children and young people.[41]
1.49
The report's 70 recommendations included those related
to open and transparent relationships among groups, funding for families with
complex needs, the integration of research and evaluations into the Department's
functions, the development of standard assessment processes for potential and current
foster carers, the introduction of a charter of rights for children in
out-of-home care and specialist assistance for caseworkers dealing with the Children's
Court. The inquiry also supported the idea of a national child protection
service as mooted in 2002 by the Family Law Council.[42]
South Australia
- Our best investment: A state plan to protect and advance the interests of
children
1.50
Released in March 2003, Our best investment: A state plan to protect and advance the interests
of children,[43] addressed issues
related to preventing child abuse and neglect and working for better outcomes
for children and young people who have experienced abuse and neglect, and their
families. The report, which contained strong messages about inter-agency
collaboration and more efficient work practices and targeting of resources, examined
many subjects such as: legislation, policies, practices and procedures of government;
criminal law and police procedures; other jurisdictions' legislation; and the financial
and social costs of child abuse and neglect. It considered the experiences of
groups including indigenous children and young people, children with
disabilities, children from culturally-diverse backgrounds and children who
have had contact with the courts. The report drew on the findings of an earlier
review, the Semple Report[44] and noted
situations of insufficient training and support for carers and systems abuse towards children.[45]
1.51
Included in the report's 206 recommendations are those
for parenting courses for high-risk or high-need families and the interlinking
of data about child abuse notifications from the department and subsequent court
outcomes. The South Australian Government has been working to progress the
recommendations of the Layton Review, the Semple Review and the findings of the
Family and Youth Services Workload Analysis Project. Included in the Government's
initiatives since 2003-2004 have been: the recognition of the special needs of
children under the guardianship of the Minister; increased staffing in
Children, Youth and Family Services; the creation of two assessment
stabilisation and transition services for vulnerable young people; the
establishment of three regional Aboriginal Family Care Committees; the
completion of a review of Aboriginal children in non-Aboriginal foster care and
the development of cultural maintenance plans for Aboriginal children and young
people in foster care; and the establishment of a Special Investigations Unit
to ensure the independent investigation of allegations of abuse in care and
that children under the Minister's care and/or guardianship are properly
protected.[46]
South Australia
– Children in State Care: Commission of Inquiry
1.52
In November 2004 a Commission of Inquiry into children
in State care was established through an Act of the South Australian Parliament.[47] The Commission, chaired by Justice
Ted Mulligan,
will inquire into any allegations of sexual abuse of people while under the
care of the State or criminal conduct which resulted in the death of a person
who, at the time that the alleged conduct occurred, was a child in State care. The
Commission is expected to report in June 2005.
Queensland
- Abuse of Children in Queensland
Institutions
1.53
In 1998, the Queensland Government established a
Commission of Inquiry chaired by Ms Leneen Forde AC to examine, inter alia, if there had been any abuse,
mistreatment or neglect of children in Queensland
institutions and breaches of any relevant statutory obligations during the
course of the care, protection and detention of children in such institutions.
The report, Abuse of Children in
Queensland Institutions, released in May 1999,[48]
covered the period from 1911 to the present. The sections of the report
relevant to care of children in institutions was discussed in Forgotten Australians; however the
report also commented upon the modern child welfare system in Queensland, the
juvenile justice system in Queensland and current juvenile detention centres,
and evaluated current legislation and departmental practice.
Queensland
- Protecting Children: An inquiry into abuse of children in foster care
1.54
In June 2003, the Queensland Government commissioned an
independent external audit of foster carers, after allegations of abuse of
children by carers in Queensland's
foster care system. Phase one of the audit was completed in November 2003, with
the Government accepting the 91 recommendations.[49] Matters from the independent audit
were also referred to the State's Crime and Misconduct Commission (CMC). The
CMC's investigations of serious systemic failings in the State's foster care
system, resulted in the January 2004 report, Protecting Children: An inquiry into abuse of children in foster care.[50]
1.55
The CMC investigated foster children's allegations of
sexual abuse by members of a number of foster families. The inquiry also dealt
with the handling by the then Department of Families and responsible ministers,
of allegations of abuse against foster children. The inquiry reported on a
range of child protection matters including the deaths of two children which
had previously been investigated by the Queensland Ombudsman. The CMC noted
many instances of inadequate responses from the Department as well as major
problems which had existed for many years across different governments and
administrations. The inquiry revealed many instances of abuse and inappropriate
behaviour by foster families and instances of young children having a
sexually-transmitted disease.[51]
1.56
The report delivered 110 recommendations some of which
address data management and staff matters related to training, professional
development, specialist investigative skills and expert knowledge of child
neglect and abuse issues. The Government accepted the recommendations and
established an Implementation Steering Committee and Child Protection
Implementation unit. The Queensland Government had introduced reforms after the
1999 Forde Inquiry and commenced improvements in child protection. Its latest
reforms have included the establishment of a new Department of Child Safety and
have focused on service delivery, client management, indigenous children's
needs; improvements to accountability in the child protection system;
initiatives to address the backlog of child protection applications and changes
to care and protection legislation. A Partnership Agreement: Educating Children
and Young People in the Care of the State, designed to improve access to
education for children and young people in care, has also been released.[52]
ACT - The rights, interests and
well-being of children and young people
1.57
In August 2003, the Australian Capital Territory (ACT) Legislative
Assembly Standing Committee on Community Services and Social Equity produced a
report The rights, interests and
wellbeing of children and young people.[53]
The Committee had considered matters such as children's and young people's
participation in developing laws, policy and practices; the role and impact of
the care and protection system on children and young people; the role of various
publicly-appointed child welfare officials; and the experiences of children and
young people who have acute mental illnesses or drug and/or alcohol problems including
youth in the criminal justice system.
1.58
The Committee noted that the Department of Education,
Youth and Family Services (DEYFS) had not complied with its statutory
obligations in forwarding information to the Office of the Community Advocate
(OCA) about all children on care and protection orders in the ACT and that the
Department did not always take reports of child abuse seriously or respond to
such reports.[54] The Committee's 41 recommendations
included calls for the ACT Government to provide support for children and young
people in domestic violence situations; early intervention programs; and a community-nurse
home visiting scheme for families with new babies. The ACT Government
considered its response in December 2003 and agreed, or agreed in principle, to
13 recommendations, noted 25 and disagreed with three.
ACT - The
Territory as Parent
1.59
Arising from the ACT Assembly report and the Minister
being notified that the Department (DEYFS) had not met its statutory
obligations regarding advice to the Office of the Community Advocate (OCA)
about alleged abuse reports, the ACT Commissioner for Public Administration
(Cheryl Vardon)
conducted a review into the safety of children in care in the ACT. The
Commissioner assessed the shortcomings in the ACT system, including staffing
levels, reporting procedures, case management, and resource allocation for
child protection services.
1.60
The Commissioner's report, The Territory as Parent: review of the safety of children in care in
the ACT and of ACT child protection management, was presented in May 2004.[55] The report's focus included
comparisons of other jurisdictions' practices, such as Queensland's
legislative provision for a Charter of Rights for a Child in Care. It also
highlighted information about the lack of mechanisms for support to the indigenous
community and concerns about the wellbeing of some children. The review
expressed concern about the high numbers of indigenous children in the care of
the Department; the Department's lack of specific strategies to identify
children and young people with high needs; and an extremely high turnover of
departmental staff in 2003. The recommendations included strategies to identify
high-needs children and young people for the development of services and
placements; initiatives to meet indigenous children's and young people's needs;
a recruitment, training and support program and remuneration equivalent to the
work value of this role as a way of extending the options for support of
children and young people in care who have more complex needs.[56]
1.61
The ACT Government allocated an additional $6 million to
implement the report's key recommendations. Major reforms and initiatives
included the creation of a new independent ACT Commissioner for Children and
Young People; increased funding for new programs to target early intervention,
prevention and family support; additional staff to ease the high workload in the
care and protection of children; the increased scope of a team to take policy
and program responsibility for indigenous children and young people; and the
transfer of functions related to the care and protection of children to the
Chief Minister's Department.[57]
1.62
Along with the Vardon Review, the ACT Government
commissioned an independent review of files on a group of children who had been
assessed by the ACT Department as at great risk. The audit revealed many
inadequacies in the ACT child protection system in protecting vulnerable
children and young people as well as a systematic neglect of indigenous
children. Among the audit's findings were that for every three children subject
to the audit, another child was identified as needing child protection
intervention. Problems were found with poor or incorrect departmental records
on children in need of care and protection including a substantial number of
cases where reports of abuse were incorrectly unsubstantiated by staff. The
audit report made 66 recommendations concerning issues such as staff training,
data collection management, monitoring of child protection measures, foster
care, and the roles and responsibilities of child protection workers.[58]
Tasmania
- Review of claims of abuse from adults in state care as children
1.63
In July 2003, the Tasmanian Ombudsman, Jan
O'Grady, in conjunction with the Secretary
of the Department of Health and Human Services, commenced a review of claims of
abuse of children in State care following allegations of abuse by a person who
had been in foster care. Following commencement of the review, the Tasmanian
Premier announced that ex gratia payments
of up to $60 000 would be available and appointed an Independent Assessor.
1.64
The Ombudsman's task was to assess each claim of past abuse
and to make recommendations to the Department for individual reparation other than
the provision of ex gratia payments.
The Ombudsman was also to identify any issues and make recommendations relevant
to current practice. An interim report was released in January 2004 and the
final report in November 2004.[59]
1.65
The Ombudsman made 11 recommendations in the final
report including that the Government continue to accept claims of past abuse
from adults; that the Government establish an independent unit for receipt of
claims and assessment and the Department of Health and Human Services establish
a unit to manage claims; that funds be allocated to establish a private educational
trust fund to assist adult victims of child abuse in State care to upgrade or
continue their education; the Government liaise with Church authorities to seek
a contribution to the private education trust fund and an apology for claimants
who allege they were abused in Church run homes; and that the Minister ask the
Commission for Children to investigate more recent cases of alleged abuse
referred to in the report.[60]
1.66
On 6 December
2004, the Tasmanian Premier Paul
Lennon announced that ex gratia payments would be made to 169 people who had suffered
abuse whilst in State care. A further 80 claims were still being assessed. The
Government had accepted the Ombudsman's report 'in full' and claimants would
receive payments of up to $60 000. In addition, the Government would also
pay for financial and legal advice for those receiving payments through
advisors of their own choice. The formal assessment process also included a
range of assistance, including reuniting people with their families and
counselling.
1.67
In order to receive the payment, claimants must first
sign a Deed of Waiver, with those who decide against taking up the ex gratia payment retaining the option
of taking civil action through the courts.
1.68
The Premier stated that the Government was not under
any legal obligation to make ex gratia
payments but he felt there was a strong moral obligation. It was a formal
recognition of the pain and suffering caused to victims. In a letter to those
receiving ex gratia payments, the
Premier formally apologised. The Premier indicated that a formal motion of
apology for abuse suffered would be moved when State Parliament resumed in
2005.[61]
Western Australia
- Gordon Inquiry re Family Violence and Child Abuse in
Aboriginal Communities
1.69
The Gordon
Inquiry into Response by Government Agencies to Complaints of Family Violence
and Child Abuse in Aboriginal Communities, commenced in January 2002,
headed by Magistrate Sue Gordon. Ms Gordon examined and investigated various
matters related to family violence and child abuse in Aboriginal communities in
Western Australia including the activities of State government agencies in
addressing complaints and the reporting of sexual abuse in Aboriginal
communities; and identifying the barriers and capacity of government agencies
to address the issue of family violence. The inquiry revealed substantial child
abuse among Aboriginal communities in Western Australia
and high levels of domestic violence among regional indigenous communities.[62]
1.70
The Western Australian Government's response has
included strengthening responses to child abuse and family violence; responses
to vulnerable children and adults at risk; safety of communities; and
governance, confidence, economic capacity and sustainability of communities.
The inquiry also highlighted the need for services to be responsive to the
needs of local communities and indigenous cultures in order to maximise the
effectiveness of services. It is likely that an increased awareness of child
abuse in indigenous communities will lead to a greater demand for government
services and support from communities.[63]
Summary
1.71
A common theme from these reports has been that
departments do not always respond to previous inquiries' recommendations or
suggestions.[64] The ACT Assembly
committee summed up this view:
...it is difficult to see where progress has been made and members
of the community may legitimately ask how many recommendations, from how many
reviews does it take for action to occur? The Committee had no desire to
produce yet another report that simply sits on someone's shelf collecting dust.[65]
1.72
Other conclusions have related to government agencies'
procedures and processes and abilities including departmental management styles
that undermine effective delivery of child protection services; organisational
failure where staff did not have the information or skills and resources to
make decisions in the best interests of children in care; and instances where inadequate,
long-term departmental responses resulted in missed opportunities to protect
foster children.[66] The inquiries also
noted high and/or increasing numbers of children at risk of abuse or harm and constantly
increasing demands for placements.[67]
1.73
The reports noted the need to improve all aspects of
fostering such as carers' pay, professional status, conditions and training.[68] A lack of inter- and intra-agency
cooperation and coordination and departments' failure to keep accurate and
coordinated records within and across agencies also featured.[69] Similarly, departments were found to
have poor relationships with foster carers to the point of not consulting with carers
on significant decisions, where carers often felt excluded, under valued and unsupported
in their work to care for vulnerable children and young people.[70] As well, State departments seemed to
lack the confidence of non-government providers in managing, planning, funding,
coordinating or developing the out-of-home care sector and a lack of trust
between departments and carers seemed to be common.[71]
1.74
The issue of screening of people who work or volunteer
with children was also a significant point raised in these reports, including
the development of assessment processes; legislative arrangements for a
National Paedophile Register; the development of risk-based screening
processes; and views about the lack of screening of carers or indications of criminal
history checks.[72]
Conclusion
1.75
At regular intervals over many years, reports on
problems and shortcomings of the care and protection of children in out-of-home
care have been produced. Unfortunately, it seems that these reports had minimal
impact in achieving a system that was responsive, accountable and achieved
outcomes in the best interest of children. A spate of more recent reports for a
number of States and Territories reveal crisis-ridden child protection systems
that are under-resourced, under-funded, under-staffed resulting in a high
turnover of over-worked (burnt-out) and often inexperienced workers. They have
also found that the crisis-ridden systems have resulted in children at risk not
being adequately protected.
1.76
The Committee considers that the improvement of the
child protection system is of fundamental importance for the development of our
nation, as our children are our future. The social and economic cost of not
fully addressing these issues will only escalate in the future. The protection
of children needs to be at the forefront of government policy agendas within
all jurisdictions: the Commonwealth and the States and Territories. The
Committee's recommendations in this regard are contained in chapter 7 of
this report.
1.77
The Committee also considers that child protection
issues must be paramount in general public debate and the public consciousness.
The Committee believes that this can be assisted through a year designated as
the year against child abuse in Australia
to focus attention on this significant problem.
Recommendation 1
1.78 That the Commonwealth Government consider the
designation of a year as the National Year Against Child Abuse in Australia.