https://orcid.org/0000-0003-4771-349X
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ABSTRACT
The CLAN Rights Charter asserts rights in records for Care leavers who were taken from their homes and families and communities, and placed in orphanages, children’s Homes, foster Care and other forms of institutions. The Australian Charter of Lifelong Rights in Childhood Recordkeeping in Out of Home Care is a response to the critical, largely unmet recordkeeping and archival needs of both children and young people in Care today, and Care leavers, including Aboriginal and Torres Strait Islander children, young people and their families, and Stolen Generations. It focuses on their lifelong and diverse recordkeeping needs. The recordkeeping rights specified in both Charters are essential enablers for the exercise of human rights, including participatory, identity, memory and accountability rights. They provide a rights-based foundation for addressing the continuing recordkeeping failures, the major gaps in the archival record, and the weaponisation of data and records that plague the Care sector. In the paper, we discuss the research and advocacy contexts of the two interrelated Charters, and our mapping of the Charters aimed at cross-validation and identification of gaps. We then explore the challenge of translating the Charters into transformative practice, advocating for their adoption and developing guidelines for their implementation.
Acknowledgements
We acknowledge the contributions of all those involved in the Setting the Record Straight for the Rights of the Child Initiative led by Monash University, with partners CLAN, Care Leavers Australasia Network; the Child Migrants Trust; Connecting Home; the CREATE Foundation, Federation University Ballarat, and the University of Melbourne eScholarshsip Centre. We acknowledge in particular the participants in the May 2017 National Summit in the development of the Charter of Lifelong Rights in Childhood Recordkeeping. The Summit was supported by major funding from the Faculty of Information Technology, Monash University, with additional contributions from the University of Melbourne, Federation University Australia, the Australian Society of Archivists and the Council of Australian Archives and Records Authority.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1. CLAN was set up by Care leavers in 2000 to support and advocate for people who have grown up in orphanages, children’s Homes, missions and foster Care in Australia, or whose parents or other family members had this experience.
2. CLAN, Care Leavers Australasia Network, ‘CLAN Charter of Rights to Childhood Records’, 2020, available at <https://clan.org.au/wp-content/uploads/2021/04/CLAN-Charter-Rights-Records-Rev-update.pdf>, accessed 29 April 2021.
3. More detail on the project are available at <https://rights-records.it.monash.edu/research-development-agenda/rights-in-records-by-design/>, accessed 1 May 2021.
4. Defined as the ability for individuals and communities to participate in societal memory, to find their own voice, and to become participatory agents in recordkeeping and archiving for identity, memory and accountability purposes (Joanne Evans, Sue McKemmish, Elizabeth Daniels and Gavin McCarthy, ‘Self-determination and Archival Autonomy: Advocating Activism’, Archival Science, vol. 15, 2015, p. 337).
5. We acknowledge that this term is not the preferred terminology of all persons with lived Care experience. We use the capitalised term Care ‘to denote the ironic connotations of manifestly uncaring treatment, without continually enclosing the word in quotation marks’ (Jacqueline Wilson and Frank Golding, ‘Latent Scrutiny: Personal Archives as Perpetual Mementos of the Official Gaze’, Archival Science, vol. 16, 2016, p. 93). In 2019, a nationally consistent definition for contemporary Out-of-Home Care (OOHC) was agreed upon and implemented in all jurisdictions in Australia as follows: ‘Out-of-home care is overnight care for children aged under 18 who are unable to live with their families due to child safety concerns. This includes placements approved by the department responsible for child protection for which there is ongoing case management and financial payment (including where a financial payment has been offered but has been declined by the carer). Out-of-home care includes legal (court-ordered) and voluntary placements, as well as placements made for the purpose of providing respite for parents and/or carers’ (Australian Institute of Health and Welfare 2020. Child Protection Australia 2018–19. Child welfare series no. 72. Cat. no. CWS 74. Canberra: AIHW). We use the term OOHC to encompass a variety of alternative accommodation arrangements currently including foster care, kinship care, residential and group homes largely run by the private and not-for-profit sector, independent living arrangements, and other forms of placement. Historically the term covers institutional Care including orphanages and children’s homes run by states, churches and other charitable bodies.
6. United Nations, Universal Declaration on Human Rights, United Nations General Assembly, New York, 1948; United Nations, Convention on the Rights of the Child, United Nations, New York, 1989; United Nations Commission on Human Rights, United Nations Declaration on the Rights of Indigenous Peoples, United Nations, New York, 2007.
7. Michelle Caswell and Marika Cifor, ‘From Human Rights to Feminist Ethics: Radical Empathy in the Archives’, Archivaria, vol. 81, 2016, pp. 23–43.
8. Kathy Carbone, Anne Gilliland, Antonina Lewis, Sue McKemmish and Greg Rolan, ‘Towards a Human Right in Recordkeeping and Archives’, in K Toeppe, H Yan, and SKW Chu (eds), Diversity, Divergence, Dialogue, iConference 2021, Lecture Notes in Computer Science, vol. 12646, p. 288, Beijing, China.
9. Australian Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Commonwealth of Australia, Canberra, 1997; Senate Community Affairs References Committee (SCARC), Forgotten Australians: A Report on Australians Who Experienced Institutional or Out-of-Home Care as Children, Commonwealth of Australia, Canberra, 2004; Royal Commission on Institutional Responses to Child Sexual Abuse, Final Report, Vol. 8: Recordkeeping and Information Sharing, Sydney, NSW, 2017.
10. Carbone et al.,
11. Evans et al., Mick Gooda, ‘The Practical Power of Human Rights: How International Human Rights Standards Can Inform Archival and Recordkeeping Practices’, Archival Science, vol. 12, no. 2, 2012, pp. 141–150.
12. SCARC.
13. C Malvaso, P Santiago, R Pilkington, A Montgomerie, P Delfabbro, A Day and J Lynch, The Intersection between the Child Protection and Youth Justice Systems in South Australia. Adelaide, BetterStart, Child Health and Development Research Group, The University of Adelaide, Adelaide, 2020.
14. Ian O’Donnell and Eoin O’Sullivan, ‘“Coercive confinement”: An idea whose time has come?’, Incarceration, vol. 1, no. 1, 2020, np, <https://doi.org/10.1177/2632666320936440>.
15. Frank Golding, ‘Care Leavers Recovering Voice and Agency through Counter-narratives’, PhD thesis, Federation University Australia, 2020.
16. Shurlee Swain, ‘History of Child Protection Legislation: History of Institutions Providing Out-of-Home Care to Children’, research paper Commissioned by the Royal Commission into Institutional Responses to Child Sexual Abuse, The Commission, Sydney, NSW, 2014.
17. Senate Standing Committee on Social Welfare, Children in Institutional and Other Forms of Care: A National Perspective, Commonwealth of Australia, Canberra, ACT, 1985, p. 11.
18. Swain, ‘History of Child Protection Legislation’, pp. 3, 85.
19. P Power, ‘Amendments to the Children Youth and Families Act 2005ʹ, Children’s Court of Victoria, Melbourne, 2015, available at <https://www.childrenscourt.vic.gov.au/sites/default/files/2020-11/CYFA_Amendments_Summary_27%20March_2015.pdf>; J Bessant and R Watts, ‘Children and the Law: An Historical Overview’, in Lisa Young, Mary Anne Kenny and Geoffrey Monahan (eds), Children and The Law in Australia, 2nd ed., LexisNexis, Sydney, 2016.
20. Frank Golding, ‘People are Trapped in History and History is Trapped in Them’, paper presented at International Australian Studies Association Biennial Conference: Re-inventing Australia, hosted online by the Australian Catholic University, Melbourne, 10 March 2021.
21. J Penglase, Orphans of the Living: Growing up in ‘care’ in twentieth-century Australia, Fremantle Press, Fremantle, 2007, pp. 124–132.
22. Wilson and Golding.
23. Frank Golding, ‘The Care Leaver’s Perspective’, Archives and Manuscripts, vol. 44, no. 3, 2016, pp. 160–164, doi:10.1080/01576895.2016.1266954.
24. Royal Commission on Institutional Responses to Child Sexual Abuse, vol. 8.
25. Barbara Reed, Viviane Hessami and Joanne Evans, ‘Report of National Summit: Setting the Record Straight for the Rights of the Child’, 2017, available at <https://rights-records.it.monash.edu/summit/>, accessed 29 April 2021.
26. Sue-Anne Hunter, The Family Matters Report 2020: Measuring Trends to Turn the Tide on the Over-Representation of Aboriginal and Torres Strait Islander Children in Out-of-Home Care in Australia, SNAICC, Canberra, 2020, p. 3, available at <https://www.familymatters.org.au/wp-content/uploads/2020/11/FamilyMattersReport2020_LR.pdf>, accessed 29 April 2021.
27. Bringing Them Home; Sue McKemmish, Jane Bone, Joanne Evans, Frank Golding, Antonina Lewis, Greg Rolan, Kirsten Thorpe and Jacqueline Wilson, ‘Decolonizing Recordkeeping and Archival Praxis in Childhood Out-of-Home Care and Indigenous Archival Collections’, Archival Science, vol. 20, no. 1, 2020, pp. 21–49; Aileen Moreton-Robinson, The white possessive: Property, power and Indigenous Sovereignty, University of Minnesota Press, Minneapolis, 2015.
28. ‘Target 12: Children are Not Overrepresented in the Child Protection System, National Agreement on Closing the Gap’, July 2020, available at <https://www.closingthegap.gov.au/national-agreement/national-agreement-closing-the-gap>.
29. ‘Uluru Statement from the Heart’, 2017, available at <https://ulurustatement.org>, accessed 26 April 2021.
30. Maiam nayri Wingara Indigenous Data Sovereignty Collective and the Australian Indigenous Governance Institute, ‘Indigenous Data Sovereignty’, 2018 (addressed to all individuals and entities involved in the creation, collection, access, analysis, interpretation, management, dissemination and reuse of data and data infrastructure in Australia), available at <https://static1.squarespace.com/static/5b3043afb40b9d20411f3512/t/5b70e7742b6a28f3a0e14683/1534125946810/Indigenous+Data+Sovereignty+Summit+June+2018+Briefing+Paper.pdf≥, accessed 19 March 2021.
31. Golding, ‘Care Leavers Recovering Voice and Agency’.
32. See the videos of Summit participants discussing their views on participatory recordkeeping, available at <https://rights-records.it.monash.edu/summit/may-2017-national-summit-outcomes/>, accessed 1 May 2021.
33. Adoption of the child safety principles in all organisations was recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse 2017, and they are incorporated in the National Framework for Protecting Australia’s Children 2009–2020.
34. Frank Golding, Antonina Lewis, Sue McKemmish, Greg Rolan and Kirsten Thorpe, ‘Rights in Records: A Charter of Lifelong Rights in Childhood Recordkeeping in Out-of-Home Care for Australian and Indigenous Australian Children and Care Leavers, The International Journal of Human Rights, 2021, <https://www.tandfonline.com/eprint/6UUQVEHCCVHDPEUTTGHU/full?target=10.1080/13642987.2020.1859484>.
35. Carbone et al.; and Refugee Rights in Records Framework, available at <https://informationasevidence.org/refugee-rights-in-records≥, accessed 1 May 2021.
1 Implementing this right involves the development of principles and protocols that address issues relating to:
the right to be forgotten by others as far as it affects accountability or the rights of others in the short or long term
balancing the right of the individual to forget and the rights of others to remember/be remembered
the need to ensure transparency relating to participative appraisal decision making involving a range of individual and collective stakeholders, while acknowledging the rights of and individual in their personal record
ensuring the individual has access to expert advice on the potential consequences of destroying a record, e.g. redress schemes are often launched many decades after abuse occurs, so decisions made by an individual to destroy a record at the time of the abuse may affect rights of redress in years to come.
2 As a result of the findings of a comparative research study and mappings of the Charter and the Refugee Rights Framework developed by Professor Anne Gilliland and Dr Kathy Carbone, rights relating to recognition of cultural and community recordkeeping practices, and acknowledgement of self-identity in records have been included in the AJ Gilliland and K. Carbone, ‘An analysis of warrant for rights in records for refugees’, International Journal of Human Rights, vol. 4, no. 4, 2020, pp. 483–508.
3 Defined as the ability for individuals and communities to participate in societal memory, to find their own voice, and to become participatory agents in recordkeeping and archiving for identity, memory and accountability purposes: J Evans, S McKemmish, E Daniels and G McCarthy, ‘Self-determination and Archival Autonomy: Advocating Activism’, Archival Science, vol. 15, no. 4, 2015, p. 337
4 As a result of the findings of a comparative research study and mappings of the Charter and the Care Leavers Australasia Network (CLAN) Rights Charter (revised 2020) Records Creation Rights have been included in the Charter
5 Examples will be provided in the Implementation Kit for the Charter currently under development. It will be essential for expert advice to be available to anyone wishing to refuse to participate given the potential unforeseen risk of harm, e.g. because evidence not available for redress.
6 Note: implementing access rights may involve balancing competing rights in a participatory process.
7 As a result of the findings of a comparative research study and mappings of the Charter and the Refugee Rights Framework, rights regarding records expertise have been included in the Charter.
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Funding
Notes on contributors
Frank Golding
Frank Golding is an Honorary Research Fellow at Federation University Australia where he has just completed a PhD entitled Care Leavers Recovering Voice and Agency through Counter-Narrative, and a Life Member of CLAN, the national Care leaver advocacy body. A social historian, Frank has contributed to formal inquiries dealing with the institutionalisation of children and to projects with the National Museum, the National Library of Australia, and the National Summit on Rights in Records. He has written more than a dozen books, as well as book chapters and refereed journal articles and has presented papers on child welfare in the UK and several European countries.
Sue McKemmish
Sue McKemmish, Joining Monash in 1990, Sue McKemmish’s research focused on Records Continuum theory and conceptual modelling, and recordkeeping metadata. Her Records Continuum theory-building and modelling work has continued throughout her career. More recently, she has focused on community-centred, participatory recordkeeping and archiving research relating to rights in records, complemented by ethics of care, in response to advocacy by those with lived experience of Out-of-Home Care, and First Nations peoples in Australia. Developing inclusive, reflexive research design and practice in partnership with communities has been a critical to part of this research.
Barbara Reed
Barbara Reed is currently working as a part time Research Fellow on the Rights in Records projects of Monash University. As an independent archives and records consultant she has worked with a range of government, non-government, private and non-profit organisations, in Australia and internationally. Much of her work has been focused on developing recordkeeping practices and competencies, transforming recordkeeping into digital practice, and working with a range of stakeholders to create strategic interventions through standards and best practice guidelines. She has taught archives and records subjects at a number of Australian Universities.