Contemporary out-of-home care

The institutional context

Each state and territory in Australia has an out-of-home care system where children who are considered unable to live safely with their families or in informal care arrangements are placed with alternative carers on a short- or long-term basis. These placements usually occur after statutory intervention by the jurisdiction’s child protection system and the courts.

The responsibility for administering, funding and delivering child protection services – including the provision of out-of-home care – rests with the states and territories. The objectives and operation of these systems are broadly similar, but no two systems are wholly alike. Each state and territory has its own array of interconnected legislation – supplemented by regulations, standards, policies and procedures – to meet its social, economic, demographic and geographic circumstances. Although the Australian Government has had a relatively minor role in contemporary child protection, with the adoption of the National Framework for Protecting Australia’s Children 2009–2020 it has taken on greater responsibility for promoting a nationally consistent approach to policies and practices.

Australia’s systems of out-of-home care have changed enormously in recent decades. Gone are the children’s homes, mission dormitories, large disability homes and other historical residential institutions. There is now greater emphasis on placing children in home-based settings, preferably with family or kin. Residential care is still used, but those facilities are typically somewhat domestic in scale and operation. Change is ongoing. In most jurisdictions, day-today responsibility for out-of-home care services is being transferred from government to nongovernment organisations, including a small number of for-profit agencies in some jurisdictions.

Children in out-of-home care

The number of children in the contemporary out-of-home care system is rising. At 30 June 2016, there were 46,448 children in statutory out-of-home care throughout Australia – up from 25,454 children in 2006 and 13,979 in 1996. Currently more than eight out of every 1,000 children are not living at home with their parents.

Although there are variations between jurisdictions, most of these children are in kinship or relative care (48.6 per cent) and foster care (38.7 per cent). Other types of care include residential care, independent living, family group homes and other home-based care, voluntary care and uncategorised placements, such as boarding schools, refuges and hotels/motels. Some of these arrangements are not necessarily under legal orders.

The numbers of Aboriginal and Torres Strait Islander children in out-of-home care are disproportionately high in all jurisdictions. Nationally, the rate of Aboriginal and Torres Strait Islander children in out-of-home care is almost 10 times that for non-Indigenous children. Just 5 per cent of Australian children aged 0–14 years are Aboriginal or Torres Strait Islander, yet they make up 36 per cent of all children in out-of-home care.

Although data is incomplete, we heard that children with disability are also significantly overrepresented. One expert witness estimated that at least 24 per cent and up to 30 per cent of children in out-of-home care have some form of disability. Similarly, surveys in Victoria and Queensland suggest that between 20 and 26 per cent of children in residential care have disability. Intellectual, learning and conduct disorders were the most prevalent forms of impairment reported.

Children from culturally and linguistically diverse backgrounds are estimated to constitute 13 to 15 per cent of children in out-of-home care, a significant proportion of whom have refugee experiences. Although no jurisdictions collect relevant data, children of care-leavers also appear to be over-represented, with research suggesting that the risks of intergenerational involvement in out-of-home care are exacerbated by social and economic disadvantage.

The role of contemporary out-of-home care in children’s lives

Laws in each jurisdiction set out the role of contemporary out-of-home care, with all states and territories identifying the safety, welfare and wellbeing of children as a primary consideration in decisions made about children. All state and territory jurisdictions stipulate that children should only be removed from their families as a last resort. Where out-of-home care is needed to prevent further serious harm, the child should be protected and nurtured to grow and develop without ongoing disadvantage.

The responsibility to protect children is shared by all Australian governments, institutions and the community, with various policy and legal frameworks making it clear that protecting children is everyone’s business. Child protection laws, regulations and policies in each state and territory – including those governing out-of-home care – determine the conditions for placing children in care, recruitment of carers, placement decisions, funding arrangements, and regulation and oversight of services and service providers. At the heart of the contemporary out-of-home care legislative and practice framework is the ‘best interests’ principle, which requires that decisions made and actions taken concerning children be in their best interests.

The contemporary out-of-home care system is an important component of ensuring children are kept safe and well. Most carers and caseworkers are committed to protecting and supporting the children in their care and we acknowledge that carers and caseworkers often provide sanctuary, stability and healing at critical points in the lives of many children.

Nature and extent of child sexual abuse in out-of-home care

Child sexual abuse covers a wide range of behaviours and can take many forms. Its nature is not changed by institutional settings but those settings do give rise to particular risks. Out-of-home care itself appears to present risks to children whose vulnerability is exacerbated by isolation from their families, communities and peers and the instability of the settings in which they live.

Perpetrators may exploit the particular features of out-of-home care settings. It is, for instance, desirable that foster carers, kinship/relative carers and residential care workers become close with the children in their care in order to protect and support them, and provide for their emotional and physical wellbeing. This proximity may present immense risk if a carer is a potential perpetrator as they will have unsupervised access to vulnerable children, usually in private settings.

Our work was informed by our public hearings, research, submissions, roundtable forums and by what we heard from survivors in private sessions and from written accounts about the sexual abuse they experienced as children in out-of-home care. While what survivors told us generally supports the available evidence, we recognise that we cannot know how well their experiences reflect those of victims and survivors who could not or did not attend a private session or provide a written account.

Of the 257 survivors who told us in a private session that they had been sexually abused in contemporary out-of-home care, 170, or 66.1 per cent, said they were abused in home-based care, and 96 (37.4 per cent) said they were abused in a residential care setting. Some told us they were abused in both types of care placements.

Some research suggests that boys are more likely than girls to be victimised by non-family perpetrators (extra-familial) and by multiple male abusers, while girls are more likely than boys to be sexually abused by family members (intra-familial). Information provided to us by survivors in private sessions is reasonably consistent with this research literature. More female survivors (94, or 81.7 per cent) than male survivors (76, or 53.5 per cent) told us about being abused in home-based care. Many female survivors also described abuse by multiple perpetrators.

Most of the survivors of sexual abuse in contemporary out-of-home care who attended a private session told us they were abused by an adult – typically a foster or kinship carer, another adult in the household, a residential care worker, or an adult outside of the care placement.

Some told us they were abused by another child, such as the biological children of their foster carers or other children in the care placement. The risks of harmful sexual behaviours by other children appear to be particularly high in residential care settings.

Factors affecting a child’s vulnerability

We learned from research and from private sessions that certain individual circumstances can heighten a child’s vulnerability to sexual abuse. In the context of contemporary out-of-home care, factors that most obviously contribute to greater vulnerability may include:

• previous experience of abuse or neglect
• loss of connection to family and culture
• lack of understanding of what constitutes abuse.

All children in out-of-home care are vulnerable to abuse, but their level of vulnerability may depend on their exposure to certain risk or protective factors. In contemporary out-of-home care settings, factors that need to be addressed to increase the safety of children from child sexual abuse include:

• adequate screening, authorisation and training of carers and staff
• ongoing supervision and training on how to keep children safe
• adequate monitoring and supporting of out-of-home care placements – including regularly visiting foster and kinship/relative care placements, creating opportunities to talk with children on their own, and directly observing carers and their interactions with children
• establishing residential care as a safe, supportive and therapeutic environment for children with complex needs, staffed by skilled and experienced workers
• taking sufficient care in placing and supporting children with harmful sexual behaviours, especially in residential care settings.

The impacts of child sexual abuse in out-of-home care

Children in out-of-home care may have been removed from their families of origin because of severe abuse and neglect. If these children are sexually abused while in out-of-home care, the compounding experience of abuse may result in complex trauma and cumulative harm. We heard that victims can experience feelings of betrayal and loss of trust when abused in this context. Sexual abuse can also lead to placement instability, as children may be removed from a placement as a result of disclosing abuse or because carers are unable to manage the ways in which children express complex trauma.

Experiences of sexual abuse, and a poor institutional response to that abuse, can compound other adverse experiences in childhood, setting some children on a pathway to drug and alcohol abuse, homelessness and criminal behaviour. We also heard that experiences of abuse and placement in care can have intergenerational effects. A number of survivors of sexual abuse in out-of-home care told us their parents had been sexually abused in care, or that their own children had been taken into care, or both.

In recent decades, out-of-home care services have been transformed by deinstitutionalisation, improved screening of organisations and carers, and stronger regulation and oversight of the out-of-home care sector. Yet during our inquiry we heard that some mistakes of the past continue to undermine the safety and wellbeing of children in care. These include that:

• child protection systems are not sufficiently focused on providing families in crisis with supports when needed, resulting in too many children continuing to enter out-of-home care
• Aboriginal and Torres Strait Islander children remain significantly overrepresented, as do children with disability and children from poor and disadvantaged families
• deficiencies in the care and support provided to children while they are in care are often compounded by the failure to adequately support care-leavers as they transition to independent living.

During our inquiry, we heard that institutional responses to child sexual abuse in contemporary out-of-home care were often compromised by factors such as failure to address systemic risks, incomplete assessment and management of risks, failure to create a culture that supports disclosures, poor responses to child sexual abuse disclosures, and failure to share information.

Addressing systemic risks

Some systemic risks are specific to residential care, such as the challenges associated with caring for groups of vulnerable adolescents in the same facility, and the use of residential care to care for children who have exhibited potentially harmful sexual behaviours, many of whom may have been victims of sexual abuse themselves. Such risks are often compounded by chronic staffing issues such as high turnover and the frequent use of casual labour, workers lacking the right mix of skills and experience, and deficiencies in staff training, supervision and support.

Some systemic risks apply to all out-of-home care settings, such as placement instability, frequently shifting care arrangements and the higher likelihood that children in care, having been separated from their families and friends, will lack external support networks. These factors, together with frequent changes in caseworkers, mean that children in out-of-home care are more likely to be isolated and with few, or sometimes no, adults they can trust. Without a rapport with trustworthy adults, children are less likely to disclose sexual abuse and other concerns.

Assessing and managing risks

While there are many variations in out-of-home care systems across Australia, we identified a number of common failures relating to assessing and managing risks in contemporary out-of-home care. These include:

• not addressing the additional challenges faced by some groups of children in care, including insufficient recognition of the role of Aboriginal and Torres Strait Islander culture in keeping children safe, and the higher vulnerability of children with disability to a range of maltreatments, including sexual abuse
• not identifying, assessing and supporting children with harmful sexual behaviours or referring them to services where they could receive an assessment, and the existence of gaps in the advice provided to prospective carers
• placement instability, adding to the difficulties children often experience in establishing trusting relationships with the array of professionals and carers who come and go in their lives
• inadequate support for many kinship/relative placements, including lower rates of financial reimbursement and limited opportunities for training and casework support
• not adequately protecting children in residential care from sexual exploitation by adults who are able to manipulate children’s need for love and attention.

Creating a culture that supports disclosures

During our inquiry we heard of the difficulties that children in contemporary out-of-home care often experience in being heard, feeling safe to disclose sexual abuse, and having their concerns taken seriously. We have learned that two of the key barriers to disclosure for victims of child sexual abuse in out-of-home care are not understanding what constitutes abuse and not having someone they can trust. Making a disclosure can also be influenced by cultural and other factors, for instance, language and literacy barriers. Perpetrator behaviours can also create barriers to disclosure, such as threatening a child that disclosing the abuse may result in them being sent away – separating them from their school, friends, siblings and all that is familiar.

Noting the difficulties children in out-of-home care face in disclosing sexual abuse, it is incumbent on services to create institutional cultures in which children feel safe to disclose and are confident the person they disclose to will respond appropriately. This was confirmed by commissioned research which reported that children generally feel safe in institutions when adults listen to them and respond by taking their concerns and needs into account, including by informing the child about what action has been taken. This requires an organisational culture where adults are aware of and confident about having these difficult conversations.

Responding appropriately to disclosures

We heard about a number of different ways in which caseworkers failed to respond appropriately to a child’s disclosure of sexual abuse in contemporary out-of-home care. Given that most current out-of-home care service providers have established policies and procedures for dealing with allegations of abuse, it is not clear whether caseworkers were not following procedures or whether they had not been adequately trained in how to respond when a child disclosed sexual abuse. Whatever the cause, it was clear that in some cases the treatment of the child as described to us was grossly inadequate or, at times, placed the child at further risk.

Improving information sharing

We identified the need for improved information sharing, within and across jurisdictions, to prevent and respond to child sexual abuse in out-of-home care. Of particular relevance is sharing of information about carers and others who have abused or may pose a risk to the safety of children in out-of-home care. While child protection legislation in some jurisdictions provides for sharing information about child safety with carers prior to and during placement, we heard evidence that information provided to protect children in care may sometimes be too little, too late.

Making out-of-home care child safe

Volumes 6, Making institutions child safe, Volume 7, Improving institutional responding and reporting and Volume 8, Recordkeeping and information sharing present a national approach to making, improving and supporting child safe institutions. These volumes explain how institutions can be made safer for children by better preventing, identifying, responding to and reporting institutional child sexual abuse. The recommendations in Volumes 6, 7 and 8 are of general application to out-of-home care. The recommendations in this volume for making out-of-home care child safe supplement them.

Child Safe Standards

As part of our Terms of Reference, we were required to inquire into what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future. A key aspect of this task has been to examine what makes institutions ‘child safe’.

In Volume 6, Making institutions child safe we recommend that all institutions implement a set of 10 Child Safe Standards we have identified (Recommendation 6.4). We also recommend the Australian Government and state and territory governments ensure the Child Safe Standards are implemented in all institutions that engage in child-related work (Recommendations 6.7, 6.10 and 6.11).

Addressing gaps in the evidence base

During our inquiry, we identified an urgent need to improve the use of information about the extent of child sexual abuse in out-of-home care. Currently only some child abuse is notified, and subsequent reporting about those notifications is limited. The Child Protection National Minimum Data Set has resulted in some recent improvements. However, there are still no reliable estimates of the number of children in out-of-home care who have been sexually abused, the characteristics of those children and who is at greater risk, or who perpetrated the abuse, when and where the abuse occurred, and the adequacy of responses.

As agreement between governments on definitions in relation to child sexual abuse will allow more consistent identification and reporting of child sexual abuse in out-of-home care, we recommend developing nationally agreed terms and definitions for this purpose (Recommendation 12.1).

We also identified enhancements to the Child Protection National Minimum Data Set that will improve the use of existing records about children in out-of-home care and help identify certain risks; and the scope for improved data collection and consistency across governments to enhance reporting on important outcome indicators (Recommendations 12.2 and 12.3).

Accreditation of out-of-home care service providers

In our view, mandatory accreditation for all out-of-home care service providers – both government and non-government – would help protect children in care from sexual abuse by promoting improved standards, transparency and public confidence in the quality of out-of-home care services.

There was broad support for adopting consistent regulation and oversight of all out-of-home care service providers, provided this did not diminish the processes in jurisdictions with more rigorous standards. We recommend each state and territory government establish mandatory accreditation schemes that are based on the Child Safe Standards (Recommendation 12.4).

There is potential for conflicts of interests where the funding agency, usually the child protection department in each jurisdiction, is also responsible for accreditation of  nongovernment providers. As differentiating between the responsibilities of contract engagement/ funder and oversight agencies is a valuable step in improving the out-of-home care system, we recommend that accreditation of service providers be undertaken by an agency independent of the lead department (Recommendation 12.5).

Carer authorisation

Carers are the bedrock of contemporary out-of-home care. Sexual abuse by carers, or their failure to support children in their care who have been abused by others, can result in significant harm. Ensuring that carers are the right people to care for children is essential.

Carer authorisation requirements differ between states and territories. Each jurisdiction subjects all types of carers to basic probity checks – usually a National Police Check, Working With Children Check and referee checks. Some jurisdictions conduct more comprehensive screening, and only some require residential care workers to be authorised. Our recommendation for nationally consistent carer authorisation assessments highlights the need for all types of carers to be assessed, and for assessments of carer suitability to – at a minimum – include community services checks, documented risk management plans to address any risks identified through community services checks, and at least annual review of those risk management plans (Recommendation 12.6).

Foster and kinship/relative carers are, in theory, reviewed annually in most jurisdictions, and at least every two to three years in others. Existing policies indicate that these reviews should be extensive, including discussion and documentation of any changes to the household, the physical environment of the house, any allegations against the carer and the willingness of the carer to continue in the role. Additional needs or support requirements of carers can also be identified during this formal process.

Having regular reviews of authorised carers, including residential care staff, is an important accountability mechanism for ensuring out-of-home care service providers can maintain confidence in the quality and competence of their authorised carers. It is our strong view that interviews with all the children in a placement, including in residential care placements, should, as a matter of course, form part of the annual review of carers (Recommendation 12.7).

In recent years the proportion of children in kinship/relative care placements has increased rapidly in all states and territories. While the standards applied to assessing kinship/relative carers need to be equivalent to those applied to other carers, there are essential differences that must be acknowledged and incorporated into the assessment of kinship/relative carers. We found there was considerable support for the development of specific models for assessing and authorising kinship/relative carers, and note that such models are being tested and evaluated in some jurisdictions. Some of the tools being developed are strengths-based, in that they recognise the strengths of families while aiming to identify supports the family needs to keep the child safe, including building supportive relationships and maintaining community connections. We have recommended the adoption of specific models of assessment that are appropriately tailored for kinship/relative care (Recommendation 12.8).

Child sexual abuse education strategy

There was broad agreement that a strategy is needed to create and guide nationally consistent policy and practice, to prevent child sexual abuse in out-of-home care in Australia and encourage and support the disclosure of child sexual abuse at the earliest opportunity. There was also agreement that this strategy requires the development and evaluation of resources and program implementation. We recommend that all state and territory governments collaborate in developing a sexual abuse prevention education strategy for children in out-of-home care, with input from children in out-of-home care and care-leavers (Recommendation 12.9).

Ensuring the voices of children are heard

We know that complaint processes are not always child-friendly and that the notion of making a formal complaint may be foreign to many children. Some may face additional barriers, including limits on confidentiality, for example in small or remote communities or when the child is in a kinship/relative care placement and the complaint is about a family member. We recommend that state and territory governments, in close collaboration with out-of-home care providers and peak bodies, develop resources to assist out-of-home care providers to implement appropriate mechanisms for children in out-of-home care to communicate, either verbally or through behaviour, their views, concerns and complaints (Recommendation 12.10).

Ensuring all out-of-home care is trauma-informed

There is growing awareness of the need for, and a strong rationale for the value of, a trauma informed approach to human service delivery. Support for trauma-informed care is driven, at least in part, by an expectation that this approach may reduce the incidence of further abuse.

We recommend that training for foster and relative/kinship carers, residential care staff and child protection workers includes an understanding of trauma, its impact on children and the principles of trauma-informed care to assist them to meet the needs of children in out-of-home care, including children with harmful sexual behaviours (Recommendation 12.11).

Children with harmful sexual behaviours

Children in out-of-home care are sometimes sexually abused by other children. We heard from experts, practitioners and survivors who told us about contemporary out-of-home care institutions that failed to protect children from the harmful sexual behaviours of other children. We also heard of institutions that did not respond effectively to the complaints by children or their families of sexual abuse by another child. We were told about institutions that did not provide appropriate support and intervention to either the child who had been sexually abused or the child who exhibited harmful sexual behaviours.

There is a need to better protect children from, and respond to, abuse by other children in out-of-home care. In particular, there is a need to ensure professional assessments of any child who exhibits harmful sexual behaviours, followed by case management, appropriate support services, and careful placement matching – ensuring carers have the information needed for them to properly support the child, while taking steps to protect other children in the placement (Recommendations 12.12 and 12.13).

Preventing and responding to child sexual exploitation

We heard during our inquiry that strategies to identify and disrupt opportunities for the sexual exploitation of children, including children in out-of-home care, depend on central coordination and multi-disciplinary approaches. In residential care settings, children may be at acute risk of sexual exploitation if the location of residential units becomes known to perpetrators. We identified actions needed in all jurisdictions to prevent children in residential care from becoming easy targets for sexual exploitation – starting with coordinated and multi-disciplinary strategies to disrupt the sexual exploitation of children in residential care (Recommendation 12.14).

We recommend that a nationally consistent definition for child sexual exploitation be adopted to enable state and territory governments to collect relevant data, report on sexual exploitation as a form of child sexual abuse, and evaluate the success of strategies to improve the safety of children in out-of-home care from sexual exploitation (Recommendation 12.15).

Improving the safety of children in particular settings

Through our work, we also identified a number of strategies to improve the safety of children in all out-of-home care settings that need to be taken up by out-of-home care service providers, in collaboration with the child protection departments in each jurisdiction.

Increasing placement stability

The importance of stable placements and consistent care for children in contemporary out-of-home care has been emphasised by witnesses to our inquiry and submissions alike, both for the overall wellbeing of children and as a way of improving the safety of children in care. The need for sharing of information with carers about a child is of particular relevance to preventing and responding to child sexual abuse in out-of-home care. Many submissions highlighted the need for out-of-home care service providers to have access to all relevant information about a child in order to ensure the most appropriate support and placement. We also learned that carers often do not feel adequately supported to provide for the needs of the children in their care.

Out-of-home care service providers should develop practical strategies to assist in ensuring the longer term stability of foster care placements (Recommendation 12.16).

Supporting kinship and relative care

Increasing numbers of children in out-of-home care are being placed in kinship/relative care. Research indicates that children in kinship care have significantly fewer placement changes than children in other types of out-of-home care. Where they are measured, the outcomes for children in kinship/relative care placements are as good as or better than for children in foster care.

We have been told that the needs of grandparents and other kinship/relative carers who care for children who have experienced sexual abuse are not being consistently met or adequately supported, and that this issue requires the attention of all state and territory governments. We recommend that all state and territory governments ensure the financial and other supports provided to kinship/ relative carers are equivalent to those provided to foster carers, that any additional supports identified during carer assessments are funded and that additional casework support is provided to assist with maintaining birth family contact (Recommendation 12.17).

Therapeutic residential care

While there are multiple risks commonly associated with residential care, it also presents crucial options for some of the most vulnerable and complex children in the out-of-home care system. When properly managed and resourced, residential care can bring skilled and experienced staff together with the children who most need their support. We recommend measures to make the key focus of residential care an intensive short-term therapeutic model designed to meet the complex needs of children with histories of abuse and trauma (Recommendations 12.18 and 12.19).

Improving the safety of certain groups of children

Aboriginal and Torres Strait Islander children

There is insufficient recognition in the child protection system of the essential importance of Aboriginal and Torres Strait Islander culture in keeping children safe, despite legislative and policy requirements to do so. The fundamental goal of the Aboriginal and Torres Strait Islander Child Placement Principle is to enhance and preserve Aboriginal and Torres Strait Islander children’s connection to family and community and sense of identity and culture. We recommend that each state and territory government gives priority to developing and implementing plans to support the proper implementation of all elements of the placement principle (Recommendation 12.20).

Children with disability

Improving the safety of children requires mainstream out-of-home care services to develop competence in working with children with disability and high support needs. On the basis of current policies in most jurisdictions, children entering out-of-home care should have individualised care plans. These plans need to be resourced and implemented. Individualised care plans for children with disability in out-of-home care need to be based on adequate assessment upon entry into out-of-home care. Plans should incorporate specific risk management and safety strategies for individual children, identify trusted adults in the child’s life, ensure the availability and provision of therapeutic support, and ensure support for disability-related needs (Recommendation 12.21).

Supporting care-leavers to disclose

Many of the children who leave contemporary out-of-home care each year transition to independent living at a younger age, in a more abrupt manner and with far fewer emotional, social and financial supports than other young Australians. Giving care-leavers reliable and planned access to post-care support services, which are already provided on an ad hoc basis in most jurisdictions, has the potential to provide child sexual abuse survivors with the necessary tools to help them safely transition to adulthood, regardless of whether they have disclosed the abuse. Post-care supports offered to all care-leavers must be made easily accessible. In recognition of the delays in disclosure of abuse and the cluster of factors of disadvantage experienced by this group, we recommend that targeted supports to address the specific needs of sexual abuse survivors should be easily accessible until at least the age of 25 (Recommendation 12.22).