The Heart of Our Nation

The Heart of Our Nation

Towards A National Commitment to Caring for Children and Young People

August 1997

Prepared by the
ACSWC Secretariat

INTRODUCTION

In the Christian view, our treatment of children becomes a measure of our fidelity to the Lord himself.

Pope John Paul II, 1990

The care and protection of children is the aim of all child welfare legislation, policy and practice in Australia. This aim is accepted by the community at large, yet the means of achieving this is an ideological battlefield. No aspect of our social structure is more important, nor more contentious, than deciding how to ensure all Australian children are adequately cared for.

This Discussion Paper reviews the provision of care to children in Australia. The particular area of care under consideration is substitute care of children. Substitute care services recognise that not all children can live with their birth parents all of the time. For varying reasons and for varying periods of time some children require a substitute care environment. Throughout the Discussion Paper these services will be referred to as 'substitute care services' and will include services which are known in some States and Territories as 'alternate care' or 'out-of-home care'.

While this Paper is focussing on substitute care it will become clear that the role and operation of these services are closely linked to a range of other social policy areas. These range from statutory child protection services through to income support for families. If we as a nation are to adequately care for our children we must establish a coordinated and integrated policy framework.

It will be argued that the Commonwealth Government should take the lead in developing a coherent policy for all children, particularly children who cannot live with their families. These children are the most disadvantaged and vulnerable in our community. They should be at the top of our nation's priority list. However, as this Discussion Paper will argue, all too often these children's lives are a sad tale of disruption and chaos in a system which is supposed to be in their best interests. These services have always been the domain of the States and Territories, however as with other areas of social policy, a joint approach by Commonwealth and State and Territory Governments has the potential to enhance the legislation, policy and practice and create a service delivery environment which meets the needs of every child.

This Discussion Paper reviews these services as an area of social policy. Social policy as the study of the role of the state in relation to the welfare of its citizens (Hill, 1996). Therefore any review of social policy must give attention to how the state became involved and why it remains involved in the provision of social services. More broadly social policy includes government and non-government policies which maintain or change social relationships within society (Jones 1993; p.54).

The Discussion Paper seeks to examine when, why and how the institution of the state is involved in substitute care. This necessitates reviewing the origins of these services and what factors influenced the development of this social policy area. It is important to look at the historical forces which shaped the nature of these services in order to point to some future directions. It will become apparent that the basis for establishing and maintaining substitute care services in the past has been shifting. From this perspective it is argued that a new approach is needed, one which more adequately recognises the vital links between supporting families and the care and protection of children.

The aims of this Discussion Paper are fivefold.

1. To provide a philosophical basis for providing substitute care services.

2. To review the historical provision of these services.

3. To examine the current provision of substitute care services.

4. To highlight some the current deficiencies.

5. To propose some potential policy and legislative frameworks.

The assumption underlying the Discussion Paper is that substitute care as an area of social policy is in need of reform. In spite of increased insight and awareness about the needs and rights of children, and in spite of the fact that many organisations are providing innovative and high quality services, the system of substitute care continues to fail a considerable number. It appears the debates about institutional versus home based care, government versus non-government services and intervention versus family autonomy, have been on the agenda for the past 100 years, without satisfactory resolution. The ongoing reviews and restructures of state welfare departments is evidence of the contested nature of child welfare services.

The way child welfare services are operating around Australia requires a paradigm shift, a reorientation of our thinking about child welfare which places the needs and rights of children as the primary focus. The shift in the way we ought to be approaching the care of children in Australia can be summarised by Figure 1.

Figure 1: Shifting the Paradigm of Australia's Child Welfare Services

SECTION ONE - THE POLICY CONTEXT

No government can love a child and no policy can substitute for a family's care. But at the same time, a government can either support or undermine families as they cope with the moral, social and economic stress of caring for children.

Hillary Clinton, 1996

1.1 PHILOSOPHICAL UNDERPINNINGS

Decisions on how to ensure children are protected and cared for raise a number of ideological debates. These debates centre around the relationship between families, the community and the state. Substitute care services reflect the complexities and contradictions apparent in state involvement in family life. By their very nature child welfare interventions contradict the liberal values inherent in a pluralist society.

The private sphere of family is supposed to be free from outside interference especially from the state. Yet, child welfare interventions are by definition intrusive in the lives of some families, to the point in some cases of replacing the family. This tension has always been a source of controversy, with arguments ranging from the state being viewed as too intrusive to claims that the state has often neglected its responsibilities and left children in abusive situations. There are of course examples to back up both claims. This is the fundamental difficulty in developing an effective child welfare system. The system must minimise the deleterious effects of statutory intervention, whilst ensuring that every child's right to a loving and nurturing environment is being upheld.

It is important then to establish a set of principles which can provide a framework to assess legislation, policy and practice which relate to children. These principles are derived from Catholic Social Teaching and they also reflect the developmental framework and implementation of the United Nations Convention on the Rights of the Child (1990).

The Primacy of Human Dignity

All children have an intrinsic human dignity. Age is no barrier to humanness. This dignity demands that all children be treated with respect and that all interventions in relation to children seek to maximise their well-being. Children do not create the problems of their parents nor are they responsible for the confusions of our society. Children are often the victims of those problems and confusions.

The Role of Society as the Protector of Human Dignity

The human dignity of all children must be valued and protected at all times. Governments at the federal and state level, acting on behalf of society, have a primary role to both enable institutions such as the family carry out their care of family members, and also as the monitor of 'protective practices' in relation to all who undertake the care of children.

The Rights of Children to be Active Participants

Children must be enabled to participate, in accord with their developmental stage, in all aspects of family life and, in those activities of society which affect their lives.

Children always have the right to participate in those decision-making processes which directly affect them. This includes determining arrangements which may substitute for their own family life. In cases where their age or disability make personal participation difficult, children's advocates must always be provided for them.

The Priority of Distributive Justice

Distributive justice demands that all human beings, but especially children who experience social and economic disadvantage, be given access to a greater share of the resources available within our society.

The priority of distributive justice demands that those who are experience such disadvantage in our society be treated with positive discrimination. This principle can be articulated as a preferential option for those who are powerless or who have less power or control in relation to their life situation.

The Promotion of Adequate Access to Resources in Accord with Need

All Australians have a right to access a level of resources that enables him/her to live in accordance with their intrinsic human dignity.

Children have special needs. These include needs related to affection, physical, emotional and psychological well-being, education, etc. Due to their age and their stage of development, children are often unable to articulate their needs. This inability to articulate is often exaggerated in the wake of trauma, abuse or neglect. This principle demands that mechanisms be put in place to accurately articulate the rights of children and uphold these rights and to assess the needs of children and to ensure that they have access to services which will adequately meet those assessed needs.

The shared responsibility for ensuring these principles are implemented lies with families, the community and government. None of these groups in society can abrogate their responsibility to children.

1.2 CHILDREN - WHOSE RESPONSIBILITY?

Before examining the details of the past and present provision of substitute care services to children in Australia, it is important to clarify where responsibility for the provision of these services lies. This is particularly important in the current climate of a reducing public sector and a greater reliance on the market as the organising force in society. This issue is raised at this point not in terms of assessing funding arrangements, but in order to confirm the principle of who is ultimately responsible for ensuring the care and protection of children.

Responsibility for the welfare of children is primarily entrusted to their parents. This is a strong emphasis in Catholic Social Teaching which recognises that the family is the first and vital cell of society. The importance of family is also recognised in the United Nations Convention on the Rights of the Child.

Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.

(Convention on the Rights of the Child, 1989; Preamble)

The State has a role in ensuring families are in a position to carry out these responsibilities. This support must be regarded by society firstly as a collective concern and secondly as an investment in future generations which holds direct benefit for the whole of the community. The state should not deprive families of their rightful activities, however the state must always seek to maximise those conditions most likely to assist families and individuals fulfil their responsibilities to one another and realise their own potential.

The state also has the responsibility of ensuring children are safe and well cared for, and if a family cannot, or will not, adequately care for their child or children, then the State must ensure an alternative care environment. This responsibility was articulated in the Principles outlined above and is clearly stated in the United Nations Convention on the Rights of the Child. Article 20 of the Convention states:

1. A child temporarily or permanently deprived of his or her family environment or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance by the State.

2. State parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic Law, adoption or if necessary placement in a suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.

A further burden of responsibility for the care and protection of children lies with the community. Community includes the range of non-government services and organisations which provide support and assistance to individuals and families. In relation to the care and protection of children, the community is often viewed as a mediating force between the state and families. Non-government organisations (NGOs) do not have the 'big brother' image of the state, yet they can and do intervene in the lives of children and families. NGOs have a long history in providing substitute care services and many State and Territory governments are increasing their reliance on NGOs to provide these services. Whilst there are concerns about how the relationship between NGOs and the state is structured and experienced in practice, as a principle, the Australian Catholic Social Welfare Commission strongly supports the active and ongoing involvement of NGOs in service provision to children and their families.

The overall responsibility for planning, monitoring and funding of services must remain with the State. The Commonwealth has recognised this responsibility by ratifying the Convention on the Rights of the Child. The challenge then remains as to what is the most effective way to carry out this responsibility.

Australia must resist any attempts to reduce the government's and the community's responsibilities to children as such moves are being advocated in other social democracies. For example, during the 1996 United States Presidential Election campaign, the Republican candidate, Bob Dole responded to the ideas of the First Lady, Mrs Hilary Clinton, who in her book entitled It Takes a Village, stresses the need for a community response to addressing the needs of children, by claiming that [i]t doesn't take a village to raise a child, it takes a mom and a dad.

The Australian Catholic Social Welfare Commission challenges the notion that families should be left entirely to their own devices. Catholic Social Teaching clearly state that families are the first and vital units in society (Apostolicam Actuositatem, 1965; n.11). At the same time it also places great importance on the need for the state to actively support families to carry out their role (Familiaris Consortio, 1982; n.45). If we as a nation are to establish a framework for supporting children the response must come from the state, the community and from families.

1.3 DEFINITIONS OF SUBSTITUTE CARE

Substitute care is part of a broader range of child welfare services. Child welfare services focus on the conditions of children and their families and on improving or providing substitutes for functions parents have difficulty in performing.

The primary responsibility for child welfare services in Australia rests with State and Territory governments. Each State and Territory has its own legal and administrative structures that address the needs of children and their families. The Commonwealth became involved in the area through the National Child Protection Council which was established in 1991. The National Child Abuse Prevention Strategy was released in 1993 and involved community education, research and developing support networks.

Child welfare encompasses a broad range of activities, including child protection, family support and children in substitute care. It is generally agreed that it is in the best interests of the child to live with their families. Child welfare experts emphasise the value of preventative and rehabilitative services aimed to help families stay together whenever possible, and stress the need to limit the duration of foster care placements by returning children to their homes whenever appropriate and finding permanent living arrangements for children who cannot be returned home. This philosophy is expressed in the policy documents of service providers. For example, Centacare Catholic Community Services Sydney, states in its Substitute Care Policy,

2.2 Centacare is committed to the view that the child's family is the best environment for the promotion of a child's development and that every effort must be made to ensure that the child remains living with his/her own family. All possible ways of maintaining families intact in the community should be explored before considering separating children from their families.

2.3 Preservation of the family is not to be pursued at all costs. If the family unit is harmful to the welfare of individual family members, particularly the child, then alternatives must be considered. The well-being of the child is of prime importance.

(1996, p.4)

Substitute care is provided when families are unable to, or have been deemed unsuitable to care for their children. Definitions of substitute care services are based on both legal and welfare precepts. Some children enter substitute care without requiring legal sanction and through voluntary placements. More formal intervention from the state is considered necessary for some children and they be placed under a relevant care and protection order. Children between the ages of 0-17 years fall under care and protection legislation. Young people in the 14-17 year age group do enter the care system, however services for this age group also come from the Commonwealth in the form of income support or in the joint Commonwealth/State Supported Accommodation Assistance Program (SAAP).

Substitute care is often defined as part of a continuum of services which fall under the child welfare banner. Since the 1960s the focus of child welfare interventions has increasingly been the prevention, detection and treatment of child abuse. Substitute care is used as part of a preventative strategy or as temporary measure, and in the most extreme cases as a substitute for the child's own family. It is difficult to define substitute care without reference to child protection and family support services. These are all part of a continuum of services which aim to ensure the adequate care and protection of children. In this regard, policy reform in substitute care must be linked to reforms in these other areas.

Legal Definitions

From a legal perspective, the responsibility for child welfare resides with the States and Territories. This is as a result of the division of powers between the Commonwealth and the States contained in the Australian Constitution. Each State and Territory has developed its own child welfare legislation¹. This legislation provides the parameters for state intervention into the lives of families.

Care and protection orders are made in situations where a child is being or is likely to be abused or neglected, if the child is abandoned, if adequate provision is not being made for the child's care or if their is an irretrievable breakdown between the child and her/his parent or parents (Angus, Dunn & Moyle, 1996b; p.1). Orders fall into two main categories: Guardianship Orders and Non-Guardianship Orders. A Guardianship Order is the more severe form of care and protection order and removes the legal responsibility for that child from the parents and places it with the relevant government body. This is commonly known as a 'wardship order'. Children under a Guardianship Order require some form of substitute care.

A Non-Guardianship order gives the appropriate welfare department responsibility for a child's care and protection. This may be necessary as a result of a family crisis such as an illness, or there may be concerns about the child's protection which requires monitoring and intervention. Children under a Non-Guardianship order may be placed in substitute care until the circumstances which led to the order being made are addressed. Families can also place their children in care under a voluntary order. This is often because of a family crisis or when a family seeks some extra support or assistance.

The specific orders available vary according to the legislation in each state and territory. The legislative basis for children entering substitute care is provided by the statutes, however for the majority of children, their entry to care is initiated through welfare structures.

Welfare Definitions

Policy decisions on substitute care for children are made by the relevant child welfare departments in each state and territory. These decisions have the greatest impact on the situation of children in care. It is within the welfare department that decisions are made about types of care, availability of care and standards of care.

Prior to a child's case being presented to the Children's Court it is likely that there have been a number of welfare interventions by the government department or a non government organisation, or both. The most common forms of substitute care are:

Temporary/Crisis Care

Temporary care is often used in situations where the child will be restored to his/her family, however the child and/or their family may require some extra support. There are a number of different types of temporary care. Temporary care may take the form of short-term or temporary foster care, respite care or a short-term or temporary placement in a small out of home residential setting. Families who are experiencing a crisis may access temporary care for the duration of the crisis period.

Short/Medium Term Care

This form of care is often used where there is a plan to restore the child to their family. A child could be in this form of care for up to twelve months and often involves other services which may support the child and their birth family under a restoration plan.

Permanent Care

In situations where there is no possibility of the child remaining with or returning to his/her family, permanent care of the child outside the family is arranged. The family can retain guardianship of the child and can still be involved in major decision-making for the child eg. schooling, religious practice, sporting activities etc.

Full guardianship can sometimes be given to the State or Territory Minister for Welfare or his/her delegate (ie. the Director of the welfare department). Permanent care may take the form of long term placement in a foster family or in an institutional setting.

Adoption

When it is in the interests of the child that a placement be made on a permanent basis, adoption may be arranged. Adoption involves the birth family and the state forgoing legal guardianship of the child. This invokes a permanent change in the legal status of the child.

However, part of an Adoption Order may include an 'access' provision whereby the birth parents retain some decision making authority in respect to the child. For example in the case of 'special needs' adoption for children with special needs (eg. disabilities, older children) the child's birth family forgoes legal guardianship of the child in specific areas but retains a say in the other areas of the child's life.

As mentioned in the above definitions, the most common types of care are foster care, family group homes and small residential units. In recent times there has also been a greater emphasis on kinship or related care which involves placing children in the care of a relative and which in some cases is supervised by a non-government agency or a government department.

SECTION TWO - IDENTIFYING 'THE PROBLEM'

...the object of critical social theory can then become not only 'the state' or 'middle class professionals', but also how and why particular social institutions have cruelty and injustice built into their walls, as well as, perhaps most importantly, what is it about the rest of us that allowed and continues to allow those cruelties and injustices in the construction of childhood to exist.

Van Krieken, 1991, p.145

There is a widespread feeling within the child welfare sector that the current system of care and protection of children is in 'crisis'. The Police Royal Commission in NSW has heightened public awareness of plight of many children, particularly children who are supposed to be under the care of the state. In Victoria, a recent Auditor-General's report (Victorian Auditor-General, July 1996) outlined a number of deficiencies in that state's child welfare system. The recent Inquiry by the Law Reform Commission and the Human Rights and Equal Opportunity Commission into Children and the Legal Process has also highlighted what is described in the report as, the appalling state of care and protection systems in Australia (A Matter of Priority, 1997; p.5). Workers in the field talk of over-work and under-resourcing. There are many stories of children and young people who have suffered in a system which is supposed to care and protect them.

In order to contribute to debates about reforming substitute care policy, it is essential to identify what it is that's going wrong in the current system. This section attempts to do that. The section begins with an historical overview of the development of substitute care services to children in Australia. This is followed by a review of the current substitute care systems operating in Australia. As this area of public policy is currently exclusively with the States, it is worthwhile highlighting the common problems and the common pressures each State and Territory Government is facing in developing and implementing substitute care policies that are responsive to the contemporary needs of children.

2.1 FROM RESCUE TO RIGHTS

Future reforms in substitute care services must be grounded in past experiences. A review of the development of child welfare services in Australia over the last 200 years provides an understanding of the relationship between children, their families and the state.

Political, social and economic factors have affected this relationship and defined the nature of the services provided. Placing children in alternative accommodation was the first role of child welfare in Australia. Initiatives specialising in child protection and family support were introduced long after substitute care had been established. Whilst the responsibility for child welfare has always been with the States and Territories an overview of the historical development of substitute care reveals that certain trends have been common to all jurisdictions.

Colonial Australia

As with many of Australia's institutions, the origins of child welfare services are based on the British tradition. The philosophy and practice of the British Poor Laws provided the basis for the development of child welfare in colonial Australia. The philosophy of the early child welfare proponents was based on a moral crusade. Children of poor and itinerant parents needed 'rescuing' from their family. 'Rescuing the rising generation' was the task of government run as well as volunteer operated institutions. The aim of these institutions was to properly socialise these children as the supposedly immoral example set by their parents was likely to produce deviant behaviour in their children and the only way to change the behaviour of the lower orders was to separate the children from their families (Van Krieken, 1991; p.57).

In early colonial Australia the impetus for establishing institutions for children was the large numbers of children who were abandoned or destitute. The nature of the British settlement of Australia resulted in a fairly unstable social structure. There were significant numbers of children born who were 'illegitimate' and concerns were raised about children who did not have an identified father. This left many women with children they were unable to support. Van Krieken argues the fact that these children were visible in large numbers was not sufficient reason for action by the colonial elite (1991, p.51). Leaders in the colony became convinced that these children needed to be trained to be good and productive workers and that the best way to achieve this was through orphanages. Thus, the motivation was also based on economic and political imperatives.

Rescuing the Rising Generation

In the late 1890s concerns were raised about the quality of care within institutions as well as the cost. Reformers were concerned about the conditions in the institutions and the deleterious effects of these conditions on the goal of rescuing these children. The movement against institutions was supported by English visitors, Rosumond Hill and Caroline Davenport, who crusaded their opposition in the colonial states and successfully campaigned against the use of 'the barracks' in England (Dickey, 1987; p.59).

In New South Wales the State Children's Relief Act 1881, established boarding out of children, an early form of contemporary foster care, as the preferred type of care for dependent children (Jamrozik & Sweeney, 1996; p.94). Boarding out was also established in South Australia, Victoria and Tasmania around that same time. As Van Krieken states (1991, p.73), The argument for de-institutionalisation was a complex mixture of political economy, child development theory and administrative commonsense; it would be cheaper and would better reform the children. Whilst there was a preference shown at this time for family based care, institutions still operated primarily by church based agencies.

Van Kriekan points to economic changes which made boarding out possible. This period saw an increase in the standard of living of working class families. These families were in an enhanced financial position and thus were able to foster children. Working class families were and continue to be the main providers of foster care. Their economic position is an important factor in their ability to provide this care.

This period of the late 1880s also saw the increased involvement of the state in society. This was generally accepted as a good thing and state intervention in family life was seen a legitimate way to create a better society. The bureaucratic power of the various government departments grew at this time. There was an increasing emphasis on family life as well as increasing intervention by the state into families.

The Scientific Era

The early twentieth century saw another change in the provision of child welfare services with more emphasis being placed on the affect of a child's environment on their development. This resulted in the establishment of specific departments for child welfare and the introduction of children's courts and the concept of probation. Probation provides for a child to remain in his/her family on the undertaking that the family receive assistance to deal with the issue which resulted in the child coming before the court.

The other significant development was the provision of financial support to mothers. This began by providing the fostering allowance to mothers to assist with raising their children. With the advent of probation, supervised care was provided in return for a subsidy or outdoor relief for the mother. This began to replace foster family arrangements as the dominant mode of child welfare provision and in the form of Commonwealth single parent benefits, still does (Dickey, 1987; p.97). This period evidenced the move away from sheer poverty as the force driving children to welfare agencies. The regulation of childhood began to take place within families rather than without. (Van Krieken, 1991; p.138)

The 1950s and 60s witnessed a swing back to institutional care for children. The cause of this trend as a combination of the increased numbers of children and also mounting public concern about threats to the social order. (Jamrozik & Sweeney, 1996; p.96).

It can be seen by looking at the development of substitute care services in Australia, that policy decisions are based on political, economic and social imperatives. These services did not simply develop in response to the needs of children, nor simply to increased professional knowledge. The nature and construction of these services is directly related to the prevailing ideology of the family and the state, the needs of the economy and the political environment in which decisions were made.

The Rediscovery of Poverty

The late 1960s and the early 1970s witnessed a shift in the assumptions underlying substitute care services. This period saw an increasing concern for the effects of poverty and inequality on families. There was a greater emphasis on the structural causes of disadvantage rather than focussing on individual pathology. Overcoming economic disadvantage was seen as reducing the pressures on families that might lead to a need for substitute care. Empowering families through skills training and community development, rather than removing their children, was seen as a complementary strategy to address welfare problems. (Jamrozik & Sweeney, 1996; p.97)

Politically this was a time of rapid change. The election of the Whitlam government in 1972 brought with it a fundamental change in the role of the Commonwealth. Whitlam believed in a strong central government and the Commonwealth, under his leadership, became more involved in health, education and welfare. During this time the Commonwealth funded an initiative entitled, 'Alternatives to Residential Care Program', and attempted to improve the skills of children in institutions through the 'Children in Institutions Program' which was funded by the Commonwealth Schools Commission (Jamrozik & Sweeney, 1996; p.97). Overall during this period, there was a level of optimism about the possibility of the state actively redistributing the goods of society in order to alleviate poverty. This was a big shift from the underlying philosophy of the Poor Laws, upon which much of the preceding social policy had been based. The state's authority over families was viewed in a less overt way and the emphasis was on support for children and families.

This optimism was short lived. Throughout the 1970s there was increasing pressure placed on government budgets with high rates of unemployment caused by prolonged recession and high inflation. The Fraser Government which was elected in 1975, had a different philosophy about the appropriate role of government vis-a-vis intervening in the lives of families, and dealt with this crisis by a program of reducing this role. While resources were reduced, there remained a fear of state intervention which was coupled with a growing awareness, emanating from the clinical literature, of the negative aspects of removing children from their families.

This period witnessed a huge reduction in the number of children in care. For example, in 1972 the total number of Australian children in care was estimated at 26,846. By 1982 the national figure was 16,395 and by 1985 the number had dropped to 12,308. (Boss, Edwards & Pitman, 1996; p.46)

The Battered Child

Child welfare services in the late 1970s began to focus more and more on child abuse. The work of Henry Kempe and others from the medical profession helped identify the 'battered child syndrome'. The public outcry resulting from this focus resulted in States placing an increased emphasis on child protection. Welfare departments began to focus on procedures for identifying and notifying potentially 'dangerous families', where children may be 'at risk' of abuse and/or neglect (see Jamrozik & Sweeney, 1996 and Thorpe, 1994). Developments in this era were again based on scientific/professional assessments which attempted to identify when children were in danger. The focus of child welfare shifted to the detection and treatment of child abuse.

In the years which have followed, the detection of child abuse has remained the primary focus of statutory welfare agencies. Current approaches to child welfare seek to strengthen families to lessen the likelihood of abuse/neglect and to minimise the need for substitute care.

2.2 CURRENT TRENDS

Since the early 1980s a number of significant trends in the provision of substitute care services to children can be identified. These trends have developed in response to economic, political and social pressures experienced by society and governments.

There is no doubt that these pressures have had an impact upon each State and Territory which have attempted to keep pace with these pressures through the implementation of reviews and amendments to substitute care legislation, policy and practice. During this period it is apparent that the focus on child protection has continued to dominate each State's child welfare concerns. All States and Territories, with the exception of Western Australia have introduced or are introducing mandatory reporting of child abuse and/or neglect².

The number of notifications of abuse and/or neglect have risen dramatically in recent years, from 42,468 nationwide in 1988-89 to 76,954 in 1994-95. The number of those notifications cases assessed as substantiated or 'child at risk' has increased from 21,447 to 33,411, over the same period representing an increase of 56 percent (Angus & Hall 1996; p.10).

However, the increase in substantiated or 'child at risk' notifications has not been matched with a commensurate increase in legal orders. Table 1 indicates that over the four year period from 1991 to 1995 the total number of children under Guardianship Orders in Australia has in fact decreased by 311. Reference to this data indicates that the national trend is not consistent across all the Australian State and Territories.

Table 1: Children Under Guardianship Orders - 30 June 1991 and 30 June 1995

Year	NSW	VIC	QLD	WA	SA	TAS	ACT	NT	Australia
1991	2, 174	2, 238	2, 706	706	995	373	29	88	9, 309
1995	2, 659	1, 506	2, 656	711	998	322	35	111	8, 998

Source: Angus, Dunn & Moyle, 1996; p.27

At the same time, the number of children under Non-guardianship Orders has increased by 709 as illustrated by Table 2. This is an overall increase in total orders of only three percent.

Table 2: Children Under Non-guardianship Orders - 30 June 1991 and 30 June 1995

Year	NSW	VIC	QLD^a	WA^b	SA	TAS^c	ACT^d	NT	Australia
1991	927	1, 572	2, 706	N/A	280	225	38	8	3, 371
1995	1, 672	1, 601	2, 656	N/A	187	139	180	26	4, 080

a Queensland children under both guardianship and non-guardianship orders are shown only under guardianship orders.

b Western Australia does not place children under non-guardianship orders for care and protection.

c In Tasmania prior to 1994-95, children in voluntary respite care but not under a legal order were included under non- guardianship orders.

d In the Australian Capital Territory, the increase in the number of non-guardianship orders for 1994-95 is due to an improved data collection system and new procedures.

Source: Angus, Dunn and Moyle, 1996; p.27

The statistical trends contained in the above tables lend support to four main trends in substitute care which have been identified by Cashmore & Castell-McGregor (1996). These are:

1. A trend towards a reduction in the numbers of children admitted to guardianship.

2. A trend towards non-guardianship orders and short term guardianship orders.

3. An increase in the age of children taken into care, with the largest cohort for children in care in Australia currently being 12 to 17 years of age.

4. The shift away from residential or group home care towards foster care. This has been accompanied by a shift from departmental provision of care towards the use of non-government agencies as service providers.

These trends can be seen as strong evidence of a contemporary emphasis in substitute care on family preservation. State welfare departments are reluctant to take the step of placing children in long term care and will seek other strategies until removal becomes the only option. This means guardianship is sought as a last resort and short term care orders are used in an attempt to deal with the problem which resulted in the child or children being removed in the first place, in the hope that restoration can occur.

Substitute care is now seen less as a legal intervention and more as a welfare tool. Children are no longer removed in order to be rescued. Removal is now used as part of a longer term strategy which seeks to eventually reunite the child with the family.

These trends appear to be moves in the right direction, particularly in light of some of the historical practices discussed above and the principles outlined at the start of the paper. Children should be with their families if that is possible, parents should receive support and assistance to enable them to resume care of their children. If children must be in care, a family environment is surely the preferred option.

However, further analysis of these trends gives rise to some concerns about their effect in the political and economic context. There are three important questions to ask when examining these trends. First, how have these trends been manifested in each of the States and Territories? Secondly why have theses trends occurred and thirdly what has been their effect of these trends on children in care?

2.3 TRENDS IN SUBSTITUTE CARE ACROSS AUSTRALIAN STATES AND TERRITORIES

One of the difficulties in undertaking a national perspective on substitute care is the lack of consistent data collection across the States and Territories. The Institute of Health and Welfare publish a yearly report outlining the numbers of children under care and protection orders around Australia. In 1995 the Steering Committee for the Review of Commonwealth/State Service Provision (SCRCSSP) produced a report, Government Service Provision, which presented outcome focussed data on a range on Commonwealth and State services.

The second in this series of reports was released in February 1997. Substitute care included among these services. The authors concluded with respect to substitute care systems operating in the States/Territories, that there was a lack of information which could be utilised at this point in time. The main gaps identified were the degree to which goals for children were realised on exit from care and the costs of delivering services.

In the 1997 report substitute care is termed, 'supported placements' and, once again, the authors note the lack of consistent data. In response to the report, each State and Territory has since made a commitment to collecting future data using the new framework developed by the Steering Committee.

The first two trends in substitute care defined by Cashmore and Castell-McGregor relate to the reduction of Guardianship Orders, the increased use of Non-Guardianship Orders and the decrease in the length of orders. According to figures released by the Institute of Health and Welfare (1996), there were 13,078 children under a Care and Protection Order in Australia at June 1995. Of these, 8,998 were under a guardianship order and 4,080 were under a non-guardianship order.

As evidenced by Table 3 (see over), the majority of children under a guardianship order are living in an alternative care environment, with foster care being the most common. Whereas, over half of the children under a non-guardianship order are living with their parents.

Table 3: Placement Types of Children Under Care and Protection Orders at 30 June 1995

Placement Type	Guardianship Order	Non-Guardianship Order
Foster care	5693	1210
Parent/Relative	1199	2278
Residential Child Care	1089	321
Residential Care	26	24
Corrective Establishment	61	10
Other	930	237
Total	8998	6678

Source: Angus, Dunn and Moyle, 1996; p.10

When these figures are broken down by State and Territory, a number of differences become apparent.

Table 4: Placement Type of Children Under Guardianship Orders by State and Territory

Placement	NSW	VIC	QLD	WA	SA	TAS	ACT	NT
Foster Care	1786	839	1653	526	605	198	28	58
Parent/Relative	323	111	452	85	175	19	2	32
Residential Child Care	247	496	189	68	23	57	2	7
Residential Care	5	3	14	-	-	1	-	3
Corrective Establishment	6	6	30	4	9	4	-	2
Other*	292	51	318	28	186	43	3	9
Total	2367	1506	2656	711	998	322	35	111

* Includes children living with other adults, unauthorised absence and living independently.

Source: Angus, Dunn and Moylel, 1996; p.20

New South Wales and Queensland have the highest overall number of guardianship orders. In Victoria one third of children under guardianship orders are living in residential care. Whilst these figures provide valuable information about the numbers of children in substitute care it must be remembered that some children are placed in care on a voluntary basis (eg. in respite care) and would not be covered by the above data.

The Report on Government Service Provision (SCRCSSP, 1995) did include figures from some States which incorporated children who are in care but not under any order, however Some states have not collected these figures in the past.

The most recent child welfare statistics released by the Institute of Health and Welfare (1996) included information on out-of-home placements. This information is set out in Table 5 below. The figures include placements where a financial payment is made and as such may include placement with relatives where a payment is made. The figures include both legal orders and voluntary placements, with the exception of Queensland and the Northern Territory where data on children in substitute care only includes covered by a legal order.

Table 5: Children and Youth Aged 0-17 Years in Out-of-home Care by State and Territory at 30 June 1996

	NSW	VIC	QLD	WA	SA	TAS	ACT	NT
No. of Children in Care	5 437	3 385	2 110*	1 206	1 064	508	181	88*
Rate per 1000 Children	3.5	3	2.4	2.6	3	4	2.3	1.6

* These figures under-represent the 'in care' population as they only include children under legal orders.

Source: AIHW, 1996; p.6

This data indicates that a child in Tasmania is almost twice as likely to be in care than a child in the Australian Capital Territory. Similar results were found by Bath (1994) who undertook a study of the 1993 data from States and Territories in an attempt to determine some differences between jurisdictions. Bath notes that possible explanations for the differences in rates of placement could lie in socio-economic differences, as it is well known that demographic factors such as poverty are related to numbers in care. However, he also notes that this is not an adequate explanation for the existence of high rates in South Australia and Tasmania. The differences are most likely to relate to the differing emphasis in legislation and policy from state to state.

Other data collected for the Report on Service Provision highlighted the important role of non-government organisations in providing substitute care services. The SCRCSSP estimates that NGOs compromise 35 percent of government substitute care expenditure (Report on Government Service Provision, 1995; p.575). This varies between states. In New South Wales actual expenditure on non-government services was about 25 percent of the alternative care budget. In Victoria, the non-government sector is the major service provider, representing 68percent of the total alternative care budget in 1994/95. In Western Australia, NGOs accounted for about 30percent of total expenditure for the care of children in 1992/93. Of this amount, government contributed 90percent of funding to the work undertaken by the NGOs. (SCRCSSP, 1995; p.575)

These differences are related to different legislation, policy and practice in each of the States and Territories. Some differences relate to particular characteristics of particular domains. For example services in the Northern Territory are primarily run by the government. This is largely because non-government agencies are few and far between in the Northern Territory. The above figures indicate that while each jurisdiction has followed the broad trends, some have moved down that track with more determination than others.

2.4 DISCUSSION

A number of States and Territories have been reviewing the care and protection legislation in recent years in order to address some emerging issues. Outlined below are some particular reforms in legislation and policy initiated by a number of Australia States.

Victoria

In Victoria a review of their legislation led to The Children and Young Persons Act 1989. The Act was an attempt to move away from coercive legal interventions which resulted in children being placed under guardianship orders. The focus was on protecting the rights of children to be with their families whilst still offering protection from harm. As seen in Table 1 the number of children under guardianship orders was reduced and there was a slight increase in the number of children under non-guardianship orders.

It is important to consider however that mandatory reporting was introduced in Victoria in 1993/94. Notifications of child abuse rose from 17,981 in 1990/91 to 26,622 in 1993/94. There was however no commensurate increase in orders, there was in fact a decrease. In an ideal world it could be argued that these cases were dealt with much more appropriately through family support services, however the evidence indicates that this was not the case. A report released by the Victorian Auditor General in June 1996 highlighted a number of deficiencies in the Victorian child welfare system. The report included instances of delays in inquiries, of children being sent back to violent homes or being kept by the department in conditions where they were suffering preventable harm.

It is apparent that there has been a concerted effort in Victoria to reduce the number of children living in residential care. In the Report on Service Provision (1995), the Victorian Department detailed the significant service re-development which was undertaken in 1993-95 to redistribute the imbalance from funding high cost residential services to lower cost home based care. (p.610)

New South Wales

In New South Wales there has been quite a significant increase in children under orders (refer Tables 1 and 2). The majority of this increase was in Non-Guardianship Orders, although Guardianship Orders did rise slightly. In the New South Wales Department of Community Services document, Strategic Directions for Child Protection (1996), the Department notes an increase of 56 percent in child protection notifications between 1990/91 and 1993/94. Such an increase has placed pressure on the numbers of protective orders made. There has been an attempt in New South Wales to make these orders less coercive by drastically increasing the use of non-guardianship orders.

In New South Wales, the structure of service provision has been changing since the Report to the Minister for Health and Community Services from the Committee Established to Review Substitute Care Services in NSW, was released in 1992 (this report is known as the 'Usher Report'). The implementation of the report's major recommendations has resulted in the closure of large government run institutions which have been replaced by smaller, localised services run by the non-government sector. There has been an overall shift to using non-government services providers for substitute care. The latest policy documents indicate a dual service provision role between NGOs and the Department with placement options to be developed in the non-government sector 'where feasible and possible within budget parameters' (Strategic Directions for Substitute Care Program, 1996; p.7).

Other policy priorities in New South Wales include:

1. Implementation of a statewide planning model for future services and the development of area substitute care plans.

2. Increased focus on case planning which aims to improve outcomes for children in care or leaving care.

3. The development of policy and practice documents such as standards, assessment and decision making.

New South Wales is also currently undertaking a review of their care and protection legislation.

Western Australia

The proposed new legislation in Western Australia (1996) reflects the trend towards more emphasis on parental responsibility. The legislation proposes offers of support and assistance to parents who are experiencing difficulties in the care of their children. Coercive statutory intervention in the lives of families would only proceed when parents fail to use the services and the safety of children is at significant risk. (Department of Family and Children's Services, 1996; p.3)

The policy direction in substitute care in Western Australia is towards funding services which provide placement and support services that focus on reuniting children with their families. The Department's Annual Report 1995/96 notes the need to develop options for young people with behavioural and emotional difficulties.

There is also a review underway which aims to develop a more suitable range of supported care services around the State.

South Australia

South Australia is also undertaking a major re-development of their provision of substitute care services. A draft plan has been developed which incorporates providing services which are flexible and tailored to meeting the needs of children and their families. The plan proposes a resource distribution model which acknowledges the disproportionate number of Aboriginal children and their families in this service system. (Family and Community Services, Annual Report, 1996; p.37)

Remaining States and Territories

Queensland, Tasmania, the Northern Territory and the Australian Capital Territory are all following the trend towards less coercive intervention, greater emphasis on family reunification and greater family involvement in decision making. A substantial number of children in Tasmania are in children's homes which are funded by the Department and run by NGOs. Department officials indicated in conversation that whilst there are no definite plans to move towards a greater emphasis on family based care, this is likely to occur in the future. Queensland policy development is focussed on shared care arrangements, which focus more on individual needs and family involvement.

2.5 WHY HAVE THESE TRENDS OCCURRED?

In the historical analysis it became clear that decisions on substitute care policy are based on the political and economic context of the times. The four trends outlined by Cashmore and Castell- McGregor above have not simply evolved due to greater knowledge and awareness, but have similarly been based on pressures experienced by each state and territory government. Pressures on government budgets, declining public sector and increased community concern about child abuse are some of the forces which have shaped substitute care policy in recent times.

Economic and Political Factors

The prevailing ideologies which Australian governments have brought to the governance and administration of the public service and their respective communities have undergone some major changes in recent years. The dominance of neo-classical economics over the past two decades has resulted in a reduced role for government and for the bureaucracy. 'Big government' is regarded as too intrusive into the lives of individuals, families and business, and big bureaucracies are considered too cumbersome to be able to respond to the requirements of a national economy. Neo-classical economics is based on a belief in market forces as the most efficient way of distributing resources within society.

There is general acceptance from all sides of politics that economic growth is the key to improving the well-being of the community. For economic growth to occur nations must improve their competitiveness. The key to achieving this competitiveness is in using a nation's resources more efficiently in the production of goods and services.

This economic theory places great emphasis on freedom, both individual freedom and the freedom of the market. The bureaucratic model of big government is being dismantled as a result of arguments that it is economically inefficient in its use of resources. The increasing emphasis on economic efficiency, or getting more value for each dollar of government expenditure, will have an impact on all sectors of Australia's economy, including the community social services sector.

The reduction in the government's bureaucracy has occurred at all levels of government in Australia. As state governments have little revenue raising power, they are largely reliant on the Commonwealth for their expenditure needs. State governments are largely responsible for program delivery in the community services area and as such they have 'felt the pinch' of cutbacks imposed by successive Commonwealth Governments and have been downsizing their public sector in response. This downsizing has been occurring in all States and Territories.

What is the impact of the significant downsizing of governments on substitute care services?

The answer to that question is more complex than simply just asserting that a reduction in the public sector means a reduction in service provision. The States and Territories still have a legal obligation to ensure the care and protection of children and they have been seeking ways of fulfilling this obligation whilst still reducing costs. There a general perception in the field that reducing costs is the most important driving force in any reforms of substitute care systems undertaken by State/Territory Community Service Departments. This is reflected in a comment made recently by a well known children's advocate who stated, the paramount role of Director-Generals of Community Services Departments is no longer the care and protection of the children under their guardianship, but as fiscal managers (O'Reilly, 1997).

A further pressure on all state governments is the impact of community concern which accompanies regular media coverage of those instances where the state's failure to provide adequate care and protection for a child results in the child's misfortune or death. Political decisions are often made in response to this outrage.

There are a number of examples of individual cases which have led to major new policy decisions. One of the most well known cases was that of Daniel Valerio from Victoria, who was killed by his mother's de facto husband. Daniel's death caused outrage in the general community. A daily Melbourne newspaper conducted a campaign highlighting Daniel's story and the failure of the child protection system to prevent his death. This campaign led to the introduction of mandatory reporting in Victoria and put pressure on other States and Territories which had not introduced this policy to do the same.

Recent reports emanating from the Police Royal Commission in New SouthWales uncovering paedophilia networks have similarly highlighted deficiencies in the system of care and protection. In 1993, a string of child deaths in New South Wales understandably raised community concern about how we as a society failed to protect these children. In Queensland there have been a number of tragic cases in recent times. An article in The Sun Herald (8/12/96) outlined the story of a young boy who by all accounts had been mistreated by his mothers de facto husband on an ongoing basis, and was eventually killed by him. The article raised questions about why the State department did not respond appropriately before it was too late.

In the shifting ground of economic, political and social influences the community's expectations about the ability of statutory bodies to ensure the safety of all children has been increased, at the same time as governments are containing or reducing their expenditure. This is a classic example of social policy attempting to match social values whilst being tempered by economic and political constraints.

2.6 THE RESPONSES OF GOVERNMENTS

The dilemma facing all state and territory governments is how to develop a child welfare system which is effective and efficient given the lack of general commitment by governments to provide adequate finances and other resources to this area. The trends outlined above fit neatly into the State and Territory governments economic agenda. Maintaining children in the care of their parents and other relatives, utilising foster care rather than residential care, represent potential areas of savings for cash strapped governments. The commitment of Australian governments to the well-being of Australia's children must be questioned when their record on responding to child abuse is considered.

The introduction of mandatory reporting of child abuse in most Australian States and Territories has resulted in an increase in the number of notifications to which welfare departments have needed to respond and has consequently placed greater strain on already tight resources. This has limited the scope for increasing resources in substitute care, as well as requiring new methods of response which are quick, cost effective and responsive to the needs of children 'at risk'. Most states have found this very difficult to achieve and it has resulted in a sense of 'crisis' in child welfare.

Throughout Australia, and indeed across the social democracies of the western world, child protection services are struggling to cope with ever increasing numbers of reports of suspected child maltreatment. Often these referrals are inappropriately labelled child mistreatment when they involve families who do not necessarily mistreat their child but who have more generic problems, such as financial or housing difficulties, a disabled care giver or suffering from serious stress. (Tomlinson, 1996)

The difficulties in having to deal with large numbers of reports and the recognition that many of the families who cases of mistreatment are unsubstantiated may still require some support, has led a number of Australian states and territories to consider new models of child protection (op. cit., p.1).

Under this new approach, cases are no longer seen in purely child protection terms. Rather individual cases can be viewed in the overall context in which the alleged abuse has occurred, informed by a comprehensive assessment of the family. The balance between child protection and the role of family support is altered such that child protection no longer drives the system but becomes merely one important facet in an overall welfare assessment. The potential danger within the family is assessed, and if there is evidence of actual or potential risk, they may be referred for family support (op. cit., p.1).

If the assessment concludes that there is potential danger for the child, they may be placed in substitute care. In most cases this will initially be for a short time in order to address the issue which resulted in removal.

Liddell and Goddard have identified this trend in Victoria (1995, p.104). They highlight the difficulties facing governments who philosophically believe in smaller government and less expenditure, yet must carry out their legislated responsibilities and respond to community concern. In Victoria this has resulted in an increase in resources for child protection which has been directed to initial investigations rather than long term work and follow-up. As they state,

Foster care services have increased, but residential care has been wound back to a very minor role. Short-term family support services have increased. It seems, though, that the long term aim of service policy is to focus on the most serious cases via strategies which are short-term and cost-efficient and which will save money over time.

The introduction of initiatives such as Family Preservation Schemes are also seen as a way of preventing placement and providing services to families in an intensive short term way. Family preservation services are designed to provide short term intensive support to families where children have been identified as at risk of removal. Early evaluations of these programs which have been operating in South Australia, Queensland, Western Australia and New South Wales, indicate that they may be effective in preventing placement. A comprehensive evaluation report undertaken by Centacare Catholic Family Services in Adelaide showed that for the 12 months of the evaluation, 193 children from 138 families were at risk of out-of-home placement when referred to the Agency's Family Preservation Program. Of these 193 only 14 children were placed in substitute care.

There have also been some concerns raised about the assumptions underlying family preservation services. Some well known child advocates have raised concerns about the danger of an emphasis on family preservation leading to children remaining in unsafe homes (Castell-McGregor, 1992). Richard Gelles, formerly an advocate for family preservation services in the USA, has recently released a book in which he criticises the over emphasis on family preservation in the USA. He believes there is a trend in the USA to keep all families together no matter what their history or circumstances which often leaves children in very vulnerable situations. The David of the book's title was killed under such circumstances.

Whilst these trends may, at a policy level, be congruent with professional and community expectations about children and families, the implementation of these policies is flawed due to economic and political pressures. Similar issues face the child welfare field in Great Britain. The British Government's Children's Act 1989 emphasised the need to support families rather than placing them under surveillance. The Act provided for a wide spectrum of services for children and their families. Packman and Jordan (1991) described it as a quantum leap from the old restricted notions of prevention to a more positive outreaching duty of support for children and families (p.323). Section 17 (1) of the Children's Act 1989 states

It shall be the general duty of every local authority (a) to safeguard and promote the welfare of children within their area who are in need, and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs.

The Act clearly promotes the role of social service departments as much more than surveillance and investigation of child abuse, but as actively providing support services to children and their families.

Unfortunately in Britain the reality of implementing the Act has not lived up to expectations. It appears one of the main problems has been the lack of resources provided for family support services. Colton, Drury and Williams (1995) place these difficulties in the context of trying to implement the collectivist philosophy of the Children Act in a residualist society (p.727). Jack and Stepney (1995) note that the new methods of funding social services are aimed at cost containment, marketisation and a 'further residualisation of the public service' (p.35). They argue that this has resulted in a reduction in generalist family support services and an increase in specialist services. Thus, contrary to the spirit of the Children Act, children 'in need' find themselves having to be defined as being at risk of 'significant harm' before they receive any services at all. (op. cit.)

The British Children Act 1989, perhaps inevitably reflects rather than resolves many of the inherent contradictions of the social policy framework for children and their families developed during the past decade. It places questionable reliance on the disease model of child abuse, using the assessment of risk from 'significant harm' as a means of identifying 'dangerous' individuals or families whilst preventing unwarranted intrusion into the lives of the majority. This approach sits uneasily alongside the provision of support services for families with children 'in need'. Pressure for social workers to do something about child abuse, and the government's continuing ideological and economic objections to funding universal services, which actively support family functioning, mean that most of the available resources continue to be devoted to investigation and surveillance strategies, in the name of child protection.

(Jack & Stepney, 1995; p.34)

In Victoria the Children and Young Persons Act 1989 was developed on similar principles to the equivalent Act in Great Britain. The Victorian Act promoted the role of the state in supporting children and families. The Act was an attempt to move away from court wardship and legal intervention in cases where children and their families were experiencing difficulties due to poverty, illness or stress. The Act promoted voluntary access to support services. As Carney (1994) notes this was a vast improvement from the previous legislation which was both resource intensive and stigmatising.

However, the implementation of the Act has again not lived up to expectations. According to Carney one of the groups adversely affected by these developments were young people who would have previously been the responsibility of the state but who under the new legislation were left to access support services. Unfortunately these services were not available and this has resulted in what Green (1993) termed 'voluntary homelessness'. This does not mean there should be a return to the old model of wardship, as Carney states [i]t is totally unacceptable for social policy to present as Buckley's choice; a choice between the quite unpalatable 'court wardship' model and the barely less unpalatable option of leaving young people to fend for themselves, with a little assistance from services for the homeless. (1994, p.8)

This concern is repeated around Australia as all States and Territories have abolished status offences under which young people were 'charged' for being homeless or 'at risk'. As Carney notes it is unacceptable to go back to this model, however it is also unacceptable to leave young people without any assistance. The key is finding a balance between a young person's civil liberties and the community's responsibility to provide them with care and protection. This is an ongoing debate for the community at large.

In terms of policy development a number of points should be made. These changes in child welfare policy correspond with the value society places on families. They reinforce the importance of children being with their families. However, the effectiveness of these developments is dependent on an overall policy framework which includes universal family support services, well resourced and highly skilled staff to undertake family assessments and high quality, accessible and flexible substitute care options. The key to policy reform lies in developing a framework which can more adequately provide these services keeping in mind the political and economic pressures.

2.7 HOW DOES SUBSTITUTE CARE POLICY IMPACT ON CHILDREN?

Surely the most important test for any substitute care policy is how it impacts on the children it is designed to care for. Again, this is an area where outcomes related data is difficult to establish. It is both difficult to define and to collect.

The Report on Government Service Provision (1995), included a section on the quality of substitute care, however data is limited due to data collection systems which are individually maintained by the States/Territories. Some data is kept on maltreatment whilst in care, however this data is not consistent and is complicated by the range of placements options which include residential care through to supervised parental care. The report provides an initial indicator framework. The report notes the need to develop outcome indicators for substitute care which are based on reasons for entry to care. The data at this stage is minimal and limited due to differences in the legislative policy environment and the mix and nature of the services. (p.587)

There is however, plenty of anecdotal evidence which indicates the experience of many children in care is a negative one. In a recent statement made by the Australian Association of Young People in Care (AAYPIC), it was asserted that seven out of 10 young people in the current care system continue to be abused by that system, and that 25 percent had suffered sexual abuse (The Sydney Morning Herald, 29/3/96, p.5). This abuse includes systems abuse, whereby the system itself, as opposed to the foster carers or residential workers, fails to provide a high standard of care and protection.

AAYPIC recently published the document, Every Childhood Lasts a Lifetime (Owen, 1996). This book told the stories of 15 people who had been in the substitute care system for the last 40 years. The stories tell of the often tragic lives of these children prior to entry to the care system and it also highlights the continuing plight many of them faced once in the system.

Other evidence of the inadequacies of the current care system are found in individual state reviews and reports. Early last year, the New South Wales Department of Community Services released a report it had commissioned on a longitudinal study of wards leaving care (Cashmore & Paxman, 1996). The study found that the experiences of children whilst in care had a significant effect on their transition from wardship. Some of the key factors included:

a) the stability and continuity of their placement,

b) the extent to which the children and young people were kept informed of the reasons for entry to care,

c) the extent and frequency of birth family contact, and

d) the importance of maintaining an ongoing and trusting relationship with a worker.

As previously noted, Cashmore and Castell McGregor have identified the effects on children of the four trends they defined (op. cit., p.125). Placing children in care is viewed as a last resort. Family support and preservation is considered the first option. Such strategies receive widespread support, however the lack of early support programs combined with the reluctance to place children in care often means children who are placed in care are older and more emotionally disturbed. Older children are more difficult to place in foster care than younger children and they are often more difficult to manage, thus requiring foster carers with a high level of skill and commitment. Whilst such carers certainly exist, there has been little increase in remuneration, status, recognition or training.

There is also a shortage of carers particularly for adolescents and emotionally disturbed children. The availability of a small pool of carers means appropriate placements are less likely to occur which increases the risk of placement breakdown. As Cashmore and Castell-McGregor have highlighted, breakdowns can be very detrimental to a child's development (op. cit., p.126). Economic pressures facing families also have an effect on foster carer recruitment and therefore the ability of the state and NGOs to provide children with foster care placements.

Foster carers have historically come from the working and lower-middle classes. This group in society has been facing increasing economic strain as a result of wage restraint, economic recessions and global economic cycles. The Director of a Victorian NGO commented that these factors had contributed to a reduced numbers of families expressing an interest in providing foster care. This pressure has also coincided with an increased emphasis on foster care as the preferred placement for most children. Thus the need for foster care placements has increased at the same time as the pool of carers has decreased.

Whilst the use of shorter Orders is designed to ensure legal review of cases and prevent children getting lost in the system, Cashmore and Castell-McGregor have argued that this may lead to the unintended consequence of a feeling of impermanence in placements.

Standards of Care

There have been some recent developments in producing standards for substitute care services on a national basis. The development of the National Out-of-Home Care Standards (1996) originated from a proposal by the Substitute Care Sub-Committee of the Council of Social Welfare Ministers and the Standing Committee of Community Services and Income Security Administrators.

Developing standards is an important element in best practice principles and have been developed for a range of community services including for disability services and for services to people with a mental illness. The National Out-of-Home Care Standards (1996) provide a core set of baseline standards. These standards are designed to apply to both government and non-government services and aim to meet the needs of each child, young person and family including those with special needs, eg. Aboriginal children, children from a non-English speaking background and children in rural and remote areas. Who are these national standards aimed at and what do they hope to achieve?

The target group is children, young people and their family who as a result of abuse, neglect or family support needs require placement away from home. These children or young people may be placed on a voluntary basis or subject to a statutory order. The outcomes of the document will provide a framework for consistent standards across Australian States and Territories, consolidation of national and international best practice and provide a base for mutual recognition and approval. The standards have a primary focus of ensuring results for each child/young person and their family, is consistent with the principles and objects of State/Territory legislation. The standards are developed to sit within the context of the broad funding and service agreement between the agencies and the relevant government departments.

(1996, p.5)

The national standards are divided into the following nine areas:

1. Case Management

2. Services Access

3. Exit Procedures

4. Decision Making and Choice

5. Privacy and Dignity

6. Participation and Integration

7. Complaints and Disputes

8. Service Management

9. Direct Care-giver Approval and Support.

Each area is further divided into three components:

(a) Purpose;

(b) National Standard; and,

The development of these standards are an important initiative in that they provide a mechanism by which some uniformity between the States and Territories can be achieved. They will also provide some 'in principle' policy and operational standards which can be applied to the way children and young people in care should be treated.

However, at this time there are some concerns with the structure and operation of the national standards. To begin with, the standards are very broad. Consequently it is difficult to quantify the extent to which they are being adhered to. For example, in Section 1 - Case Management, the Supporting Standard No. 1.7 states [t]hat all agency activities will promote the integrity and dignity of the child/young person and their family. Such standards may benefit from a more detailed 'fleshing out', in order to demonstrate how authorities can meet this standard and to allow for monitoring of their adherence to the standards.

A gap in the areas covered by the standards is the need for a 'review of placement' standard. Whilst review is mentioned under the Case Management section (Item 1.6), the importance of reviews are so fundamental to ensuring the child's needs and rights are met it should be included as a separate section. Access to independent, well resourced and regular review processes is a vital element of any implementation of substitute care reform.

A number of the standards relate specifically to agency policy. However, there appears to be no mechanism in place to monitor, review or sanction agencies which do not satisfactorily meet the standards. Hence, it is ultimately the responsibility of each State and Territory welfare department to implement the standards in their jurisdiction.

2.8 WHAT IS 'THE PROBLEM'?

Identifying areas for reform in substitute care legislation, policy and practice appear to fall into two categories. The first is consideration of the circumstances surrounding children entering care and the second is their experience once they are in the system.

Political and economic pressures are facing all State and Territory Governments which continue to balance the need to develop a substitute care system which more adequately meets the community's expectations against the need to contain increases in Budget expenditure. In recent years this need to keep in check any major increase of the public sector in the area of child welfare in a climate of fiscal restraint has led to State and Territory Governments placing an emphasis on the 'child protection' component of child welfare. This is very much a minimalist approach to intervention as well as expenditure. The idea is that if families which are potentially 'dangerous' are recognised, then intensive support systems can be put in place before children come to harm.

Governments would be aware that this approach actually produces a double benefit for themselves. On the one hand it has the benefit of reducing the state's expenditure on universal family support services. On the other hand it prevents unwarranted state intrusion into family life - a benefit that many citizens would welcome because they hold the views that 'big government' is 'bad government' and that governments do not have a legitimate role to interfere in the lives of families. Of course the problem with this approach, as we are regularly reminded, is that some children may be left in vulnerable situations for longer periods of time. If these children are then placed in care they are often more emotionally and behaviourally disturbed and it is thus more difficult to find a suitable and stable placement.

Other trends include the greater use of home based and kinship care. These alternatives are less resource intensive than traditional residential care, and can ideally provide a more 'normalised' environment for children. Kinship care in particular appears to be an attractive option as it maintains family ties and may be less resource intensive. However, there is currently very little data about the use, effectiveness or cost of this form of substitute care in Australia.

From a national perspective one obvious concern about the present substitute care systems operating in Australia is the lack of uniformity across the country. This lack of uniformity is clearly evidenced by some states having a much higher placement rate of children into substitute care than others for reasons that can only be due to the differing legislation, policies and practices.

This means children around the country are being treated differently and that the way they are treated is entirely dependent upon where they reside. Also there is some strong evidence to suggest that the development and implementation of standards of care is not uniform across all jurisdictions. The key issue is developing a comprehensive policy framework which better matches the upholding of children's rights, family preservation and the economic and political realities of current times. It is suggested that the Commonwealth Government is best positioned to achieve an integrated national policy environment to bring this paradigm shift about. Nowhere is this need for a national approach to substitute care of Australia's children more apparent than in respect to Indigenous children and their families.

2.9 INDIGENOUS CHILDREN

When reviewing the problems associated with the provision of substitute care services, the treatment of Indigenous children and their families stands out as an area of concern. The recent Human Right and Equal Opportunities Commission's National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, had as one of its Terms of Reference to ...examine current laws, practices and policies with respect to the placement and care of Aboriginal and Torres Strait Islander children and advise on any changes required taking into account the principle of self-determination by Aboriginal and Torres Strait Islander peoples.

The final report of that Inquiry, Bringing them home, highlights that Indigenous children throughout Australia remain over-represented in child welfare systems. This over-representation increases as the intervention becomes more coercive, with the greatest over-representation being in out-of-home care (HR&EOC, 1997; p.429).

In the period 1994-95 Aboriginal and Torres Strait Islander children constituted 10 percent of the total number of cases of substantiated child abuse and neglect in Australia. This is a much higher percentage than their representation in the total child population which is only three percent. The rate of abuse and neglect for Aboriginal and Torres Strait Islander children is 19.1 per 1,000 children aged between 0-16 years, compared with 5.6 per 1,000 for all non indigenous children in Australia.

Further extrapolation of these figures indicates that this over-representation is particularly evident in cases of neglect, with the rate of substantiated neglect cases for Aboriginal and Torres Strait Islander children being six times higher than for all other children. This discrepancy is however less pronounced in other forms of abuse. In fact substantiated sexual abuse accounts for 11 percent of cases involving Aboriginal and Torres Strait Islander children compared with 17 percent of cases involving other children. (Angus & Hall, 1996; p.16)

The significance of the high level of substantiated neglect cases amongst Aboriginal and Torres Strait Islander children, is the link between cases defined as neglect, and issues of poverty which have a direct impact on the judgements made by the state authorities about what they consider constitutes adequate care. The results of Thorpe's research reveals additional information of child welfare cases in Western Australia during the period 1987-89. He established two major factors associated with this large incidence of substantiated neglect in Indigenous communities, are poverty and the Eurocentric nature of child welfare interventions (Thorpe, 1994; p.161).

The imposition of Care and Protection Orders by the relevant statutory bodies and courts in each Australian State and Territory are a result of the nature of this intervention. The national rate of Aboriginal and Torres Strait Islander children under Care and Protection Orders in 1994-95 was approximately six times higher than the national rate for non indigenous children (14.7 per 1,000 compared to 2.5 per 1.000). However, further analysis of these rates reveal large variances in the rate of Aboriginal and Torres Strait Islander children under Care and Protection Orders across the States and Territories, with Queensland having the highest rate (20.2 per 1,000) and the Northern Territory having the lowest (3.7 per 1,000).

The majority of Aboriginal and Torres Strait Islander children under a Care and Protection Order are under a Guardianship Order. A further indication of the different approach of child welfare services to Aboriginal and Torres Strait Islander children, can be seen by examining the rate of substantiated abuse cases and the number of Guardianship Orders made. It is noted that not all cases of substantiated abuse result in a Guardianship Order and that not all Guardianship Orders are made as a result of abuse and neglect. However, if the abuse or neglect is deemed serious enough or it is judged that other interventions would not be appropriate or successful, then it is likely that a Guardianship Order would be sought. As outlined above, the rate of substantiated cases of abuse and neglect for Aboriginal and Torres Strait Islander children is 19.1 per 1,000 compared with 6.1 per 1,000 for other children. The number of Aboriginal and Torres Strait Islander children under a Guardianship Order is 9.7 per 1,000 compared with 1.7 per 1,000 for non indigenous children.

Whilst direct comparisons between these two sets of figures cannot be made due to a number of extraneous variables, it is possible to observe a trend which is indicative that those Aboriginal and Torres Strait Islander children who are involved in the child welfare system are more likely to be placed under a Guardianship Order. Child welfare interventions are not only more common amongst Aboriginal and Torres Strait Islander communities, they are also more coercive.

It was noted in Bringing them home that there is general recognition by the Commissioners of the underlying causes of the over-representation of Indigenous children in welfare systems. The report identified the following:

The intergenerational effects of previous separations from family and culture, poor socio-economic status and systematic racism in the broader society. These causes combine to produce cultural differences between welfare departments and Indigenous communities, substance abuse, violence, poor nutrition, alienation from social institutions including the education system, family services and the criminal justice system, limited and poor housing options and a loss of hope, particularly among younger people.

(op. cit., p.432)

Whilst State and Territory child welfare legislation and policy often refers to the philosophy of Aboriginal self-determination and the promotion of Aboriginal esteem in both Aboriginal and non-Aboriginal communities, it appears that at this stage the rhetoric has not been matched by practical measures. In fact, the Human Rights and Equal Opportunities Commission's National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families heard from a number of Aboriginal organisations which raised concerns about consultation only occurring at the final stages of decision making when recommendations are being made for a placement in substitute care (op. cit., p.436). Clearly, decision making affecting Aboriginal or Torres Strait Islander children is still controlled by the child welfare authorities

These concerns in many ways mirror the general problems facing child welfare systems around Australia. The ideology underlying services for non-indigenous children has shifted from that of child saving to one of supporting children in families and using substitute care as a preventative measure or permanent care as a last resort. However the reality is that the focus still remains on policing families by identifying potentially dangerous families rather than developing systems which address the issues of poverty, isolation and lack of support.

The current practice of child welfare for Indigenous communities also still bears some hallmarks of previous policies. This state of affairs received attention from the Human Rights and Equal Opportunities Commission National Inquiry.

Welfare legislation and the language of welfare policy have changed. However, submissions to the Inquiry from Indigenous organisations working with Indigenous families indicate little change in practice. Paternalistic attitudes persist in welfare departments. Indigenous children continue to be severely over-represented within all State and Territory welfare systems. Departmental attempts to provide culturally appropriate welfare services to Indigenous communities have not overcome the weight of Indigenous peoples historical experience of 'The Welfare' or the attitudes and structures entrenched in welfare departments.

(op. cit., p.458)

The recommendations from the National Inquiry include the need to develop nationally binding minimum standards of treatment for Indigenous children and young people. These should be developed in consultation with the Commonwealth, State and Territory Governments and peak Indigenous organisations with responsibility for families and children. The report stresses the need for action by the Commonwealth to provide the States and Territories with minimum benchmarks. The National Inquiry further recommended that in the development of these minimum standards, a framework be developed for the accreditation of Indigenous organisations for the purpose of performing functions prescribed by the standards (see Bringing them home, Recommendations 44 and 45).

SECTION THREE: POLICY REFORM

There are few issues that hold so much significance as the ways in which our country ought to demonstrate that it respects and values our young.

Justice Alistair Nicholson, AO
Chief Justice
Family Court of Australia

It is both the differences amongst the States and the Territories in their provision of substitute care services as well as the similarities in their underlying reasons for providing these services that demand a national response. In other words, that children around the country are treated differently in their entry to care and in their treatment once 'in the system', is one very important reason for developing greater uniformity in legislation, policy and practice. A further important argument for establishing a national approach is that all States and Territories are moving towards a less interventionist system, a more conciliatory approach which emphasises the importance of children remaining with their family if possible.

This trend requires a comprehensive policy framework which can offer families the support necessary to enable them to provide a loving and nurturing environment for their children, with sufficient safeguards in place to ensure the needs and rights of children are paramount. Such a framework must be national and include the range of supports currently available to children and their families.

While the Australian Constitution divides the responsibilities of State/Territory and Commonwealth powers in the formulation and administration of public policies, it is the contention of this paper that the Commonwealth Government that is uniquely positioned to assume the chief responsibility for co-ordinating all those initiatives which focus on the well-being of children and their families and which place children and families at the centre of public policy. It is also the Commonwealth Government which signs International Treaties such as the Convention on the Rights of the Child. It is therefore incumbent upon it to ensure the articles of the Convention are being adhered to across Australia.

A call for a national response to child welfare is not new. In March 1994 the previous Commonwealth Minister for Family Services commissioned the Australian Institute of Family Studies to undertake research on the Commonwealth's role in preventing child abuse. The report, The Commonwealth's Role in Preventing Child Abuse, was published in December 1994 and recommended inter alia that the Commonwealth Government should take the lead in coordinating services to all Australia's children and their families. The report recommended the Disability Services Act 1986 as a model upon which a legislated children's services program could be based. There is a recognition in the report that prevention of child abuse is dependent upon a range of responses targeting individuals, families, communities and society. The report puts forward the view that,

... Commonwealth could continue to deal with its obligations as it presently does, on an ad-hoc basis within discrete portfolios, or it could attempt a 'whole-of-government' approach. A 'whole' approach must be based on a unifying principle the recognition of the human rights of all people, including children.

(1994, p.77)

Following the 1994 report, the National Council for the International Year of the Family in its final report, Creating the Links: Families and Social Responsibility, similarly argued that the Commonwealth should take the lead in planning, setting guidelines for the funding and supply of services based on principles of equity, and monitoring the outcomes of family and children's services and other community services. (1995, p.61)

Australia is in a good position to develop a more comprehensive and creative policy framework to underpin the provision of substitute care services for children. There are precedents in both legislation and policy which could assist in reforming substitute care services. Australia already has in place a national comprehensive income support system for families. We have developed a national approach to the provision of child care services, including quality assurance. From a legislative perspective, the Family Court of Australia fulfils a very important and integral role in ensuring children are the foremost consideration in family disputes. Utilising these established structures may provide a way forward and an opportunity to remove child welfare from the last vestiges of its colonial heritage.

3.1 LEGISLATION - FAMILY LAW

The powers pertaining to the Commonwealth's jurisdiction in family law matters are found in Section 51 (xxi) and (xxii) of the Commonwealth of Australia Constitution Act. This Sections gives the Federal Parliament the power to legislate on the family law matters of marriage, divorce and matrimonial causes. When the Parliament legislates on matters pursuant to powers vested in it under Section 51, the Commonwealth provisions override any state law that may be inconsistent by virtue of Section 109 of the Australian Constitution.

The Family Court of Australia was established in 1975 with the passing of the Commonwealth's Family Law Act (1975). The Family Law Act replaced previous Australian laws relating to divorce and nullity of marriage. It also superseded State and Territory laws of maintenance, custody and property where these relate to marriages or children of marriages .

The Commonwealth's power to legislate in respect of family law was greatly expanded in the period from 1986-1990 when all the Australian States and Territories, with the exception of Western Australia, referred the majority of their legislative powers with respect to children of marriage or de-facto relationships to the Commonwealth Parliament through cross-vesting legislative arrangements³.

The provisions of these Acts refer legislative powers to the Parliament in respect of three broad matters, namely: custody, guardianship and access; child maintenance; and, child expenses. All Acts exclude from the scope of the referred legislative powers the power to affect the operation of state child welfare legislation. (Dickey, 1991; p.17)

The Family Law Act is concerned with ensuring children of a dissolving marriage or de facto relationship are receiving sufficient care and protection from one or both of its parents. Until recently, the Act specified the rights of adults in respect to children as guardianship, custody and access. However, recent reforms introduced through the Family Law Reform Act 1995 have changed these terms in an attempt to shift the focus away from parental rights and towards what is considered to be in the best interests of the child.

These changes are very important in terms of the way the Family Court approaches its role in monitoring the care of children whose parents are divorcing or separating. The changes reflect an increased emphasis on parental obligation and responsibility. The Family Law Reform Act 1995 is based on the following principles:

Children have the right to know and be cared for by both parents.

Children have the right to regular contact with both parents and any other person significant to their care, welfare and development.

Parents should share the duties and responsibilities of looking after their children.

Parents should try and agree on future parenting arrangements for their children.

(Commonwealth of Australia, 1996, p.1)

The terms 'custody', 'access' and 'guardianship' - which imply ownership of children - have been replaced by the broader concept of parental responsibility. This concept covers everything a parent normally does in raising a child.

Parents are encouraged to develop their own arrangements for the day-to-day care and future upbringing of their child, rather than having an imposed determination. These written agreements are called parenting plans. Under these plans, parents set out how they will share their duties and responsibilities for raising their children. The plan can also include any specific issues that parents wish to agree upon. Parents can choose whether to keep the parenting plan as an agreement on an informal level, or they can register the plan with the Court. The latter option gives the plan a greater legal status.

Where parents cannot agree, they can apply to the Court for a specific Issues Order. Such an order sets out an individual parent's responsibilities for areas of a child's life such as medical, educational and religious matters. Before granting an Order, the Court will consider what is in the best interests of the child.

In addition to making orders on issues related to children, the Family Court offers services to families to help resolve their disputes. These services include: voluntary counselling; court ordered counselling; reports on the welfare and well-being of a child; telephone counselling; and mediation. The Federal Attorney-General's Department also contracts community organisations to provide services such as marriage and relationship education, family and child counselling and family and child mediation. Some of these services already cross boundaries with care and protection matters. For example, the federally funded Family Skills Training Program provides parent education and support. Assisting parents come to terms with and accept their parenting skills and responsibilities is an important component of the Family Skills Training Program which seeks to prevent out of home substitute care placements by enabling children to remain with their families wherever possible.

Whilst there are obvious differences between the role of the Family Court and that of the various Children's Courts, there are a number of similarities between their underlying role in negotiating the public/private dichotomy between the state and families. Both are concerned with placing the interests of children in a paramount position, both seek to use court orders as a last resort, both are concerned with the proper functioning of families.

As such it may be worthwhile considering the inclusion of care and protection matters under the jurisdiction of the Family Court. This possibility was raised in the Issues Paper 18 jointly produced by the Law Reform Commission and the Human Rights and Equal Opportunity Commission's Inquiry into Children and the Legal Process in March 1996. The Issues Paper noted that the Family Court already has jurisdiction to deal with a wide range of issues affecting the residence and contact rights of children in Australia. It also has the welfare and parens patriae jurisdictions which are compatible with the care and protection jurisdiction. The State and the Territory Governments could transfer their power to the Family Court as they did with jurisdiction over ex-nuptial children.

Such a proposal if implemented would have the advantage of achieving consistency in care and protection matters around Australia. It also would remove care and protection matters from children's courts which were established under a different ideology about the family and the state. The Family Court clearly states that its principal function is to promote families as the natural and fundamental unit in society. This is congruent with the trend towards family preservation through family support which informs child welfare policy and practice.

The Draft Recommendations from the Inquiry into Children and the Legal Process were recently released (A Matter of Priority, May 1997). This report examines the problems associated with the current jurisdictional arrangements in family law and care and protection. These include:

( A Matter of Priority, pp. 44-45)

The report notes that the transfer of the care and protection jurisdiction from the States and Territories to the Family Court was a frequent suggestion made to the Inquiry. However, the Commissions doubt that such a suggestion is likely to receive the necessary political support in all jurisdictions. The recommendation from the joint report is the establishment of a cross vesting scheme between the State and Territory children's courts and the Family Court which would allow either court to deal with care and protection and related federal family law matters. This would only occur in situations where care and protection issues arise in a case already before the Family Court and State and Territory children's courts would be empowered to deal with relevant family law matters when considering care and protection applications.

This would overcome a number of the difficulties highlighted in the joint report with respect to jurisdictional boundaries. With regard to the more specific issues facing children in the care and protection system such as inconsistencies across State and Territory boundaries and the inadequacies of the system to provide support to children, the report recommends national standards for legislation in care and protection systems.

Another option for addressing these complex issues could be to enshrine care and protection standards within the legal framework of the Family Law Act. In this instance standards could then be mirrored in State and Territory legislation and if a State or Territory did not meet the standards, the federal law would override. The advantage in this proposal is in the consistency such a scheme would produce across jurisdictional boundaries, it would also ensure that high standards would be implemented in all States and Territories.

Furthermore, this proposal would also place care and protection matters in the overall framework of the Family Law Act. As discussed above the Family Law Act is concerned with finding the most appropriate care arrangements for a child or children, arrangements that are in their best interests. Such a legislative framework could provide an effective base for care and protection issues, moving care and protection away from notions of policing of families and ownership of children to notions of determining what is best for the child in consultation with families.

One concern with this proposal is that the focus on family could undermine the rights of children. That by referring care and protection maters from the Children's Court to the Family Court, children become a secondary consideration to family. However, the recent reforms to the Family Law Act clearly indicate that children are the first priority in any matter, their interests must be upheld by any court intervention, whether it be through counselling or through the development of a parenting plan.

The Federal Attorney-General, Hon. Mr Daryl Williams recently outlined his vision for support services attached to the Family Court (National Press Club, 15 October, 1996). In this speech he outlined the Commonwealth government's commitment to ensuring families have access to the widest possible range of counselling and other services which assist them in resolving disputes. He advocated placing the bulk of non-judicial services in the community sector. He suggested a possible way of achieving this is to have these services managed by an agency within the department. This body would be responsible for the contracting and management of all non-judicial family law services. The agency would develop standards to ensure clients get a high quality service. This proposal presents a 'window of opportunity' to consolidate services which aim to support families and help them resolve disputes, under one central agency.

3.2 POLICY - CHILD CARE

Child care is an area of social policy which has grown rapidly over the past few decades. Child care began as a form of support for 'poor families', however it has developed into a service which largely meets the needs of working parents. It is enlightening to juxtapose child care with substitute care as both involve non-parental care of children, yet they both operate in very different ways.

The State/Territory Governments began the system of child care services for children through the pre-school system. The Commonwealth became involved primarily to support women in the workforce. Under the Commonwealth's Children's Services Program, the provision of child care has grown rapidly.

The Commonwealth's primary reason for supporting children's services remains to assist parents, especially women, to participate in the workforce. The State and Territories have assisted the Commonwealth to meet the needs of work related care. The States/Territories have also maintained an interest in the developmental and welfare role of child care, in line with their education and welfare responsibilities. The vast majority of financial support for child care comes from the Commonwealth. The States/Territories provide some support for infrastructure costs and support for pre-schools. They are also responsible for licensing and regulation.

Jamrozik and Sweeney argue that the concurrent development of child care and child welfare services is evidence of a conceptual shift in the provision of services for children. They highlight the similarities in the stated principles embodied in the policy rhetoric of both services. This includes elements of substitution, supplementation and support for parents and protection for children. However, they have developed in different directions with vast differences in resource allocation and in the underlying assumptions of each service. Child welfare services operate on a residual model, only implemented if other institutions fail. Whereas child care is considered a universal family support service and as such does not carry the stigma of substitute care services attached to child welfare. (1996, pp.191ff)

The model for child care can provide some directions for child welfare policy. One particular area is the development and implementation of standards. In the early 1990s a system of accreditation for long day care centres was developed. This was a recognition that the system of licensing and regulation which was based on staff/child ratios, number of toilets, and other physical requirements did not provide information on the actual functioning of the centres. For example, there was no actual assessment of staff's interactions with children. Accreditation was linked to childcare assistance, so only centres which were accredited would be eligible for government assistance.

In November 1996, the Economic Planning Advisory Commission (EPAC) released a report on the future provision of childcare in Australia. Accreditation was an issue reviewed by the Taskforce. The Taskforce noted the importance of an accreditation system and recommended the current system should be built upon and extended throughout the entire paid child care sector. The EPAC report recommended the state system of regulation remain to ensure the health and safety of children. The Commonwealth system of accreditation should ensure appropriate developmental experiences for children, involvement of parents, and disclosure to parents of key information about a childcare service. The Taskforce also noted the need for staff providing accredited child care services having some form of post-school qualifications appropriate for their role.

Accreditation systems are an important way of monitoring quality of care. The key components of the child care accreditation process are that it is national and it is directly related to government funding. These principles should be applied to all out of home care services to children. There should be no less emphasis on ensuring children who are in substitute care are receiving the highest quality care than there is on ensuring the same in child care services.

Under the current arrangements in child welfare it would be difficult to implement a national accreditation scheme for providers of substitute care services as many such services are still operated by State/Territory Governments and it would be difficult for the Commonwealth to impose this system on an area which is a State/Territory responsibility. The concept of accreditation could be included in a set of national legislated standards which would then be implemented for all service providers whether operated by State authorities or NGOs.

3.3 STREAMLINING COMMONWEALTH/STATE RESPONSIBILITIES

A review of the role and responsibilities of the Commonwealth and the States and Territories has been an important feature in the development of broad policy over the last decade in Australia. General reform has been accorded high priority by all Australian Governments as it is seen to be vital to the process of micro-economic reform as it will reduce overlap and streamline the provision of a gamut of goods and services. Community services is another area in need of reform as it is largely funded by the Commonwealth and is the responsibility of the States and Territories. To date, other than the Industry Commission 1995 report Charitable Institutions in Australia, there has been little attention paid by Australias governments to the community services sector.

The forum for this reform to occur is the Council of Australian Governments (COAG). Membership of COAG includes the Prime Minister, the Premiers of the States, Chief Ministers of the Territories, and the President of the Local Government Association. COAG has recognised the need for reform of the roles and responsibilities of the different levels of government in the community services area. The process of reform is based on the following principles:

the importance of establishing clear national goals for each service type in the areas of access and equity and standards of service;

better co-ordination and interface between the various types of services;

clearer delineation of the roles and responsibilities of each level of government, so as to avoid duplication, service gaps, and cost-shifting. (ACSWC,1996)

At its meeting in February 1994, COAG requested a report identifying program rigidities and legislative and administrative impediments affecting the attainment of national objectives in community service areas, for the 19 August COAG meeting. Following this, Health and Community Services Ministers agreed at their 21 March, 1994 conference that the Standing Committee of Income Security and Community Services Administrators (SCCSISA) provide a report to Ministers in June addressing the COAG resolution. Under the title of the Working Group for the Attainment of National Objectives in Community Services, a report, Roles and Responsibilities in Community Services, was produced for consideration at the June 1994 meeting of Commonwealth and State and Territory Ministers. It was endorsed by all except the Commonwealth and Western Australia, but progress on its recommendations was stalled and has since been dropped from the SCCSISA agenda.

However, some agreement has been reached between the Commonwealth and the State/Territory Governments to proceed with the National Community Services Information Agreement. Under this agreement uniform definitions and data collections will be developed to enable greater comparisons across jurisdictional boundaries and a more comprehensive national picture of community service provision. Child welfare has already been identified as an area of high priority for improvements in data collection.

The report sets out six options for reform for the development of a national policy framework covering a comprehensive range of community services. It argued that a national policy framework would encompass the following existing government programs:

Home and Community Care (HACC)

Supported Accommodation Assistance Scheme

Commonwealth Child Care Program

State Children's Services Program

State Disability Services Program

Substitute Care Program

Child Protection Program

State Community Support/Family Support Programs

Commonwealth Aged Care Programs

Commonwealth Community Services Programs

Personal Financial Assistance

The proposed national framework would do away with having different priorities and accountabilities, a range of discrete service types, discrete and different output/outcome indicators, and resource allocation skewed in favour of joint Commonwealth/State programs. In their place would be one coherent set of priorities and accountabilities, a range of flexible and linked service models, one set of output/outcome indicators for all community services, and resources allocation would be determined across programs on the basis of total agreed priorities.

The Working Group report recognises the common objectives of community services. Under a national policy framework four primary objectives are proposed:

to assist families, individuals, and vulnerable and disadvantaged communities to develop and maintain supportive family and social networks;

with appropriate support, to assist families and individuals to live independently in the community;

to assist families to achieve and sustain a safe domestic environment; and

to assist families and individuals to achieve their optimal level of independence, whilst in supported accommodation.

(Report from the Working Group on the Attainment of National Objectives in Community Services, p.18)

The report proposes the Commonwealth and States/Territories jointly determine objectives, outputs and/or outcomes to be achieved against agreed performance assessment criteria and, undertake broad joint planning regarding regional equity, broad priorities (issues and total needs) with an agreed monitoring process. Resources would be allocated to priority areas on the basis of a comprehensive needs assessment across the entire continuum of community services. For their part, the States and Territories would undertake service planning and determine service mix and resource allocation.

It has been argued in the report that for clients this means an earlier and comprehensive assessment of need and individualised service packages being provided that meet the total set of needs. For example, if the resources currently allocated to young people under SAAP, substitute care and youth service programs were pooled and distributed on the basis of meeting a total set of agreed needs and priorities, a better array of services responses would be achieved.

The report provides an example of the proposed arrangements which are reproduced in Table 6. The case used is an adolescent who is homeless, who is alienated from the family but still has family contact, who has been in and out of state substitute care facilities and SAAP services and, who was disengaged from the school system from an early age.

Table 6: Example of the Proposed Service System for Adolescents

Clients Experience	Service Experience
o family support - counselling, mediation o accommodation o continuity of support o links to education, training & income support	o service needs to be able to package a cohesive set of services relevant to client's need to and provide continuity of services to facilitate desired outcome	NEED
o Client has moved between State programs and joint Commonwealth/State programs to have separate and duplicative systems o access to services affected by legal status, age o client has to go to several different service systems - has to package needs to fit what is available o different services available for family and for adolescent	o an array of discrete services exist rather than an integrated model o definition of "adolescent" used by each service varies according to different programme priorities o service system skewed to address homelessness aspect due to current funding arrangements o resources are not necessarily available to address others needs eg family mediation, counselling, local community support services	CURRENT ARANGMENT
o Focus is on outcome (client's need) rather than on fitting needs to what is available. o comprehensive assessment of need at an early stage and case management o client goes to fewer agencies o individualised service package provided (across existing programs)	o services boundaries are defined by current program boundaries o seamless linkages across services for clients o inclusive criteria for a set of services rather than exclusive criteria for current individual services o Integrated planning and delivery across service system ensures gaps are minimised	NEW ARRANGEMENTS

The benefits of this approach as a response to the current deficiencies highlighted in Section Two are that fourfold. First, the service delivery system would change to package child abuse support services, supported accommodation options, counselling and support services, in an innovative mix, appropriate to local areas. Substitute care services would be a part of this overall mix, to be utilised in a flexible manner which best meets the needs of individual children.

Secondly, meaningful, client outcome-based data could be collected and collated to form an accurate and relevant planning base. Thirdly, there would be greater consistency across the States and Territories and the Commonwealth would be more effectively meeting its commitments under the United Nations Convention on the Rights of the Child. And finally, developing greater co-ordination between service areas and between the States/Territories and the Commonwealth would result in a more efficient use of resources in the long term.

3.4 PROVIDING CHILDREN AND YOUNG PEOPLE WITH A VOICE

A theme which must run consistently throughout policy reform in substitute care is the need to ensure children and young people are provided with an opportunity to participate in decisions which have such a huge impact on their lives. This opportunity should be at both the level of individual cases and at the level of policy reform.

The right to participate is enshrined in the United Nations Convention on the Rights of the Child. Article 12 states:

State Parties shall assure to the child who is capable of forming his or her own views the right to express views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

The right for children to be active participants is also included in the principles outlined in Section One. For those children who cannot participate due to age, disability or other circumstances, an advocate must be made available to ensure the interests of the child remain paramount. One model for such advocacy is the Guardium ad Litem system. This involves the appointment of an advocate for the child in all care and protection matters.

Other forums for participation include the Australian Association of Young People in Care which is a national body with state branches. The Association is a peer group run by and for young people in care. Such peer groups provide an effective advocacy and lobby group for these young people, who have for so long had no voice.

3.5 POLICY FRAMEWORK

A policy framework for child welfare services should be a combination of the current array of legislation, policy and practice which are designed to support children and their families. In British Colombia in 1995, Judge Thomas J Gove undertook an inquiry into the death of a five year old boy. The boy and his mother were well known to local authorities and the inquiry focused on identifying why the system failed to protect him. Gove J. advocated an overhaul of child welfare services. He proposed that a new child welfare system should be universal, accountable, efficient and above all child centred. He argued that the following are essential components of any child welfare system:

being clear about the core values concerning children. Designing services that support the child's right to be treated with dignity and respect.

being clear that the child is the client. Ensuring that child welfare services, including those that support parents, have positive outcomes for children.

provide children with multi-disciplinary services. We should start with the child, identify the child's needs, develop a plan to address the child's needs and deliver services that are responsive, accessible and coordinated.

providing a voice for children. Administrative structures should not drive the delivery of child welfare services, this leads to unprincipled, dysfunctional and inefficient systems.

(Matthew's Legacy: the Hon. J. Gove, 1995)

Meeting the challenge of this framework requires a legislative and a policy response. The Commonwealth must take the lead as it has the political authority to coordinate services and the economic authority to assist States and Territories to improve their provision of these services.

RECOMMENDATIONS

A theme running throughout this Discussion Paper is the need for the Commonwealth Government to take more responsibility for addressing the needs and rights of all children in Australia. This responsibility stems from the Commonwealth Government as signatory to the United Nations Convention on the Rights of the Child. The following recommendation would be an important step in accepting more responsibility. Whilst this Discussion Paper has been primarily focussed on the provision of substitute care services it is vital that the Commonwealth Government set the overall framework for the integrated and coherent provision of services to children.

Recommendation One:

That the Commonwealth Government's commitment to children is formalised through the development of an Agenda for Children which outlines broad goals and strategies based on the Convention on the Rights of the Child. The Agenda should be developed in consultation with the States and Territories, nongovernment organisations and children and young people.

The Draft Recommendations of the Children and the Legal Process Inquiry (A Matter of Priority, May 1997), includes a recommendation for the establishment of an Office for Children in the Office of the Prime Minister and Cabinet (Draft Recommendation 12.1). The Commissions advocate that this Office coordinate and develop policy and improve service delivery and practice for children.

This Office could provide the focus necessary to coordinate the currently fragmented legislation and policy affecting children. The establishment of an Office for Children would also indicate the Commonwealth Government's commitment to carrying out its obligations under the United Nations Convention on the Rights of the Child.

Recommendation Two:

That the Commonwealth Government establish an 'Office for Children' located in the Office of Prime Minister and Cabinet. This Office would have the function of developing the Agenda for Children and co-ordinating the consultations with State and Territory Governments and the non-government sector in developing a more coherent framework for the provision of services to children.

Reform in areas affecting children should be a priority for Commonwealth and State/Territory under the COAG process. A commitment to this reform could be included in the Agenda for Children.

Recommendation Three:

That the Commonwealth Government and the State and Territory Governments make a commitment to developing an integrated policy framework for all community services. This could expand on the work already undertaken under the auspice of Standing Committee of Income Security and Community Services Administrators.

There is a clear need for an overhaul of the legislation and policy relating to substitute care services around Australia. Whilst individual State and Territory Governments have undertaken a number of reviews and many have implemented positive reforms, there is a need for greater consistency across the country. The well recognised ideological shift from colonial notions of child rescuing to supporting children within their families should be more adequately reflected in legislation and policy.

Developing national standards for care and protection within the framework of the Family Law Act would more adequately reflect this shift. Mirroring these standards in State and Territory legislation maintains the responsibility for child welfare with this level of government, however it also provides a safety net if any State or Territory Government refuses to meet these standards.

These national standards should be developed in consultation with the Commonwealth, the State and Territory Governments and relevant non-government organisations, including those representing children and young people. The key areas of standard development must be:

1. Removal - How and why decisions are made for a child to be removed from their family;
2. Orders - Definition of Guardianship and Non-Guardianship. When and why orders are to be made and by whom;
3. Placement - Clear standards on placement options and the process of decision making prior to placement;
4. Review - Standards on regular, well structured and independent review mechanisms for all substitute care placements;
5. Restoration - Clear, well resourced restoration plans with clear timeframes; and,
6. Accreditation - System of accreditation of substitute care service providers which is national and establishes standards of quality control.

Recommendation Four:

That the Commonwealth Government through the Office for Children fund a research project which reviews the feasibility of child welfare standards being enshrined in the Family Law Act and parallelled in State/Territory child welfare laws.

The ongoing over-representation of Indigenous children and young people in substitute care systems around Australia is one of the most critical issues facing policy makers, child welfare practitioners and the community alike. The historical legacies and the current problems are clearly articulated in the recent report of the Human Rights and Equal Opportunity Commission (Bringing them Home, 1997). The need to address this issue in a coherent, co-ordinated and compassionate way provides the most cogent argument for a united approach by all levels of government.

Recommendation Five:

That the Commonwealth Government recognise the particular difficulties facing Indigenous Children and their families under current child welfare systems by implementing recommendations 43-53 of the report from the National Inquiry into the Separation of Aboriginal and Torres Strait Children from their Families, Bringing them home.

CONCLUSION

Services to Australia's children and their families which come under the child welfare banner is one area of social policy which has remained largely unaltered over many years. Whilst the ideology of family and the availability of resources have shifted, child welfare policy has adjusted within the frameworks which were established in colonial days. The result has been a continued emphasis on policing of families, with the provision of intensive family support or substitute care in extreme situations.

Compared to the shifts in disability and aged care services in recent years, child welfare services have not been the subject of major reforms. The time has come for an overhaul of the current structures. The Commonwealth must lead the way in this reform in light of its responsibilities under the Convention on the Rights of the Child and its leading role in reforming Commonwealth/State relations.

We can tinker, knowing that tinkering cannot restore a flawed system. Or we can, together, build a new child welfare system that puts children in the centre. (Justice Thomas J Gove, 1995).

The recommendations made in this Discussion Paper will not occur overnight. However, a commitment must be made by all levels of Australian government and by the community at large to place the needs of children at the top of our priority list. From that commitment, reform of legislation and policy can occur which truly recognises the importance of ensuring the care and protection of all our children.

END NOTES

¹ Australian Captial Territory Children's Services Act 1986
New South Wales (Care and Protection) Act 1987
Northern Territory Community Welfare Act 1993
Queensland Children's Services Act 1965
South Australia Children's Protection Act 1993
Tasmania Child Protection Amendment Act 1986
Victoria Children and Young Persons Act 1989
Western Australia Community Services Act 1972

² Australian Captial Territory Children's Services Act 1986
New South Wales (Care and Protection) Act 1987
Northern Territory Community Welfare Act 1993
Queensland Children's Services Act 1965
South Australia Children's Protection Act 1993
Tasmania Child Protection Amendment Act 1986
Victoria Children and Young Persons Act 1989

³ Commonwealth Powers (Family Law-Children) Act 1986 (NSW and Vic);
Commonwealth Powers (Family Law) Act 1986 (SA);
Commonwealth Powers (Family Law) Act 1987 (Tas);
Commonwealth Powers (Family Law-Children) Act 1990 (Qld).

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