Out of home care and child abuse

The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.

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The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) has uncovered a host of deficiencies in the way that public and private Australian institutions have responded to child sexual abuse. Victims of child abuse face an increased risk of drug addiction, homelessness, mental and physical health issues, educational disadvantage and unemployment. These often lifelong implications make it an issue requiring constant reconsideration to ensure the chance of its occurrence is minimised. One area where child abuse can occur is out of home care (OOHC), such as when a child is placed with a foster family. Child abuse in OOHC can be perpetrated by adult carers, other adults in or outside the household, or other children in or outside the household.  This article will consider the specific phenomenon of child-to-child sexual abuse (that is, sexual abuse of children perpetrated by other children) in OOHC and will examine its incidence, prevention and institutional responses to it.

OOHC covers a significant range of services, including residential care, family group homes, home-based care (relative/kinship care, foster care and other home-based OOHC) and independent living arrangements. OOHC is provided both by State Governments and by non-government organisations (NGOs). Children may enter OOHC when the children’s parents are unable to care for them, which may be for any number of reasons: mental or physical health problems, drug addiction, or a history of abuse in the home. Child-to-child abuse represents a growing problem in OOHC and was in urgent need of attention when the Commission commenced its investigation in 2013. One of the first obstacles faced by the Commission was the absence of consistent and reliable data collection and record-keeping, as they criticised the inability of some states to produce records for requested periods and the differing methods used by states when “counting” incidents. The UN Committee on the Rights of the Child reached the same conclusion earlier in their 2012 report on Australia after noticing that despite the growing number of children placed in OOHC, data on placements, abuse in care, and complaints was sparse. State governments are ultimately responsible for children in OOHC, though they may outsource the provision of OOHC to NGOs, and State governments do not publish data on the number of children who are sexually abused while in OOHC.  It was the Committee’s recommendation that data collection mechanisms be improved – yet it appears that systemic deficiencies remain.

The Commission acknowledged the extreme difficulty they consequently faced in accurately assessing the prevalence of child-to-child abuse and holding governments and service providers accountable for abuse suffered by children in OOHC. Counsel assisting the Commission, Gail Furness SC, initially asserted that that child-to-child abuse represented the “vast majority of observed sexual abuse cases in out-of-home care” according to US research. However this was strongly refuted by victim advocacy group CLAN, with Vice-President Frank Golding arguing that “care leavers…know that’s not true”. The scoping review commissioned by the Royal Commission has since been amended, acknowledging that the use of the word ‘majority’ was an error and that “its prevalence has not yet been established”. The review now reflects that child-to-child abuse occurs at “substantial levels”. Studies in 1995 and 2000 indicate that around 1 in 3 sexual offenders in Australian society broadly are juveniles (mostly adolescents, although 7% of sexual abuse is perpetrated by youth under the age of 12).Statistics from state police in 2003-2005 suggest that youth perpetrate 9-16% of all sexual abuse. According to Bernie Geary, former Victorian Principal Commissioner for Children and Young People, 31% of sexual abuse in residential care in Victoria can be characterised as child-to-child abuse.

In Australia, the number of children placed in OOHC arrangements has risen threefold between 1990 and 2010, to 36,000. Those numbers have tended to increase each year since. Almost half of all foster-carers have multiple children placed in their care. It was hoped the investigation conducted by the Commission would uncover the factors contributing to the incidence of child-to-child abuse and elicit possible solutions to these problematic statistics. Several factors contributing to rates of child-to-child abuse in OOHC were identified during the Commission’s public hearing, although not all of these will be discussed in this article.

The Commission heard that foster-care providers are making poor decisions in the placement of children, resulting in risky combinations of children with varying needs placed under one roof.The placement process has been characterised by a chronic shortage of carers, coupled with a focus by the providers on the availability of beds, to the detriment of young people requiring safe OOHC. In particular, submissions highlighted that emergency or last-minute placements often result in the absence of proper and detailed assessment of the needs of children being introduced into the home and those already residing there.Emergency placements also often occur before the completion of background checks, with children usually placed in informal kinship care arrangements often without the same level of scrutiny as other forms of placements.

This approach to emergency care disregards the commitment made by the Australian government in ratifying the UN Convention on the Rights of the Child including the right to protection from sexual abuse and the right of children to be looked after properly by people who respect them. Article 19 further mandates that governments institute effective “social programmes to provide necessary support for the child and for [carers]” and the incidence of child sexual abuse in Australia reflects significant deficiencies in the national child protection system.

The Commission also heard that state government departments and other agencies are providing insufficient background information to foster care providers to enable them to properly assess risks. These omissions occur when state governments outsource the provision of OOHC, and children and carers are transferred from one provider to another, where the new providers are not given important case histories. Submissions highlighted the failure to provide information on a young person’s history of sexual behaviours was a recurring feature of child-to-child abuse incidents and one that could be easily avoided. This was confirmed by research conducted by the Commission.Beverley Orr, President of the Australian Foster Carers Association criticised these inadequacies, noting that withholding information about previous sexual abuse is unfair to both the carer and child and prevents the carer discharging their duty of care to keep all children in their home safe.

Not only are carers often seemingly ill-informed about the history of trauma and possible problem sexual behaviour of children in their care, but the Commission heard most caseworkers receive only limited training on how to identify signs of child-to-child sexual abuse. Training usually comprises of a three-day program called ‘Shared Stories, Shared Lives’ and includes a component on sexual abuse. Furthermore, no states or territories require that their carers possess a minimum level of qualification. The training of staff and carers is a critical step in the prevention of child-to-child sexual abuse. This training and support should arguably include equipping caregivers with skills required to identify and respond to “problem” sexual behaviours. Despite this, many governments and service providers acknowledged it as an area requiring significant improvement and training of this nature is not mandatory for carers in several states.  An understanding of age-appropriate or “developmentally-expected” behaviour may enable caregivers to recognise inappropriate behaviours before they culminate in child-to-child sexual abuse.  These concerns were echoed in a Consultation Paper into child abuse in out of home care released by the Royal Commission in early March 2016 (OOHC Consultation Paper).

Ideas were canvassed over the course of the public hearing on methods for eliminating the occurrence of child-to-child sexual abuse in OOHC. As well as improvements in information-exchange and carer training, carer advocates called for further funding to enable better services to be provided to those children who exhibit problem sexual behaviours. The OOHC Consultation Paper also drew attention to the inability of current treatment programs for children exhibiting sexually-problematic behaviours to meet demand within the community. Further to this, the Paper noted that not all programs currently operating are adequately prepared to deal with the particular perspectives of children from an ATSI background, a migrant background, or children who have a disability. Regional areas in particular require further funding and attention to ensure that child victims who go on to display problematic behaviours receive support in a timely manner. Dr Joe Tucci, CEO of the Australian Childhood Foundation highlighted the injustice in the “geographical bingo” which currently determines whether a child will receive a therapeutic response that meets their needs.

In line with this was the suggestion that all children in OOHC should have access to an independent body to whom they can discuss trauma and disclose abuse. This establishment of this external agency would likely require further government funding to ensure children in OOHC in all metropolitan and regional areas receive access to a third party who provides support to them throughout their placements and movements over time. Such a body would, of course, have limitations. Child abuse victims, especially the younger children, would likely have difficulty reporting abuse to this independent body, who would generally be unknown to them. It is therefore crucial for children in OOHC to develop more secure, long-term relationships with their caseworkers as well, to build trust and provide a reliable channel to engage with any independent body.

The importance of surrounding the child with dependable relationships in which they feel comfortable to disclose abuse is crucial to addressing the needs of a child victim, and may ultimately prevent them going on to abuse another child in care. In order to strengthen the relationships which surround the child in OOHC, Dr Tucci further suggested that OOHC providers be funded on longer-term contracts to eliminate the need for casual staff and ensure children have continuity of support and can build trust. He went on to highlight the need for children to have “consistent, high-quality pool of carers around them who have been caring for a period of time” – an outcome that becomes less achievable with a casual workforce trained to care for only a short period.

Further improvements also needed to be made in terms of providing follow-up support to child victims. Governments and service providers were unable to satisfactorily describe the support offered to child victims following sexual abuse in OOHC, once again due to poor data recording. Tasmania (one of the few states with available records) acknowledged that roughly 20% of children were offered counselling after experiencing sexual abuse, which represents a contravention of Article 39 of the UN Convention on the Rights of the Child. In its report on residential care services provided in Victoria, the Commission for Children and Young People noted that many children received inadequate care following abuse. A lack of recognition of the event, failure to report incidents to the police, poor counselling support and an absence of compensation for the child victim were all identified as issues in the Victorian context, and most likely reflect concerns in all States and Territories.

Currently three Australian jurisdictions have specialist therapeutic treatment services for children who exhibit sexually harmful behaviours, designed to prevent recidivism:

New South Wales: New Street Adolescent Services
Provides a coordinated response to children aged 10-17 who have sexually harmed others. The program involves the family members of the children. It is located in a select number of metro Sydney areas and some rural areas in NSW. It has a more limited capacity and geographical reach than the Victorian programs.

Victoria: Sexually Abusive Behaviour Treatment Services
Incorporates 12 funded services in every region of Victoria, ensuring that the program has a broad and consistent capability across the state. In Victoria, Therapeutic Treatment Orders (TTOs) are engaged for children aged 10 – 14 years who have exhibited sexually abusive behaviour. The Services treat children who have received TTOs as well as children who voluntarily engage with the Services (including children under 10, and up to 18).

Queensland: Griffith Youth Forensic Service
Has limited capacity and geographical reach compared to Victoria.

Other jurisdictions treat child-to-child sexual abuse through generalist counselling services. While some programs are rolled out in the context of a criminal punishment, others are voluntary in nature, whereby a child (and/or their family/carer) will opt for treatment if their behaviour has been flagged. This encompasses children under 10 who are too young to be considered criminally responsible.

Generalist programs in states without specialist services may not have sufficient skill to respond adequately to such children and their families. The expertise required to effectively reduce recidivism is a fairly unique skill set, and without appropriate support, carers are forced to shoulder the majority of the burden of caring for children in this situation. According to the OOHC Consultation Paper “this can contribute to the breakdown of the placement”. Furthermore, not all programs are adequately prepared to deal with the particular perspectives of children from an ATSI background, a migrant background, or children who have a disability.

The consistent failure of Australian governments and service providers to record and respond to the incidence of child-to-child sexual abuse has resulted in significant levels of child-to-child sexual abuse in OOHC. This also represents a failure to abide by our central obligation under the UN Convention on the Rights of the Child, encapsulated in Article 3, which implores organisations concerned with children to work towards their best interests.  It is hoped that the implementation of some of the measures discussed throughout the public hearing will ultimately see improvements in the rate of child-to-child abuse in OOHC and produce more positive outcomes for the thousands of children placed in child protection arrangements every year. The Royal Commission is expected to release a report into child sexual abuse in OOHC in early 2016 based on the evidence tendered at their public hearing into OOHC. It is hoped that this report will continue to fuel improvements in the improvement of training and services for both children and carers and the placement of children in the nurturing environment they are entitled to as a child. 

As a first step to rectifying some of the problems in this area, State governments should commit to publishing annual data on the reports of sexual abuse in OOHC, and how those reports have been responded to.  OOHC providers should also ensure they are provided with full background information on all their contracted carers and children before implementing any care arrangements to ensure that they are able to make informed decisions about where vulnerable children should be placed.

Meena Mariadassou and Georgia Feltis, Summer Clerks, King & Wood Mallesons.