17.5 Many children entering the care and protection system are already disadvantaged according to other social indicators. For example, there is a clear relationship between economic disadvantage and contact with care and protection systems. In addition, Indigenous children, who are generally disadvantaged on many scales, are particularly over-represented in the care and protection systems in Australia. On 30 June 1996, Indigenous children made up 19% of all children in substitute care placements, despite making up only about 3.5% of the child population.
17.6 Children are traumatised not only by violence, neglect or physical or emotional abuse. Their trauma can also be perpetuated or exacerbated by insensitive, neglectful or exploitative practices within government and non-government agencies set up to assist and protect children. The phrase ‘systems abuse’ is used to describe this. It is defined as
preventable harm [that] is done to children in the context of policies or programs which are designed to provide care or protection. The child’s welfare, development or security are undermined by the actions of individuals or by the lack of suitable policies, practices or procedures within systems or institutions.
The Australian Association of Social Workers informed the Inquiry that ‘[t]here is little doubt that systems abuse occurs in all States and Territories’. Claims that State and Territory family services departments are mismanaged, underfunded and fail to care adequately for children are consistently made in newspaper and professional publications throughout Australia. These allegations were confirmed by submissions to the Inquiry.
17.7 Families involved in care and protection systems often rely on other government services and agencies, such as health care, income support and child care. They may also find themselves involved in multiple legal proceedings resulting from the allegations of abuse or neglect, for example in the Family Court, children’s courts and criminal courts. Children involved in care and protection systems therefore may have substantial contact with many aspects of Australia’s legal and administrative processes and for this reason alone are more vulnerable than other children to systems abuse. One submission to the Inquiry noted ‘[t]he greater the number of agencies involved [with a child] the greater the capacity for confusion, conflict and contradiction’ and therefore the greater the risk of systems abuse.
17.8 Systems abuse derives from poor management, a lack of co-ordination and a failure to take responsibility. Evidence to the Inquiry has shown that these failings frequently characterise care and protection systems. For example, one submission noted
[a] young woman who is a ward of the state with serious behavioral problems was due to be released from a detention centre. It was clear that she had need for mental health support services on release. Neither DOCS nor Juvenile Justice could agree who was responsible for locating and paying for those services. Not surprisingly, the young woman has re-offended and is back in detention.
17.9 Other contributions to systems abuse include delays in investigating or deciding placements for children, lack of information or services and inadequate or inaccessible services. The NSW Community Services Commission informed the Inquiry that the manner in which some investigations of child abuse and neglect are conducted may also contribute to systems abuse and that there is often a failure to provide counselling and support for children during and after investigations.
Harmful treatment of children in care
17.10 Many children placed in out-of-home care are not placed in safe environments. The NSW Community Services Commission informed the Inquiry
[o]ur information and experience gathered through complaints, reviews and the community visitors indicate that, as a community, we are failing many of our most vulnerable children, and, in too many cases, actually exposing them to further abuse within the very system that is supposed to care for and protect them….Research suggests that children in out-of-home care are at greater risk of abuse — be it physical, emotional or sexual — than children generally living at home with their parents. As such, these children have early and frequent reminders of their limited voice within the legal process.
17.11 Children in care often experience numerous placings and are deprived of stable environments. A study of children leaving care in NSW found that the median number of placements was 6.5 and nearly 80% of the young people surveyed had three or more placements while in care. This study indicated that children with more stable long-term placements had more successful outcomes than those who experienced a number of placements. It also suggested that schooling should be a primary factor in decisions about changes to a child’s placement because children are more likely to suffer academically when their schooling is interrupted by moving schools.
17.12 Evidence suggests that children in out-of-home care do not achieve the same level of education as the average child and that children who are state wards are insufficiently assisted to acquire the skills and resources they need to become independent adults. A Victorian study found that ‘…more than half the sample population in care are below the average in literacy, numeracy levels, personal development, social skills [and] emotional and behavioral development’. It also found that more than half had frequent episodes of truancy, exclusion and suspension. The HREOC report Our Homeless Children and other research have shown that many homeless children are former wards of the state or involved with the care and protection system.
17.13 Research in NSW and Victoria also indicates that children in care are significantly more likely to come into adverse contact with the juvenile justice system than other children. In the Inquiry’s survey of young people, 41% of young people in detention centres who responded to the question indicated that they had been involved in child welfare proceedings. The Youth Advocacy Centre summarised the concerns expressed in many submissions to the Inquiry.
The continued propensity for those working with children and young people in residential care, both in the non-government and government sectors, to use the police to deal with behaviour problems is a significant contributor to their journeys into the juvenile justice system. The management of difficult behaviour in residential care is inappropriately punitive.
17.14 Concrete information available about the circumstances of children entering care and the outcomes for those children in care is limited. The data that are available relate to particular jurisdictions. Policy makers have little access to information about the circumstances of children in their care. Policy will continue to harm children in care if it is made in ignorance of the current failings of the state as parent and the effects of different policies and programs on children in care.
International commitments for children
17.15 In ratifying CROC, the Commonwealth made a number of commitments to Australia’s children and to the international community in relation to the care and protection jurisdiction. These include a commitment to recognise and assist in the realisation of the right of every child ‘to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’ and to protect children from violence and mistreatment. Article 3 of CROC provides
(2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
(3) States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
17.16 Participating States are obliged to provide effective procedures to this end including procedures for the prevention of abuse and identification, reporting, referral, investigation, treatment and follow-up of allegations of abuse. CROC requires participating States to provide appropriate alternative care for children who are removed from their family environment. It also provides that a child
…who is capable of forming his or her own views [has] the right to express those views freely in all matters affecting the child, either directly, or through a representative or an appropriate body…
17.17 Evidence to the Inquiry overwhelmingly established that Australia is failing to meet these commitments in relation to those children for whom the state has the greatest and most direct responsibility. The nature of Commonwealth/State service provision makes meeting these commitments the responsibility of federal, State and Territory governments jointly and severally.
17.18 The States and Territories are responsible for the care and protection of children who have been abused or neglected. The Commonwealth has funding and oversight responsibilities in areas that are directly related to child protection and constitutional responsibility for Indigenous children who form a significant proportion of children in care. The Commonwealth also has constitutional responsibility for Australia’s compliance with its commitments under CROC.
17.19 It is difficult to obtain a national picture of the care and protection system. This is particularly the case in attempting to assess the circumstances of children who are involved with several government departments. In collecting statistical information from all jurisdictions and promoting common care and protection definitions for the purposes of collecting those statistics, the Commonwealth has documented the services provided by the States and Territories. These statistics, published by the Australian Institute of Health and Welfare in their Child Welfare Series, provide invaluable information on children within State and Territory care and protection systems and on the differences between these systems.
17.20 Through the Standing Committee of Community Services and Income Security Administrators, the Commonwealth also has developed the Baseline Out-of-Home Care Standards. These standards provide a framework for the implementation of a core set of minimum out-of-home care standards consistent across the States and Territories. Consumers and others involved in the care and protection system are proposing a forum involving government agencies and consumers to establish benchmarks for care and protection and to review the progress of the implementation of theBaseline Out-of-Home Care Standards.
17.21 These efforts require continuing Commonwealth leadership. There is further work to be done, however, to address all of the differences between the States and Territories in their standard of data collection, their definitions of child abuse and neglect, the focus of their protective services, their arrangements for securing orders, the range and types of care and protection orders made by courts and the monitoring and review of placement and in-care decisions for the children for whom they are responsible.
17.22 In addition to the inter-jurisdictional problems, the Inquiry heard consistent criticism of each and every care and protection system in Australia. Clearly, national standards for the arrangement and delivery of services by all Australian care and protection systems are necessary. Moreover, these systems should be co-ordinated at a national level.
17.23 One submission to the Inquiry, critical of care and protection systems nationally, contained a note of caution.
The problem with pursuing uniform laws is that much time and energy is wasted, while children continue to die and suffer damage. There is a considerable waste of limited time and effort if there is no tangible result proven for children.
This is a valid point. It is also true that different State and Territory systems have produced innovation, as each system assesses and improves upon the initiatives of other jurisdictions. Uniform laws across all jurisdictions could provide ‘lowest common denominator’ protections for children involved in care and protection systems, as a result of compromise to achieve consensus between the jurisdictions.
17.24 All these are theoretical possibilities. The reality presented to the Inquiry, however, is one of confusion, inconsistency, inflexibility and conservatism that harms the very children the state has intervened to protect.
[L]aws do not prevent child abuse, but…a variety of philosophical approaches to the delivery of child protection, child welfare and family support services serve to splinter the policy response to child abuse prevention across the nation.
17.25 Australia’s commitments to children as a party to CROC and the consistent and persistent criticism of all care and protection systems in Australia lead the Inquiry to recommend that the Commonwealth undertake to co-ordinate the various care and protection systems. The Inquiry does not propose that uniform model care and protection legislation be introduced nationally. However, certain core elements of a good care and protection system should be included in each jurisdiction’s laws and programs. In addition, a national consensus about those processes that are effective, of no benefit or harmful in protecting and supporting vulnerable children would be a useful starting point for the development of national, consistent and effective care and protection systems. The Commonwealth should lead the development of these national standards. Wherever possible the standards should form a part of the legislative basis for all care and protection systems.
17.26 Care and protection knowledge and practice are not static. National and international initiatives and research do and should influence notions of best practice. To ensure that the national standards continue to reflect up-to-date concepts of best practice around Australia and internationally, they should be evaluated and updated regularly in consultation with those involved in care and protection systems. This work should involve relevant government authorities, non-government organisations, community groups and, importantly, consumers of care and protection services such as children, families and foster carers. National conferences could provide a forum where research and developments are discussed and should lead to recognition of the current understanding of best practice and agreement on the direction of legislative reform. The Inquiry supports AAYPIC’s initiative to hold a forum on the Baseline Out-of-Home Care Standards and recommends federal Government leadership and support for this process.
Recommendation 161 National standards for legislation and practice in care and protection systems should be developed. These national care and protection standards should, where necessary, provide a clear allocation of responsibility for their implementation.
Implementation. These standards should be developed by OFC in consultation with the relevant government authorities, non-government organisations, community groups, families, foster carers and, particularly, children and young people who are or have been involved in care and protection systems.
Recommendation 162 The national standards should be reviewed and updated regularly in light of developing national and international initiatives in care and protection practice.
Implementation. OFC should monitor and evaluate the national standards on a regular basis in consultation with relevant government authorities, non-government organisations, community groups and consumers of care and protection services such as children, families and foster carers. National conferences, organised by OFC, could be convened for this purpose.
Recommendation 163 The federal Government should support continuing research into care and protection systems, including the collection of data on the circumstances of children in care and in particular on their level of education, health and cultural and socio-economic backgrounds. The research should focus on the outcomes for children in care and in particular their contact with juvenile justice agencies (including police), their school retention rates and levels of education attained while in care and their access or lack of access to government services.
Implementation. This research could be co-ordinated by the AIFS and/or the AIHW.
A charter for children in care
17.27 The primary vehicle for the recognition of government commitments to children in care should be a charter of their rights. Children in care deserve an unqualified guarantee that support will be provided to them to ensure that their life opportunities will not be reduced by the intervention of the state in their lives. While the state is not able to guarantee a particular outcome for every child, all children in care should have an opportunity, at least equal to that of the general population of Australia’s children, to achieve their full potential. They should not be failed because the state is ill-prepared, unwilling or unable to shoulder its parental responsibilities for those children it has taken into its care.
17.28 The South Australian Department of Family and Community Services recently developed a charter for children in care in consultation with that State’s branch of AAYPIC, Future Echoes. This document
provides clarity for children/young people, staff and care-givers about what can be expected from the care relationship. It provides the basis for monitoring practice, establishing service agreements and the auditing of service delivery.
The Commonwealth’s Baseline Out-of-Home Care Standards also contain minimum standards and best practice guidelines. However, greater specificity is needed in these guidelines than is given. They also lack legislative force.
17.29 The Inquiry has drawn upon these initiatives in developing our recommendations. The charter we propose would be a statutory clarification of the state’s common law obligations to children in care. It would ensure that each child in care has certain rights, enforceable at law, and would set out the fiduciary duties of the state as carer towards each child in care. The charter should be prepared in consultation with government departments concerned with the provision of services to children in care and other relevant groups and bodies. Federal Government leadership in the development of the charter is crucial, as the charter should be the basis for the development of national standards.
17.30 The charter should be provided to all children on their entry into care, as well as to their parents and carers. It should be written in language easily comprehended by children. Its terms should be explained to all children in care old enough to communicate. Even very young children should have a reasonable understanding of their rights while in care.
Recommendation 164 A Charter for Children in Care should be developed. The Charter should create a legally enforceable obligation on the part of the relevant State or Territory family services department to provide each child in care with
a safe living environment
accommodation in the least restrictive placement commensurate with the child’s best interests and wishes
suitable education and job training opportunities or assistance in finding appropriate employment when the child reaches working age while in care
an appropriate amount of spending money
therapeutic support or additional educational assistance where necessary and with the consent of the child
a mentor from whom the child can obtain confidential advice and assistance
regular reviews of the child’s case plan and circumstances in care
the right to be consulted and to have the child’s views given due weight (in accordance with age and maturity) in the decision-making process, particularly when decisions are made about residence, family contact, schooling and health
appropriate assistance in the transition from care including housing assistance, access to income support, further training and/or education and continuing support from a mentor
service delivery models tailored to the needs and capacities of children.
Implementation. OFC should develop the Charter for Children in Care in conjunction the relevant State and Territory family services departments and in consultation with other relevant government agencies, non-government service providers, children’s advocacy groups and children in care. This Charter should be enacted in legislation at federal, State and Territory levels.
Recommendation 165 The Charter for Children in Care should be explained to each verbal child on his or her entry into care and at regular periods while in care, as well as to the child’s parents and his or her carers. Copies of the Charter, in various forms appropriate for different age levels, should be provided to all children in care, the child’s parents and his or her carers on the child’s behalf if the child is too young to understand the nature of the Charter.
 Children from economically disadvantaged families come to the notice of the care and protection system at a greater than average rate. Care should be taken in interpreting such a statistic. See M James ‘Child abuse and neglect: Incidence and prevention’ Issues in Child Abuse Prevention No 1 National Child Protection Clearing House Canberra 1994. See also W O’Brien ‘Effective work with vulnerable families: The experience of the Alys Key Family Care Demonstration Project 1986–89’ in G Calvert, A Ford & P Parkinson (eds) The Practice of Child Protection: Australian Approaches Hale & Iremonger Sydney 1992.
 See table 2.16, para 2.68.
 Steering Committee for the Review of Commonwealth/State Service Provision Report on Government Service Provision 1997 Industry Commission Melbourne 1997, 547. See also para 2.68.
 J Cashmore, J Dolby & D Brennan Systems Abuse: Problems and Solutions NSW Child Protection Council Sydney 1994, 11.
 Australian Association of Social Workers IP Submission 207.
 eg NSW: M Gliksman ‘Kids: Losers in DOCS disaster’ The Sydney Morning Herald 30 January 1997, 17; M Gliksman ‘Have a heart to save a child’ The Sydney Morning Herald 2 December 1996, 15; A Horin ‘Child protection delay’ The Sydney Morning Herald 2 December 1996, 15; A Patty ‘Homeless kids behind bars’ Sun Herald 3 November 996, 12; M Ogg ‘Children at risk, says DOCS chief’ The Sydney Morning Herald 5 September 1996, 17; A Horin ‘Foster carers escape scrutiny’ The Sydney Morning Herald 27 August 1996, 6. eg Vic: ‘Protecting our vulnerable children’ Herald Sun 25 November 1996, 40; M Coffey ‘Call for child death probe’ Herald Sun 30 October 1996, 12; M Coffey ‘Protection worker lashes out ‘ Herald Sun 29 October 1996, 8. eg SA: N Williams ‘Child protection system failing under pressure’ The Advertiser 15 November 1996, 7. eg Qld: D Alford ‘State probe into children under care’ Courier Mail 28 May 1996, 10; M Ware ‘Family Services “lose” boy twice in one week’ Courier Mail 9 April 1996, 3. eg WA: ‘Child deaths covered up’ The West Australian 3 June 1996, 10; V Gould ‘Care system extends abuse’ The West Australian 23 May 1996, 42. eg ACT: A Contractor ‘Urgent meeting sought on welfare of wards’ The Canberra Times 2 April 1996, 3.
 eg Family Support Services Association of NSW IP Submission 72; L McKeon & A Brown IP Submission 140; Berry Street IP Submission 159; Law Institute of Vic IP Submission 173; Australian Association of Social Workers IP Submission 207; Darwin Community Legal Service and Top End Women’s Legal Service IP Submission 202; Confidential IP Submission 215; Marrickville Legal Centre IP Submission 221; National Children’s and Youth Law Centre IP Submission 222.
 See ch 15. This contact is in addition to the likelihood that some children in care will come into adverse contact with the legal system.
 Australian Association of Social Workers IP Submission 207.
 For a description of the ‘not my responsibility’ and the ‘pillar to post’ syndromes associated with these failings see J Cashmore, R Dolby & D Brennan Systems Abuse: Problems and Solutions NSW Child Protection Council Sydney 1994, 28–29.
 See paras 5.6-16.
 Marrickville Legal Centre IP Submission 221.
 IP Submission 211. See also Australian Association of Social Workers IP Submission 207. A report by the NSW Child Protection Council indicates that the care and protection system in NSW exhibited all these features to some degree: J Cashmore, R Dolby & R Brennan Systems Abuse: Problems and Solutions NSW Child Protection Council Sydney 1994.
 NSW Community Services Commission IP Submission 211.
 J Cashmore & M Paxman Longitudinal Study of Wards Leaving Care Social Policy Research Centre & NSW Dept of Community Services Sydney 1996, ii. See also J Owen Every Childhood Lasts a Lifetime: Personal Stories from the Frontline of Family Breakdown AAYPIC Brisbane 1996, vii.
 J Cashmore & M Paxman Longitudinal Study of Wards Leaving Care Social Policy Research Centre & NSW Dept of Community Services Sydney 1996, ii.
 D Berridge Paper Foster Care Workshop ACWA Conference Wollongong October 1992 quoted in J Cashmore, J Dolby & D Brennan Systems Abuse: Problems and Solutions NSW Child Protection Council Sydney 1994, 103. See also House of Representatives Standing Committee on Employment, Education and Training Report of the Inquiry into Truancy and Exclusion of Children and Young People from School AGPS Canberra 1996, 48–49.
 J Cashmore & M Paxman Longitudinal Study of Wards Leaving Care Social Policy Research Centre & NSW Dept of Community Services Sydney 1996; J Cavanagh Getting an Education in Care Children in Residential Care Research Project Evaluation Report 1995 quoted in House of Representatives Standing Committee on Employment, Education and Training Report of the Inquiry into Truancy and Exclusion of Children and Young People from School AGPS Canberra 1996, 48. See also HREOC Our Homeless Children: Report of the National Inquiry into Homeless Children AGPS Canberra 1989 for a national picture.
 J Cavanagh Getting an Education in Care Children in Residential Care Research Project Evaluation Report 1995 quoted in House of Representatives Standing Committee on Employment, Education and Training Report of the Inquiry into Truancy and Exclusion of Children and Young People from School AGPS Canberra 1996, 48.
 HREOC Our Homeless Children: Report of the National Inquiry into Homeless Children AGPS Canberra 1989. See also para 4.46. Submissions to the Inquiry indicated that little appears to have changed since that report: eg see Youth Network of Tasmania IP Submission 134; Dept of Health and Family Services IP Submission 179.
 NSW Community Services Commission The Drift of Children in Care into the Juvenile Justice System: Turning Victims into Criminals NSW Community Services Commission Sydney 1996; Vic Auditor General’s Office Protecting Victoria’s Children: The Role of the Department of Human Services Vic Government Printer Melbourne 1996, 266. See also paras 4.42-50; K Carrington ‘The welfare/ justice nexus’ in J Mason (ed) Child Welfare Policy Hale & Iremonger Sydney 1993.
 Of 208 respondents who were in detention, 113 answered this question. The 46 respondents who indicated they had been involved in child welfare proceedings represent 22% of all respondents in detention.
 NSW Youth Justice Coalition IP Submission 4.
 art 27(1).
 art 19(1).
 art 19(2). See also art 25.
 art 20.
 art 12.
 eg Family Support Services Association of NSW IP Submission 72; L McKeon & A Brown IP Submission 140; Berry Street IP Submission 159; Law Institute of Vic IP Submission 173; Darwin Community Legal Service and Top End Women’s Legal Service IP Submission 202; Australian Association of Social Workers IP Submission 207; Confidential IP Submission 215; National Children’s and Youth Law Centre IP Submission 222.
 eg income support, education, child care, health care and family law.
 See para 2.68.
 For a history of attempts to develop nationally consistent data see P Zabar & G Angus Child Abuse and Neglect: Reporting and Investigation Procedures in Australia 1994 AIHW Child Welfare Series 8 AGPS 1995, 63–4.
 Health and Community Services Ministerial Council Canberra December 1995.
 Standing Committee of Community Services and Income Security Administrators Baseline Out-of-Home Care Standards Health and Community Services Ministerial Council Canberra December 1995, 1.
 The proposal for the forum, to be called Face to Face, is being developed by AAYPIC.
 Barnardos Australia IP Submission 95.
 See M Rayner The Commonwealth’s Role in Preventing Child Abuse AIFS Melbourne 1994, 67. This report has been released but not yet published.
 The ACT Attorney-General indicated a willingness to participate in consultation on uniform legislation: IP Submission 194.
 See para 17.20.
 SA Dept of Family and Community Services & Future Echoes Commitments in Care: A Charter SA Dept of Family and Community Services & Future Echoes Adelaide 1997, 1.
 Standing Committee of Community Services and Income Security Administrators Baseline Out-of-Home-Care Guidelines Health and Community Services Ministerial Council Canberra December 1995.