The Royal Commission into Institutional Responses to Child Sexual Abuse found many organisations had failed to protect children and to respond appropriately when information about abuse was disclosed.
In response to findings and recommendations from the Royal Commission, the Australian Government commissioned the development of the National Principles for Child Safe Organisations. The National Children’s Commissioner, Megan Mitchell led the development of the National Principles, in consultation with relevant peak organisations, children and young people, and Commonwealth and state governments.
Reflecting the ten child safe standards recommended by the Royal Commission, the National Principles go beyond sexual abuse to include other forms of harm to children and young people.
The National Principles apply to government, non-government and commercial organisations, including early childhood services, schools, out-of-home care, sports clubs, churches, youth groups, health services and youth detention services.
The ten National Principles put the best interests of children and young people front and centre. They cover all aspects of what organisations need to do to keep young people safe—from the culture of the organisation and the role of families and communities, to the recruitment and ongoing training of staff and respecting equity and diversity.
Many organisations across the country already work hard to ensure children and young people are protected from harm. The National Principles are not intended to override existing measures, but create a national minimum benchmark.
How will they be implemented?
In February 2019, the Council of Australian Governments (COAG) endorsed the National Principles.
Alongside the National Principles, the National Office for Child Safety (NOCS) was established in the Department of the Prime Minister and Cabinet as part of the Australian Government’s response to the Royal Commission. The NOCS will work with state and territory governments and organisations to lead the implementation of the National Principles.
In South Australia, the Department for Education will lead the implementation of the National Principles with state-specific resources and supporting tools to be developed. Organisations providing care to children and young people will need to continue to meet the Child safe Environments: Principles of Good Practice while the implementation of the National Principles is progressing.
How can an organisation adopt the National Principles?
Each National Principle is accompanied by key action areas and indicators that act as a guide for organisations to ensure they are implemented in practice.
The Australian Human Rights Commission (AHRC) has developed a range of tools and resources to assist in the implementation of the National Principles. An introductory video provides further explanation on the development and future implementation of the National Principles and a Learning Hub and Practical Tools provide organisations further guidance.
For children and young people
The National Principles are about putting children and young people at the centre of practice. The AHRC has developed resources for children and young people and a version of the National Principles in child-friendly language. It also covers information for parents and carers how to identify an organisation is child safe.
Aboriginal children and young people are vastly over-represented in out-of-home care and the youth justice system. The Productivity Commission’s Report on Government Services 2019 (ROGS 2019) demonstrates that South Australia is no exception.
Aboriginal children and young people in out-of-home care
Aboriginal children make up a third (33 per cent) of children and young people in out-of-home care in South Australia. This is despite constituting less than five per cent of the state’s total population of children and young people.
Aboriginal children and young people represent 34 per cent of those in residential care, with the majority placed in foster and relative-kinship care.
As the number of Aboriginal children and young people entering care has increased, the percentage placed in accordance with the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) has fallen. ATSICPP seeks to place Aboriginal children (in order of priority) with their family or relatives, within their communities, with other Aboriginal people, or near their community. In 2018, 65 per cent were placed in accordance with the ATSICPP, down from 74.4 per cent in 2009.
At 30 June 2018, 31 per cent of Aboriginal children and young people had been in continuous out-of-home care for between two and five years. At the same time, 41 per cent had been in continuous care for five years or more, which is actually lower than the percentage of non-Aboriginal children and young people (46.7 per cent).
Aboriginal children and young people in youth justice
In 2017-18, Aboriginal children and young people comprised two-thirds (66 per cent) of the daily average of 10 to 17 year olds in detention. This is considerably greater than the national average of 57 per cent.
The number of Aboriginal girls and young women in detention is lower than Aboriginal males, but make up a high proportion of all girls and young women detained.
Spending on youth detention
Our analysis of ROGS 2019 finds South Australia’s spending per child on detention-based youth justice services has moved increasingly closer to the national average in recent years. In 2017-18, South Australia’s spending per child was $213.83, compared to the national average of $215.50. South Australia had the third lowest rate of expenditure per child when compared to other states and territories across the country.
Charts, statistics and more analysis in our Snapshot of South Australian Aboriginal Children and Young People in Care and/or Detention from the Report on Government Services 2019, available for download below.
 Aboriginal community preference in South Australia is that the term Aboriginal is inclusive of Torres Strait Islander people, a usage we generally adopt in our reports.
As we approach Reconciliation Week, take this short quiz to find out five important facts about Aboriginal children and young people in care and detention in South Australia.
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Check out the May 2019 edition of the Guardian’s Newsletter:
- young artists making a final contribution to the mural celebrating young people in state care
- a new focus on family in child protection brings opportunities and challenges
- a Charter of Rights for Children and Young People Detained in Training Centres
- and more…
By Guardian Penny Wright and Malcolm Downes
The State Government’s newly announced strategy An Intensive Support System for South Australia’s children and families promises a more sustained and holistic response to child protection by shifting the focus to families. Under the strategy the Child and Family Assessment and Referral Networks (CFARNs), the Child Wellbeing Practitioner and Strong Start programs will be brought together in a new Intensive Support Unit to be formed in the Department for Human Services.
The family, in its many styles and structures, remains at the core of human society. It is how we care for each other, a basic economic unit, a basis for our sense of who we are, a psychological comfort and a vehicle for raising our children. It is also the site of some of our greatest problems, of violence, abuse and neglect. Over generations it can perpetuate our noblest aspirations but also nurture our darkest failings. For some families, problems with poverty, debt, unemployment, drug misuse, mental illness, family violence, insecure housing and contact with the justice system combine to create major barriers to the enjoyment of the relative wellbeing and wealth that our community has to offer.
Informed by the research commissioned on the back of the Nyland Royal Commission into the Child Protection System in SA, the Department’s planned Intensive Support Unit promises to focus squarely on the families with the most entrenched and challenging issues. It aims to work with families to identify issues they face and coordinate the services and supports they need in sustained way. In the past we have striven to ‘rehabilitate’ the individual young offender or ‘cure’ the person with a mental illness without regard for the social circumstances they came from and to which, in all likelihood, they will return. The Department’s new strategy will refocus the bulk of the family support, domestic violence and children’s support services that it provides and contracts on these families.
The rationale and structure resembles the Troubled Families program that has been in place in the United Kingdom since 2012. The program recently released its National evaluation of the Troubled Families Programme 2015-2020: Findings Evaluation overview policy report. In the UK program, intervention is based on a keyworker who builds an understanding of problems and of the individual family dynamics. They look at the totality of what’s going on and use what the report calls ‘a persistent and assertive approach establishing a relationship with the family and working closely with them to make sure the family resolve their problems’. The keyworker agrees on a plan with the family and local services so that interventions are sequenced and coordinated and there is a shared ownership of outcomes among service providers.
The evaluation report shows some headline gains including an almost one-third reduction in children being taken into care after a 19-24 month intervention and a one-quarter reduction in young people receiving custodial sentences. The economic benefits and net budget savings modeled in the report make a strong argument for the UK Government to persist with the program.
We should anticipate that the South Australian strategy, like Troubled Families, will encounter some challenges as it is rolled out. Services will need to adapt their practice, data collection and information sharing to a family-based way of working – and being funded. We can look to the NDIS as an example of the difficulties a change of service and funding model can produce for clients and providers if not well managed, no matter how well intended. The shift to a payment-by-results model can produce distortions in the provision of services and a gaming of the system if not well-conceived and managed from the outset.
Perhaps the biggest challenge for the new strategy will be how well it addresses the outcomes for Aboriginal families. The last Closing the Gap report confirmed that, after more than ten years of investment, we still struggle to provide services to the Aboriginal community that are culturally safe, trusted and effective. If we shift the focus to families we will have to understand and embrace an Aboriginal concept of family which is very different in how it operates to the white European model on which much of our current system is based. On top of that we will have to translate what words like ‘disadvantaged’, ‘troubled’, ‘struggling’, ‘complex’, and the many other policy terms governments use, mean to Aboriginal families. It will need to develop an understanding of how Aboriginal families define their needs and what success means to them.
To its credit, the new DHS strategy explicitly acknowledges the necessity for serious Aboriginal involvement in the design and governance of the new system and in the decisions that affect the lives of Aboriginal families and children. Getting this right for Aboriginal families will be a touchstone for the success of the strategy as a whole and its ability to serve the very diverse set of groupings and relationships that we call ‘family’ in the 21st Century.
Each year, the Productivity Commission releases its Report on Government Services (ROGS), which includes data that allows us to examine and compare the state’s delivery of child protection services in a national context.
The ROGS 2019 identifies four program areas within child protection services—protective intervention services, family support services, intensive family support services and out of home care.
The Office of the Guardian’s analysis of the report finds South Australia continues to show a heavy commitment to spending on out-of-home care.
In 2017-18, 77 per cent of all child protection services spending was in out-of-home care. Of this expenditure, 64 per cent was committed to residential care, including very costly emergency care accommodation. This is despite the proportion of young people living in residential care in South Australia decreasing from 15.7 per cent in 2016-17 to 13.5 per cent in 2017-18. This proportion is still high when compared to the national average, which is just 5.5 per cent.
Expenditure on family support services is also relatively high when compared to other jurisdictions. The national average spending per child on family support services was just 68 per cent of the South Australian average, with the state increasing its total expenditure by 351 per cent since 2013-14.
South Australian expenditure on intensive family support services has moved in a similar direction, having more than doubled since 2013-14. In 2017-18 it was 9.5 per cent higher per child than the national average.
Spending on protective intervention services has reduced from $142 per child in 2013-14 to $120 in 2017-18. This is just below half of the national average and represents the lowest expenditure in protective intervention services across the country.
For further analysis, South Australian child protection expenditure from the Report on Government Services 2019 is available for download below.
For its latest report, the CREATE Foundation surveyed 1,275 young people around Australia with care experience, covering topics including health, education and connection to culture.
Out-of-Home Care in Australia: Children and Young People’s Views After 5 Years of National Standards reports that 93 per cent of young people felt safe and secure in their placement and 96 per cent had a meaningful connection with a family member that they expect to maintain. It also found 93 per cent had regular health checks.
Among the positive views from young people, the report also raises their concerns, some of which we examine below with a particular focus on the situation of young people in care in South Australia..
Of the respondents with siblings, 36 per cent were separated from all their brothers and sisters. South Australia had the highest proportion of split placements with 53 per cent.
Sibling contact was high in this state, which the report suggests could reflect the higher number of split placements. The report recommends South Australia adopt a program like Victoria’s Keeping Connected program announced last year.
Connection to culture
Aboriginal and Torres Strait Islander young people continue to be over-represented in out of home care. About one third of Indigenous respondents of the CREATE survey felt strongly connected to their culture while one third reported little connection.
A cultural support plan is designed to maintain children and young people’s cultural identity. The CREATE Foundation report found that just 18 per cent of Aboriginal and Torres Strait Islander young people interviewed were aware of having a cultural support plan.
From the age of 15 it is expected that young people will start planning and preparing to transition from care. A plan to assist them in this process is created in collaboration with the young person’s caseworker and carer and covers things like housing, education, life skills and employment.
Almost one quarter of respondents 15 years old were aware of having a transition plan which increased to just 40 per cent for 17 and 18 year olds. Awareness varied across the states with South Australia having the lowest awareness at 18 per cent while Western Australia had the highest with 65 per cent.
The report found young people who were involved in developing their plans tended find them more useful.
Charter of Rights awareness
The survey found that around two thirds of young people across Australia were not aware of the existence of The Charter of Rights for Children and Young People in Care in their state or the rights it described. This response was consistent across the states and territories. The report suggests that to be effective, statements of the rights must be properly implemented not be tokenistic.
The CREATE Foundation also released a young person’s report in a style more attuned to young readers.
The minimum age of criminal responsibility in South Australia is 10 years old. If you are a child under 10 years old in South Australia, you are deemed to be incapable of committing a crime – you are presumed not intellectually and morally developed enough to conceive of the difference between right and wrong. If you are between 10 and 14 and are charged with an offence, it is up to the prosecution to prove that, at the time of the offence, you understood what you did was seriously wrong, and not just naughty. If they can’t prove that, you are presumed to be doli incapax (from the Latin ‘incapable of evil’).
Such an obligation on the prosecution is designed to result in a graduated response across an age range where the court can take into account the considerable variation in intellectual and emotional maturity in the young people who appear before it.
Barrister Marie Shaw QC and lawyer Brittany Armstrong presented a paper on doli incapax at the Law Society in January. This was motivated by their experiences representing 10 to 14 year olds in the Youth Court and, in many cases, the protection of doli incapax was not being properly utilised. As young people in care, and particularly those in residential care, are so over-represented in our youth justice system, this particularly affects them.
In a number of cases known to advocates within the Guardian and Training Centre Visitor’s office, doli incapax was not presumed, and in at least one instance the defence was put to the task of proving doli incapax.
If this is to be a safeguard for children charged with criminal offences then it should be considered from the time of police interview, to bail applications, and if a 10 to 14 year-old comes before a court. It is currently not. The reasons it is not are not entirely clear but could include a lack of knowledge by the child or their advocates of this presumption, the strong desire to ‘plead out’ by a child or their advocate in order to resolve the matter more quickly, or other interactions between the child protection and youth justice systems not yet understood.
By no means is this presumption of doli incapax a ‘get out of jail free card’. Each time a child or young person comes before the youth justice system, they are less likely to be presumed doli incapax.
The implications for children
Research shows that the younger a child is when they come into contact with the justice system, the more likely they are to have sustained contact.
The developmental maturity of children in this age group also means they are often insufficiently capable of engaging in youth justice processes. Children may be more likely to accept a plea offer, give false confessions or not keep up with court proceedings.
Keeping younger people out of the youth justice system would also mitigate the over representation of Aboriginal and Torres Strait islander children in youth justice.
Australia’s age of criminal responsibility is comparatively low compared with other countries around the world. The United Nations has proclaimed that the absolute minimum age should be 12 years old with that recommendation likely to increase to 14. The UN has called on Australia to raise the age of criminal responsibility, bringing it in line with its obligations under the Convention of the Rights of the Child.
In 1998, England and Wales abolished the principle of doli incapax. Like Australia, the age of criminal responsibility is 10 years old. In turn, any child over the age of nine can be arrested, interviewed by police, charged and then convicted of a crime and receive a criminal record. There are calls for both nations to raise the age of criminal responsibility.
In line with the Convention on the Rights of the Child, Canada raised the minimum age from 10 to 12 years, but also removed the presumption of doli incapax. This leaves children aged 12 and 13 vulnerable.
Similarly, Ireland raised the minimum aged from 10 to 12 years old, but it has also maintained the doctrine of doli incapax.
Other countries with the minimum age for criminal responsibility higher than 14 don’t recognise the presumption of doli incapax. For example, Luxembourg, Colombia, Ecuador and Uruguay has set the age of criminal responsibility at 18.
While many have argued that the age of criminal responsibility should be raised to at least 12, children aged 13 to 14 should still be protected by the principles of doli incapax.
In this edition:
- why Parliament needs to take deep breath and start again on Youth Treatment Orders
- how we can make children feel safe and secure in residential care
- what the children we spoke to said about their experiences in residential care
…and much more in the February 2019 edition of the Guardian’s Newsletter.