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Legal Issues Related to the Removal of Aboriginal Children

by Diane Pham

It is only recently that the Australian judiciary acknowledged and became aware of the fact that people who are different in scope require different but equal treatment. For example, prior to 1995, Indigenous children were taken away from their families and placed into foster care in overwhelmingly many cases of domestic problems. In addition, the courts in the past have been more sympathetic to non-Indigenous peoples, i.e., the parent who is non-Indigenous would most likely than not win in custody battles. There has been initiatives since 1995 to restructure the judicial system, and thus, public policy concerning the issue of Indigenous children and their welfare has been debated. The courts have recently suggested in the case of Marriage of B and R that "the Family Court should order the appointment of a special 'separate representative' for every Indigenous child involved in a parenting dispute. The role of the separate representative (that is, separate from the legal representatives for the mother and father or other family) would include 'to examine these issues and ensure that all relevant evidence and submissions are placed before the court'."

Although the case of the Marriage of R and B is a stepping stone in the right direction, it is nevertheless inadequate to meet the needs of Indigenous people. As outlined in the report Bringing Them Home, it is discussed in the Introduction that despite new regulations, legislations and laws, children are still being taken away from their homes and are placed into foster care homes.

At present, the Child Welfare Care and Protection Legislation does not protect children and their family. The fact that current regulations and legislations do not protect Indigenous children and their family is shown via Statistics. These statistics illustrate an over-representation of Indigenous children in foster care. The result of these children in foster is nothing more than Abuse and Neglect. In addition, the Categories of Substantiated Abuse show that Indigenous children suffer and experience more abuse and neglect than non-Indigenous children.

The reality of children taken away from their blood relatives was not enough for society to expose and force Indigenous children to endure, they must also go through messy and painful adoption processes that do not have too much regard for their interests. The Adoption issues concerning the Laws, Practices and Policies of Adoption is nothing more than mere Recognition in Policy. It is not much more than mere recognition because current Statistics reveal that the number of children placed for adoption is still higher than non-Indigenous children.

Family Law in Australia also needs to be amended if it is to meet the needs of Indigenous children. The courts have recently set up Guidelines that have become public policy concerning the placement of children. However, these guidelines do not address the issue of the Indigenous versus non-Indigenous parent, and the affects of taking children away from their Indigenous culture and tradition on the mental, physical and social well being of the children. The new guidelines do not account the fact that Indigenous people do not possess a way of life that is similar to main stream popular culture. For example, Indigenous people live a life that is communal, and that also includes the raising of the children. Indigenous children in Australia do not solely live in one household, but in aunties' and uncles' and grandparents' residences as well. The Indigenous practice of mobility is something that has cost many Indigenous parents the loss of their children. Is this justice?

What are the Underlining Issues?

What is it that Indigenous people of Australia want? They want the right to Self Determination. They just want the right to think for themselves, for their people. Is that too difficult of a request?

Return to Stolen Generations - The Break-Up of Aboriginal Families

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