Aboriginal and Torres Strait Islander children in child protection: A sample from the Victorian Children’s Court

Abstract

Summary

This article reports on a comparison of Aboriginal and Torres Strait Islander (ATSI) and non-ATSI children involved in the child protection system sampled from the Victorian Children’s Court. Groups were compared in terms of demographic profile, the types and grounds for protection applications and the types of abuse proven in court.

Findings

Our results highlight similarities between ATSI and non-ATSI children in the child protection system, a finding that indicates similar children, regardless of background, are being found to be at increased risk of abuse. The over-representation of ATSI children in the sample indicates a continued social and economic disadvantage associated with this group, requiring ongoing public health preventive measures. Our study also highlighted the longer term involvement of ATSI children with child protection services before reaching court. This may be explained by differences in case management policies affecting ATSI children in the child protection system as well as the ongoing legacy of the Stolen Generation.

Applications

In addition to addressing underlying inequalities, advancing the ATSI people towards self-determination in child protection may reduce the over-representation and longer term involvement with the child protection system. Importantly, alternative approaches must be considered as the potential trauma associated with longer term child protection involvement is greater in children of ATSI background.

Keywords

Social work child protection children’s court culturally sensitive decision making practice assessment

Introduction

In Australia, Aboriginal and Torres Strait Islander (ATSI)¹ children are over-represented in child protection, and out-of-home care, statistics. Compared with non-ATSI children, ATSI children are almost eight times more likely to be the victim of substantiated abuse or neglect, over nine times more likely to be on a care and protection order and 10 times more likely to be in out-of-home care (Australian Institute of Health and Welfare (AIHW), 2012). The over-representation of minority populations including Indigenous people in child protection statistics is also seen in Canada, the United States and New Zealand (Blackstock, Trocme, & Bennett, 2004; Carter, 2010; Dettlaff & Johnson, 2011; Drake et al., 2011).

Over the previous five years, in Australia, there has been a steady increase in the number of ATSI children on protection orders and out-of-home care in comparison with the stable figures of non-ATSI children (AIHW, 2012). A recent longitudinal study using South Australian data found that over 50% of ATSI children born in 2002 have had at least one notification by four years of age, compared with age six years for children born in 1998 (Delfabbro, Hirte, Rogers, & Wilson, 2010). In addition, statistics from Queensland indicate that, compared with non-ATSI children, ATSI children are more likely to be on a long-term protection order, indicating prolonged involvement with the child protection system, a statistic that has been shown to be increasing over time (Barber, Delfabbro, & Cooper, 2000; Department of Communities Child Safety and Disability Services, 2012).

As recently as the mid-1970s, ATSI children were being forcibly removed from their families under the guise of safety and better education; children subjected to this legally sanctioned practice are now referred to as the Stolen Generation. The Human Rights and Equal Opportunity Commission attribute the over-representation of ATSI children in the child protection system and the marginalisation of ATSI people to the practice of forcible child removal. It states that ‘underlying causes of the over-representation of Indigenous children in child welfare systems include the inter-generational effects of previous separations from family and culture, poor socio-economic status and systemic racism in the broader society’ (Human Rights and Equal Opportunity Commission, 1997, p. 373). Factors such as these contribute to the development of socially isolated communities with higher levels of substance abuse, violence and poor health and housing (Human Rights and Equal Opportunity Commission, 1997). Parental substance misuse (PSM), in particular, is commonly associated with financial difficulties, parenting difficulties, criminal involvement as well as a number of physical and psychological problems (Bromfield, Lamont, Parker, & Horsfall, 2010).

This widespread harm resulted in the implementation of legislative safeguards to guide decision making for ATSI children in the child protection system. In an attempt to standardise assessments and decisions affecting children involved in child protection, the Best Interests Framework (Department of Human Services (DHS), 2007b, 2010), emphasising the child’s safety, stability and development, was developed. This framework provides overarching guidance on decision making in child protection practice (Department of Human Services, 2007b). In Australia, legislation in every state places the best interests of the child as paramount (Holzer & Lamont, 2009), and in Victoria, Best Interests Principles are included in the Children, Youth and Families Act (2005) (CYFA). With respect to ATSI children, ss.10(3)(c), (l) and (m) of the Act identify the need to protect and promote the cultural and spiritual identity of the child and s.13 specifies the application of the Aboriginal Child Placement Principle (ACPP) in cases of out-of-home care.

The ACPP is an initiative implemented by the Australian Government during the 1980s in recognition of the negative effects of systematic removal. The principle upholds the right of a child who is to be removed from the family home to be raised in his or her own culture. The ACPP involves a hierarchy of placement options, requires that placement decisions are made on the advice of an Aboriginal agency and imposes obligations upon non-Aboriginal carers when an alternative placement is not available. This right has been incorporated into policy and law in every jurisdiction in Australia (AIHW, 2012; CCYPCG, 2012; Department of Human Services, 2007a; Human Rights and Equal Opportunity Commission, 1997).

Section 12 of the Act requires that child protection practice involving ATSI children is carried out by the DHS in consultation with an Aboriginal community-controlled organisation. Collaborative decision making allows the child’s needs to be considered in the context of the child’s broader health issues, well-being, cultural identity, learning and development. However, ‘[t]he complex circumstances of life mean that from time to time there may be apparently conflicting priorities of the child’s need for safety and meeting all their stability and developmental needs’ (Department of Human Services, 2007a, pp. 11–12).

This conflict is echoed in recent Australian research that highlights the difficulties faced by Aboriginal child protection and family welfare professionals working alongside the DHS (Long & Sephton, 2011). In their article, ATSI practitioners describe the need for child protection professionals to distinguish between child-rearing practices influenced by culturally based notions and ideologies (the Way) as opposed to destroyers of culture, such as drug abuse, which impact upon contemporary Indigenous child rearing (the Wound). Working with a cultural lens to interpret the best interests of a child (Department of Human Services, 2007a) is argued by Long and Sephton (2011) as ‘a token attempt at culturally sensitive practice’ (p. 109) by the DHS. Long and Sephton (2011) argue that the practical implications of working with a cultural lens need to be clarified and complexities unpacked.

The child protection system in Victoria, Australia

In accordance with the best interests principles and decision making principles in the case of an Aboriginal child (ss. 10--14, CYFA), [Aboriginal Child Specialist and Support Service] ACSASS will be consulted in relation to all case planning decisions and meetings, including the protective plan, statutory case planning and review meetings, particularly as this relates to facilitating the involvement of relevant members of the child’s Aboriginal Community (emphasis added). (Department of Human Services, 2012c, p. 8)

A purpose of the CYFA is to legislate in relation to the protection of children in Victoria, Australia (s.1(a)(b)). There is a requirement that DHS consult with Aboriginal Child Specialist and Support Service (ACSASS) in cases where notifications of child abuse and/or neglect reported to the DHS (child protection) involve a child who is identified as Aboriginal and is likely to suffer significant harm or is in need of protection (Department of Human Services, 2012c).

A protection application (PA) is issued if abuse and/or neglect are substantiated and legal intervention is necessary to secure the safety and well-being of the child. The PA may be issued by Apprehension (ss.240(1)(b) and 243) if sufficiently serious risks exist so as to warrant immediate child placement or by Notification (ss.240(1)(a) and 243) (Department of Human Services, 2012a) in other circumstances. PAs are initiated on any one or more of the following grounds: abandonment, death or incapacity, physical abuse, sexual abuse, emotional or psychological abuse and neglect (s.162(1)).

The Victorian Children’s Court (VCC) has the power to hear applications and make orders in relation to the protection and care of children. The ground(s) for a PA is assessed objectively by the Court on the basis of actual or likelihood of harm (s.162(1)(c)(d)(e)(f)). If the Court makes a finding that the child is in need of protection or there are substantial and irreconcilable differences between the parent and the child (s.274), a protection order is granted. Two common orders granted by the Court are Supervision Orders (SO, s.280) and Custody to Secretary Orders (CSO, s.287). SOs give the state responsibility for the supervision of the child for a specified period of time without affecting the custody of the child, whereas a CSO gives sole custody of the child to the State, resulting in child removal for a specified period of time. In the case of the latter, the risk of harm has been assessed as being unacceptable if the child continues to reside in the family home or neither parent is presently willing or able to have the child in the home (Children’s Court Victoria, 2012; Department of Human Services, 2007b, 2012b). The VCC services children throughout Victoria and to the year ending June 2011, the VCC granted 51,381 protection orders (Children’s Court Victoria, 2012).

The current study

Given the limited literature on the similarities and differences between ATSI and non-ATSI cases in Victoria, Australia, we compared ATSI and non-ATSI cases involving child abuse/neglect appearing before the VCC. Based upon national and international studies, we predicted that a higher proportion of ATSI children would be removed from the family home, and the age group at greatest risk of removal would be children aged less than four years.

Research from Canada indicates that Aboriginal cases there remain open for longer than non-Aboriginal cases (Blackstock et al., 2004); however, there is little information offered about the reasons underlying this difference. Based upon this, we hypothesised that ATSI cases would have a longer duration of contact with the child protection and court systems compared with non-ATSI cases, indicated by longer delays between date of notification and date of court order. We explored the likely reasons for this delay using the following factors: case complexity (indicated by PSM), parental compliance and case management policy (indicated by ATSI and non-ATSI status involving collaborative or single organisation involvement, respectively).

Methods

Data recorded and sample available for analysis

The study was conducted in Victoria, Australia’s second most densely inhabited state with a population of 5.7 million inhabitants (Australian Bureau of Statistics, 2013a), 75% of which reside in major cities (Australian Bureau of Statistics, 2009).

Two hundred and ninety-seven child protection cases were analysed from the VCC (family division). Files were located in a storage facility (compactus) at the Court site. Case reports were included if a SO or a CSO was granted, and the child was living with at least one biological parent at the time the notification was made to child protection. For each case, age and gender of child, ATSI status, single or two parent household at time of court order, PA (type and grounds), proven grounds for the PA as established by the Court, PSM and the level of compliance were recorded. A lack of compliance includes court order breaches, a failure to attend/comply with drug services or a failure to adhere to any Child Protection Service (CPS) directives. All data were coded on a pro forma using the material available to the Court at the time the court order was made. Cases where the single parent was male were removed from the sample (N = 24) because of the low numbers involved and potential differences with cases where the single parent was female, leaving 273 cases for analysis.

Statistical analysis

Associations between key variables and ATSI status were conducted using Chi square analyses and also reported in terms of the unadjusted odds ratio (OR). Continuous data group differences were examined using t-tests. Univariate analysis of variance was used to determine the main and interaction effects of case complexity (indicated by PSM), parental compliance and case management policy (as determined by ATSI status) on delay to court order (as determined by days between notification and court order). All statistical analyses were carried out using Statistical Package for Social Sciences (SPSS Version 20), Chicago, Illinois.

Results

Sample characteristics

Two hundred and seventy-three cases were sampled with orders granted between 2001 and 2011. The sample comprised 141 (51.6%) male children. There were no significant gender differences in the ATSI compared to non-ATSI groups (χ²(1, N = 273) = 2.627, p = 0.105; see Table 1). There were no significant group differences in the proportions of children aged zero to four years, five to nine years and over 10 years (χ²(2) = 4.656, p = 0.097). Similarly, there was no significant group difference in the mean age of ATSI and non-ATSI children (t(271) = −0.169, p = 0.866). There was also no significant difference in the number of ATSI and non-ATSI children living in a household headed by a single female (χ²(1, N = 273) = 0.192, p = 0.661).

Table 1.

Comparison of demographics, protection applications, grounds for protection applications, abuse proven in court and protective orders for ATSI and non-ATSI children.

	ATSI ( N = 50)		Non-ATSI ( N = 223)		All children ( N = 273)^a
	n	%	n	%	n	%
Gender
Female	19	38.0	113	50.7	132	48.4
Male	31	62.0	110	49.3	141	51.6
Age
0–4 years	25	50.0	99	44.4	124	45.4
5–9 years	4	8.0	47	21.1	51	18.7
10 + years	21	42.0	77	34.5	98	35.9
Household composition
Single parent household	27	54.0	128	57.4	155	56.8
Protection applications
Apprehension	38	76.0	177	79.4	215	78.8
Notification	12	24.0	46	20.6	58	21.2
Grounds for application
Emotional abuse	50	100.0	219	98.2	269	98.5
Physical abuse	40	80.0	193	86.5	233	85.3
Sexual abuse	4	8.0	17	7.6	21	7.7
Neglect	11	22.0	43	19.3	54	19.8
Abandonment	2	4.0	4	1.8	6	2.2
Parental dead/incapacitation	7	14.0	28	12.6	35	12.8
Court substantiated abuse
Emotional abuse^a	38	76.0	190	92.2	228	89.1
Physical abuse^a	41	82.0	135	65.5	176	68.8
Sexual abuse^a	1	2.0	13	6.3	14	5.5
Neglect^a	1	2.0	17	8.3	18	7.0
Abandonment^a	0	0.0	3	1.5	3	1.2
Parental dead/incapacitation^a	0	0.0	7	3.4	7	2.7
Parental compliance	23	46.0	94	42.2	117	42.9
Parental non-compliance	27	54.0	129	57.8	156	57.1
Court orders
Supervision orders	22	44.0	120	53.8	142	52.0
Custody to secretary order	28	56.0	103	46.2	131	48.0

^aN = 256.

Nature and grounds for PAs and court-proven abuse

Two hundred and fifteen cases (78.8%) had PAs issued by Apprehension; however, there was no significant difference in the proportion of PAs made by Apprehension or Notification in ATSI compared to non-ATSI cases (χ²(1, N = 273) = 0.278, p = 0.361; Table 1).

The most common grounds for PAs in the sample were emotional abuse and physical abuse. This was true for both ATSI and non-ATSI cases and there was no significant difference between the two groups in the nature of abuse (emotional abuse χ²(1, N = 273) = 0.910, p = 0.0.340; physical abuse χ²(1, N = 273) = 1.400, p = 0.237; sexual abuse χ²(1, N = 273) = 0.007, p = 0.935; neglect χ²(1, N = 273) = 1.289, p = 0.256; abandonment χ²(1, N = 273) = 0.925, p = 0.336; parental death/incapacitation χ²(1, N = 273) = 0.554, p = 0.457). The majority of PAs were made on the grounds of more than one abuse category (Table 1).

In the overall sample, the most common categories of abuse proven in court were emotional abuse and physical abuse. However, ATSI children were less likely than non-ATSI children to have emotional abuse proven in court (χ²(1, N = 256) = 10.884, p = 0.001, OR = 0.267). In contrast, ATSI children were more likely to have physical abuse proven in court (χ²(1, N = 256) = 5.078, p = 0.024, OR = 2.396) compared with non-ATSI children. ATSI and non-ATSI children were no more likely than each other to have the remaining abuse categories proven in court (sexual abuse χ²(1, N = 256) = 1.446, p = 0.229; neglect χ²(1, N = 256) = 2.406, p = 0.121; abandonment χ²(1, N = 256) = 0.737, p = 0.391; parental death/incapacitation χ²(1, N = 256) = 1.717, p = 0.186).

Parental substance misuse

Of the entire sample, 138 (49.5%) cases had documented PSM. Parents of ATSI children were more likely than non-ATSI children to have PSM documented in the court files (χ²(1, N = 273) = 4.430, p = 0.035). Further analysis of the data identified a greater-than-expected number of ATSI parents misusing illegal drugs (χ²(2) = 7.391, p = 0.025) compared with non-ATSI parents. Cases involving alcohol only, however, were too few to make any determinations.

Parental compliance

Overall, a failure to comply with court orders or DHS directives was reported in 156 (57%) of the cases. But, there was no significant difference between ATSI and non-ATSI cases in either parental compliance (χ²(1, N = 273) = 0.247, p = 0.619) or rate of child removal (χ²(1, N = 273) = 1.575, p = 0.209).

Delays between notification and court order

For the entire sample (N = 273), the mean length of time from notification to court order was 257.38 ± 172.336 days. However, the time (in days) taken from notification to court order was significantly longer for ATSI cases than non-ATSI cases (mean = 242.47 ± 149.57 and 323.86 ± 240.81, respectively; t(60) = −2.293, p = 0.026). In order to further understand potential reasons for the differences in delay, we conducted a number of statistical analyses. In this part, we used the following factors in our analyses:

ATSI status to indicate case management policy by single or collaborative case management.

Parental compliance to indicate compliance with court orders and DHS directives.

PSM to indicate complexity of cases.

A 2 × 2 × 2 (ATSI status × compliance × PSM) factorial ANOVA yielded significant main and interaction effects for all variables (see Table 2).

Effects of ATSI status and PSM on delay: Significant main effects of these variables on delay were accompanied by a significant interaction effect (F(1, 265) = 20.878, p = 0.000). From Figure 1, cases with documented PSM have similar delays regardless of ATSI status (275.995 (ATSI) vs. 269.074 (non-ATSI) days). In contrast, cases with no documented PSM have considerably longer delays for ATSI children compared with non-ATSI children (471.185 (ATSI) vs. 213.641 (non-ATSI) days) (see Table 3).

Effects of ATSI status and compliance on delay: In addition to significant main effects, there was a significant interaction effect of these on delay (F(1, 265) = 26.587, p = 0.000). From Figure 2, it appears that cases with no compliance problems have similar delays regardless of ATSI status (206.585 (ATSI) vs. 215.761 (non-ATSI) days). However, cases affected by parental non-compliance resulted in much longer delays for ATSI children compared with non-ATSI children (540.595 (ATSI) vs. 266.954 (non-ATSI) days) (see Table 4).

Interactive effects of ATSI status, PSM and compliance on delay: There was a significant interaction effect of these three variables on delay (F(1, 265) = 9.647, p = 0.002). As shown in Figure 3, compliance resulted in similar delays for cases with no documented PSM (214.769 (ATSI) vs. 183.814 (non-ATSI) days). However, despite compliance, the delay was marginally longer (49.308 days) for non-ATSI cases compared with ATSI cases with documented PSM (247.708 vs. 198.400 days, respectively). Exactly, the reverse occurred for cases with non-compliance (see Figure 4); however, the effects were magnified. There were longer delays (63.152 days) for cases with no documented PSM for ATSI and non-ATSI children (353.591 vs. 290.439 days, respectively). However, the delay was significantly longer (484.132 days) for ATSI cases without documented PSM compared with non-ATSI cases (727.600 vs. 243.468 days, respectively).

Table 2.

Effects of ATSI status, compliance and PSM on delay between notification and court order.

Source	Type III sum of squares	df	Mean square	F	Significance
Corrected model	1847361.472	7	263908.782	11.224	0.000
Intercept	11822090.368	1	11822090.368	502.791	0.000
ATSI status	546632.355	1	546632.355	23.248	0.000
PSM	152652.289	1	152652.289	6.492	0.011
Compliance	1159678.916	1	1159678.916	49.321	0.000
ATSI status × PSM	490902.715	1	490902.715	20.878	0.000
ATSI status × compliance	625135.507	1	625135.507	26.587	0.000
Compliance × PSM	274124.552	1	274124.552	11.658	0.001
ATSI status × compliance × PSM	226822.029	1	226822.029	9.647	0.002
Error	6230926.667	265	23512.931
Total	26162646.000	273
Corrected total	8078288.139	272

Table 3.

Single or collaborating organisations × complexity (dependent variable: number of days between date of notification and court order).

ATSI status	Parental substance misuse	Mean	Standard error	95% CI
ATSI status	Parental substance misuse	Mean	Standard error	Lower bound	Upper bound
Non-ATSI	PSM−	213.641	14.458	185.173	242.109
Non-ATSI	PSM+	269.074	17.794	234.039	304.108
ATSI	PSM−	471.185	40.346	391.745	550.625
ATSI	PSM+	275.995	29.241	218.422	333.569

Table 4.

Compliance × single or collaborating organisations (dependent variable: number of days between date of notification and court order).

Level of compliance	ATSI status	Mean	Standard error	95% CI
Level of compliance	ATSI status	Mean	Standard error	Lower bound	Upper bound
Compliant	Non-ATSI	215.761	18.136	180.053	251.470
Compliant	ATSI	206.585	32.249	143.088	270.081
Non-compliant	Non-ATSI	266.954	14.027	239.335	294.572
Non-compliant	ATSI	540.595	37.985	465.805	615.386

As shown in Table 5, children from ATSI families with parental compliance experienced delays that were comparable to those observed with children from non-ATSI families, independent of PSM. For non-compliant families, cases with documented PSM resulted in longer delays for ATSI children compared with non-ATSI children and a substantially longer delay for ATSI cases without PSM compared with non-ATSI cases.

Table 5.

Compliance × ATSI status × PSM (dependent variable: number of days between date of notification and court order).

Compliance	ATSI status	Parental substance misuse	Mean	Standard error	95% CI
Compliance	ATSI status	Parental substance misuse	Mean	Standard error	Lower bound	Upper bound
Compliant	Non-ATSI	PSM−	183.814	18.328	147.728	219.900
	Non-ATSI	PSM+	247.708	31.300	186.080	309.337
	ATSI	PSM−	214.769	42.529	131.032	298.506
	ATSI	PSM+	198.400	48.490	102.925	293.875
Non-compliant	Non-ATSI	PSM−	243.468	22.367	199.429	287.507
	Non-ATSI	PSM+	290.439	16.933	257.098	323.780
	ATSI	PSM−	727.600	68.575	592.578	862.622
	ATSI	PSM+	353.591	32.692	289.222	417.960

Discussion

This study compared ATSI and non-ATSI cases from a sample of 273 child protection cases in which SO or CSO had been granted by the VCC. Compared to official population rates, the study sample indicated an over-representation of children in the zero to four year age group (45.4% (sample) vs. 28.9% (population)) and an under-representation of children aged five years and over (54.6% (sample) vs. 71.1% (population)), highlighting the increased risk associated with young children in the child protection system (AIHW, 2012).

The sample comprised 50 (18.3%) cases involving ATSI children, a proportion that is similar to official child protection statistics from Victoria (16%) (AIHW, 2012). As the overall proportion of Indigenous people in Victoria is 0.9% (Australian Bureau of Statistics, 2013b), our findings and that of the AIHW (2012) indicate that ATSI cases are over-represented in Children’s Court samples. Over-representation indicates the continued disadvantage associated with the ATSI population that may have led to the higher prevalence of cases referred to the child protection system. This suggests the need for a multi-pronged approach when addressing the social and economic disadvantages associated with the ATSI populations (AIHW, 2012).

In this study, we found no differences between non-ATSI and ATSI cases in terms of gender and age of the children. Compared with Victorian child protection statistics for substantiated cases, there were similar proportions of ATSI children aged less than five years. However, there was a lower proportion of children in the sample aged between five and nine years (8%) and a higher proportion of children older than 10 years (42%) compared with official statistics (26% and 27%, respectively) of substantiation rates (AIHW, 2012). The differences in age groups between substantiation and court data may indicate differences of age cohorts progressing to the court system, a finding that may be interesting to explore further.

Our findings suggest no significant difference between the rates of ATSI and non-ATSI cases involving a single parent household in the sample (54% and 57.4%, respectively), a finding like that identified in a Canadian study comparing Aboriginal and non-Aboriginal populations (Blackstock et al., 2004). The representation of single parent households in the general population is 22% (Australian Bureau of Statistics, 2008) and over-representation of this group in the present sample (57.8%) is likely to be the result of financial stresses and social isolation, stressors also associated with single parents and child abuse (Saunders & Adelman, 2006).

The proportion of PAs issued by Apprehension in the entire study sample (79%) was similar to the court reported rates over the previous four years (73–80%) (Children’s Court Victoria, 2009, 2012). The results were similar for ATSI and non-ATSI cases. This study did not find significant differences between non-ATSI and ATSI cases in the categories of child abuse identified as grounds for PA. The findings are consistent with published official statistics from Victoria, indicating a similar prevalence of emotional and physical abuse among ATSI and non-ATSI children (AIHW, 2012). However, given the relative increased rates of physical abuse amongst ATSI children compared with non-ATSI children, and the over-representation of ATSI children in child death statistics (AIHW, 2011a; NSW Child Death Review Team, 2008), strategies aimed at preventing physical abuse and improving parenting practices are much needed in the ATSI community. Further, unlike Canadian statistics showing 56% of Aboriginal children in the child welfare system had maltreatment substantiated for neglect (Trocme et al., 2006), very low levels of neglect is reported in Victoria for all children (AIHW, 2011b, 2012) and the reason for this is unclear.

Legislation requires Aboriginal organisations are consulted during the child protection involvement of ATSI children. Given the level of similarity between ATSI and non-ATSI groups for demographics and the nature and type of PAs, it is possible that the practice of including Aboriginal organisations in decisions on child protection outcomes ensures that services are targeting similarly high-risk children, regardless of background. This collaboration may have also contributed to the similar rates of child removal between ATSI and non-ATSI children.

Delay to court order

The time from notification to court order is an important period as there is considerable uncertainty about the child’s medium- to long-term placement. Prolonged involvement with the child protection system is likely to lead to a lack of stability; timely decision making is an important consideration in child protection practice where stability leads to enhanced long-term outcomes and optimal development for children in care (Child Protection and Family Services Branch, 2007; Cummins, Scott, & Scales, 2012).

Overall, the current study found that there were longer delays to court order associated with ATSI cases compared with non-ATSI cases. As we identified a higher rate of PSM in the ATSI sample, the delay may be due to lack of parental compliance with child protection (CP) workers, often related to the chaotic lifestyle associated with illicit drug misuse (Jones, 2004). However, upon closer examination of the data, delays appear to be more likely in particular circumstances and we attempt to explain why these delays occur. As previously explained, our analysis used specific factors (ATSI status, PSM and compliance) to indicate broader themes (case management policy, complexity and compliance, respectively) to assist with our interpretation. However, whilst delays are explainable by our understanding of child protection policy, practice and ATSI children, other explanations cannot be excluded and should be explored further.

The role of culturally based child rearing in decision making

In this study, we found higher rates of parental illicit drug use in ATSI cases compared to non-ATSI cases, a factor that has previously been associated with non-compliance and longer delays to court order (De Bortoli, Coles, & Dolan, 2013). However, the current study identified no difference in the level of parental compliance between ATSI and non-ATSI cases and yet there were longer delays experienced in ATSI cases.

Given that the rate of PSM is higher amongst the ATSI cases, the delay may be related to the level of complexity of the case, which requires more intensive services and ongoing monitoring. Alternatively, delays seen in the ATSI sample may be a consequence of a case management policy that requires the collaboration of two agencies (DHS and ACSASS), a system designed to ultimately protect the spiritual and cultural well-being of ATSI children. If the delay can be attributed to case management policy, delays may be an example of systems abuse: a potentially harmful practice that occurs in the context of policies designed to provide care or protection (Cashmore, Dolby, & Brennan, 1994).

In our comparison of ATSI and non-ATSI cases, we found similar delays in cases with documented PSM regardless of ATSI background. Potentially, this indicates a shared understanding between ACSASS and DHS of high risk associated with complex cases. However, longest delays were found in ATSI cases where there was no documentation of PSM. Potentially, this delay may reflect different understandings of harmful parenting practices within a cultural context, a process requiring additional time to reconcile differences between collaborating organisations.

This is consistent with previous literature describing the Best Interests Principles as ambiguous and indeterminate where a lack of clarity is exacerbated by differences in culture (Freeman, 2007; Long & Sephton, 2011; Skivenes, 2010). Although practice guidance provided by the DHS states that ‘[a]ll actions be considered through the lens of the child or young person’s age and stage culture and gender’ (Department of Human Services, 2010, p. 41), existing qualitative research highlights variability between ATSI conceptualisations of Best Interests and those of mainstream child welfare practice (DHS) (Long & Sephton, 2011). A shared understanding of harmful parenting practices within a cultural context is required when risk is assessed by more than one organisation. However, further research to clarify reasons underlying delays to court order in ATSI cases is required.

The role of the Stolen Generation in decision making

Upon comparing ATSI and non-ATSI children, we found similar delays for cases involving high level of parental compliance regardless of ATSI background; however, there were considerably longer delays for cases with parental non-compliance in ATSI cases only. As these cases are likely to reflect higher risk, delay to court order may reflect a number of possible explanations. These cases may be the more complex cases which require a greater number or more intensive interventions over a longer period of time. Alternatively, the delay may reflect a hesitancy or cautiousness by professionals or courts to implement legal interventions/longer term decisions given the historical significance of the Stolen Generation.

The removal of ATSI children under any system is likely to be an issue of great sensitivity for ATSI people, particularly in the context of policies and practices of forced removal and their link to the over-representation of ATSI children in the child protection system. Further, the systematic removal of the Stolen Generation is now understood to have resulted in disrupted attachment, the loss of parenting skills and abuse and denigration by foster carers and institutions (Human Rights and Equal Opportunity Commission, 1997). The subsequent loss of cultural knowledge and identity resulted in the loss of cultural values which are often regarded as important sources of strength that protect against negative outcomes and provide support by way of extended family networks and communities (Dettlaff & Johnson, 2011).

Further research on the effect of the Stolen Generation upon child protection practice is needed, particularly as ATSI children are vulnerable to the effects of systems abuse. In view of the delays identified in this research, it is important that a consistent as well as a developmentally sensitive approach be adopted within a culturally appropriate framework and a less bureaucratic system. Further culturally relevant evidence-based knowledge, however, must be developed for practice to progress in this field.

Limitations of the study and further research

Studies have identified the importance of routinely gathering and recording information during risk assessment (Warner, 2003), a practice that will potentially enhance policy development through improved local research. However, there are a number of limitations associated with this study. As the data were collected retrospectively from case files prepared for court hearings, there will be variations in the level of detail and the type of data recorded; this may result in under-reporting of some information (Forrester & Harwin, 2006). This may be accentuated by frequent changes in the primary child protection professional involved with the case management (Cummins et al., 2012). Despite these methodological limitations, the content of court reports and case files is accepted in the study as the basis for decision making. Contents of reports are regarded by the Magistrate as prima facie accurate (JP Grant, personal communication, March 2010).

In addition, it is acknowledged that the ATSI status of children may not be included in records, therefore underestimating the prevalence of ATSI cases. Given the relatively small sample of ATSI cases in this study and the limitations associated with a post-dictive study design, there is a need for further large-scale prospective studies to examine similarities and differences between ATSI and non-ATSI cases and how they are processed in the child protection system. A comprehensive analysis of different approaches to case management policy, involving single or two organisations, to identify the causes of delay may contribute to a more child-focussed approach. Importantly, in this study, we assumed a collaborative relationship between DHS and ACSASS where each organisation has equal influence in decision making. In practice, however, the nature of the working relationship may be different and further research would clarify this understanding.

For the data analysis, it should be noted that while significant associations were found between ATSI status and use of drugs, use of illegal drugs and number of days between notification and court order at a Type 1 error rate of 0.05, these tests form part of a large number of tests and the risk of inflated experimental wise error rates should not be ignored. The findings need replication.

Conclusion

Our study found more similarities than differences in our comparison of ATSI and non-ATSI cases, a finding that may indicate children with similar risk factors tend to be involved in the child protection system irrespective of culture. Underlying inequalities are also evident from our research. ATSI children are over-represented in the child protection system compared with non-ATSI children, suggesting that factors such as social and economic disadvantage in this group require ongoing public health preventive measures. The higher prevalence of PSM identified in ATSI cases is likely to be an indicator of persistent disadvantage; this finding indicates a need for specialist drug treatment services to minimise the risk of adverse outcomes for the child.

Overall, there were lengthier delays in processing ATSI cases compared with non-ATSI cases. This finding requires further exploration particularly as it may relate to case management policy outlined in current legislation. Compared with any other minority group, ATSI children are possibly the most vulnerable to systems abuse because there is potential for disagreement or conflicting priorities between the organisations appointed to protect them. Recently, the Protecting Victoria’s Vulnerable Children Inquiry recommended the authority, and responsibility for the welfare of ATSI children is transferred to an Aboriginal organisation (Cummins et al., 2012). Progression towards self-management and self-determination for ATSI people in the area of child protection must, however, be accompanied by culturally sensitive evidence-based guidance developed to ultimately protect the child.

Areas for future research must also incorporate a better understanding of how the current approaches towards case management policy impact upon child protection decision making as well as improving the understanding of child abuse amongst ATSI populations. Such research will contribute towards improved decision-making practices by developing an evidence-based approach that will also minimise the child’s time spent in the child protection system.

Footnotes

Ethical

The study was approved by the Department of Justice and Monash University Human Research Ethics Committees. This study is supported by the Koori Justice Unit (Department of Justice).

Acknowledgements

The authors thank the staff at the Victorian Children’s Court for allowing access to the court files and Emeritus Professor Kim Ng for the statistical advice. Lillian De Bortoli is an Australian Postgraduate Award recipient.

Conflict of interest

None declared.

Note

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