Self-Determination Within a Reconceptualised Relational Human Rights Framework to Attain Equality for Indigenous Peoples in Child Protection

Abstract

This paper argues for a conceptualisation of self-determination with respect to Indigenous Peoples’ child protection that is grounded in human rights which are plural, relational, and collective as well as individual. This challenges the idea that human rights are universal and static standards based on a code of enumerated rights with a focus on individual rights. Conceptions of the best interests of the child, permanency in care arrangements, and attachment within colonial institutions such as children’s courts often presume non-Indigenous understandings of family and culture. These child protection concepts, which are often framed as consistent with or even necessary to attain children’s human rights, implicitly embed colonial understandings and values with respect to family and community relations. An acknowledgment of the role of law in structuring relationships is necessary for the human rights of Indigenous children to be upheld. We argue that a relational and distributional conceptualisation of these rights can help to clarify how the law can contribute to strengthening, rather than undermining, Aboriginal and Torres Strait Islander family and community relationships.

1. Introduction

This paper argues for a conceptualisation of self-determination with respect to Indigenous Peoples’ child protection that is grounded in human rights which are plural, relational, and collective as well as individual. This challenges the idea that human rights are universal and static standards based on a code of enumerated rights with a focus on individual rights. Within this framework, the ideal of equality is central to the distribution of sovereignty or political power. This ideal encompasses decision-making and resource distribution. A relational approach to the right to self-determination assists with addressing arguments with respect to competing responses to Indigenous children’s individual and collective rights. Individual and collective rights are, we argue, through a relational conceptualisation of rights intertwined.

This article is written by three Indigenous (Paul Gray and Wendy Hermeston are Wiradjuri, Kirsten Gray is Muruwari) academics, two of whom have direct experiences of removal and separation by the Australian child protection system, and one non-Indigenous academic. All authors have extensive experience advocating for system and practice changes to better promote and uphold the rights, interests, and futures of Aboriginal and Torres Strait Islander children; this experience was obtained through various roles, including involvement in direct service provision, legal representation and advocacy, policy development, and applied and theoretical research.

Drawing on our own and published empirical research, we illustrate how key child protection concepts, which are central to how child welfare and wellbeing is framed, embed colonial concepts of family and community relations. Institutional conceptions of the best interests of the child, permanency in care arrangements, and attachment presume non-Indigenous understandings of family and culture. Their application thereby reinforces and further entrenches the original imperial violence that underpins the over-representation of Indigenous Peoples involved with contemporary child protection systems. These child protection concepts, which are often framed as consistent with or even necessary to attain children’s human rights, implicitly embed colonial understandings and values with respect to family and community relations.

A reconsideration of child protection concepts, including best interests and permanency in care, from Indigenous Peoples perspectives will be discussed to illustrate how child protection institutions need to change and respect the human rights of Indigenous Peoples in child protection through assumption of principles of self-determination. We conclude that self-determination in child protection is an ideal, which can be strived towards in a dynamic and ongoing way. A plural, relational, and distributive conception of human rights support engagement in the space between what currently exists and aspirational institutional values, which are necessary to enable transformational change. This will provide opportunities to attain greater justice within existing child protection institutions while the radical transformation of child protection systems required to attain equality are advocated for and implemented.

2. Background

Human rights serve as a common language and framework for addressing political, policy, and legal issues, and have achieved widespread acceptance and at least rhetorical traction across liberal democracies. However, while not the subject of this article, the largely uncontested presumption that human rights should be adhered to has, with the rise of extreme right-wing populism and the accompanying shift from liberal to neo-liberal values, become less of a consensus across Western democracies (Gilmour 2018; Trump 2025). This is particularly alarming at the intersection between procedural rights—in particular the right to be heard, to be treated with dignity and respect, and to enhance transparency and impartiality in decision-making—and substantive human rights. As such, it is acutely important to have clarity about what rights mean and why they must hold authority. It also requires persuasive arguments to support human rights that have previously held moral sway, even if they have not always been adequately implemented.

Human rights have been used extensively by Indigenous Peoples as a tool for advocacy since the 1970s (Anaya 1996, p. 46). Indigenous Peoples have not only claimed rights but have made significant contributions to shaping the jurisprudence (law and conceptual paradigm) of human rights (Anaya 1996, pp. 86–87). Notably, and relevant to how we are discussing self-determination in child protection for this article, Indigenous Peoples have made contributions in extending definitions of non-state actor rights from individual to collective rights and progressing recognition of the rights of minority colonised Indigenous Peoples (Anaya 1996, p. 86).

The Declaration on the Rights of Indigenous Peoples, adopted by the United Nations in 2007 (United Nations 2021), is one manifestation of the success of Indigenous Peoples in influencing and changing international human rights law. UNDRIP provides the most extensive coverage of Indigenous Peoples’ rights in international law. It spans collective and individual rights including recognition of Indigenous Peoples’ rights to self-determination and participation in all decisions that affect their lives.

It builds on successful litigation and advocacy with respect to the United Nations Convention on the Rights of the Child (UNCRC); the International Covenant on Civil and Political Rights; the International Convention on Economic, Social, and Cultural Rights; and other treaties (United Nations 1966a, 1966b, 1989). It is important to note there is recognition of both collective and Indigenous-specific rights across these treaties (Libesman 2014, pp. 27–53), although a review of this jurisprudence is beyond the scope of this paper.

Indigenous Peoples’ human rights advocacy has also been successful in domestic litigation. Most notable is the case brought by Canada’s First Nations Child and Family Caring Society (Caring Society) and the Assembly of First Nations with respect to discrimination in the funding of Indigenous Peoples on reserves (Blackstock 2016) and the implementation of Jordan’s Principle (Jordan’s Principle 2025). Jordan’s Principle is a human rights principle established by the Canadian Human Rights Tribunal. It aims to ensure that First Nations children receive services when they need them and that they are not denied services or are subjected to delays or gaps in the receipt of services because of their identity as First Nations children.

While again beyond the scope of this paper, the litigation and advocacy of this case provides an excellent example of the effective use of human rights to attain improved outcomes in funding and service delivery as a way of engaging with Indigenous and non-Indigenous communities about Indigenous Peoples justice-related issues and, importantly, as a way to engage with and harness children and young people’s commitment to justice for Indigenous Peoples (Blackstock et al. 2023). Although there is much debate as to whether universal human rights are founded in values that are culturally Western rather than universal, we, together with many human rights theorists, argue that equality is a universal value which crosses cultural differences (Macklem 2015, pp. 158–89; Nedelsky 2012, pp. 307–61). The Caring Society and Assembly of First Nations case is exemplary of human rights litigation that argued for children’s rights to equality, together with recognition of cultural differences.

In the Australian context, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families recommended, nearly three decades ago, that self-determination in child protection should be implemented to address child welfare systems ongoing and increasing removal of Aboriginal and Torres Strait Islander children at higher rates than other groups (National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Australia) 1997, p. 491). Bringing Them Home, the National Inquiry’s 1997 report, made recommendations with respect to contemporary child protection including recommendation 43a, which calls for the transfer of jurisdiction from states and territories to Aboriginal and Torres Strait Islander peoples in accordance with their capacity and desire to assume this responsibility (National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Australia) 1997, p. 509). Bringing Them Home also recommends a social justice package to address the cumulative disadvantages that underpin child protection interventions (recommendation 42) (National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Australia) 1997, p. 491). Recommendations 42 and 43a remain unimplemented. Further, a recent Healing Foundation report found that only 6% of the Bringing Them Home recommendations had been implemented (Healing Foundation 2025).

3. Self-Determination Versus Privatisation in Australian Child Protection

In the child protection space in Australia, we have seen commentary, particularly emanating from right-wing think tanks, that re-agitates arguments with respect to the assimilation of Aboriginal and Torres Strait Islander children as a response to their over-representation in child protection systems (Sammut 2014). They have also advocated for the re-emergence of forced adoptions, or adoption-like legal arrangements, as a way of addressing the increasing rates of removal of all children from their families (Sammut 2014). These policy arguments are strongly rejected by Aboriginal and Torres Strait Islander peoples (Whittaker and Libesman 2018). At the same time as these debates and related changes in child protection law and policy are occurring, Australian governments are divesting responsibility for some child welfare services, particularly out-of-home care services, to non-government organisations (Libesman et al. 2022, p. 433). These changes are happening together with the commitment, to differing degrees in different Australian jurisdictions, to a recognition of the principles of self-determination and cultural care for Aboriginal and Torres Strait Islander children and families engaged with child protection systems (SNAICC—National Voice for our Children 2022). Australian child protection reforms are considered in a number of articles in this collection.

However, the values underlying these simultaneous law and policy commitments—which can, in broad terms, be framed as self-determination and privatisation—appear to be inconsistent. As we will discuss, these inconsistencies influence how core child protection concepts, such as the best interests of the child and permanency for children who experience out-of-home care, are framed and interpreted. The tension between competing values of self-determination and privatisation in child protection services creates precarity in the foundations for child protection reforms. It also increases the need for scrutiny and clarity with respect to what is meant by self-determination in Indigenous Peoples child protection and the ways in which this right is conceptualised.

4. Developing a Relational and Distributive Definition of Self-Determination in Child Protection

This paper aims to contribute to framing the right of Indigenous Peoples to self-determination in child protection in a way that is historically and relationally grounded. Rights are historically grounded in the sense that they contribute to addressing the harms caused by the oppressive exercise of colonial political power—originally founded in the unjust assertion of sovereignty. A historically founded understanding of rights enables greater transparency around the extent to which colonial violence and governance is responsible for the poverty and trauma underpinning current child protection issues. Engagement by Indigenous Peoples with child protection systems is directly related to the accumulation of political, social, and economic disadvantages over time because of colonial violence (Behrendt et al. 2019, p. 286).

Self-determination in child protection is, we argue, the foundational human right required to enable social justice for Indigenous Peoples through a redistribution of political authority and economic inclusion. This redistribution is necessary to enable recognition and affirmation of Indigenous Peoples’ family and community relations, to realign social rights through addressing the harms caused by generations of trauma, and to address the resultant poverty embedded through intergenerational economic exclusion. The scale of this inequality is cumulative. The redistribution of political and economic power is necessary to address intergenerational harms and, as discussed here, to support the safety and strength of family life for Aboriginal and Torres Strait Islander peoples. Self-determination in child protection requires a radical rethinking of equality, one which is committed to the redistribution power through redistributing sovereignty and the resources needed to address material and legal injustices. Examples of a redistribution of legal authority can be found in the United States Indian Child Welfare Act (ICWA) 1978, and in Canada’s C-92 or An Act Respecting First Nations, Inuit, and Métis Children, Youth, and Families 2020. The ICWA was a response to the very high rates of removal of Indian children by child welfare systems. It prioritises keeping Indian children safely in their family and community and ensuring that Tribal Nations and families are informed about and able to participate in child protection court cases. C-92 aims to keep Indigenous children connected to their family and culture. It affirms and recognises Canadian Indigenous Peoples’ jurisdiction over child welfare services. For discussions of the ICWA and C-92, please see the other articles in this Special Issue.

5. A Relational Conception of Human Rights in Child Protection

This paper argues for a relational conception of Indigenous Peoples children’s rights, an approach that enables greater transparency with respect to the values underpinning legal and human rights, and how child protection law and practice serves to support or undermine these values. Central to a relational rights approach is the focus on what relationships are fostered, and a transparent acknowledgment of the role of law and child protection institutions in fostering those relations. A child’s best interests are inherently tied to those with whom they have relationships and, when interventions occur, those with whom relationships are facilitated. This is discussed below with respect to the core child protection principles related to the best interests of the child, children’s attachment to caregivers, and the permanency of children’s care arrangements including cultural connections. A relational concept of human rights requires a rethinking, or realignment, of the relationship between individual and collective rights. Self-determination in child protection is not an add on or a political right aligned with but separate from the material experience of the safety and wellbeing of children. It is inseparably embedded within the welfare and wellbeing of Indigenous Peoples’ children. Individual children’s wellbeing is interconnected with the relationships that create and enable each child’s identity. As recognised in legislation such as the ICWA (discussed in the other articles in this special edition), relationships with children and how they are raised, supported, and protected is central to identity at both an individual and a community level.

A relational understanding of human rights supports a conceptualisation of equality of peoples as parallel with and related to equality of individuals. We argue that collective and individual human rights are interconnected rather than two distinct categories of rights. The idea of individuals in isolation can only be understood in the abstract.1 This abstraction is one of the problems with how concepts such as the best interests of the child are addressed by child protection decision makers. Children, and all people, are relational. Self-determination in child protection is about supporting the relationships that sustain individuals in community with those to whom they are related. Within this relational conceptualisation, human rights are not static standards and instead support the shaping of institutional structures in a way that shifts and shares power between the colonial state and Indigenous Peoples. This in turn distributes more inclusive child protection laws and practices for and through communities, diversifying the truth in the public sphere, i.e., from a presumed ‘neutral’ Western understanding of child and family safety and wellbeing to one that includes Indigenous Peoples’ family values and relations.2

This distribution of power must be differentiated from the delegation of child protection services. Such an approach is evident in many Western child protection systems that focus on outsourcing responsibilities while retaining centralised control over the narrative, thereby largely determining how services are provided, the quantum of services, and how resources are distributed. While there may be some elements of improved cultural responsiveness in a system that privatises and outsources the responsibility for children in need of care (Dunstan et al. 2020) or for families requiring support to look after their children safely to Aboriginal and Torres Strait Islander agencies, this is conceptually and practically different from a human rights approach that centres on the sharing of public political power and responsibility. Clarifying this distinction is important if we are to avoid changes that simply reproduce colonial powers in a new guise. This failure to distribute power and resources is arguably why the transition from an overtly racist child protection law and practice has, for many Indigenous Peoples, not changed the assimilationist drive and impact of child protection engagement over the past four decades. To have an impact, this redistribution must address the underlying structural injustices that perpetuate inequality.

6. Applying Relational Constructions: Best Interests and Permanency

This relational conceptualisation of rights has direct implications for child protection systems and practice, as these frameworks inform the key decision-making principles and processes that are embedded, either explicitly or tacitly, within child protection systems. For example, constructions of the principle of the best interests of the child and the related idea of ‘permanency’ are often central to administrative and judicial decision-making within child protection systems. For Aboriginal and Torres Strait Islander children, legislation and policy that purport to promote permanence and stability hinge on idealistic and often improbable and narrow constructs of the best interests of the child and legal-centred domains of permanence. Such constructs, as argued below, are based on homogeneous, Eurocentric ideas of the nuclear family and child rearing. The evidence upon which these concepts and their underpinning theories, such as attachment theory, have been developed tends to lack perspectives and findings that are compatible with the values of First Peoples (Wright et al. 2024; Long and Sephton 2011; Richardson et al. 2007; Yeo 2003; Hermeston 2022, pp. 50–51, 88–89).

A relational construction presents the opportunity for a different basis on which to make decisions that better protect and promote the rights and interests of children, particularly Indigenous children, and safeguards their social and emotional wellbeing across their life course and the generations.

7. The Application of Best Interests

Many child protection systems assert that their policies and practices are oriented towards upholding the best interests of children and young people, but there is disagreement as to how this is understood and applied in practice. In this section, we explore the framing of the best interests principle in the Australian context and emphasise the importance of understanding its individual and collective dimensions in application. In particular, we examine the cultural and political implications of the use, and misuse, of this principle with respect to Aboriginal and Torres Strait Islander children in ways that continue to undermine their wellbeing and the full enjoyment of their rights.

The principle that policies and administrative decisions affecting the lives of children and young people should be consistent with their best interests is enshrined in Article 3 of the UNCRC. The Implementation Handbook for the Convention on the Rights of the Child (UNICEF 2007) emphasises that the best interests principle involves recognising the interrelated nature of rights within the Convention. It also takes into account short- and long-term considerations, recognising the child as a rights-holder entitled to the enjoyment of those rights and special protections. In some Australian jurisdictions, this principle is enshrined in legislation. For example, in Queensland, the ‘Paramount Principle’ in s.5A of the Child Protection Act 1999 asserts that “the main principle for administering this Act is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount” (Queensland Legislation. Child Protection Act 1999). Similarly, the New South Wales (NSW) Children and Young Persons (Care and Protection) Act 1998 invokes the concept of the child’s best interests in relation to various decisions under the Act. For example, it requires the court to be “satisfied that the order is in the best interest of the child or young person” before an order allocating parental responsibility can be made (NSW Government 1998). Importantly, these legislative provisions are implemented by administrative and judicial officers and reflect the dominant constructions of childhood and of children as future adult citizens who represent and affect the future of the community (Nakata and Bray 2023). In some cases, such as in NSW, these policies are reinforced through the application of professional disciplines (e.g., social work and psychology) with the application of developmental frameworks when considering how to serve a child’s best interests in the context of alleged risks or harms.3

However, while these constructions of best interests continue to be privileged, structurally and practically, they are also the subject of critique and challenge, both by Aboriginal and Torres Strait Islander communities and more broadly. For example, while the doctrine of best interests has remained fundamental to children’s human rights, three major issues have endured in the application of best interests standards: the lack of an all-encompassing definition; the subsequent vulnerability of the notion to decision-maker subjectivity; and universalism in its application within the disciplines that tend to be presented as underpinning best interests determinations (Archard and Skivenes 2009; Skivenes 2010; Walter et al. 1994, p. 377; Banach 1998; Trudung-Taylor 1986; Hansen and Ainsworth 2011). Further critiques include the narrow, Eurocentric, and individualistic constructions of best interests that are too often applied across the care landscape, which compromise Aboriginal and Torres Strait Islander children’s enjoyment of their cultural rights ‘in community’ with their family and kin, and their enduring familial and community relationships more generally. For example, the inaugural Aboriginal Children’s Commissioner in Victoria, Andrew PSM, pointed out that understanding the best interests of children is an inherently cultural undertaking. He emphasised the need for a “culturally informed” understanding of the principle, and warned that without this, “the principle is completely meaningless” (Jackomos 2015).

The need for a culturally informed construction of the best interests principle is echoed elsewhere (Cripps 2012; Long and Sephton 2011). It was emphasised particularly powerfully by Yorta Yorta, Dja dja Wurrung, Taungurung and Boon Wurrung Elder, and child welfare advocate Aunty Muriel Bamblett when she identified culture as an organising principle for developmental processes:

“Cultural identity is not just an add-on to the best interests of the child. We would all agree that the safety of the child is paramount. No child should live in fear. No child should starve. No child should live in situations of neglect. No child should be abused. But if a child’s identity is denied or denigrated, they are not being looked after. Denying cultural identity is detrimental to their attachment needs, their emotional development, their education and their health. Every area of human development which defines the child’s best interests has a cultural component. Your culture helps define HOW you attach, HOW you express emotion, HOW you learn and HOW you stay healthy”.

(Bamblett and Lewis 2006, p. 49)

Research supports this construct; Aboriginal community members have emphasised the holistic nature of best interests, with the safety of children reliant on their connectedness with their culture and family (Hermeston 2022). Maintaining children’s links to their extended Aboriginal family, community, and culture has been found to offer children important protections that support their wellbeing in ways not possible outside these networks and everyday Aboriginal child-rearing practices. Further, maintaining familial connections helps Aboriginal children to learn where and how they fit within their extended family networks, which in turn helps with their development of a strong sense of cultural identity (Krakouer 2023; Krakouer et al. 2018; Hermeston 2022).

These critiques and evidence emphasise the long experience of Aboriginal and Torres Strait Islander communities subjected to the forceful imposition of non-Indigenous understandings of the best interests of Indigenous children, which has resulted in significant and ongoing harm to Indigenous children, families, and communities. The imposition of non-Indigenous constructions of the best interests of Indigenous children has been a common feature in the history of settler-colonial intervention in and control over the lives of Indigenous children, families, and communities (Cripps 2012; Libesman et al. 2022, pp. 433–55). Several scholars have pointed out that such constructs more generally serve the interests of the settler state than those of Indigenous children (Nakata 2018). Past and ongoing advocacy focused on connections to family, community, and culture have been framed as acts of resistance to these ongoing harms (Krakouer et al. 2022).

The application of psychological constructs by socio-legal systems have also been challenged. These include the neoliberal and colonial assumptions of psychological models (Goodman and Ayurdhi 2025) that pathologise and problematise individuals, thereby deflecting meaningful accountability from the broader social systems that create those individual contexts (Thrift and Sugarman 2018). Further, psychological models can be misunderstood, over-generalised, and misapplied within socio-legal settings ill-prepared to engage effectively with the existing, and shifting, literature (Forslund et al. 2022; White et al. 2020). Aboriginal psychologists have challenged the “epistemic violence” inherent within these models, identifying the Western cultural perspectives that underpin the development of theory and evidence and their role in legitimising the ongoing colonial control of Aboriginal children, families, and communities (Wright et al. 2024). In doing so, they particularly note the discipline’s complicity in the ongoing processes of colonial intervention, dispossession, and family and community dismemberment (Gebhard et al. 2022; Wright et al. 2024).

These critiques emphasise the indispensable role of Indigenous communities in making determinations about the best interests of their children. Australian research supports the premise that making good decisions about the long-term safety, wellbeing, and care of Aboriginal and Torres Strait Islander children requires a relational approach to critical constructs underpinning care decision-making, including the concepts of best interests and permanency. Decision-making processes must include significant Aboriginal and Torres Strait Islander extended family and community members who hold important knowledge about the child’s familial and cultural ties and reciprocal obligations—voices that are often excluded or overlooked in care decision-making (Libesman et al. 2023).

The UNCRC General Comment No. 11 (2009) (Committee on the Rights of the Child 2009) specifically explores the rights of Indigenous children. It notes that the UNCRC “was the first core human rights treaty to include specific references to indigenous children” (Committee on the Rights of the Child 2009, para. 1), which is “indicative of the recognition that they require special measures in order to fully enjoy their rights” (Committee on the Rights of the Child 2009, para. 5). It further notes that “many States’ parties give insufficient attention to the rights of indigenous children and to promotion of their development” (Committee on the Rights of the Child 2009, para. 20).

The concept of best interests is discussed at points 30–33, particularly point 31:

“When State authorities including legislative bodies seek to assess the best interests of an indigenous child, they should consider the cultural right of the indigenous child and his or her need to exercise such rights collectively with members of their group. As regards legislation, policies and programmes that affect indigenous children in general, the indigenous community should be consulted and given an opportunity to participate in the process on how the best interests of indigenous children in general can be decided in a culturally sensitive way. Such consultations should, to the extent possible, include meaningful participation of indigenous children.”

Further, the Implementation Handbook clarifies that the formulation “shall not be denied the right” recognises both the existence of a right and the obligation of State parties “to take positive measures both in terms of its own actions and against the acts of other persons in the country, in order to protect the minority group’s cultural identity, language or religion” (UNICEF 2007).

However, despite longstanding Australian legislative provisions that require the involvement of Aboriginal and Torres Strait Islander families and communities in decision-making about their children, they remain marginalised and silenced in practice. Evidence produced by independent reviews (Davis 2019) and community reporting (SNAICC 2025) has continually shown that requirements for the participation of Aboriginal and Torres Strait Islander families and communities are routinely overlooked. Similarly, sector actors—such as court clinicians, independent legal representatives for Aboriginal and Torres Strait Islander children, or caseworkers—do not engage meaningfully with or involve Aboriginal and Torres Strait Islander extended families, representative organisations or communities in decisions about their children (Libesman et al. 2024). Further, research has suggested that judicial officers are often unfamiliar with these legislative mandates, and do not promote their application in court processes (Libesman et al. 2023). Rather, non-Indigenous constructions about the best interests of Aboriginal and Torres Strait Islander children remain privileged within Australian child protection systems despite the dubious foundations of these determinations and the overwhelming evidence of poor outcomes for these children across their life course (Davis 2019; Tune 2016). Put simply, appeals to the best interests of Indigenous children have long been deployed by colonial states to justify harmful interventions in their lives. This has often been understood in ways that, in effect, reflect and promote the interests of settler states to safeguard settler futures (Libesman et al. 2022, 2024; Nakata 2018) rather than Indigenous futures.

In contrast, Aboriginal and Torres Strait Islander peoples have consistently called for recognition of their enduring connections to family and kin and the specific Indigenous communities, cultures, and territories to which they belong. In recognising these obligations on settler states, they outlined that child protection systems must actively promote the cultural rights of Indigenous children and ensure that the actions of settler institutions or individuals do not deny Indigenous children their distinct cultural rights. This is best achieved by recognising the inherent right and authority of Indigenous Peoples to realise and administer their own child and family service systems—including legal frameworks, administering institutions, judicial processes, and child and family support services—thereby ensuring that systems are oriented towards a culturally informed understanding of the best interests of Indigenous children. While there are examples of legislative efforts that reflect these principles, their implementation requires the equitable allocation of resources to Indigenous communities for the administration of all of these elements, not just service provision.

8. Permanency in Care

Just as there have been differences in the understanding and application of the concept of best interests in the child welfare space, a diversity of views has also characterised the approach to permanency in care proceedings. Western understandings have favoured ‘legal permanency’ that are buttressed by court orders and policy conditions that advocate for fixed decisions within specific timeframes to create a sense of stability in the lives of children. These approaches to permanency planning have broadly been designed to provide children with “safe, continuous and stable care arrangements, lifelong relationships and a sense of belonging” (Western Australian Department of Child Protection and Family Support 2014). However, when legal permanency planning is operationalised, it too often fails to achieve the stated aims of stable care arrangements and life-long relationships, but rather creates a fractured sense of identity because of the failure to maintain the children’s cultural connections (Newton et al. 2024). Legal conceptions of permanency, which in Australia are built around the ideal of the nuclear family, are at odds with Aboriginal and Torres Strait Islander notions of permanency grounded in culture, kin, and country. The operationalisation of these concepts also has implications for the emergence of culturally strong and connected children leaving the out-of-home care system (Higgins et al. 2005, p. 56; 2006; Baidawi et al. 2012). The legal definitions of permanency in Australia place an emphasis on narrow timeframes within which families have to address the challenges that bring them into contact with child welfare authorities or risk the children being permanently placed in out-of-home care (Appendix A: Permanent Care-Related Concepts, Definitions, Legislative and Policy Contexts, by Jurisdiction 2015). This means that Aboriginal and Torres Strait Islander children are increasingly being subjected to guardianship, adoption, and other permanency care arrangements away from their birth families and are often in the care of non-Indigenous family or carers (SNAICC 2024). The imposition of these parameters does little to support families in addressing their issues or to acknowledge the deep intergenerational layers of disadvantage and trauma that precipitate such contact.

An Australian study found that Aboriginal community members conceptualise permanency as tied to children’s needs and rights, and incorporated elements of their safety, best interests, wellbeing, and care over the long term. Permanency is a fundamentally emotional, spiritual, and cultural way of being, which engenders wellbeing, healthy development, and nurtures children’s Aboriginal identity. Permanency requires a continuity of familial and cultural ties, as it produces a place for children and young people to belong. Legal status has little to no bearing on achieving permanency, a finding supported by international research (de Finney and di Tomasso 2015, pp. 63, 77; Quash-Mah et al. 2010). Community members believe that permanency and placement stability is best achieved through children being able to take their rightful place within their extended Aboriginal family and community. This was because it was seen as crucial for children to live within these networks, immersed and surrounded by their own culture in everyday settings. It is these systems that strengthen the attachment of children; these ties help children form “stepping stones” to their Aboriginal identity (Hermeston 2022, p. 168) and support their long-term safety, wellbeing, and healthy development (Bamblett 2014; Krakouer et al. 2018, p. 270; Mendes et al. 2016; Simard and Blight 2011, pp. 28, 33, 40; Long and Sephton 2011).

The research supports the notion that the many and complex ties commonly available in extended Aboriginal families can provide strong networks of support and nurture the development of Aboriginal children and youth into healthy adults with a strong sense of cultural identity. Determining children’s best interests requires knowledge of their community’s conceptualisations of best interests and Aboriginal child-rearing beliefs and practices (Geia 2012; Hermeston 2022, p. 235).

These approaches and beliefs differ markedly from those of care systems that favour Western nuclear family models that have been repeatedly found to be problematic and harmful to Aboriginal children (SNAICC—National Voice for our Children 2024; SNAICC 2025; Davis 2019; Hermeston 2022). The harms stem from a number of factors, including static conceptualisations of crucial notions in care decision-making, such as the best interests of the child, permanency, and the associated notions. Further, and as discussed elsewhere in this special edition, these approaches are known to perpetuate historically discriminatory practices that are stuck in colonial frames of reference and effectively serve to marginalise extended families in decision-making.

Accelerated timeframes for determining if children can be restored to their extended Aboriginal family or need to be permanently placed away from them can also be problematic as they often lead to vastly increased numbers of Aboriginal and Torres Strait Islander children being subject to permanent out-of-home care placements through guardianship, third party parental responsibility (TPPR), and adoption orders (SNAICC 2024, p. 16). Furthermore, previous attempts to invisibilise these children by excluding them from national statistics on the number of Aboriginal and Torres Strait Islander children in out-of-home care are deeply concerning. These issues have been raised by advocacy groups such as the Secretariat of National Aboriginal and Islander Child Care (SNAICC) who continue to advocate for greater transparency on their inclusion in out-of-home care data. This ensures that their rights can be adequately upheld and governments can be held accountable and responsive to the needs of these children and their families (SNAICC 2024, p. 15). As of 30 June 2023, the purported rate of Aboriginal and Torres Strait Islander young people in out-of-home care nationally was 57 per 1000; however, this rate rises to 66.1 per 1000 when TPPRs are included (AIHW 2024). SNAICC modelling projects an increase of 38% over the next decade, with the population of Aboriginal and Torres Strait Islander children in OOHC or on TPPR orders anticipated to increase at 7.6 times the rate of non-Indigenous children over the next decade (SNAICC 2024, p. 53). According to SNAICC, there have been year-on-year increases in the number of Aboriginal and Torres Strait Islander children in both out-of-home care and on TPPR orders, with an estimated 11.8 per cent increase between 2019 and 2023 (SNAICC 2024, p. 18). The continued advocacy of organisations like SNAICC has ensured that this data is now recorded in departmental statistical reports, whereas previously, there was no complete view available of the number of Aboriginal and Torres Strait Islander children subject to such orders (SNAICC 2024, p. 14).

Overall, however, the data generated by government departments remains flawed and inconsistent. Such skewed reporting is emblematic of the concerns that Aboriginal and Torres Strait Islander communities have in relation to the lack of transparency with respect to the separation of their children from their families. Providing data on children in out-of-home care regardless of which order resulted in placement improves transparency, but more information about the context of these placements and arrangements for their care is needed. This lack of information leaves child protection departments and non-government agencies with delegated authority open to questions about how the cultural and other needs of Aboriginal and Torres Strait Islander children in these arrangements are being met.

In 2022, guardianship orders were the most common order sought for Aboriginal and Torres Strait Islander children at 71 per cent, with TPPR orders being sought for 15 per cent of children (AIHW 2021–2022a). Guardianship orders transfer all aspects of parental responsibility to a private carer without formally severing the legal parental relations as an adoption order does. Babies, children, and young people on guardianship orders are no longer legally considered to be in out-of-home care so are not under the supervision of an out-of-home care or government agency. While there were only six recorded cases of Aboriginal and Torres Strait Islander children being adopted in the 2021–22 period (AIHW 2021–2022b), there have been at least 123 cases of adoption since 1997–98 (AIHW 2021–2022a). Of concern is the tendency for Aboriginal and Torres Strait Islander children to be placed with, or adopted by, non-Indigenous caregivers,4 further removing them from direct familial access to their cultural relationships, identity, and broader expressions of their Indigeneity.

A closer look at these legal pathways to ‘permanency’ reveal further concerns about the way in which Western institutions make determinations about matters they deem to be in the best interests of Aboriginal and Torres Strait Islander children. Matters around placement, contact with family members, and the extent to which children can identify and express their Indigenous heritage are all impacted by decisions that may permanently sever ties to their parents and other Aboriginal and Torres Strait Islander family members.

SNAICC has noted the importance of accurately and promptly identifying Aboriginal and Torres Strait Islander children to ensure they have the most appropriate and culturally safe support throughout their contact with the child welfare system (SNAICC 2024, p. 18). Unfortunately, many children continue to be sluggishly identified or de-identified by the system, both of which have serious ramifications for their future contact with their siblings and other family members, their appropriate placement, and the general development of their identity. According to the 2019 Family Is Culture report, a sample of Aboriginal children in NSW were routinely de-identified by non-Aboriginal case workers who determined them to be ‘too young’ to identify despite being of Aboriginal descent (Davis 2019, p. 261) or who were de-identified despite their grandparents reporting Aboriginal descent. Such decisions have significant implications for cultural case planning and adherence of these decisions to the Aboriginal and Torres Strait Islander child placement principle (Davis 2019, p. 258; SNAICC 2024, p. 18). These findings were chief among the reasons for the report to recommend the need for greater transparency around the number of Aboriginal and Torres Strait Islander children being de-identified by child welfare departments (SNAICC, p. 264, Recommendation 79) and the urgent need for them to work with Aboriginal peoples around the identification of children in care (SNAICC, p. 263, Recommendation 76). The extent to which Aboriginal and Torres Strait Islander children may be de-identified raises significant questions about their already alarming rates of overrepresentation within the child welfare space—a rate that could be much higher—and the role of contemporary statutory authorities in perpetuating systematic, discriminatory, and harmful policies and practices (National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Australia) 1997).

Of course, de-identifying Aboriginal children has significant implications for where and how those children are placed, including the efforts needed to place them with members of their Aboriginal and Torres Strait Islander family or community. It is foreseeable that in an already overburdened out-of-home care system, de-identifying children may widen the pool of potential carers, thereby relieving such pressure on the system but depriving a child of their cultural rights.

It is also easy to minimise the significance of Aboriginal and Torres Strait Islander children being adopted because of the relatively small numbers involved when compared to the much higher totals in out-of-home care and on TPPR orders (AIHW 2025). While the apparent numbers of adoptions according to governmental figures are low, it is unclear how many Aboriginal and Torres Strait Islander children subject to out-of-home care orders, including adoption, are being de-identified by child welfare departments and courts. Moreover, the lower number of adoptions of Aboriginal children does not take into account the complex and damaging effects of changing children’s names, and therefore their identity, and legally severing ties to their extended family.

Given the nature of adoption case law in NSW, there is little room for optimism about these numbers when the courts making adoption decisions are also increasingly making determinations of the ‘Aboriginality’ of the children who come before them. Such decisions fly in the face of Aboriginal conceptualisations of self-determination where it is the community who should decide who is and who is not Aboriginal rather than a non-Indigenous departmental worker, secretary, or judicial officer. Premises like these are a major reason why Aboriginal and Torres Strait Islander peoples are constantly calling for greater investment in Indigenous-led systems and supports so that they can exert greater control over their own affairs, particularly the ability to care for and identify their own children.

A closer examination of adoption case law in NSW alone over the last five years reveals worrying trends about what evidence is deemed acceptable to courts regarding the identification of Aboriginal children. Some of these matters mirror known examples of case workers failing to identify children despite the arguments made by their actual parents or other family members. For example, the matter of the Adoption of John (a Pseudonym) and William (a Pseudonym) (2025) NSWSC 109 concerns the adoption of two children following final orders for parental responsibility made in 2013. The Secretary for the Department of Communities and Justice sought an order more than a decade later in 2024 that the children were not of Aboriginal descent in accordance with 4(2) and 4(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and, in the execution of their duties under s34 of the Act, that the Department should make ‘reasonable inquiries’ into their descent.

This decision is problematic for several reasons, least of all because the biological mother of the children identified as a person of Aboriginal descent in addition to a range of other information before the court (Adoption of John (a Pseudonym) and William (a Pseudonym) 2025, para. 4, 10, 11, 19 and 28). This case also emphasises the power of a non-Indigenous court process to make determinations of the Aboriginality of children in care, even in cases where there is evidence from the parents, Elders, and Aboriginal community organisations to the contrary. It emphasises the challenges for Aboriginal families that are already wary of child protection processes and who may be reluctant to identify as Aboriginal and Torres Strait Islander people out of fear, as well as the challenges of doing so where there is a family history of prior involvement with the child welfare system such as with the Stolen Generations. In this matter, the court itself acknowledged the ‘difficulties’ in attaining documentary evidence to prove Aboriginality given a history of others in the family being in out-of-home care, as well as the impact of “historical policies and practices [that] have attempted to break the ongoing connections that Aboriginal persons have with their culture, country, and kin” (Adoption of John (a Pseudonym) and William (a Pseudonym) 2025, para. 1–10, 21, 30–32).

This case also highlights the onus that is placed on families who are going through the stress of the child welfare system to have to identify as Aboriginal due to the existing racism and hostilities that can affect these determinations. In this case, the paternal grandparents expressed the view that there was ‘supposedly Aboriginal’ heritage in the family. The general lack of support for such a claim led to the Department making little effort to confirm this when notified of the children’s Aboriginality in 2011 (Adoption of John (a pseudonym) and William (a pseudonym) 2005). The lapse of time involved, combined with the various challenges identified above, do not create a great foundation for children who may, in fact, be Aboriginal or are being supported to identify as Aboriginal and feel comfortable in doing so. This is evidenced by one of the ‘half’ siblings not identifying as Aboriginal before the judge, despite an acknowledgment of their descent from the child’s mother.

The ultimate decision to de-identify William and John as being of Aboriginal descent highlights the weight the court gave to non-Indigenous ‘experts’ while disregarding the evidence presented by the Aboriginal parties with a significant connection to the children. In this instance, the court favoured the evidence of a senior family researcher in the Department and the submissions made by the Department claiming that there was no community acceptance of the family’s Aboriginality. Such a ruling was made despite self-dentification by the children’s mother and the two children in question themselves, and a confirmation of Aboriginality from a Local Aboriginal Land Council for at least one of the children. Although the judge could not meet the requisite level of proof to be satisfied with the children’s Aboriginality, the ruling acknowledged the dedication of the adoptive parents in taking them to cultural events, including those run at their local church. The court also emphasised that the carers took the approach of raising the children as Aboriginal children from a particular nation group (Hermeston 2022; Krakouer 2023).

9. Aboriginal Relational Approaches to Best Interests and Permanency

There is growing recognition of the harm associated with non-Indigenous conceptualisations in child protection and the implementation of these constructs in case work and by courts. These concepts are consistently framed by Aboriginal communities in relational terms, including enduring connections to family and kin, and the specific Indigenous communities, cultures, and territories to which they belong.

Child protection systems must actively promote Indigenous children’s distinct cultural rights, which requires ongoing connection to their family and community. We have argued that a relational framing of rights that are pivotal to child protection decision-making, including the best interests of the child and permanency in care arrangements, supports Aboriginal and Torres Strait Islander family and community relationships. This will enable better implementation of Aboriginal and Torres Strait Islander peoples’ rights in child protection which are often paid lip service but not implemented in practice. Foundational to the implementation of these rights is the right to self-determination. Elsewhere, it has been argued that this is best achieved by recognising the human and inherent rights and authority of Indigenous Peoples to realise and administer their own child and family service systems—including legal frameworks, administering institutions, judicial processes, and child and family support services—thereby ensuring that systems are oriented to a culturally informed understanding of the best interests of Indigenous children, including how permanency and parental responsibility is understood and applied (Hermeston 2022, pp. 240–52; Krakouer 2023). While there are examples of legislative efforts to reflect these principles (which is discussed in the other articles in this special edition), implementation requires the equitable allocation of resources to Indigenous communities for the administration of all of these elements and not just more service provision. This is why we argue for a relational conceptualisation of self-determination that is founded on principles of equality, including with respect to the distribution of child protection decision-making and resources.

10. Conclusions

Child rearing, and how we structure institutional responsibilities for children, is one of the most important ways in which we express and determine the future society we wish to support. We have argued that a relational and distributional approach to rights helps us to conceptualise how child welfare systems—embedded within broader systems of inequality—can better achieve outcomes that support Aboriginal and Torres Strait Islander children to grow up safely in family and culture.

A relational understanding of human rights (The Australian Human Rights Commission (AHRC) 2025) provides transparency in the operation of rights and greater clarity in the justice work which they can do. We argue that the relationships and values that rights foster should be at the forefront of how rights are framed and operationalised in all spheres of child protection decision-making. These values and relationships are often not made explicit in Australian child protection institutions (such as children’s courts), with children’s legal and human rights conceptualised in ways that implicitly support the colonial status quo. The aim of enabling Aboriginal and Torres Strait Islander children to grow up in their own community and culture should be at the forefront of how we interpret concepts such as best interests and permanency for those subject to child protection interventions. This will contribute to addressing the disparity between child protection institutions’ stated intention to support cultural care and the Aboriginal and Torres Strait Islander child placement principles and practices that result in breaches of these principles.

The interpretation of legal rights is how institutions, such as courts and child protection services, enshrine and support values. It is, therefore, important to have clarity as to what values are currently being supported and the disparity between reality and aspiration. A relational understanding of human rights not only challenges the primary focus of rights as individual but also illuminates the interconnectedness of individual and collective rights. Children’s rights—including core concepts foundational to child protection decision-making, such as the best interests of the child and the stability of relationships through permanency—cannot be meaningfully understood as individual rights in isolation from the relationships that children and young people have with their family and community.

We argue that the unjust and harmful colonial exercise of sovereignty is at the foundation of the overrepresentation of Aboriginal and Torres Islander children in child protection systems. The right to self-determination requires a redistribution of child protection responsibilities between colonial governments and Aboriginal and Torres Strait Islander peoples. A distributive view of self-determination requires that resources are used to support and redress the disadvantages that underpin child protection concerns, particularly poverty, and support the maintenance of relationships that strengthen safety and community ties. An acknowledgment of the role of law in structuring relationships is necessary for the human rights of Indigenous children to be upheld. We argue that a relational and distributional conceptualisation of these rights can clarify how the law can contribute to strengthening rather than undermining Aboriginal and Torres Strait Islander family and community relationships.