Early in 2008 the Australian Government embarked on the task of creating a national framework for protecting Australia’s children resulting in a discussion paper entitled Australia’s Children Safe and Well, which was released in May. This followed public outrage over the growing number of child abuse cases including: the rape of a four-year-old girl in Perth by a babysitter, a father who was accused of drowning his children by driving them into a dam in Victoria, and numerous accusations of sexual abuse carried out against students in religious schools by clergy across Australia, some resulting in convictions.
Teachers in states schools have also been prosecuted for sexual misconduct. Then there was the case of a two-year-old girl found to have a sexually transmitted infection as reported by the ABC on July 17, 2008.
This is not even the tip of the iceberg. Almost every week the media seem to report another horrific case of child abuse, murder or neglect. It is impossible to accurately pinpoint the number of child abuse cases in Australia. Moreover, what is generally considered to be child abuse is sometimes culturally bound and viewed as normal behaviour.
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The only information about the incidence or prevalence of child abuse in Australia is usually collected via a large survey of the population. “Prevalence” refers to the total number of children who have experienced abuse or neglect at some point in their childhood. “Incidence” refers to the total number of children who experienced abuse or neglect during a specified time period.
In Australia, the most accurate indicators of child abuse and neglect are said to be those statistics compiled by the Institute of Health and Welfare. These refer to the number of reports of suspected child abuse and neglect that are made to the statutory Child Protection Departments.
In the past five years, these figures have risen by an estimated 50 per cent from 198,355 in 2002-03 to 309,517 in the period 2006-07. Of these only 58,563 reported cases were deemed serious enough to warrant statutory intervention. The staggering difference between reports to Child Protection and action from Child Protection has raised a number of questions.
From a community perspective, what appears so shocking is the increasing number of cases where children die and the fact that Child Protection agencies around Australia have been forced to acknowledge that they knew abuse was happening but had not acted to remove the children.
The public, understandably, want to know why. What is Child Protection doing? The Howard government acted to intervene in the lives of Aboriginal children in the Northern Territory but they failed to call white families who abused their children to account. Is this meant to infer that white people do not abuse children? Or is the abuse simply to be treated as acceptable? Do white people have rights over their children that Aboriginal people are not entitled to?
Family unity and family law
Child abuse issues are complex. Accusations and definitions of child abuse take place in a climate of uncertainty. When claims of child abuse are made, assessments and decisions seem to straddle a wide and varying system of values. Against this backdrop many people feel that a conservative backlash has left their children vulnerable. Conservative politics prioritise family unity regardless of whether there is parental conflict or how this conflict might affect children.
This view is underscored by the Family Court decision to order dual residency for children when their parents divorce. Whether dual residency is aimed at giving both parents equal access to their children or whether it is a way of minimising the welfare budget is open to question; but it does appear to have brought distress to a number of children, especially when there is ongoing disagreement between parents.
One American psychiatrist puts it this way:
Up until recently, custody of a child was determined by a legal doctrine which made its key issue the "best interests of the child”. However, since the advent of joint custody statutes, courts have been forced to award "custody" jointly to both parents in divorces. These joint custody statutes came about as divorced fathers began agitating to have a say in their children's lives, to fight their children's being cut out of their lives by ex-wives.
Unfortunately, these statutes did not fit reality very well: children still remained mostly in the home of one or another parent. So family courts began recognising "physical" and "legal" custody. Unfortunately, there is a legal parallel for this. It's called real estate law.
In real estate one can have a legal title to a piece of property while someone else has a legal right to use the property. Examples include landlords who may not evict tenants as long as the tenants are paying rent and banks who (sic) may not foreclose while the home-"owner" is keeping the mortgage paid up. Persons are said to have "legal title" (it's technically their property) or "equitable title" (they have a right to use the property). In family law, there is "legal custody" and "physical custody".
Children as property
The family represents the foundations of human society. The relationship between parents, children, and the state is arguably the most enduring and even though it has changed its form over time this core dynamic remains the bedrock of society. However, the family is deeply embedded in the values and norms of the society and these are not always conducive to children’s interests if there is a dispute.
Until quite recently, the operations of the family have taken place in private. Family conflict was resolved by the family head - the male breadwinner. Children were the legal property of their fathers until it was realised it was women who passed on the moral values. The state was then forced to consider giving aid to the poor but respectable mother(s) in order to keep their children from going astray and thus undermining the very fabric of society.
This gave birth to the modern welfare state, and in particular to the child welfare system. What followed in the judicial custody disputes was an unwritten law that gave preference to the mother’s established role. After a divorce, it became almost universally accepted that mothers were the best carers of children. However, as we all know, and as the authorities soon discovered, there are good and bad mothers just as there are good and bad fathers.
Around the mid 1970s there was a major shift in thinking, and custody laws sharply reversed the mother’s full time custodianship and introduced dual custody. Child abuse figures rose and there were many more cases of neglect; offences were often carried out by non-biological parents.
There were also other social factors precipitating abuse. Social and moral mores were relaxed. There was an increase in leisure time, whereby the media and various forms of entertainments all contributed to changing values, as did the use of alcohol and drugs.
As the problems increased so did the need for social workers and behavioural scientists. Demand outweighed supply and educational requirements for these professionals were also relaxed. Scientific testing was introduced and so too was the notion of “risk assessment”, which sees children remaining in the care of abusive parents.
Policy before prevention
The tendency to keep children in the care of abusive parents suggests we have not moved from the old adage that children are the property of their parents and the owners of property have every right to do with that property what they wish.
The chances are if you, as a citizen, doctor, nurse, teacher, child-care worker, or parent are reporting a case of child abuse you will come up against a policy of “risk assessment”.
“Risk assessment” effectively determines the level of “risk” to the child on the basis of whether there is an active, protective person able to minimise or placate the “risk”. Having a protective person who might minimise or placate the “risk” is seen as more applicable to the preservation of family life, than removing the “risk”. It is referred to as “minimal intervention”.
In this way, “risk assessment” frequently sees one parent weighted against the other in terms of who poses the “risk” and who will placate or minimise the “risk” and offer “protection”.
The problem with this is the protective person is not always there to protect the child. What then? Furthermore, the danger to the child is likely to be exacerbated because the system has set up a duality whereby the more the protective parent protects, the more the abuser is likely to abuse. Over time, the intensity of this conflict causes each party to become obsessed with their role. This obsessive-compulsive behaviour can play out with tragic circumstances.
This policy of “risk assessment” and “minimal intervention” can be put down to two aspects of bureaucratic operations: a methodology that preferences expediency on the one hand and a lack of understanding of the issues of child abuse on the other; the latter being due to poor education and little or no experience. It can also be put down to the acceptance of certain levels of violence within our community and our culture.
When is violence acceptable?
When is violence against a child acceptable? When a child is punched in the stomach and the professional says, “that’s not much of a bruise”, the child reacts immediately to such a statement with feelings of worthlessness. In reality, the child may have experienced similar bruises over a period of years. The child has almost certainly been terrified of being harmed by the abuser. The child is probably suffering insecurity and post-traumatic stress - but if the severity of the injuries do not overtly appear as life threatening and/or there is a protective parent (other) waiting in the wings - the child is not deemed to be at “risk”.
In their submission titled From Partial Analyses and Fragmented Services to Comprehensive Analysis and Coordinated Outcomes: Responding to Child Abuse and Neglect in Australia, the Australian Childhood Foundation (ACF) raised questions about the difference between the Department’s assessment of child abuse and what was actually required to keep children “safe and well”.
Every child has a right to live in an environment that fosters his or her physical emotional, social and spiritual development, from a child protection perspective this entails stopping abuse and neglect when it has occurred and preventing future abuse and neglect from occurring. This also entails ensuring that every child is provided with a sense of security and attachment and the basic essentials including education and suitable accommodation.
It will require a paradigm shift to bring about this change. Have we, as a nation, the will to truly protect our children? In the meantime, should we assume that either parent applying for custody is going to be a good parent? Should mothers have more rights over very young children? At what point should the state intervene? Finally, as the courts will almost certainly relinquish their role in family disputes in favour of the scientific methods of testing, how will the public know if the best interests of their children are being served?
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