Self-Determination Within a Reconceptualised Relational Human Rights Framework to Attain Equality for Indigenous Peoples in Child Protection
Cary Waubanascum
Round 1
Reviewer 1 Report
Comments and Suggestions for AuthorsThis is a well written and thoughtfully developed paper with significant international relevance. As an Indigenous scholar from the U.S., I find the authors' framing within a human rights and self-determination context particularly valuable on a global scale. I offer a few minor comments below for consideration:
Line 81: provide a brief summary of UNDRIP.
Lines 84-87: provide brief one-sentence contexts for these treaties listed. For example, for the UNCRC (one sentence description).
Lines 93: Provide a one-sentence definition of “Jordan’s Principle”
Line 107: As an Indigenous scholar, I have shifted away from using the term “overrepresented” in favor of more precise language such as “disproportionately over-removed” or descriptive phrases like “child welfare systems remove Indigenous children at higher rates compared to other groups.” This reframing places responsibility on the child welfare systems themselves, rather than individualizing or pathologizing the experiences of Indigenous families. It’s an important shift to consider when discussing systemic issues.
Lines 155-157: Your paper is well organized and thoroughly represents your main argument: “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.”
Lines 166-168: One sentence describing the main purpose and heart of ICWA and C-92 would be helpful.
Lines 263-265: Please include some of the international literature by Indigenous scholars, including from the U.S. and Canada, that focus on Indigenous and decolonized social work.
Author Response
This is a well written and thoughtfully developed paper with significant international relevance. As an Indigenous scholar from the U.S., I find the authors' framing within a human rights and self-determination context particularly valuable on a global scale. I offer a few minor comments below for consideration:
Reviewer comment: Line 81: provide a brief summary of UNDRIP.
Response
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 effect their lives.
Reviewer comment: Lines 84-87: provide brief one-sentence contexts for these treaties listed. For example, for the UNCRC (one sentence description).
Response
We believe adding a sentence with respect to each treaty will break the flow of the introduction and will not be sufficient to provide insight into these treaties. They are referenced giving the reader who wants this background a link to look at them.
Reviewer: Lines 93: Provide a one-sentence definition of “Jordan’s Principle”
Response
Jordan’s principle is a human rights principle established by the Canadian Human Rights Tribunal. it aims to ensure that First Nations children get services when they need them and that they are not denied services, or experience delays or gaps in receipt of services, because of their identity as First Nation’s children.
Reviewer: Line 107: As an Indigenous scholar, I have shifted away from using the term “overrepresented” in favour of more precise language such as “disproportionately over-removed” or descriptive phrases like “child welfare systems remove Indigenous children at higher rates compared to other groups.” This reframing places responsibility on the child welfare systems themselves, rather than individualizing or pathologizing the experiences of Indigenous families. It’s an important shift to consider when discussing systemic issues.
Response
Thanks, we appreciate this reframing which is consistent with out viewpoint.
Have rephrased
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 on going, and increasing, removal of Aboriginal and Torres Strait Islander children at higher rates than other groups “107
Reviewer: Lines 155-157: Your paper is well organized and thoroughly represents your main argument: “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.”
Thank you
Reviewer: Lines 166-168: One sentence describing the main purpose and heart of ICWA and C-92 would be helpful.
Response
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 family and community and ensuring that Tribal Nations and families are informed about and can participate in child protection court cases.
C-92 aims to keep Indigenous children connected to family and culture. It affirms and recognises Canadian Indigenous peoples’ jurisdiction over child welfare services.
Reviewer: Lines 263-265: Please include some of the international literature by Indigenous scholars, including from the U.S. and Canada, that focus on Indigenous and decolonized social work.
“In some cases, such as in NSW, these are reinforced through the application of professional disciplines (e.g., social work and psychology) applying developmental frameworks when considering how to serve a child’s best interests in the context of alleged risks or harms. (263-265)
Response: Footnote : Indigenous scholars provide alternative ways of framing welfare and well being see for example weaver, H. N. The Routledge International Handbook of Indigenous Resilience (1st ed.). (Routledge, 1st ed, 2022). https://doi.org/10.4324/9781003048428, Blackstock, Cindy., Bamblett, Muriel, & Black, Carly, ‘Indigenous ontology, international law and the application of the Convention to the over-representation of Indigenous children in out of home care in Canada and Australia’ (2020) 110(Pt 1 Child Abuse & Neglect, ), Article 104587. https://doi.org/10.1016/j.chiabu.2020.104587
Reviewer 2 Report
Comments and Suggestions for AuthorsDear authors,
Thank you for the opportunity to serve as a peer reviewer for your manuscript.
You highlight an important topic that has received limited international research attention.
To further improve the manuscript, I recommend providing a clear explanation of the type of article you have written. As I understand it, this appears to be a discussion paper.
Additionally, I suggest engaging with theoretical and research literature that can support your argument, particularly the work of Thomson, Rawls, and O'Neill, as noted in the attached PDF.
Kind regards
Comments for author File: 
Comments.pdf
Author Response
Reviewer provide reference for: However, while not the subject of this article, the largely uncontested presumption that human rights are a good which should be adhered to has, with the rise of extreme right-wing populism and the accompanying shift from liberal to neo-liberal values, less of a consensus across Western democracies. ( reviewer provide reference.) line 67
Response
Added references
Gilmour, Andrew Edited text of a lecture by Andrew Gilmour United Nations Assistant Secretary General for Human Right ( The global backlash against human rights, March 2018) The global backlash against human rights | OHCHR ; See also US President Trump Exec. Order No. 14199, Withdrawing the United States from and Ending Funding to Certain United Nations Organizations and Reviewing United States Support to All International Organization, 90 Fed. Reg. 9275 (Feb. 4, 2025).
Reviewer:
Our argument
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 )190-192)
The reviewer comments: This is not a new argument, as both individual and collective Human Rights are stated in both the General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) and General Comments No. 11 (2009) Indigenous children and their rights under the Convention. These should be mentioned as references line 193
Reply
In the background section of the paper we state, and provide references for, the recognition of individual and collective rights in the jurisprudence of CROC (and other UN treaties) ].
We write:
The Declaration on the Rights of Indigenous Peoples, adopted by the United Nations
in 2007,4 is one manifestation of the success of Indigenous Peoples in influencing and
changing international human rights law. 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. It is important to note the recognition both of collective and of Indigenous-specific rights across these treaties, although a review of this jurisprudence is beyond the scope of this paper (81-88)
We have added this footnote to clarify:
Although there is increasing recognition of Indigenous peoples’ collective non state rights as well as individual rights in CROC (and other UN instruments) the recognition of individual and collective rights have been treated as separate categories. While a number of Committee on the Rights of the Child General Comments, which form part of the jurisprudence of CROC, refer to collective rights, for example Article 31 of Committee on the Rights of the Child, General Comment No. 11: Indigenous Children and Their Rights Under the Convention, 50th sess, UN Doc CRC/C/GC/11 (12-30 January 2009), our argument here is that individual and collective rights are integrally interconnected. The difference being that individual and collective rights conceptualised relationally are not in competition with one (usually individual rights) trumping the other.
Reviewer comment
The reviewer states this [lines 200-202] is a good argument which you might find support for in the work of Thomson, M. (2021). Capabilities approach to best interests assessments. Legal Studies, 41, pp. 276-293. Retrieved from DOI:10.1017/lst.2020.47
“This in turn distributes more inclusive child protection laws and practices for and through communities diversifying 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 ( 200-202)
Response
Thank you for sharing a reference for this article which we enjoyed reading and we have included the following footnote
We have added this footnote to clarify:
While our argument is about the distribution of public power it is interconnected with, and for the purpose of, facilitating individual children’s rights to their culture, family and to flourish with attention to cultural difference. The argument for a capabilities approach to best interests assessments, while focussed on individual ‘self-determination’ is complementary to the argument made in our paper. See Thomson Michael, ‘A capabilities approach to best interest’s assessments’ (2021) Legal Studies, 41, pp. 276-293. Retrieved from DOI:10.1017/lst.2020.47
Reviewer comment
Reviewer asks for a reference for this statement
While there may be some elements of improved cultural responsiveness in a system of privatising and outsourcing responsibility for children in need of care, or for families requiring support to look after their children safely,
Reply
We have added this reference
Dunstan L, Hewitt B, Nakata S. Indigenous family life in Australia: A history of difference and deficit. Aust J Soc Issues. 2020; 55:323–338. doi: 10.1002/ajs4.90.
Reviewer comment
The reviewer comments that the argument at 209 is good and could be supported by supported by the work of Onora O'Neill - (2016). Justice across boundaries: Whose obligations? Cambridge, University Press.
While there may be some elements of improved cultural responsiveness in a system of privatising and outsourcing responsibility for children in need of care, 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. Clarity in this differentiation is important if we are to avoid changes that simply reproduce colonial powers in a new guise. While there may be some elements of improved cultural responsiveness in a system of privatising and outsourcing responsibility for children … 209
Reply
Thanks to the reviewer for appreciating this argument. With respect to the Onora O Neill reference – if I have understood her arguments correctly- Onora O’Neill is critiquing the boundaries of state power while our argument is related but a little different. Our argument is more solution focussed looking at the distribution of sovereignty. We have therefore not added a citation to this excellent book.
Reviewer Comment
Ther reviewer has suggested the conclusion to the section at 218 might be supported by John Rawls and his writings on the role of Human Rights in democracies Rawls, J. (1999a). The law of peoples: With “The idea of public reason r revisited”. Cambridge, Mass: Harvard University Press.
Reply
We have not relied upon Rawls so have not referenced his work.
Reviewer Comment
This argument - Such constructs are based on homogeneous, Eurocentric
ideas of the nuclear family and child-rearings hould be supported by references 229
Reply
The subsequent sections of the article provide evidence for this proposition, so we have added into the text as argued below
Such constructs, as argued below, are based on homogeneous, Eurocentric 228
ideas of the nuclear family and child-rearing.
Reviewer Comment
Evidence upon which these concepts and underpinning theories, such as attachment theory, have been developed tends to lack perspectives and findings that are compatible with the values of First Peoples. 231
Reply
We have a reference which is specific to attachment theory, while Thomson’s argument is excellent, and we have thanks to the reviewer cited it above, it is focussed on applying capability theory to the concept of best interests and this section of this paper is on permanence.
Reviewer Comment
Reviewer asks for reference for the following statement
However, while these constructions of best interests continue to be privileged, both structurally and practically, they are also the subject of critique and challenge, both by Aboriginal and Torres Strait Islander communities and more broadly. 267
Reply
The reference is at the end of the section discussing this point see footnote 26.
Reviewer Comment
Footnote 40 missing
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.40
Response
Footnote added
Terri Libesman, Wendy Hermeston, Eloise Chandler, ‘Aboriginal Participation in Child Protection Decision-Making in New South Wales’ (Report, December 2023) (‘Aboriginal Participation in Child Protection Decision-Making’).
Reviewer Comment
Reviewer says this argument should be thoroughly explained, supported by research. Please can you provide a reference for the statement below
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 to a culturally informed understanding of the best interests of Indigenous children line 284
Reply
This is the argument being made in this article.
Reviewer Comment
Reviewer wants reference for
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 children’s cultural connections line 399
Reply
B.J. Newton, Ilan Katz, Paul Gray, Solange Frost, Yalemzewod Gelaw, Nan Hu, Raghu Lingam, Jennifer Stephensen, Restoration from out-of-home care for Aboriginal children: Evidence from the pathways of care longitudinal study and experiences of parents and children, Child Abuse & Neglect, Volume 149, 2024.
Reviewer Comment
do not find any reference to this study, please insert this Line 413
Reply
Reference at end of discussion of study at line 425 ref 58
Reviewer comment
The reviewer states the argument below has not been elaborated on earlier in the text, which makes it not relevant to mention here ( in the conclusion) 647 distributive view of self-determination requires that resources support and redress the disadvantages which underpin child protection concerns, in particular poverty, and supports the maintaining of relationships which strengthen safety and com- munity ties.
Reply
This point is addressed under the heading Developing a Relational and Distributive Definition of Self-Determination in Child Protection lines 143 – 169.
