Aboriginal children and the law

Contributed by PaulSheiner and KelsiForrest and current to 27 July 2018

Care and protection

The Children and Communities Services Act 2004 (WA) (“CCSA”) is the primary piece of legislation in WA in relation to care and protection of children. It empowers the Department of Communities to apply to the Children’s Court for a protection order where parental responsibility for the child is placed with the Department (CCSA Section 44; 54; 57).

See also Children & Young People.

The CCSA outlines principles specifically relating to Aboriginal and Torres Strait Islander children. Section 12 of the CCSA Act sets out the Aboriginal and Torres Strait Islander child placement principle in that:

• when making a decision about the placement of an Aboriginal or Torres Strait Islander child is being made, the placement of the child should be with the following, as long as it in the best interests of the child, in order of priority:
  • placement with a member of the child’s family;
  • placement with a person who is an Indigenous person in the child’s community;
  • placement with an Indigenous person; or
  • if placement is with a non-Indigenous person, they should be sensitive to the needs of the child and capable of promoting the child’s ongoing connection with their culture and their family.

The objective of this principle is to try to ensure maintenance of Indigenous children’s connection with their culture when they are subject to placement arrangements.

The CCSA also sets out the principles of self-determination (Section 13 of the CCSA) and principle of community participation (section 14 of the CCSA) in that:

• Aboriginal and Torres Strait Islander peoples should be allowed to participate in the protection and care of their children with as much self-determination as possible; and
• in the administration of the CCSA, the kinship group, community or representative organisation of Indigenous peoples should be given an opportunity to participate in the decision making processes that are likely to have a significant impact on the life of a child who is a member of the group.

The way these principles play out in practice on a day to day basis differ across the State and is dependent on individual implementation.

The rates of Indigenous children in out of home care are significant across Australia and particularly in Western Australia. The Australian Government Institute of Family Studies has published resources on Child Protection and Aboriginal and Torres Strait Islander Children (https://aifs.gov.au/cfca/publications/child-protection-and-aboriginal-and-torres-strait-islander-children) which provides the following:

• In 2016, Aboriginal and Torres Strait Islander children were 9.8 times more likely than non-Indigenous children to be in out-of-home care on average nationally and 17.5 times more likely in Western Australia; and
• In relation to the Aboriginal and Torres Strait Islander Child placement principle, as at 30 June 2016, 62.6% of Indigenous children in out of home care were placed with relatives, kin relations, other Indigenous caregivers or in Indigenous residential care and the other 37.4% not placed in accordance with the principle.

One of the key strategies for combatting the overrepresentation of Indigenous children in care is the Family Matters campaign lead by SNAICC, the national non-governmental peak body representing the interests of Aboriginal and Torres Strait Islander children and families: http://www.familymatters.org.au. The Family Matters campaign includes 4 building blocks:

• All families enjoy access to quality, culturally safe, universal and targeted services necessary for Aboriginal and Torres Strait Islander children to thrive;
• Aboriginal and Torres Strait Islander people and organisations participate in and have control over decisions that affect their children;
• Law, policy and practice in child and family welfare are culturally safe and responsive;
• Governments and services are accountable to Aboriginal and Torres Strait Islander people.

Juveniles and crime