Care and Protection: Recognising Forgotten Australians

1. Care and Protection: Recognising Forgotten Australians

2. Recognising the Forgotten Australians Kath McFarlane Lecturer, Charles Sturt University / UNSW PhD candidate

4. The ‘Forgotten Australians’ is the name given to those adults who grew up in out of home care - foster homes, orphanages and other institutions – throughout Australia, from the 1920’s until the 1990’s. Other common terms include: - careleavers; - fosterkids; - wardies; and - homies.

5. The term includes those people who were placed in juvenile detention institutions - such as the Parramatta Girls Home or Hay Gaol – for often spurious reasons, including being deemed ‘exposed to moral danger’ after being abused or neglected, or ‘uncontrollable’ for running away or being otherwise defiant.

7. The official definition for Forgotten Australians is itself contentious however, for there have been repeated attempts by State Governments, Churches, and not for profit agencies to artificially constrict the period in question. In NSW for eg, there are numerous official press releases, Ministerial speeches and even the first State Apology, which acknowledge only that the welfare practices which gave rise to the Forgotten Australians lasted until the 1970s. This is vigorously contested by younger Forgotten Australians.

8. It has been estimated that approximately 500,000 Australians experienced out of home care in the last century alone. Both Aboriginal and non-Aboriginal children were affected.

9. In 2003 the Senate Community Affairs Committee initiated a series of Inquiries into Australians who experienced out of home care as children. The first report (tabled in August 2004) and which coined the term ‘Forgotten Australians’, reported on the widespread emotional, physical and sexual abuse of children in institutions in the 20th century. A companion report, examining the situation and experiences of children in care today, was released in 2005.

10. The Forgotten Australians Inquiry was the latest in the trilogy of reports which constitutes official recognition of the widespread systemic abuse of children perpetrated in the name of the State. This recognition began with HREOC’s Bringing Them Home report into the Stolen Generations, followed by the Senate Committee’s Lost Innocents report into the experience of British child migrants.

11. Another chapter in this list of Australian human rights abuses may soon be added – the Commonwealth is currently negotiating the parameters of a national inquiry into forced adoptions. This would examine the experiences of the women, many of them Forgotten Australians, who, generally young and unmarried, were made to surrender their children for adoption.

12. The report found that many Forgotten Australians experienced significant disadvantage as children in out of home care. This impacted on their adult lives, taking the form of: - Drug & alcohol abuse; - Poor education outcomes and limited employment opportunities; - Poverty; - Homelessness; - Long term mental health and physical problems; - Difficulty in sustaining relationships; - Poor parenting skills; and - Contact with the criminal justice system.

13. These problems are often inter-linked and inter- generational, with the children of careleavers now comprising a significant, although undefined, proportion of the 20,000 children in out of home care today.

14. In 2008, faced with an apathetic Government response to its reports and prompted by the Forgotten Australians’ unrelenting public and media campaign, the Senate Committee took the highly unusual step of re-visiting its Inquiry. In June 2009 the Committee released its report into the progress of the implementation of the recommendations of its Lost Innocents and Forgotten Australians reports.

15. The bi-partisan Committee’s pointed criticism of State and Commonwealth inaction culminated in the Federal Government’s historic apology just 6 months later. Echoing the apology to the Stolen Generations made a year previously, the Government’s words acknowledged the suffering, abuse and systemic disadvantage experienced by many people at the hands of the State, the Church and private agencies.

20. The Apology came with a pledge for a national oral history collection, to be developed by and housed at the National Library of Australia. A collection of out of home care paraphernalia is also being established, and the National Museum of Australia is developing an exhibition about the Forgotten Australians’ experience. A national Find and Connect Service for careleavers to assist in the location of personal and family history files was also promised. This will culminate in the creation of a national searchable database, accessible to service providers and careleavers themselves.

21. The Forgotten Australians were recognised as a distinct group, with special needs and issues, in some important areas: namely aged care and mental health. Accordingly, the Ministerial Conference on Ageing and the Ageing Consultative Committee will acknowledge them on their respective committee agendas. So too, the Personal Helpers and Mentors program - which assists people with severe mental illness to overcome social isolation – will recognise Forgotten Australians, along with members of the Stolen Generations and former child migrants, as a target group.

22. Acknowledging the fear of many careleavers that their old age will see them in institutions run by the same agencies who ‘cared’ for them as children, the Prime Minister swore to grant the Forgotten Australians ‘special needs’ status for aged care purposes. Amending the 1997 Aged Care Principles to this effect is, apparently, an iron-clad guarantee that the special needs of careleavers will be considered in the planning and allocation of aged care places. The more vexing issue of Forgotten Australians simply not wanting to be dependent on those agencies that provided for them in the past, remains unresolved.

23. Apart from these much-needed initiatives, the Federal Apology, and the responses of successive State and Territory Governments, have been somewhat circumspect in their commitment to the Forgotten Australians. Continuing the echoes of the Government’s commitment to the Stolen Generations, there was no significant money attached to the Apology. The establishment of a national reparations scheme has been rejected, and there has been silence in the face of calls for past service providers and Churches to contribute financially to assist careleavers into the future.

24. The Senate Committee’s reports identified that many Forgotten Australians will have difficulty in accessing and in fitting into, existing services, many of which have no understanding of the ongoing issues confronting careleavers. Significantly, the reports established that careleavers are a distinct group in themselves, whose needs and history demand the provision of specialist services across a wide range of social and legal areas. The need for specialist counselling, support and advocacy services is paramount.

25. With the exception of the aged care and mental health commitments previously noted however, this vital recommendation has been ignored. Although the Forgotten Australians are represented at every marker of society’s ‘most vulnerable’ or ‘most disadvantaged’, it seems they are again destined to fall between the cracks of ‘universal services’ which have previously ignored their existence. This is a disaster, and one which follows an all too familiar pattern.

26. Burdekin’s 1986 Our Homeless Children report found that state wards were vastly over-represented in the homeless population. Yet there are no services specifically catering for homeless careleavers. The 1996 Wood Royal Commission reported that wards were over-represented in criminal activity and as victims of pedophilia and prostitution. Yet there are no Government policies specifically addressing this over-representation. Careleavers remain invisible in the reports of suicide and self harm programs, although within a few years of leaving care approximately 50% attempt suicide.

27. And although the UK, Canada and many US State Governments require the publication of school truancy and suspension records of children in care, and their poor educational attainment and lack of participation are the subject of specific Government intervention, no such initiative exists here. Report after report has identified the pathways from care to disadvantage, and yet, children in care and their adult counterparts – the Forgotten Australians - have repeatedly been missed by service providers, Governments and bureaucrats, in favour of universal service provision.

28. This omission is particularly striking when one considers access to justice and specifically, the provision of legal services. The NSW Government’s recent announcement of funding for a Forgotten Australians Support Service, explicitly rules out the provision of advocacy or legal services for careleavers. According to the tender document, legal information and support for careleavers seeking to obtain advice will have to be accessed through Law Access, the NSW Attorney Generals’ Department.

29. The successful tenderer will be required only to provide general information on the claims process for NGO’s and Church agencies, the subject of potential litigation. Claims against the Government are initially to go through NSW DOCS, who will assess them on a case by case basis. Putting aside the conflict of interest inherent in the Attorney Generals’ Department providing even basic advice when that same Department advises on the State’s defence of such actions, this is no solution to the myriad of legal problems careleavers may experience.

30. And there are other legal services which are desperately needed also – advice on how to deal with welfare Departments so as to keep their children; negotiating with social security; or resolving the plethora of accommodation, health, criminal and everyday legal problems with which careleavers are beset. Many legal services are already catering for Forgotten Australians. But having failed to recognise them as comprising a significant proportion of their clients, a valuable opportunity to achieve systemic change has been missed. For example, although they comprise 1 in 4 of the adult prison population and approximately 1/3 of those in juvenile detention centres, careleaver over-representation does not commonly feature in reports calling for reform of the criminal justice system.

31. Forgotten Australians have suffered too long at the hands of those dispensing inadequate or biased legal advice. Careleavers have detailed their abuse in submissions to various Inquiries, only to discover that this could not then be used in court. Others have negotiated with former service providers and the States in the hope of securing an apology, to be met with demands for confidential terms and non-disclosure requirements. Numerous class actions have been initiated by private lawyers – these have gone nowhere other than to guarantee the statute of limitations extinguishes their client’s future claim.

32. I contend that a specialist legal service for the Forgotten Australians is long overdue. The precedent for a specialist legal service exists - the Aboriginal Legal Service, Childrens’ Legal Service and Prisoners Legal Service are some examples. Precedent for a special purpose service is also evident – the Welfare Rights Centre, and the Arts Law Centre are just two examples.

33. The Church and the State are traditionally viewed as the protectors and pathways to justice. Yet both State and Church have failed the Forgotten Australians in the past. In the face of this failure, we as a profession have a responsibility to ensure access to justice for those effectively denied it. The provision of a specialist legal service for the Forgotten Australians would be a small yet significant first step.