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The number of Aboriginal children in out-of-home care in Western Australia has risen dramatically over the past two decades.

In 2003, 570 children (35% of total in care), were First Nations. According to a new Human Rights Watch report, by 2023, this had skyrocketed to 3068 children (59%) of all children forcibly removed from their parents.

To put these statistics into starker relief, WA First Nations children only account for 7% of the state’s child population. Human Rights Watch said these figures mean “Western Australia has the highest rate of overrepresentation of Aboriginal children in out-of-home care of any state or territory”.

 was released on March 26.

It is based on input from 33 Aboriginal families who, together, have had 100 children forcibly removed by the WA Department of Communities. It also includes testimony from grandparents and individuals who have been removed.

The practice of forcibly removing Aboriginal children across the nation has been highlighted in . It mirrors that of the Stolen Generations, the mass stealing of Aboriginal children from the late 1800s until the early 1970s. In an earlier iteration, the of Aboriginal kids being removed were in WA.

�ճ����1997 report identified First Nations child removals as a “genocidal” practice. HRW said a wealthy state, like WA, should be addressing housing and domestic violence — issues it cites as reasons to remove children — at their root cause.

Unaddressed and repeated

“Aboriginal families are struggling with unstable accommodation, yet a secure home — one of the most fundamental needs for a child to thrive — is denied to them,” said Noongar woman Marianne Headland Mackay, support coordinator of the , which assisted HRW with the research.

“Instead of offering support to struggling families, the government’s approach is to remove children, causing more damage and deepening the wounds in our communities,” Mackay said.

According to the HRW, successive WA governments have failed to address the harms caused by targeting First Nations children as part of a racist assimilation policy to “absorb” First Peoples into the white settler population. It was a genocidal policy that sought to undermine and end Aboriginal culture.

WA allocates the least of its child protection budget — just 5% — to assist families in remaining the primary carers, compared to the national average of 15%.

HRW cites Aboriginal elder Brian Butler in his 2021 book , saying that despite the turn to multiculturalism four decades ago, “Non-Indigenous Australians still tend to believe that Indigenous culture has little to offer a child in comparison with western culture — the mindset that created the Stolen Generations.”

Reforming the system

Child protection is governed by the , empowering the department to forcibly remove children from their parents when it deems they have or are likely to experience “harm because of physical abuse, sexual abuse, emotional abuse and/or neglect”.

Family violence and then neglect are the reasons most often cited.

Parents interviewed by HRW said the department is unjustifiably removing children due to reasons beyond their control, such as homelessness or being the victim of domestic violence. Instead of running a child protection system that prioritises keeping families together, they said the department is punishing parents for being poor.

“Of the 114 children that were removed from their parents interviewed by Human Rights Watch, only about 18 were reunited,” HRW noted. “In some cases, children became so desperate to leave care and reunite with their parents that they resorted to running away from their care placements to return to their parents.”

HRW said that children being placed in out-of-home care results in overall poorer outcomes, including of physical and mental health, as well as education. It is well understood that the policy increases a child’s likelihood of ending up in a child prison and then moving on to the revolving door of the .

The report recommends that a similar system be set up to the Custody Notification System, to ensure that when an Aboriginal person is taken into police custody they are put in contact with a lawyer from an Aboriginal legal service.

There are calls for the Aboriginal and Torres Strait Islander Child Placement Policy Principle to be strengthened to ensure the department attempts to place children in the care of family or kin prior to being placed in care that is further removed. This would ensure measures are taken to ensure children are kept in connection with family, culture, community and Country.

A political veto on prosecutions

Victorian Senator Lidia Thorpe that the Bringing Them Home report was a “damning indictment of the genocidal policies used against First Peoples”.

�ճ���� of the International Criminal Court defines genocide as an attempt to destroy, in whole or in part, a national, ethnical, racial or religious group, via killings, causing serious bodily or mental harm, deliberately inflicting conditions calculated to bring about physical destruction, the prevention of births or the forcible removal of children from the group.

Thorpe, a Gunnai, Gunditjmara and Djab Wurrung woman, referred to this as she spoke to her  bill, which sought to remove the attorney-general’s power to block the prosecution of genocide and other atrocity crimes.

�ճ����major parties Thorpe’s bill, as they have done with all attempts to prosecute Rome Statute offences since the government inserted these atrocity crimes into the Criminal Code Act 1995 in 2002.

A successful genocide case against WA’s high rate of forced child removals could bring about systemic change, and hold the state accountable for its devastating policy.

WA Greens Senator and Yamatji and Noongar woman Dorinda Cox, who supported Thorpe’s bill, said the “harsh reality” is that the colonial governments have committed all forms of the  of genocide.

“How many of our children continue to be transferred into out-of-home care?”, Cox asked. “These are uncomfortable conversations to have, but they are necessary to face the injustices that are happening.

“When we said sorry … In 2008, it meant that everyone should be standing on the right side of history, but it’s continuing. The genocide continues.”

[Paul Gregoire writes for Sydney Criminal Lawyers, where was first published.]