Enhancing the implementation of the Aboriginal and Torres Strait Islander Child Placement Principle

Policy and practice considerations
CFCA Paper No. 34 – August 2015

Implementation of the Aboriginal and Torres Strait Islander Child Placement Principle

The importance of the Principle and its place in child protection legislation and policy has been recognised in major reviews and inquiries into child protection systems across Australian jurisdictions (most recently in the Queensland Child Protection Commission of Inquiry, the Protecting Victoria's Vulnerable Children Inquiry, and the Inquiry into the Child Protection System in the Northern Territory).

These inquiries also highlight concerns about compliance, implementation and monitoring of the Principle, echoing difficulties in the implementation of the Principle that have been noted for some time (Ban, 2005; Crime and Misconduct Commission, 2004; Human Rights and Equal Opportunity Commission, 1997; Johnston, 1991; Lock, 1997). The United Nations Human Rights Committee on the Rights of the Child has also specified poor implementation of the principle as of particular concern to the rights of Aboriginal and Torres Strait Islander children being placed in care (United Nations Committee on the Rights of the Child, 2012).

Importantly, while self-determination2 in child protection matters may be an aim of the Principle (Libesman, 2014; SNAICC, 2013), it is important to note that implementation of the Principle has not been within the control of Aboriginal and Torres Strait Islander families, communities and organisations (Ban, 2005, Human Rights and Equal Opportunity Commission, 1997). The existence of the Principle in legislation is itself not a measure of self-determination, and Litwin (1997) argued that strategies to promote Indigenous autonomy and self-determination within child protection systems have themselves not challenged the prevailing form of mainstream child protection systems. This means that Indigenous child welfare and family preservation processes must be incorporated within systems that have child removal as a core function:

While the previous child welfare policies pursued by both public and private sector agencies have been universally condemned, the questioning of the practice of separating Indigenous children from their families is not just a questioning of the past. These practices continue to be questioned into the present. (Litwin, 1997, p. 319)

Additional concerns about the application of the Principle have related to the lack of adherence to the Principle (i.e., the number of children placed with non-kin and outside of family and community groups and the lack of searching for family placements), the safety of children in some kin and non-kin placements, and the removal of children in care from secure long-term foster placements to family-based placements (Northern Territory Government, 2010). In some cases, inquiries and reviews have raised concerns that the best interests of children have not been considered paramount in determining placements for Indigenous children (Crime and Misconduct Commission, 2004) and conversely that cultural identity and connection have not always been a consideration when making decisions about the best interests of children (Australian Centre for Child Protection, 2013a).

Improved implementation of the Principle has become the focus of national attention and action through:

  • the National Framework for Protecting Australia's Children (Council of Australian Governments, 2009), in which it is embedded as a priority action and is reflected in Outcome 5: Indigenous children are supported and safe in their families and communities;
  • the National Standards for Out-of-Home Care (Department of Families, Housing, Community Services and Indigenous Affairs [FaHCSIA], 2011), in which the participation of Aboriginal and Torres Strait Islander communities in decision-making regarding the care and placement of their young people, and the hierarchy of placement are given specific consideration; and
  • the national Family Matters: Kids Safe in Culture, Not in Care project - a community-driven initiative which aims to break the cycle of child removal and halve the number of Indigenous children in out-of-home care by 2018. It identifies increasing compliance with the Principle as one of the key actions related to achieving their vision (Family Matters, 2014, p. 7).

2 Self-determination in Indigenous child protection has been described as "having the means and decision-making powers to look after our own children" (Ah Kee & Tilbury, 1999, p. 4).