Garay, Mahlia; Kelley, Lucy-Ann; Gielingh, Annaliese --- "Recognising the Harms of Removal: Considerations of Culture in the Courtroom" [2024] UNSWLawSocCConsc 10; (2024) 18 UNSW Law Society Court of Conscience 63

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RECOGNISING THE HARMS OF REMOVAL: CONSIDERATIONS OF CULTURE IN THE COURTROOM

Mahlia Garay,^* Lucy-Ann Kelley,^# Annaliese Gielingh^‡

I Introduction

More than 25 years ago, the Bringing them Home Report (‘BTH Report’)^[1] documented the egregious and irreversible harms caused by the forcible removal of Aboriginal and Torres Strait Islander children^[2] into care by state, territory and federal governments. The BTH Report paid homage to decades of lived experience and advocacy by survivors of the formally-recognised Stolen Generations era and made 54 recommendations for reform.^[3] Recommendation 46A was for a nationally-binding legislative presumption that the ‘best interest’ of an Aboriginal child is for them to remain with their family, community and culture.^[4]

Two decades later, the Family Is Culture Review Report (‘FIC Review Report’)^[5] amplified ongoing advocacy in the New South Wales (‘NSW’) context and again exposed the intergenerational and cultural harms caused by the removal of Aboriginal children from their families and communities. The FIC Review Report made 126 recommendations for systemic reform.^[6] Recommendation 64 was to amend the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘Care Act’) to require judicial officers^[7] hearing child protection matters to consider the known risks of harm to an Aboriginal child of being removed from their parents or carer.^[8] This recommendation remains unimplemented.^[9]

In this article, we argue that implementing Recommendation 64 would help to dismantle the biased definitions of ‘harm’, ‘risk’ and ‘best interests of the child’ in the Care Act, which have been historically determined and acted upon by the State as part of a risk-oriented logic that favours removal and ignores cultural connection as a source of strength and safety. We begin by providing the background to Recommendation 64 of the FIC Review Report and critically evaluating the Department of Communities and Justice’s (‘DCJ’) claim that current provisions of the Care Act are sufficient to enable Children’s Court magistrates to consider the known harms of removal. We then turn to examine culture as a protective factor that supports Aboriginal children to thrive. Our final section considers the potential, process and practice of implementing Recommendation 64. Our intention is that, by being legally obliged to take into account evidence of the known harms of removal, magistrates will reach more culturally appropriate decisions in child protection proceedings, and recognise the right of Aboriginal children to grow up safe and cared for at home and on Country, where they belong.

We focus our discussion on the known harms caused by removal from culture, because to remove an Aboriginal child from their family is to remove them from their culture, as the title of the FIC Review Report suggests. We understand the harms of removal from culture to be best known by families who have been impacted by state child protection systems, and it is their authority and expertise that should inform judicial consideration of the known harms of removal pursuant to Recommendation 64. Our discussion of the issues is directly informed by our roles as Aboriginal^[10] and non-Indigenous^[11] advocates working towards system transformation, guided by the communities we serve. We adopt an anti-colonial stance which actively ‘[pushes] back against colonial institutions, structures, practices, [and] mentalities’^[12] and sees practices of child removal perpetrated against Aboriginal families and communities as an integral part of Australia's ongoing settler colonial project.^[13] We affirm the truth-telling of survivors and of the families still fighting for their children, echoing their call that the Stolen Generations continues.^[14]

II Background To Recommendation 64

The landmark FIC Review was the first Aboriginal-led, independent review of Aboriginal children and young people in out-of-home care (‘OOHC’) in NSW. The FIC Review Report revealed a child protection system in crisis and made numerous findings including: widespread non-compliance with legislation and policy among caseworkers; lack of transparency and effective oversight within the NSW child protection system; and enduring intergenerational and cultural harms as a direct legacy of past policies of protectionism and assimilation perpetrated against Aboriginal peoples.^[15] The resulting FIC Review Report provided a roadmap for transformation to a child protection system grounded in pillars of self-determination and public accountability and oversight. The FIC Review Report made over 3,000 recommendations for individual cases as well as 126 recommendations for systemic reform, including 24 recommendations which called explicitly for legislative change. Recommendation 64 proposed an amendment to the Care Act to require judicial officers to consider the known risks of harm to an Aboriginal child of being removed from their parents or carer in child protection matters.^[16] These known risks of harm were detailed extensively in the FIC Review Report, which suggested that Recommendation 64 would also serve as a ‘legislative reminder’ of the need for magistrates to closely scrutinise the quality of the evidence presented to justify removal or non-restoration.^[17] This issue remains as relevant as ever amidst recent public admissions by the NSW Government that ‘about 100 per cent’ of the information provided to DCJ by non-government OOHC providers is inaccurate, and ‘close to 90 per cent [is] significantly lacking in information’.^[18] Most importantly, the FIC Review team posited that Recommendation 64 would ‘unambiguously signal to all Magistrates that removal is often a harmful practice that must be undertaken with due care’.^[19]

Implementing Recommendation 64 was, and remains, a priority for Aboriginal communities and Aboriginal Community-Controlled Organisations.^[20] However, despite this clear directive and the Government’s obligations under binding national frameworks including Closing the Gap^[21] and Safe and Supported,^[22] DCJ has made numerous attempts to abandon Recommendation 64 – including as recently as February 2024^[23] – refusing to progress its implementation on the basis that current provisions of the Care Act are sufficient to enable the courts to consider the potential harms of removal.^[24] The Department has failed to substantiate this claim and is yet to specify which provisions of the Care Act it considers sufficient to render Recommendation 64 unnecessary. Presumably, the Department would seek to rely on principles of general application set out in Chapter 2 of the Care Act, as well as the particular legislative provisions which govern care application proceedings in the Children’s Court, contained in Chapter 5, Part 2 of the Act.

The Chapter 2 principles enshrine notions of removal as a last resort, the importance of connection to culture and community, and restoration as the preferred policy outcome for children placed in OOHC. They include, for example:

● The requirement that, in deciding what action it is necessary to take to protect a child from harm, the course to be followed must be the least intrusive intervention (s 9(2)(c));

● The requirement that DCJ make ‘active efforts’ to prevent entry into OOHC and, for children who have been removed, make active efforts to restore that child to their parents or otherwise place them with family, kin or community (s 9A);

● Restoration as the first preference for permanent placement for a child who has been removed (s 10A(3)(a));

● Prevention as an element of the Aboriginal and Torres Strait Islander Children and Young Persons Principle (‘ATSICYPP’), and recognition that Aboriginal children have a right to be brought up within their own family, community and culture (s 12A(2)(a)); and

● The general order for placement prescribed by the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles (‘ATSICYPPPs’), pursuant to which placement with a member of a child’s extended family or kinship group is the preferred option (s 13(1)(a)).

The Chapter 2 principles are intended to give guidance and direction in the administration of the substantive provisions of the Care Act,^[25] including the Chapter 5, Part 2 provisions, which govern care application proceedings in the Children’s Court. These provisions impose additional requirements for care applications involving Aboriginal children and, most notably, provide that the Children’s Court must not make a final care order in relation to an Aboriginal child unless it expressly finds that the plan for permanent placement of the child:

● Complies with the permanent placement principles, the ATSICYPP and the ATSICYPPPs (s 83A(3)(a));

● Includes a cultural plan that sets out how the child’s connection with their Aboriginal family and community, and their Aboriginal identity, will be maintained and developed (s 83A(3)(b)); and

● Has been developed, to the greatest extent practicable, in consultation with the child, their parents, family and kin, and relevant Aboriginal organisations or entities for the child (s 83A(3)(c)).

There are several reasons why the above-mentioned provisions cannot be relied upon as an alternative to implementation of Recommendation 64 of the FIC Review Report, and therefore why DCJ’s attempt to abandon implementation on this basis is misguided. Firstly, the existing provisions of the Care Act do not amount to, and are no substitute for, a specific and express requirement for Children’s Court magistrates to consider the known risks of harm of removing Aboriginal children. A broadly-founded and peripheral ability to consider the potential harms of removal when presiding over care application proceedings is vastly different from a legal obligation to take into account the known harms of removal when balancing the risk of harm of supporting a child to remain safely at home with the risk of harm of removal.

Secondly, the FIC Review Report recommendations were designed as an interconnected framework to transform child protection systems in NSW. The recommendations of the FIC Review Report must not be watered down by reliance on existing provisions and must not be implemented in an ad hoc or piecemeal fashion. Recommendations within the FIC Review Report including those implemented via the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW) were intended to work alongside Recommendation 64 to improve practice and increase public accountability and oversight throughout the continuum of care. Whilst existing provisions may require decision-makers within the Department to consider alternatives to removal in practice, Recommendation 64 is formally enshrining, in law, a recognition at the highest level that removal actively causes harm.

Thirdly, as noted in the FIC Review Report, Children’s Court magistrates have varying degrees of experience and specialisation, such that they are not equally equipped to balance the risk of harm of removal against the risk of harm of supporting a child to remain safely at home.^[26] Part of the intent of Recommendation 64 was to promote consistency and fairness in judicial decision-making by requiring all magistrates to be abreast of the evidence of the known risks of harm of removal.^[27]

Finally, DCJ’s claim that current provisions of the Care Act are sufficient does not address the fact that the current system is failing Aboriginal families. A recent performance audit by the NSW Auditor General found that DCJ ‘has not established governance and accountability mechanisms to ensure compliance with statutory safeguards for Aboriginal children and their families’ and ‘has not operationalised safeguards afforded to Aboriginal children, which has led to system wide non-compliance’.^[28] Aboriginal children are being removed at rates higher than ever,^[29] and children’s accounts of high-cost emergency care arrangements have been recently described by the NSW Minister for Families and Communities as ‘confronting’ and ‘harrowing’.^[30] Indeed, in a recent judgment regarding an Aboriginal sibling group where the eldest child had spent more than half of their life in OOHC in NSW, and the youngest almost all of their life, Children’s Court Magistrate Nicole Ford took judicial notice of matters raised in the FIC Review Report and found that DCJ had ‘not only failed to protect the children from harm but ... [had] caused harm to the children’.^[31]

III Rethinking Removal: Culture As A Protective Factor

The current child protection system employs a logic centred around ‘risk of significant harm’ as defined by the NSW Government in the Care Act.^[32] The concepts of ‘risk’, ‘harm’ and ‘best interests of the child’ are used commonly throughout Australian and international jurisdictions to guide child protection practice, however, within settler colonial systems including Australia, are weaponised by the state against First Nations families. This is part of a deficit-based logic which favours removal and ignores cultural connection as a source of strength and safety. As the name of the FIC Review implies, to remove an Aboriginal child from their family is to remove them from their culture, and therefore from the innate strength and protection it provides. We propose that a system which effectively meets the needs of Aboriginal families must be Aboriginal-designed and led, and begin from an understanding of culture as a protective factor.

Aboriginal communities, advocates and academics have long recognised that connection to culture is a foundational protective factor that supports Aboriginal children to thrive.^[33] Culture is central to the formation of our individual and collective identity^[34] and is a source of pride, resilience, belonging and wellbeing in the face of systemic injustices and racism.^[35] As Aboriginal scholars have asserted, connection to culture increases agency for Aboriginal children and young people by allowing them to explore their complex socio-political environment whilst being grounded in their distinct cultural ways of knowing, being and doing.^[36] Through this cultural grounding, children develop a sense of belonging, cultural attachment and safety.^[37] Connection to culture as a protective factor also extends beyond the individual child to the collective right of Aboriginal communities to raise children at home and on Country: ‘Aboriginal bubs belong to Aboriginal communities, and the right to raise them and shape our own futures is a critical aspect of sovereignty and self-determination’.^[38]

IV Recommendation 64: Potential, Process And Practice

The implementation of Recommendation 64 of the FIC Review Report could help to ‘flip the script’ of the NSW child protection system as we continue to advocate for self-determination. A legal requirement for Children’s Court magistrates to consider the known harms of removing Aboriginal children from their families and communities would assist in dismantling the current definitions of ‘risk’, ‘harm’ and ‘best interests of the child’ which favour removal and ignore cultural connection as a source of strength and safety.

Evidence about the cultural harms of removal would enable a more balanced assessment of a child’s circumstances and promote more holistic decision-making by magistrates in child protection proceedings. A recognition in legislation that removal is harmful could in some cases lead to a finding that the risk of harm of removal outweighs the risk of harm of supporting a child to remain safely at home.

We propose that evidence of the known harms of removal could be given in a format and setting similar to that of the Winha-nga-nha List at Dubbo’s Children’s Court.^[39] This List was designed to meaningfully explore cultural considerations in the court process and, amongst other things, focuses on improving the engagement of families, Aboriginal Elders and respected community members in care and protection proceedings.^[40] The NSW model could also take inspiration from the model used in the United States in proceedings involving Native American^[41] children, pursuant to which the child’s tribe can designate a ‘qualified expert witness’ to testify as to ‘the prevailing social and cultural standards of the Indian child’s Tribe’.^[42]

We recognise that the above-mentioned examples still operate within settler colonial legal systems. We advocate for the implementation of Recommendation 64 purely as an interim measure which would better recognise the authority and expertise of Aboriginal families and respected community members as we continue to demand system transformation and self-determination. It is critical that the implementation and governance of Recommendation 64 be led by Aboriginal communities.

V Conclusion

Aboriginal children have been raised since time immemorial, cradled by their families and their culture, and deeply connected to their Country. Aboriginal families and communities have long asserted that family is culture, such that to be removed from family is to be removed from culture. The landmark FIC Review Report amplified that claim and recommended that Children’s Court magistrates be required to take into account the known harms of removing Aboriginal children from their families when hearing child protection matters. Whilst implementation of Recommendation 64 would not be a substitute for system transformation and self-determination, it would be a positive interim measure to better recognise the authority and expertise of Aboriginal families in the courtroom and ensure that more children grow up in culture and on Country, where they belong.

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^* Mahlia Garay is a Ngarigo and Darkinjung woman (she/her) and social worker. Mahlia is a research fellow for the Child Protection Advocacy Hub at Jumbunna Institute for Indigenous Education and Research (UTS). She is passionate about system transformation that empowers Aboriginal children, young people and their communities.

^# Lucy-Ann Kelley (she/her) is a Policy Lawyer at the Justice and Equity Centre (formerly the Public Interest Advocacy Centre). She takes pride in supporting Aboriginal families to stay together and continue their connection to culture and Country through community-led campaigns and collaborative partnerships.

^‡ Annaliese Gielingh (she/her) is a social worker of South Asian and Dutch descent. She has a special interest in human rights and global decolonisation. Annie works in the Policy and Advocacy team at AbSec, the NSW peak body for Aboriginal children, families and communities.

We express our deep thanks to Associate Professor Paul Gray and Zoe De Re for their guidance throughout this process and are grateful for their insight and expertise.

¹Australian Human Rights Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Report, April 1997) (‘Bringing Them Home Report’).

^[2] Hereafter, respectfully, ‘Aboriginal children’.

^[3] Bringing Them Home Report (n 1) app 9: Recommendations [46a]; see Australian Human Rights Commission, Bringing them Home – Appendix 9 Recommendations (online, April 1997) [46a] <https://humanrights.gov.au/our-work/projects/bringing-them-home-appendix-9-recommendations>.

^[4] Bringing Them Home Report (n 1) app 9 (Recommendations [46a]).

^[5] Megan Davis, Family Is Culture Review Report 2019: Independent Review of Aboriginal Children and Young People in OOHC (Final Report, October 2019).

^[6] Ibid XXXIX–LV.

^[7] We use the terms ‘judicial officers’ and ‘Children’s Court magistrates’ interchangeably in this article whilst recognising that judges of the District Court of NSW and the Supreme Court of NSW can also exercise powers under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘Care Act’).

^[8] Davis (n 5) XLVII (Recommendation 64).

^[9] AbSec – NSW Child, Family and Community Peak Aboriginal Corporation and Aboriginal Legal Service (NSW/ACT), Family Is Culture Community Report Card: July 2024 (Report, July 2024) 15 (‘Family is Culture Report Card’).

^[10] Mahlia Garay.

^[11] Lucy-Ann Kelley and Annaliese Gielingh. Personal pronouns throughout this article shift from first person to third person when talking about Aboriginal communities. This is reflective of the authors’ respective relationships with those communities.

^[12] Elizabeth Carlson, ‘Anti-colonial Methodologies and Practices for Settler Colonial Studies’ (2016) 7(4) Settler Colonial Studies 496, 500.

^[13] See generally Ingrid Matthews and Lynda Holden, ‘The Colonial Logic of Child Removal’ (2023) Australian Journal of Human Rights 551.

^[14] See, eg, Grandmothers Against Removals, Submission No 48 to the Australian Human Rights Commission, Australian Human Rights Commission, Children’s Rights Report 2019 (28 October 2019); Vanessa Turnbull-Roberts, Michael Salter and BJ Newton, ‘Trauma Then and Now: Implications of Adoption Reform for First Nations Children’ (2021) 27(2) Child & Family Social Work 163.

^[15] Davis (n 5) XXX–XXXVIII. For a discussion of the enduring harms of past policies in the child protection system, see, eg, Turnbull-Roberts, Salter and Newton (n 14) 163; BJ Newton, ‘Aboriginal Parents’ Experiences of Having Their Children Removed by Statutory Child Protection Services’ (2020) 25(4) Child & Family Social Work 814.

^[16] See Davis (n 5) 230–4.

^[17] Ibid 234.

^[18] Evidence to Portfolio Committee No. 5 – Justice and Communities, Legislative Council, Parliament of NSW, Sydney, 4 March 2024, 8 (Kate Washington, Minister for Families and Communities and Minister for Disability Inclusion) (‘Evidence to Portfolio Committee No. 5’).

^[19] Davis (n 5) 233.

^[20] See, eg, AbSec – NSW Child, Family and Community Peak Aboriginal Corporation and Aboriginal Legal Service (NSW/ACT), Family Is Culture Recommendations for Immediate Legislative Reform (Briefing Paper, May 2022) 12–13. See also Davis (n 5) 230–4; AbSec – NSW Child, Family and Community Peak Aboriginal Corporation and Aboriginal Legal Service (NSW/ACT), Family Is Culture Community Report Card: September 2023 (Report, September 2023) 7.

^[21] Department of the Prime Minister and Cabinet (Cth), National Agreement on Closing the Gap (July 2020).

^[22] Department of Social Services (Cth), Safe & Supported: The National Framework for Protecting Australia’s Children 2021-2031 (National Framework, 2021).

^[23] Family is Culture Report Card (n 9) 15.

^[24] See, eg, New South Wales Government, Department of Communities and Justice, Family Is Culture Legislative Recommendations (Discussion Paper, April 2022) 43. More recently, see Evidence to Portfolio Committee No. 5 (n 18) 49 (Simone Czech, Deputy Secretary, Child Protection and Permanency, District and Youth Justice Services).

^[25] Care Act (n 7) s 7.

^[26] Davis (n 5) 233.

^[27] See generally Davis (n 5) 230–4.

^[28] Audit Office of New South Wales, Safeguarding the Rights of Aboriginal Children in the Child Protection System (Performance Audit, 6 June 2024) 2–3.

^[29] Australian Institute of Health and Welfare, Aboriginal and Torres Strait Islander Health Performance Framework (Summary Report, 21 May 2024) 68.

^[30] Minister for Disability Inclusion, Minister for Families and Communities (NSW), ‘NSW Government Announces Urgent Action to Repair Broken Foster Care System’ (Media Release, 2 May 2024). The Minister’s media release was in response to the publication of an interim report on the lived experiences of children and young people in alternative care arrangements by the Advocate for Children and Young People (NSW), Zoë Robinson: See Advocate for Children and Young People (NSW), Moving Cage to Cage: An Interim Report of the Special Inquiry into Children and Young People in Alternative Care Arrangements (Special Inquiry Interim Report, May 2024). The authors note the announcement by the Minister on 3 September 2024, recent at the time of writing, that NSW will ban alternative care arrangements within the next six months. Whilst we welcome this reform, we note that the Minister’s announcement was purely reactive and unjustifiably late, traumatising our children and young people in the process.

^[31] Department of Communities and Justice (DCJ) and the Yarran Taylor Children [2024] NSWChC 3, [90]. See also, [18], [243], [272], [299]–[301].

^[32] Care Act (n 7) ch 3 pt 2: see especially s 23.

^[33] See, eg, Sue-Anne Hunter, Helen Skouteris and Heather Morris, ‘A Conceptual Model of Protective Factors Within Aboriginal and Torres Strait Islander Culture that Build Strength’ (2021) 52(8–9) Journal of Cross-Cultural Psychology 726; Catherine Liddle, ‘Culture is an Anchor for the Social and Emotional Health and Wellbeing of Our Children’ (Media Release, 13 October 2021).

^[34] See generally Graham Gee et al, ‘Aboriginal and Torres Strait Islander Social and Emotional Wellbeing’ in Pat Dudgeon, Helen Milroy and Roz Walker (eds), Working Together: Aboriginal and Torres Strait Islander Mental Health and Wellbeing Principles and Practice (Commonwealth of Australia, 2014) ch 4.

^[35] See, eg, Jacynta Krakouer, Sarah Wise and Marie Connolly, ‘“We Live and Breathe Through Culture”: Conceptualising Cultural Connection for Indigenous Australian Children in Out-Of-Home Care’ (2018) 71(3) Australian Social Work 265; Jacynta Krakouer et al, ‘Resistance to Assimilation: Expanding Understandings of First Nations Cultural Connection in Child protection and Out-Of-Home Care’ (2023) 76(3) Australian Social Work 343 (‘Resistance to Assimilation’); Hunter, Skouteris and Morris (n 33); Catherine Chamberlain et al, ‘Supporting Aboriginal and Torres Strait Islander Families to Stay Together from the Start (SAFeST Start): Urgent Call to Action to Address Crisis in Infant Removals’ (2022) 57(2) Australian Journal of Social Issues 252; Kylie Cripps and Julian Laurens, ‘The Protection of Cultural Identity in Aboriginal and Torres Strait Islander Children Exiting from Statutory Out Of Home Care via Permanent Care Orders: Further Observations On the Risk of Cultural Disconnection to Inform a Policy and Legislative Reform Framework’ (2015–16) 19(1) Australian Indigenous Law Review 70; Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report, 2021).

^[36] See, eg, Cammi Murrup-Stewart et al, ‘“Connection to Culture is Like a Massive Lifeline”: Yarning with Aboriginal Young People about Culture and Social and Emotional Wellbeing’ (2021) 31(10) Qualitative Health Research 1833; Ash Wright et al, ‘Attachment and the (mis)Apprehension of Aboriginal children: Epistemic Violence in Child Welfare Interventions’ (2024) Psychiatry, Psychology and Law 1. See also, Resistance to Assimilation (n 35); Gee et al (n 34).

^[37] See, eg, Wright et al (n 36); Murrup-Stewart et al (n 36); Krakouer, Wise and Connolly (n 35); Hunter, Skouteris and Morris (n 33).

^[38] Wright et al (n 36) 13.

^[39] Winha-nga-nha (pronounced Wi-nun-ga-na) is a Wiradjuri word meaning to ‘know, think, remember’.

^[40] Children’s Court of New South Wales, Winha-nga-nha List: Factsheet (Fact Sheet, 12 September 2023). The Winha-nga-nha List is an attempt to implement Recommendation 125 of the FIC Review Report. The authors note that the Dubbo community were consulted during the design stages and expressed the need for reforms which prevent their families from coming before the Children’s Court entirely, rather than reforms which seek to improve their experiences of courts as a site of settler colonial intervention. We echo these concerns and include the Winha-nga-nha List only as an example of an interim measure to centre culture in the courtroom as we pursue more ambitious aims of system transformation and self-determination.

^[41] We recognise the diversity of tribes and nations across North America and acknowledge that this terminology is not universally preferred. We use this term respectfully.

^[42] Indian Child Welfare Act 1978, 25 USC § 23.122(a) (1988).