Problems with Records Are Not Confined to the Past

Just published on line through Springer. Will be printed in Archival Science in due course.

Below is a pre-publication version of the manuscript. Some minor changes will be found in the on line version which can be accessed at

‘Online First’:
http://link.springer.com/article/10.1007/s10502-019-09304-0

DOI  10.1007/s10502-019-09304-0

“Problems with records and recordkeeping practices are not confined to the past”:

A challenge from the Royal Commission

Frank Golding

Introduction

Disclosures of brutal child abuse and callous neglect in institutional out-of-home Care (OOHC)^[1] in Australia are now commonplace. Official inquiries are not new. Historian Shurlee Swain’s catalogue of eighty-three Australian inquiries into institutions providing OOHC held between 1852 and 2013 is proof of that (Swain 2014a). What is different, however, is an emphatic shift from the time of the trilogy of national inquiries—the Stolen Generations (Human Rights and Equal Opportunities Commission(HREOC) 1997), Lost Innocents (Senate Community Affairs References Committee (SCARC) 2001), and Forgotten Australians (SCARC 2004)—towards privileging evidence from Care leavers as survivors of what sociologist Jeffrey Olick called the age of regret (Olick 2007). These three inquiries between them generated more than 1,400 submissions, most of them survivor testimony.

Although records and recordkeeping were not explicit in the terms of reference of this trilogy of inquiries, records emerged as a core issue in each instance. In the Stolen Generations inquiry (Human Rights and Equal Opportunity Commission 1997) personal and family records were linked directly to the importance of locating and reunifying families. Similarly, the Child Migrants Inquiry (SCARC 2001) was required to examine matters relating to family reunification across continents but went further to the issue of records and identity—and that issue was taken even further in the Forgotten Australians report (SCARC 2004). Each of these inquiries made specific recommendations about records (Eberhard 2015).

From 2013 to 2017 the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) heard direct private testimony from 8,013 survivors of whom just under 50 per cent were abused in “closed” institutions like orphanages, children’s Homes, foster Care and youth detention facilities (Royal Commission 2017a, 378; Breckenridge and Flax 2016, 6). More than 700 of these private sessions were held in adult prisons. Of these prisoners, more than 50 percent had been sexually abused as children in OOHC and a further 33 per cent while in youth detention facilities (Royal Commission 2017a, 245). Hundreds of other survivors wrote to the Commission and/or gave evidence in one or other of the 57 public case studies conducted by the Commission, especially the nine case studies which focused on historical residential Care and a further five which focused on contemporary OOHC.

This transformation in the conduct of official inquiries has been a complex process with several interwoven strands. From the 1990s onwards advocacy groups were formed after the emergence of Freedom of Information or Rights to Information legislation and a snowballing demand for release of hitherto unknown or inaccessible childhood records that Care leavers thought might clarify questions of family identity, allow them to reconnect with their fragmented families, or at least explain the reasons for their incarceration, if not confirm their memories of painful or shameful events in their institutionalised childhoods (De Wilde & Vanobbergen 2017).

I will say more about rights to records and rights in records later, but those rights were nested in a broader children’s rights movement to which Care leavers became increasingly responsive. There was a stirring of consciousness among Care leavers that such rights apply to all children, including children who, for no fault of their own, were not able to live with their parents. They remembered that as children in closed institutions, they were deniedmany of the specific rights that are now detailed in the United Nations Convention on the Rights of the Child (CRC).

Table 1 provides numerous examples of the denial of rights such as the right to participate in critical decisions that affect your future, the right to maintain connection with your family even if you must live apart from them, and the right to be protected from all forms of abuse, or negligent treatment, or exploitation while in the Care of legal guardians or any other person who has the custody of the child.

The campaign for a royal commission into child abuse in Australia

With the formation of advocacy groupsin the last decade of the twentieth century and the early years of the new century there is a discernable shift from voice to agency. Groups like CLAN[2] found that the language of rights helped them to gain the community’s attention and generate public awarenessof the atrocities that happened behind the high walls of often-isolated institutions. Care Leaver testimony gained the attention of the media and challenged the national historical narrative of OOHC (Sköld 2013, 7). In more than a dozen nations, the “global chain of inquiry” (Wright, Swain & Sköld 2017) connected survivors across national borders (Child Rights International Network 2018) including, for example, Ireland where it has been claimed that the emergence of survivor groups has been perhaps “the most impressive development within Irish civil society in relation to children’s rights” (Powell & Scanlon 2015, 193).

Criminologist Kjersti Ericsson (2015) suggests that the CRC was a precondition for the international wave of inquiries that were established in the 1990s and 2000s, and sociologist Katie Wright (2017) notes that the discourse of children’s rights frames the terms of reference of many inquiries and is prominent in many inquiry reports. But I would add acknowledgement that, in Australia, Care Leaver advocates had been instrumental in bringing some of these inquiries into being. For example, Senator Andrew Murray, a leading member of the two Australian Senate inquiries—and later one of the six royal commissioners—conceded that the 2004 Forgotten Australians Senate inquiry “would never have seen the light of day” had it not been for the persistent lobbying of concerned activists (Murray 2004). The language of rights was prominent in Care Leaver submissions (SCARC 2004, e.g. submissions #18, 22, 33, 119, 138).

The demands of Care leavers gained momentum from one inquiry to another. The powerful testimony provided to the 2004 inquiry led the Australian Senate committee—urged by CLAN (Heinrichs 2004)—to conclude that a royal commission was warranted to examine “the extent of physical and/or sexual assault within institutions and the degree to which criminal practices were concealed by the relevant State and/or Church authorities” (SCARC 2004, 243). However, John Howard’s government rejected that proposal in 2005 by quarantining moral leadership at state borders. The offences occurred under state and territory law, so any action was “therefore, a matter for state and territory governments” (SCARC, 2009, 65).

This was a major setback, but CLAN lobbied to have the Senate committee review the progress on the Lost Innocents and Forgotten Australians reports. At that review in 2009, Care leavers and Senator Murray continued to support a royal commission (SCARC 2009, 66). However, the Senate committee did not re-endorse its earlier recommendation because it doubted a royal commission would succeed in exposing and prosecuting perpetrators (SCARC 2009, 225). How wrong they were.

Shortly after the release of the 2009 Senate report, the Australian government under Kevin Rudd issued a national apology to Care leavers and former child migrants. The language of thatapologyhad been crafted after consultation with CLAN and others who heard Prime Minister Rudd say, “Sorry—for the physical suffering, the emotional starvation and the cold absence of love, of tenderness, of care…” (Rudd 2009). The agenda was the broad spectrum of maltreatment, with no special attention given to sexual abuse. When a new prime minister, Julia Gillard, announced in November 2012, that there would be a royal commission after all, she linked it directly to that national apology: “It is fitting that I announced this Royal Commission in the same week as we remember the third anniversary of the National Apology to Forgotten Australians and Former Child Migrants on 16 November 2012” (Gillard 2012; CLAN 2012-2013).She and the minister for families, Jenny Macklin, sent separate handwritten messages to CLAN.

“The Royal Commission is a tribute to your efforts,” wrote the PM (CLAN 2013, 3).Care leavers could be forgiven for thinking that what the Government was offering was a more rigorous re-run of ‘their’ Senate inquiries which had covered sexual, physical and emotional abuse, and neglect (Royal Commission 2015, 102).

The Royal Commission fractured the Care leaver community

It soon became clear that this Royal Commission would not be like previous inquiries. Its designated Terms of Reference meant it would not deal with Care leavers as a community of common interests—only the minority subset that had been sexually abused. Other more powerful forces were at play that designated sexual abuse as “the core transgression of childhood innocence” (Golding, 2018a; Golding, 2018b; SCARC 2018). Core transgression meant only transgression.

Few would dispute the claim that “The sexual abuse of a child is a terrible crime…the greatest of personal violations…and can have lifelong adverse consequences (Royal Commission 2017b, 5), but the Royal Commission’s mandate excluded those who “only” experienced cruel physical assault, emotional abuse, exploitation of labour, neglect of health and education, subjection to unauthorised medical trials or placement in adult mental health facilities, being stripped of personal identity and terminally separated from their parents and siblings. It mattered not a jot that the CRC requires the government to take

measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child (UN, Article 19).

The majority of Care leavers—those who were not sexually abused—were required to put the enduring traumas of their abuse on hold for the five long years of the Commission. And for that duration they were marginalised by the mainstream media. As the current author told the Senate Committee hearing in March 2018: “Headline after headline, radio reports, television reports hammered home the message of sexual abuse…” (Golding, 2018c, 23). The none-too-subtle subtext was that their non-sexual abuse was subordinate and insignificant.The story for the media was scandals in the churches, especially Catholic entities, and prestigious private schools. The Catholic Truth Justice and Healing Council commented that the “…many years of media coverage of clerical sexual abuse most Church authorities and certainly most senior Church leaders felt under siege” And, as a consequence, “Much of what the community, including the Catholic community, has come to know about the abuse scandal has been through the media.” (Truth, Justice & Healing 2018, 5, 48). The media weren’t covering other forms of child abuse.

Elsewhere I have given an account of why the terms of reference of the Royal Commission were confined to sexual abuse—the ‘core transgression of childhood innocence’—and why the Catholic Church featured so prominently (Golding, 2018a).In passing, it should be said that the Royal Commission has had significant consequences—both predicted and unpredicted.

Notably, it has shaken the churches in Australia, particularly the Catholic Church. The scale of child abuse in Catholic institutions and the failure of the Church leadership in handling the abuse—in its own words, “the disastrous performance… laid bare for all to see”—has weakened the Church’s effectiveness in prosecuting contemporary public issues (Truth, Justice and Healing 2018, 53).This diminishes its power as moral persuaders for example in public debates around marriage equality and euthanasia. The Truth, Justice and Healing Council (2018, 33) concluded, “The church has lost its moral authority”. The parallels with the Irish Republic and Northern Ireland are noteworthy (BBC 2018). However, exploring further these larger issues of church/state relations is beyond the scope of this paper. 

‘You asked about records’

This paper aims to show that, although the Royal Commission disappointed many Care leavers with its narrow focus on sexual abuse, when it eventually reported on records and recordkeeping the Commission surprised many by moving well beyond its narrow mandate.

As mentioned above, records had emerged as a central issue in the trilogy of earlier national inquiries in Australia and each had made recommendations for reforms, particularly in locating, storing and enabling access to records by former residents. By contrast, the Letters Patent of the Royal Commission issued in January 2013 did not specifically refer to records—and, in particular, OOHC records and recordkeeping were not explicit elements of its terms of reference. (2017c, 31). Yet, it could be argued that the issue was implicit at least in the formal reference to

what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts (Final Report 2017d, 89).

In February 2017, the Chair, Justice McClellan, had written to CLAN, “…when I came out to talk to your people at the [Orphanage] Museum you asked about records. That exchange has always been at the front of my mind. Whether our terms of reference allow (probably not) we are doing what we can on that issue” (McClellan 2017).

Among the things it had done was to publish a Consultation Paper on records and recordkeeping practices in September 2016, which prompted some 46 responses including from a number from Care leavers (Royal Commission 2016). Further, one of the Commissioners, Justice Jennifer Coate, addressed the national conference of the Australian Society of Archivists in October 2016, and delivered a keynote speech at a national summit on records in May 2017 (Coate 2016; Coate 2017). The shift in thinking was becoming apparent. The volume of the Commission’s final report dedicated to records and recordkeeping makes repeated references to general widespread problems that were pervasive and enduring:

in the past, many institutions did not have clear and enforced policies for creating and managing records about children under their care. The fact that we also found poor records and recordkeeping practices in recent times suggests that the problems with creating and managing accurate records are systemic and enduring (Royal Commission 2017c, 39).

The Commission referred to clear evidence of gross mismanagement: a senior bureaucrat in Victoria, for example, told them in 2015 that his Department had recently discovered a personal file that it had begun searching for in 1999 (Royal Commission 2017c, 51). The Commission referenced, also, the trenchant criticism of the Victorian Ombudsman who, following numerous complaints from Care leavers, had investigated the management of Victorian state ward records and found them in disarray (Victorian Ombudsman 2012).The Commission referred to the ample evidence that survivors gave in case studies, private sessions and consultations—and this evidence went well beyond sexual abuse.

During our inquiry we heard that access to records has been a recurring concern for survivors of child sexual abuse in a range of institutional contexts, over many decades. Lack of support and guidance, excessive delays, prohibitive costs, inconsistencies in law and practice, refusal to release records and redaction of records were all raised with us as issues affecting survivors’ personal wellbeing and ability to hold institutions to account (Royal Commission 2017c, 39)

The Chair of the Commission, Justice Peter McClellan, had begun to link the Commission’s work in this area to the children’s rights movement. He opened an address to the Conference of the Association of Children’s Welfare Agencies in 2016witha chronicle of the movement from the Geneva Declaration of the Rights of the Child of 1924 through the Geneva Declaration of the Rights of the Child 1959 and the Australian Government’s ratification of the Convention on the Rights of the Child in 1990 (McClellan 2016).

The evidence of the denial of those rights in the testimony of survivors in private sessions and in public hearings profoundly shocked and moved the Commissioners. They heard countless personal accounts of “obstructive and unresponsive processes for accessing records” (Royal Commission 2017c, 30). They were struck by the number of occasions that they “received more complete records about individuals in response to our summonses than the individual received in response to their own requests for access” (Royal Commission 2017c, 398).

The weight of the evidence led the Royal Commissioners in its final report to declare an explicit position on rights to records:

good records and recordkeeping practices are integral to the realisation of many of the rights of children enshrined in the United Nations Convention on the Rights of the Child… to which Australia is a signatory. In particular, the creation and management of accurate and detailed records is fundamental to children’s rights to identity, nationality, name and family relations. The rights of children to be protected from all forms of physical, mental and sexual abuse are promoted by good records and recordkeeping (Royal Commission 2017c, 44).

Although the Commission initially couched its commentary in terms of its circumscribed remit of sexual abuse, much of its final report went well beyond that mandate. It stressed the intrinsic role that records play in institutional conduct and accountability. When it went on to recommend “five high-level principles” for records and recordkeeping, it knowingly framed theprinciples more broadly as being about “child safety and wellbeing, including sexual abuse” (Royal Commission 2017c, 107).The five principles were:

1. Creating and keeping full and accurate records relevant to child safety and wellbeing, including child sexual abuse, is in the best interests of children and should be an integral part of institutional leadership, governance and culture.
2. Full and accurate records should be created about all incidents, responses and decisions affecting child safety and wellbeing, including child sexual abuse.
3. Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained appropriately.
4. Records relevant to child safety and wellbeing, including child sexual abuse, should only be disposed of in accordance with law or policy.
5. Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent. (Vol 8, page 10)

 The Commission justified framing these principles in this broader way out of concern that the impact and value of the principles would be “needlessly limited” if they referred only to child sexual abuse (Royal Commission 2017c, 107). “Needlessly limited” could be taken to refer to their assessment that the plethora of previous recommendations to improve recordkeeping practices and access to recordsin the trilogy of earlier reports—Bringing them home, Lost Innocents and Forgotten Australians—had not led to effective and enduring change (Royal Commission 2017c, 8).

The accumulated private and public evidence of poor and even improper recordkeeping practices in institutions was not confined to records of sexual abuse. The Commission concluded that “the evidence before us makes it plain that problems with recordkeeping and access to records are not confined to the past, and that the practices and processes of contemporary institutions require improvement to better meet the needs of survivors.” (Royal Commission 2017c, 54)

“Rights are not given voluntarily; they have to be seized”

Improvement? Over the past decade contemporary OOHC authorities in all Australian jurisdictions had acknowledged the need for improvement, and some had even tried to make progress—often ostensibly using a rights-based approach. All jurisdictions have developed charters of rights for children and young people in OOHC (Australian Institute of Health and Welfare 2015), and the Council of Australian Governments’ rights-based National Framework for Protecting Australia’s Children for the period 2009 to 2020 and this Framework gave rise to National Standards for OOHC in 2011 (Department of Families 2011).

The language is inspiring. Standard 2, for example, referenced the CRC principle of respecting the views of children and giving them a say in decisions that affect their lives (United Nations 1989, Article 12). Older Care leavers reading Standard 2 would have speculated about the difference that principle might have made to their childhoods had it applied in their day. However, on closer examination, these standards and charters are sometimes more aspirational than honoured. For example, although a “care plan” is a legislative requirement in all jurisdictions, when the children in OOHC were asked about it the vast majority knew nothing about their plan and, of those who knew about it, only one third had been involved in its preparation (McDowall 2013, xix).

Yet, the discourse of rights is capable of being weaponised by older Care leavers. Many looked with great interest at National Standard 10 which read: “Children and young people in care are supported to develop their identity, safely and appropriately, through contact with their families, friends, culture, spiritual sources and communities and have their life history recorded as they grow up”. It went on: “Memories and experiences during their time in care will be recorded in photos and other memorabilia to help them recall the people and events that have shaped their lives (Department of Families 2011, 12).

That raised questions for older Care leavers: if welfare authorities really believe that rhetoric, surely it can’t be too late to find a retrospective application to historical Care records? Rights are surely not suddenly found to exist; they don’t come into being abruptly because of the creation of conventions or charters of children’s rights? If they exist, why should the custodians of their childhood records be allowed to remain “obstructive and unresponsive”?

The rights given voluntarily to children in contemporary OOHC were not being offered to older Care leavers. These rights would have to be seized.In 2015, CLAN began consulting its members and others with an interest, and in successive stages, drafted its own Charter of Rights to Records through 2016 (Golding, 2015). Three principles make it somewhat different from other charters that have been handed down by officials:

• A principle of participation through the application of the existing, but little-known, legislated right to challenge historic records where they are deemed to be inaccurate, misleading or out-of-date, and to submit alternative relevant material for inclusion on the record. In contemporary OOHC, this principle would extend to a co-authorship principle whereby children in Care would be encouraged to contribute to the making of records about themselves. In both historical and contemporary OOHC, having multiple perspectives on the narrative of events that form the life of the growing person is likely to result in more truthful and more reliable records.
• A principle of control which encompassed a right to know who is accessing the file, and a right to veto readers who do not have the subject person’s permission to read.
• And a principle of ownership through an assertion of the right to full and unredacted access to all documentsand the handing over of not mere copies, but the originals, of all personal documents such as family letters and photographs. This principle of ownership is probably the least acceptable proposition in the CLAN charter, because it challenges the very essence of recordkeeping and archiving culture and history.

In subsequent discussion among Care leavers, this last principle, ownership, has been extended to discussion about moral ownership of records as opposed to legal ownership. The Royal Commission took up this concept briefly, but judged that it would be better policy to manage access issues “in terms of control of personal information, rather than ownership” (Royal Commission 2017c, 102-103).

That dichotomy may blind us to a third option. CLAN is beginning to look more closely at the concept of a children’s trust. Put simply, a trust is an arrangement in which an adult person or body holds property or rights for the benefit of a child into the future. Children’s personal records would be made and held until they leave the Care system. The advantages are obvious: children would know that recordkeeping is occurring throughout their time in Care; they could contribute to the growing record and ask that critical incidents be recorded and included as they occur; they would take pride in recording their own milestones of achievement; and they would expect to be able to take possession of the record when they are about to move on—or at a later stage by agreement.

On that basis, when a child’s or young person’s time in Care is up—and they want to reconnect with their families, or to understand the reasons they were separated from them—they ought to be able to say:

Thank you for being my guardian. You acted in my best interests, as a good parent would, by making a record of the significant events of my life. Now your job is over, I would like you to hand me the records you made for me (Golding, 2017).

In more recent times, as we move now into a national redress scheme—and paradoxically increased civil litigation by Care leavers—CLAN’s thinking has turned also to the inherent conflict of interest when an agency that may have been responsible for maltreatment of the child holds the records that may confirm allegations of abuse. Responding to requests for records should not be influenced by consideration of any real or perceived conflict of interest. One way of minimising the likelihood of files going “missing” or being destroyed by convenient floods, fire or feral rats is to have all historical files transferred to an independent repository, such as the National Archives or State Archives where archivists can be trusted to provide access without fear or favour (CLAN (2017).

I conclude with a brief reference to other parallel developments in the change process. For some years, Care leavers have been very pleased to work alongside a range of historians, archivists, social workers and others who see the need for change in records and recordkeeping in OOHC. In Victoria, for example, CLAN had given evidence in 2011-2012 to the inquiries of the Auditor-General (Victorian Auditor General 2012) and the Ombudsman (Ombudsman Victoria 2012) and strongly supported the development of the national Find and Connect Web Resource (Swain 2014b).

This work has given impetus to important collaborations between Care leavers and professional archivists, historians and related academics (O’Neill, Selakovic, & Tropea 2012; Golding, O’Neill & Story 2013; and Wilson & Golding 2016). This is not to underestimate the significant contemporary theoretical work being done in critical archival studies and by other academics in related disciplines. This developing body of work (e.g. Gilliland & McKemmish 2015; Evans, McKemmish & Rolan 2017; Rolan 2017; Evans & Wilson 2018) is deepening and enriching our understanding of the records continuum, the varied meanings of participation, the archivist as activist, and new ways of developing empowerment and agency through exploring concepts of ownership and control of childhood records.

These two strands—Care Leaver advocacy and academic activism—came together when CLAN worked alongside Monash and Federation Universities and other community groups on an aptly named project, Setting the Record Straight for the Rights of the Child Initiative. From this project a two-day national summit was organised in Melbourne in May 2017 which brought together “a wide range of community, organisational, government and professional perspectives to address the ‘systemic and enduring’ failings of recordkeeping and archiving systems for those who experience childhood out-of-home care” (Evans 2017).

As mentioned, Royal Commissioner, Justice Jennifer Coate, delivered a keynote speech at the summit (Coate 2017). At the end of the two-day program there was general support for the development of a strategic plan that would transform recordkeeping in the OOHC sector. After the summit, CLAN resolved not only to continue to work with the Setting the Record Straight partners but also to develop its own Advocacy and Action Plan on Historical Records (Appendix 2: completed July 2017, revised October 2018).One component of the plan was to continue to lobby the Commission to include certain matters in its final report which went beyond its mandate on records relating to child sexual abuse.Without claiming undue credit, CLAN was pleased with many aspects of the volume of the Royal Commission’s Final Report dedicated to Recordkeeping and Information Sharing (Royal Commission 2017c) especially in framing problems in broader terms than sexual abuse.

Conclusion: incremental or transformative change?

The Royal Commission’s recommendations on records and recordkeeping are not perfect. For example, it decided not to insert a recommendation which had been mooted by CLAN (CLAN 2017) and others, that the five high-level principles for records and recordkeeping be supported by a sixth principle directed at enforcing the other five. The Commission argued finally that enforcement would best come through national Child Safe Standards in which

good records and recordkeeping practices are critical to maintaining a child safe institution. They are a core component of Child Safe Standard 1: Child safety is embedded in institutional leadership, governance and culture (Royal Commission 2017c, 110).

Nevertheless, the recommendations are valuable as much for their political worth as for their substantive content. All jurisdictions have accepted these recommendations—if only in principle, at this stage. CLAN and others have begun to use these recommendations as a rallying cry. For example, in August 2018 CLAN persuaded the President of the Australian Human Rights Commission to write to the New South Wales Government about the need to improve access to Care leaver records and to reduce the level of redactions in releasing records. In her letter, the President noted that NSW had endorsed the Royal Commission recommendations and urged the Government to implement them promptly and fully (Croucher 2018).

It is hoped that the annual Recordkeeping Principles Survey recently launched by the Rights in Records by Design Research Project will have a similar effect of holding authorities to their commitment.[3]The survey aims to capture the views of recordkeeping and other professionals on their capacities to implement the Royal Commission’s recordkeeping principles for child safety and wellbeing in the OOHC sector along with the national principles and guidelines which are part of the Department of Social Service’s Find & Connect Services and Projects (Recordkeeping Innovation 2015). Policy is one thing, best practice is quite another thing; and it’s important to know where best practice is occurring and to recommend it to others.

The Royal Commission concluded: “While recent reforms to legislation, policy and practice have improved records and recordkeeping practices, it is clear that institutional practices require further change.” (Royal Commission 2017c, 9). Will that change simply be incremental in the style, for example, of the Victorian Government’s recent legislative amendment pronouncing that historic Care and Protection orders—which had been treated as criminal records without the children having committed a criminal offence—will no longer be construed as criminal records? (Victoria 2018). Or will that further change be the vision of the national summit, namely:

a unified, collaborative and strategic plan aimed at transforming recordkeeping and archiving infrastructure so that rather than being the passive ‘subject’ of organisational records, children, young people and their adult selves have voice, agency and autonomy in their records and in recordkeeping processes (Evans 2017).

 

 

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McClellan, Justice Peter. (2017) Correspondence to CEO CLAN, 17 February 2017.

McDowall, JJ. (2013) Experiencing out-of-home care in Australia: The views of children and young people, CREATE Report Card 2013, Sydney, CREATE Foundation.

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Powell, Fred & Scanlon, Margaret. (2015) Dark Secrets of Childhood: Media, Power, Child Abuse and Public Scandals, Bristol, Policy Press.

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Attachment 1:

Table 1: Examples of Failures to Uphold Children’s Rights in Out-of-Home Care

 

Convention on the Rights of the Child Article	Breaches by Governments & Other “Care” Agencies
3. The best interests of the child	Made decisions in the interests of the system Housed children in facilities that were overcrowded and unsafe Stripped children of contact with their parents and siblings Failed to make plans for children to be reunited with the family
6. Ensuring the child’s development to full potential	Failed to provide adequate medical and dental services Denied opportunities for an adequate education; many were never able to achieve to their intellectual potential Young people were not taught basic life skills essential to survival in the outside world
7 & 8. Right to an identity	Changed children’s names Called children by numbers not names Deprived of all personal possessions Broke connection to family and community
9 & 20. The separation of children from their families, and on the special protection of the child temporarily or permanently deprived of his or her family environment	Took children from poor families by way of unfair processes that lacked transparency Denied rights to family visitors Withheld personal letters from family
12. The right to participate	Did not listen to children and young people—even when they wanted to report criminal sexual and physical abuse Did not give children a say in the crucial decisions that affected them Gave children no opportunities to express their opinion about their regular arbitrary changes of placements Denied children access to basic information about their circumstances and future plans
16. The right to privacy	Provided communal washrooms, toilets without doors, mass dormitories and dining halls and humiliating public punishments
19. The right to protection from all forms of physical or mental abuse, or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the Care of legal guardians or any other person who has the Care of the child	Failed systemically as demonstrated by a torrent of testimony assembled by the Senate Committee (Forgotten Australians2004)
25. The right of children in OOHC to have their living arrangements looked at regularly to see if they are the most appropriate.	Failed to supervise children’s placements Did not require regular accountability reports from institutions even when government funded them
28. The right to an education	Denied children access to anything more than basic schooling and some were given none at all Many were functionally illiterate when they left Care
31 & 32. The right to rest and leisure, to engage in play and recreational activities; and to be protected from economic exploitation and from performing any work likely to be hazardous or to interfere with the child’s education, or to be harmful to health or physical, mental, spiritual, moral or social development	Required children to work long hours in institutional laundries, scrubbing floors, making and mending clothes and boots, doing manual labour in vegetable gardens and farms. Took children out of school to do work in Homes Did not pay wages Many former residents suffer today from physical ill-health and injuries directly attributable to what they were forced to do as children. Many describe the loss of their childhood as the greatest deprivation.
34. The right to protection from all forms of sexual exploitation and sexual abuse	Failed to protect as demonstrated by a torrent of testimony assembled by the Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report 2017, especially Vol. 11 and the relevant Case Studies)
39. The right to all appropriate measures to promote physical and psychological recovery and social reintegration of children who were victims of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment	Failed to provide counselling or therapeutic services for children even when the need was obvious Failed to prepare young people for transition from institutional life to living in society Made no provision for continuing support for young people leaving institution

 

 

 

 

 

Attachment 2:

CLAN ADVOCACY AND ACTION ON HISTORICAL RECORDS

July 2017, Revised October 2018

This advocacy and action agenda is derived from CLAN’s long and continuing history of advocacy for Care Leaver access to records, from our Charter of Rights in Records (2016) and from the findings and recommendations of the National Summit on Records and Recordkeeping (2017) and the Final Report of the Royal Commission (2017).

 

The Problem

Achieving access to records is a major and long standing issue:

• The records are often disorganised
• Processes for accessing the records are often confusing or adversarial
• The contents of many personal records are negative and demeaning
• Support for individuals accessing the records is either non-existent or inadequate
• The records are not acknowledged as being the property of the Care Leaver.

Because these issues are pervasive but vary across States and Territories, CLAN will advocate for reforms within all State and Territory governments and departments, employing a seven-point action agenda.

 

The Action Agenda

 

1. Immediate Priority Access for Older Care Leavers

• Endorse and implement the Commonwealth Department of Social Services (DSS) access principles and guidelines
• FOI/RTI processes based on proactive disclosure i.e. the right of people to know what records are held about them
• Without removing any rights to full access to records, require record holders to identify key and critical documents to provide a pathway when case files are voluminous
• Use administrative discretion to release records, not to withhold them
• Assert the right to full unredacted release of records unless it is clearly unlawful to do so
• Explain and discuss redactions where they must be used
• Provide support services for access and interpretation of records
• Lobby Birth, Deaths and Marriage Registrars for a consistent, agreed and national approach for free access to 2 generations (i.e. me, parents, grandparents) of certificates

2. Support for Adding to/Annotating Official Records and Specifying Access Controls

• Normalise the existing right to incorporate individual’s stories into the record
• Advocate for the person’s story to be presented first in personal archives
• Enable access wishes to be clearly expressed and honoured, including informed consent for access by researchers

3. Remediation of Legacy Recordkeeping Systems

• Continue advocacy for resources and clear plans to remediate older systems, particularly name indexing and facilitation of connections to family
• Develop guidance for organisations transitioning from current service provider to legacy record holder

4. Development of Care Leaver History and Heritage (see also National Orphanage Museum Strategic Plan)

• Encourage and support initiatives that enable individuals Care Leavers and communities to tell their stories of ‘care’ experiences, the impacts of institutional systems, and to create their own histories, exhibitions, memorials, commemorations, storytelling and other activities
• Lobby for Care Leaver history and heritage to be incorporated into primary, secondary, university and other curricula, professional and community education

5. Training for Records Release

• Work collaboratively to develop guidelines and training on how to release records with minimal redaction (i.e. only where absolutely necessary), including informative disclosure of reasons for redactions, accessible processes for appeal, effective monitoring and oversight to ensure fair and consistent practices and specialised release mechanisms over reliance on generic FOI/RTI processes.

6. Research Ethics

• Work collaboratively to devise protocols and obligations for researchers in dealing with access to case files and personal information in out of home care research.

7. Recommendations of the Royal Commission (RCIRCSA) and beyond

This part of the Strategic Plan was previously framed as advice to the RCIRCSA, but in December 2017 the Commission published its Final Report—of which Volume 8 is devoted entirely to Recordkeeping and Information Sharing. We are now recasting this section of the Strategic Plan to accord with the recommendations contained in that report. We endorse the five principles recommended in the Final Report, giving particular attention to Principle 5:

Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent.

CLAN will also continue to work with the partners who collaborated in the National Summit on Setting the Record Straight for the Rights of the Childheld in Melbourne in May 2017. In particular, CLAN will participate in the Rights in Records by Design Project funded through an Australian Research Council Grant—through Monash University and Federation University—which is pursuing many of the issues discussed at the Summit.

A special aspect of this project that CLAN will monitor closely is a national survey of the views of the capacities of recordkeeping and other professionals involved in childhood out-of-home Care of their capacities to implement the Recordkeeping Principles of Child Safety and Wellbeing set down by RCIRCSA and the Records Access Principles and Guidelines developed in 2015 as part of the DSS’s Find & Connect Services and Projects. The national survey will become an annual event.

In conjunction with these initiatives, CLAN will take the opportunity to refine its Charter of Rights in Records and to urge recordkeepers to honour that Charter.

[1]The term “Care” is problematic; hence, it is often capitalised (as in this paper) or used in ironic quotation marks. See Wilson and Golding 2015, 27-29. The term “Care leavers” is widely used to refer to people who were raised in orphanages, children’s homes and foster Care.

[2]Previously Care Leavers Australia Network and now Australasia to acknowledge membership in New Zealand where a royal commission began in 2019.

[3]Rights in Records by Design is funded through an Australian Research Council Discovery Grant. The Chief Investigators are Associate Professor Joanne Evans (Monash University), Associate Professor Jacqueline Wilson (Federation University), Professor Sue McKemmish (Monash University), Associate Professor Philip Mendes (Monash University), Professor Keir Reeves (Federation University), and Dr Jane Bone (Monash University). The Project is investigating systems to support the recordkeeping rights of people who experience childhood out-of-home Care.