The History of Child Protection Legislation in Australia
Shurlee Swain’s first paper for the Royal Commission (I’m not sure the three papers are meant to be read in any set order) surveys the legislation relating to the out-of-home care of children. The paper can be downloaded here.
Reminding us that child welfare in Australia was a state rather than federal responsibility, Swain describes child welfare provision in Australia as a patchwork rather than a coordinated system. Yet, much of the legislation across the different jurisdictions is cannibalistic and imitative.
Swain describes four chronological but overlapping waves of legislation.
1. Each state passed laws to structure their child welfare ‘system’ beginning in the 1860s. At first, they were driven by concerns around child vagrancy. Later the child rescue movement shifted the focus to the child’s need for protection from parents or guardians who were failing in their core responsibilities.
2. Also from the 1860s, laws focused on regulating care providers, establishing systems of inspection and rules covering punishment and employment of children. In my view, there is not much evidence that these laws were at all effective.
3. Laws initially seeking to deter parents from ‘foisting their children on the state’. Poverty was understood as a moral rather than an economic or social problem and the child welfare system was designed to prevent this moral failing being passed on to the next generation. The earliest legislation had been framed to punish parents for their perceived failures, and deter others from following in their path. The early legislation encoded an expectation that parents or relatives would contribute to the maintenance of their children where circumstances allowed.
But, from the 1880s and extending into the second half of the 20th century, some measures were introduced to keep families together. Governments, belatedly, saw the merit of payment to poor parents to keep their children out of the system. Pensions for widows, and other benefits such as child endowment, helped single mothers and supporting fathers.
4. Laws designed to deal with children seen as requiring special provision: child migrants, Aboriginal children, infants, and children with disabilities. This area is covered in more detail in another paper.
Swain concludes, quite properly, that the system – let’s call it that for sake of argument – was poorly resourced and often slow to respond to new thinking overseas.
Child welfare was rarely a high priority for politicians – and that is true still. Public servants and charitable institutions – and I would add churches – exercised significant autonomy in deciding where and how policies should be implemented.
As a result, Swain argues – and the evidence is now clear – children were exposed to a regime which had more interest in keeping costs down and deterring entry to the system than in children’s rights and best interests.
From the outset a policy of child removal was established which survived largely unchallenged until the beginnings of de-institutionalisation in the 1970s. Moreover, the dominant institutions “essentially positioned the children as being in need of control rather than care.” (p. 6)
Swain takes us through the take-up of industrial and reformatory schools from the 1860s that were essentially the adaptation of the British model. She gives an overview of changes that took place with the realization that Industrial Schools were not working – although the parallel (and often overlapping) system of reformatories for ‘criminal’ children would survive virtually unchanged, except that governments would regain control of the private reformatories that flourished in the nineteenth century.
Victoria was one of the states that decided to close all government industrial schools and rely on voluntary efforts to maintain its boarding-out or fostering system. This may have been sound in principle, but when times got tough and available foster family places declined dramatically from the 1930s, the government chose not to be fussy rather than demand minimum standards of ‘care’.
As they did in orphanages and other children’s Homes, many children in foster families “felt isolated, exploited and deprived in a system that functioned to cut them off from their families of origin far more completely than had the industrial schools.” (p. 11)
With very little supervision by government or sponsoring institutions, many children were vulnerable although it “…is clear from provisions in the legislation that governments were not unaware of these risks.” (p. 12)
Swain covers many other elements of the system including methods of “disposing of ex-nuptial children”, notably through adoption laws. Western Australia was the first Australian state to introduce legal adoption (1896). The other states came to it slowly in the 1920s, when it was being discussed and finally legalised in the UK.
In the 1960s, adoption laws increasingly concentrated the control of adoption in the hands of social workers, eliminating the private adoptions that had been permitted in some states in the past.
The demands of adoption stakeholders led to a reconsideration of the underlying basis of adoption, with legislation introducing open adoption, where all parties could know the identity of other parties, and some level of contact between a child and its original parents was considered to be the norm.
In summary, Swain’s paper is a clear guide to the legislative framework underpinning the ‘system’ which developed in Australia for looking after children who were forced to live away from their family.