Inquiry into violence abuse and neglect against people with disability in institutional and residential settings
It is frequently reported to CDA that children and young people with disability experience abuse and violence. The overwhelming majority of incidents reported to CDA occur in an education setting. Experiences include incidents that are clearly defined and understood as abuse. Also of significant concern are the number of incidents that are not recognised as abuse by many when the child involved has a disability. These incidents are often not named, treated or responded to as abuse.
Research shows that children and young people with disability are more than three times more likely to be abused than their peers without disability. Further, children and young people with communication difficulties and high behaviour support needs have been found to have a heightened risk of abuse. It has been stated that three factors make children and young people with disability more vulnerable. These are society's attitudes and assumptions; inadequate services; and factors associated with impairment.
Violence and abuse has been a shamefully common experience of people with disability in Australia, including children and young people. There have been many advocates who have worked tirelessly to raise awareness of the heightened vulnerability and frequency of abuse, violence and neglect of people with disability and the systemic issues that support the perpetuation of abuse. However, despite this advocacy, the widespread occurrence of abuse and associated systemic failings have not been acknowledged or addressed to date. Recent media reports of horrific incidents of abuse have put a spotlight on abuse of people with disability and were a major catalyst for the establishment of this much needed and long overdue national Inquiry.
A central focus of reform going forward must be on what needs to occur to prevent violence, abuse and neglect of people with disability. This requires consideration of not only management and governance practices and accountability, but also institutional culture and discriminatory attitudes that increase children and young people’s vulnerability to abuse.
Most children with disability in Australia experience some form of abuse throughout their childhood. This submission details blatant examples where incidents are clearly labelled as abuse. These incidents are shocking and some have attracted significant community attention through media reporting. However, the range of abusive behaviours, actions and interventions that children and young people with disability are often subjected to typically do not receive requisite attention. These actions often remain unchallenged and unquestioned due to the existence of a pervasive culture of low expectations and negative attitudes that position disability as an inferior characteristic of a person which is seen as a justification for certain circumstances of abuse.
The direct experiences of children and young people of abuse illustrate that the identification and responses to these incidents are often extremely inadequate and can often compound the harm inflicted by the abuse itself. These failings further entrench the marginalisation and discriminatory attitudes, which prevail in the Australian community towards children and young people with disability.
Why is it okay for children with disability to be denied access to a toilet? Why is it okay for a student to have his work desk in the sick bay at his school? Why is it okay to leave a child tied in a highchair or pram for hours to restrict movement? Why is it okay to not search for a reason a child is extremely distressed and self-harming? Why is it okay to deny a child use of an essential resource she needs to communicate? The direct experiences of children and young people indicate that many incidents of abuse are deemed acceptable when a child or young person has a disability.
Children with Disability Australia
Children with Disability Australia (CDA) is the national representative organisation for children and young people with disability, aged 0-25 years. The organisation is primarily funded through the Department of Social Services (DSS) and is a not for profit organisation. CDA has a national membership of more than 5000 with the majority being families.
CDA provides a link between the direct experiences of children and young people with disability to federal government and other key stakeholders. This link is essential for the creation of a true appreciation of the experiences and challenges of children and young people with disability.
CDA’s vision is that children and young people with disability living in Australia are afforded every opportunity to thrive, achieve their potential and that their rights and interests as individuals, members of a family and their community are met.
CDA’s purpose is to advocate systemically at the national level for the rights and interests of all children and young people with disability living in Australia and it undertakes the following to achieve its purpose:
- Listen and respond to the voices and experiences of children and young people with disability.
- Advocate for children and young people with disability for equal opportunities, participation and inclusion in the Australian community.
- Educate national public policy-makers and the broader community about the experiences of children and young people with disability.
- Inform children and young people with disability, their families and care givers about their citizenship rights and entitlements.
- Celebrate the successes and achievements of children and young people with disability.
Abuse and neglect of children and young people with disability has been frequently reported to CDA over many years. The overwhelming majority of experiences reported to CDA have occurred in an education setting, most being schools. Accordingly, abuse has been a core focus of CDA’s advocacy since the organisation’s establishment in 2009.
CDA has also contributed to a broad range of inquiries and consultations to highlight the magnitude, breadth and specific experiences of abuse of children and young people with disability. Through this work CDA has aimed to raise awareness of the vulnerability, increased risk and experience of abuse of children and young people with disability. Further, CDA has sought to ensure that a practice and policy based response occurs which not only acknowledges and responds more effectively to abuse but prevents its occurrence.
In 2012, CDA commissioned Dr Sally Robinson of the Centre for Children and Young People at Southern Cross University to produce an issues paper. The paper, Enabling and protecting: Proactive approaches to addressing the abuse and neglect of children and young people with disability, examines recent research about abuse and neglect and national policy approaches in child protection and disability. It provides a framework for an improved understanding of the causes, experience and responses to abuse of children and young people with disability. This paper is attached for the Committee’s consideration (see Appendix A).
Enabling and protecting has stimulated significant public discourse and been a major informant of present research and policy agendas regarding causes and responses to abuse of people with disability. There was significant national media response following the launch of the paper, with numerous articles and news reports prompting broad public attention to the issue. The community seemed rightfully aghast at the heightened risk and vulnerability of children and young people with disability to abuse and neglect. There have been 7600 copies of the issue papers distributed to date through CDA, electronically and via hard copy.
The Royal Commission into Institutional Responses to Child Sexual Abuse have used the paper extensively to inform their focus on the experiences of children and young people with disability. The paper is also cited extensively in a number of projects and published articles. Examples include the article Preventing abuse of children and young people with disability under the National Disability Insurance Scheme: A brave new world?, which was published in the Australian Social Work Journal; and Zero Tolerance: a framework to prevent and improve sector responses to abuse, neglect and violence experienced by people with disability developed by National Disability Services.
There has been ongoing, concerted efforts over many years by disability advocates and organisations to highlight the issue of abuse of people with disability and to develop a response commensurate with the known vulnerability. However, to date there has been minimal recognition widespread and frequent occurrence of violence and abuse of people with disability.
In recent years there has been an increased focus on issues of abuse and child protection. The Royal Commission into Institutional Responses to Child Sexual Abuse and the Victorian Royal Commission into Family Violence are two key examples of this.
More recently however there has been heightened attention regarding issues of abuse of people with disability, with announcement of various inquiries and related policy initiatives. This is due in part to media coverage of shocking allegations of abuse experienced by people accessing the Victorian disability service provider Yooralla. Following these reports, inquiries into abuse in disability services were announced by the Victorian Ombudsman and the Victorian Parliament.
It is critical that there is explicit consideration regarding how the work, findings and implementation of these inquiries’ findings can be coordinated across sectors and jurisdictions, so that a well-coordinated and meaningful response is developed which articulates the breadth of reform needed to ensure abuse and violence of people with disability is adequately recognised, responded to and ultimately prevented.
Responses to the inquiry’s terms of reference
The experiences of people directly or indirectly affected by violence, abuse and neglect perpetrated against people with disability in institutional and residential contexts
Experiences of abuse are frequently reported to CDA. An analysis of CDA organisational records kept from all consultations and contact from children, young people and families to date revealed that experiences of abuse reported to CDA have overwhelmingly occurred in an education setting. Some of the reported incidents were extreme, involving physical or sexual abuse. Many involved a chronic devaluing of the child and/or denial of opportunities which are routinely afforded to their peers without disability, such as being able to go to the toilet on a school excursion.
Children, young people and families can commonly view incidents such as these as ‘par for the course’ of being a child or young person with disability. Consequently, expectations and standards of unacceptable practices and actions are frequently normalised and unchallenged by children, young people, families and service providers.
The following section provides a summary of the direct experiences of violence, abuse and neglect of children and young people with disability reported to CDA. Certain types of abuse discussed below, including sexual abuse and sterilisation are not commonly reported to CDA, with there being significant barriers to the disclosure and reporting of these incidents. However, these forms of abuse do occur in the Australian community and it is important that they are a consideration for this Inquiry.
Experiences of abuse
There is currently no national data on the prevalence of sexual abuse of children and young people with disability in Australia. International research indicates that children with disability are approximately 3.14 times more likely to be sexually abused than other children. Research suggests that children with communication and high behaviour support needs have a heightened risk of abuse and that children with disability are more likely to experience multiple assaults, more severe abuses and incur physical injuries as a result of abuse.
CDA has received few direct reports of experiences of sexual abuse. Similarly, despite the high numbers of survivors contributing to the Royal Commission into Institutional Responses to Child Sexual Abuse, there has been minimal direct participation of people with disability, including children and young people. It was anticipated by CDA that the representation of direct experiences of sexual abuse of children with disability would be low for a number of reasons. It is therefore important to CDA’s work regarding sexual abuse to understand why this is the case and what the barriers to reporting sexual abuse are for children and young people with disability.
Reporting experiences of sexual abuse is challenging and traumatic for all children and young people. Many people can take years to make an initial disclosure of child sexual abuse. The challenge of reporting abuse can be further compounded for children with disability, often due to assumptions held about disability and views of impairment. For children and young people with high communication support needs, communication often occurs primarily through behaviour, however this is often not recognised. Certain behaviour, such as repeated head banging or nail biting, may indicate distress but is often misattributed to disability, meaning the cause of distress is not identified. Further, ill-informed views hold that children and young people with disability have limited comprehension which thus diminishes the impact of abuse. This can lead to assumptions that children and young people with disability do not understand what has happened, are unaffected by sexual abuse or that the impact is lessened.
CDA has been informed of peer to peer sexual harassment and abuse within school contexts. Students with disability have been subject to sexual taunting and harassment in the school yard, as well as incidents of assault such as having their pants pulled down by peers. In other cases, the privacy and personal space of children and young people with disability is not respected. An example of this is other students attempting to enter a toilet stall whilst a child with disability is using the facilities.
The following are other incidents which have been reported to CDA:
Mainstream schools have not met (my daughters) needs… (she was) sexually harassed by students and teachers – Parent.
My daughter attended a social program, (where) she was shown and directed to massage violent male students… This was excused away in the complaints process, no one questioned this or supported my daughter's need for specialist counselling. She was manhandled by up to four adults, including males. She learnt about fear, failure, humiliation, isolation, violence, abuse – the list goes on – Parent.
My 7 year old son experienced peer to peer sexual assault at school. I was informed ‘x’ (the sexual assault counselling service) don’t have the capacity to see children with disability – Parent.
Experiences of physical abuse reported to CDA include serious assaults. Physical abuse also occurs when children or young people are restrained in institutional settings, which is discussed in the next sub-section. Experiences of physical abuse reported to CDA include:
My brother was beaten by his teacher last year… (He) was in the middle of a seizure while he was beaten. He has a very small vocabulary made up of mostly echolalia and was unable to tell us what happened – Sibling.
On placement in a special school, I saw kids being dragged by their hair and shoved outside – Student teacher.
(My daughter)…was smacked in kindergarten by her teacher. She was the size of a three year old and forced to sit on the floor at the front of the class, she moved off the ‘X’ he had drawn on the floor and was smacked. As she was non-verbal, the other children told me about it and all gave evidence… No disciplinary action against the teacher (was) taken – Parent.
In 2005 my son began in a mainstream, government school… By mid-2006 ongoing, unchecked and unreported bullying and harassment by older students resulted in a head injury. After I lodged a complaint the school decided they were ill equipped to ensure my sons' safety and support his education – Parent.
(My daughter) got so badly bullied, (she was) stabbed with an earring in year three (but) no one cared – Paent.
Staff intimidate, abuse, and humiliate students with behaviour (support needs) – Parent.
I received a call at work from the school to come and pick my son up as he had a runny nose. My husband and I were unable to leave work immediately, so my mum collected him from school. Our son was brought out from a room by three teachers, including his own teacher, with a bloodied face. The teachers and receptionist said that he had just had an accident whereby he had sneezed and bit his bottom lip. Mum then drove him home and cleaned up his face. She discovered that it was full of severe scratches, one near the eye, in addition to cuts on his lip. She rang the school for an explanation and was told that his teacher would call back to discuss. His teacher left a message later, but did not return any further calls after my husband and I left messages looking for an explanation… (Later) an incident report was sent home stating that another student had caused the injury – Parent.
I saw one of the staff wrestling a teenage boy with autism to the ground and screaming profanities at him. I think he bit her, not sure. It was all out of control – Parent.
A 12 year old student was king hit, a sudden and forceful punch to the head, and knocked out by one of his peers. When he regained consciousness he had to phone his parents himself because the school had not done so.
A girl in Grade two who was being regularly bullied by a boy in her class and kept coming home with bruises on her arms. One day the boy ran up to kick her and knocked her to the ground leaving her almost unconscious. The school took no action. Two weeks later she was found at lunchtime hanging by a rope, tied under her armpits, from the top of the slide in the playground. Her mother was not told in person but read about it in the communication book used for regular written correspondence from teachers.
Further, other experiences of children and young people with disability involve a denial of the right to exercise control over their bodies and personal boundaries.
A 14 year old girl in Victoria who had her armpits shaved against her will by a teacher at school in front of two other students. The girl’s mother was informed that the shaving was ‘part of the school curriculum.’
Restraint is often experienced by children and young people with disability, often as a ‘strategy’ to ‘manage behaviour’ or in cases where staff are unaware that what they are doing constitutes restraint, let alone abuse. It is often justified as acceptable or necessary to ensure the safety of the student concerned or others.
CDA supports the following definition developed by the Australian Psychological Society (APS), which defines restraint as “a range of programs, procedures, and psychosocial techniques that can impede a person’s exercise of choice and self-determination, all of which prevent people from being able to exercise human and legal rights that are ordinarily available to other members of the community.” Physical and chemical restraint occurs in a range of different settings, including disability services, schools and medical settings.
(I only) recently stopped my son's special school using a time out chair in a separate room - (the) chair (was) bolted to the floor and my son belted in – Parent.
The school I went to would (hold) down students for not doing their work. Surely there are better strategies than that – Student.
(My son) was 18 months old when he was excluded from day care. They had no interest at all in assisting him. I only found out after leaving from a staff member, that he was left restrained in a high chair for long periods of time – Parent.
(My son) is currently being sedated to attend school. The school says he is doing well. His doctors say he is suffering a huge amount of emotional distress due to his education – Parent.
My son was tied down with rope to a chair…while in childcare because he wouldn't sit and listen to story time – Parent.
As an acceptable strategy to safeguard a student from hitting his head, school personnel tied a student to his chair for all class lessons and then tied him to a pillow on the floor during other activities – Parent.
Schools have used martial arts therapists to restrain students. The following employment advertisement seeking Martial Arts Therapy (MAT) aides to provide ‘behaviour management’ to students at both primary and secondary levels demonstrates this occurrence:
Figure one: Advertisement for Martial Arts Therapy aides from August 2014
The seclusion of students with disability is often justified as ‘behaviour management’ and it is also often reported to CDA that it is used as a punishment. The APS has defined seclusion as “solitary confinement of a person in a room or area (e.g. garden) from which their exit is prevented by a barrier or another person. Seclusion involves situations in which people believe they cannot or should not leave an area without permission.”
My son was locked in a broom closet at high school…and we were asked to pay for the window that he broke… (and) the school did not think that it was wrong. I pulled him out very quickly! – Parent.
(At my son’s school there) was a huge cage in the middle of school, the school was padlocked once kids were in and parents were not allowed to be involved in their education. I cried every day I dropped him there – Parent.
My son was made to do his one on one work in a storeroom cupboard, no windows, shelves stocked high with supplies...how depressing! – Parent.
My son had a ‘containment area’ built for him when he was in Prep... horrific! – Parent.
I have heard of a child being sent to an area without a seat, one gum tree for shade and no teacher supervision they called the Pig Pen – Parent.
My child was abused at mainstream school. She was humiliated, isolated (and) placed in the corner facing the wall…That is just the tip of the iceberg of what happened to her – Parent.
(My son) was humiliated in his last school, he was stuck between two flag poles (in) rain, hail or shine and was told by the teacher if he leaves that spot he will be expelled. He was put on parade as a naughty child and when I rang this teacher he told me "what is your problem, I stick my head out the window to make sure he's ok, he's not thirsty or needs to go toilet" – Parent.
CDA is aware of numerous cases where enclosures have been used to seclude students with disability. This issue was brought to national attention with the reporting of the use of a cage on a student with disability in Canberra this year. However, this is not an isolated incident. Other cases where the media has reported the use of small enclosures to seclude and abuse students with disability include in New South Wales and Tasmania in 2010.
The following image provided to CDA shows a fenced enclosure used for the seclusion of students with disability at a special school in Melbourne.
Figure two: Image of fenced enclosure in Melbourne school
Bulling is a persistent and ongoing form of abuse that many children and young people with disability regularly contend with. Bullying is defined by the Ministerial Council for Education, Early Childhood Development and Youth Affairs as “a pattern of repeated physical, verbal, psychological or social aggression that is directed towards a specific student by someone with more power and is intended to cause harm, distress and/or create fear.”
It is CDA’s experiences that responses to bullying of students with disability are often highly inadequate. For example, staff may attribute bullying behaviour to students with disability having ‘poor social skills’ rather than examining and responding to the student who is doing the bullying. In other cases, students with disability aren’t believed when they report bullying.
Below are some quotes illustrating the chronic, everyday abuse experienced by students with disability through bullying and harassment:
…Remembering all the times I have been bullied at school, I sink into my darkest times. I am being continually pushed over the edge, no-one has resolved the incident, and my Mum is not supportive enough to get me out of the greatest depression of my life. Now, I am considering killing myself just so no-one can bully me anymore – Student, boy aged 14 years.
For me the worst thing is the bullying. There are just so many kids that are freaked out by disability and some teachers are as well, to be honest. This year I have been hit in the head, punched, called a retard just too many times or on a not so bad day just told I am not normal. I sometimes over-react to the bullying and then I get detentions for my behaviour. Once I had to wear my uniform to parent/teacher day because I had a detention. I then had to empty rubbish bins for 90 minutes. It didn’t make me think about my behaviour, it just made me incredibly sad. How does that help someone learn? All this stuff really impacts on a kid’s self-esteem you know – Student, boy aged 13 years.
Being bullied in primary school was hard. My bully pushed me and said mean words to me because she thought I was different – Student, girl aged 14 years.
I get bullied about my disability and the way I work. At lunch time I go to the library to avoid this. I wish people would accept me – Student, boy aged 10 years.
(My son) has broken an ankle through bullying, has been beaten up on the way home from school and is not under the care of a psychiatrist and psychologist – Parent.
My son was horrendously bullied, isolated, humiliated, tormented (and) left to his own devices. My son was self-harming and pushed to the brink of suicide because of the school system – Parent.
As a result of a traumatic incident at a special school, where his teacher threatened to cut his fingers off, (my son) now experiences great difficulty in going to school – Parent.
(My daughter was) bullied by some of the aides (at school). When these issues were brought to the attention of the Principal, changes were made but unfortunately the aide concerned was also the integration coordinator. In the integration room, the aides made her feel unwelcome. They called her names such as ‘blabber-mouth’ and ‘sticky-beak.’ As much of her progress has to do with cooperating with the aides, their unethical and irresponsible behaviour served only to alienate her. She was constantly being told off. It was a time of much stress and anxiety – Parent.
Children and young people with disability are regularly excluded from the range of activities and opportunities typically afforded to their peers without disability. This includes opportunities to play at their local playground, participate in social and recreational activities, attend a local sporting club or music class or attend a local school or preschool. Further, there is a common belief that children and young people with disability should only access segregated services or activities.
Being persistently excluded or segregated sends a profoundly strong message that children and young people with disability are not worthy or valued. Exclusion positions children and young people with disability as ‘peripheral’ to their peers and the wider community. CDA believes that the emotional harm this creates is significant and that the constant diminishing of a child’s worth perpetuates the profound inequality children and young people with disability experience. The following are experiences of exclusion reported to CDA:
(My daughter) has to miss out on school discos (held) each term – Parent.
At a special school my daughter was excluded from the playground for a year because they said they didn't have the staff to keep her safe till I informed the Principal I was going to take it up with the (education department) and seek legal advice – Parent.
I was asked to keep my child at home three mornings a week so his teacher could provide class with uninterrupted learning – Parent.
At his previous school my son was excluded from all but one excursion, special events and incursions. He was also entirely excluded from his class from the end of term two and for all of term three until he was expelled in the first week of term four last year. This took the form of being placed in a separate room (not much bigger than a cupboard) in isolation away from his class and teacher. He spent all day with one of the up to eight different aides engaged to watch him – Parent.
(My child has not attended) even one excursion in three years. Not even one foot outside the school fence – Parent.
(My child) has been excluded from some class activities and given menial tasks to do to keep him busy whilst the rest of the class learn – Parent.
School says they only (provide) support for ‘core learning’ (areas) of literacy and numeracy and will not support other disability-specific needs. (My child is) not permitted to attend lunch or any classes after 12pm each day (or) attend sports carnivals, any sports program, interschool sports, excursions or camps - even if we go (to provide support) – Parent.
Abuse and neglect arising from inadequate support and care
Children and young people with disability also experience abuse and neglect arising from inadequate services and supports. This can include a failure to provide appropriate personal care, nutrition, health care and treatment for injuries, leisure opportunities and social contact. Neglect is often associated with the family context in child protection literature, however, as can be seen from the following experiences, it is also relevant to service contexts. Examples include children and adolescents accessing respite services not being provided with appropriate personal care or supervision.
Experiences reported include:
Over a number of months, our son’s lunchbox would come home virtually untouched. His teacher had told me in a program support meeting that she won’t let him eat his food unless he goes and gets his lunchbox as per the other students. He has a complex disability and obviously finds this hard to do. She would often write me an email at the end of the day saying that he was unwell and didn’t eat his food. However, when he comes home, he gulps his food and drink down. Being given food and drink during the day is a fundamental right and I believe this teachers attitude is severely flawed – Parent.
Our son has come home on numerous occasions during the winter months in cold, wet shoes and saturated clothing. When asked for an explanation, his teacher has said that it was impossible to keep him away from wet areas in the playground despite wearing a bright vest. I have asked the principal and teacher to find a way to keep him safe and dry but the situation remained unchanged – Parent.
The following article published in 2013 provides a tragic example of abuse arising from inappropriate training and information provided to staff.
Adam Cooper, ‘Autistic boy's carer had no experience with children,’ The Age, 25 June 2013.
The carer who looked after a severely autistic boy who drowned on a day trip was unaware of his client's disabilities and never received any relevant training from the agency that hired him, an inquest has heard.
Vipula Rajakaruna Mudiyanselage was caring for Felix Hua in his then role as a community support worker with Southern Cross Care when the 14-year-old went missing at Yarra Bend Park in Fairfield on May 30, 2009.
Felix's body was found three days later in the Yarra River, near Dights Falls. On the second day of Felix's inquest at the Coroners Court, coroner Heather Spooner granted Mr Rajakaruna Mudiyanselage protection that anything he said in evidence could not be used against him should police consider laying criminal charges.
In applying for the protection, the carer's lawyer, Michelle Wilson, told the court that her client wanted to give evidence, but there was a chance he could incriminate himself if he did so.
When he entered the witness box, Mr Rajakaruna Mudiyanselage had a statement read out, in which he said he had told Southern Cross Care he had never worked with children before the agency employed him, and thought it strange when he was later asked to care for Felix.
Mr Rajakaruna Mudiyanselage arrived in Australia from Sri Lanka in 2007 and worked as a carer to help get by while he studied law and finance at university. He said before he joined Southern Cross Care his only previous caring experience was cleaning for elderly people at their homes.
He said he was never made aware of the extent of Felix's disability - or his fascination with water, his inability to swim or his tendency to run away from carers - by his employer or the boy's mother, whose English was limited. He said he knew nothing of autism until after Felix's death.
Southern Cross Care and the City of Yarra - which outsourced its care program to the agency - have both acknowledged deficiencies in the way Felix was looked after, and have apologised to the boy's family.
Jonathan Morris, a former manager at Southern Cross Care, told the court on Tuesday the agency should not have taken on children and people with disabilities as clients when it took over the City of Yarra's care contract in 2008, as the agency had only previously cared for elderly people.
Mr Morris said he was unaware Mr Rajakaruna Mudiyanselage lacked the skills to care for Felix, and acknowledged no one in the agency was qualified to do so.
"Felix clearly needed someone with more specialised skills," he said. Felix went missing when Mr Rajakaruna Mudiyanselage went to his car to get some biscuits, leaving the boy playing alone in a sandpit for about four minutes. The carer said Felix's death had devastated him, as despite the difficulties in caring for him on weekly outings he had regarded him as a son, and the boy's family as his own family in Australia.
The court heard that during his time as Felix's carer, the boy had been left alone on another occasion, when a passer by discovered him playing alone in the dirt on an oval and called the police. But Mr Rajakaruna Mudiyanselage said that incident had been a misunderstanding, as people often did not realise a man of Sri Lankan appearance was caring for a boy of Vietnamese appearance, and that he was giving Felix the space he liked. "I always tried my best when I looked after Felix and all my other clients. I was not lazy. I was always respectful. I did not neglect my duties as a carer," Mr Rajakaruna Mudiyanselage said. The inquest continues. 
It is important to recognise forced or coerced sterilisation as a form of torture and abuse. Forced or coerced sterilisation occurs when children, young people and their guardians and families cannot exercise free and informed choice in relation to the procedure. There are numerous reasons cited for the sterilisation of children and young people with disability, including to prevent wanted or unwanted pregnancies, eugenic motivations of preventing the procreation of people with disability or to ‘manage’ menstruation. There is limited information available about the prevalence of experiences of coerced sterilisation among children and young people with disability. Often, experiences of sterilisation are not disclosed until children have reached adulthood.
Since the High Court’s ruling in 1992 in Marion’s Case it has been required that court authorisation is required before any child can be sterilised. Currently, in all Australian states and territories, the authorisation of either the Family Court of Australia or a state or territory guardianship tribunal is required before a child or adult with disability can be involuntarily sterilised (except in emergency situations in which there is a serious threat to life or health). Despite this legal framework being in place it is the view of many disability organisations and the Australian Human Rights Commission (AHRC) that it has failed to protect people with disability. Further, the concluding observations of the United Nations regarding Australia’s meeting of its obligations under the Convention on the Rights of Persons with Disabilities stated it is “deeply concerned” by Australia’s record on the practice and urges the adoption of “national uniform legislation prohibiting the use of sterilisation of boys and girls with disabilities.”
It is therefore critical that sterilisation be recognised as a form of abuse and that the right of children and young people to make decisions about their own bodies and reproductive rights are respected.
SETTINGS WHERE ABUSE OCCURS
The following section discusses issues associated with the setting where abuse occurs. Expectations around what is considered acceptable can differ dramatically depending on the context. For example, the use of restrictive practices on a child with disability however would be seen as abuse in the family context. Locking a child in a small enclosure or denying food and drink are examples which would be defined as abuse if experienced in the family home but are frequently accepted or unquestioned in institutional settings. Children and young people with disability commonly experience this double standard.
As previously indicated, abuse of students with disability is shamefully common in schools and includes a range of different types of abuse. While it is not suggested that all incidents are due to a malicious intent to abuse students with disability, systemic discriminatory attitudes towards disability mean that abuse is often not recognised or it can be justified as ‘behaviour management.’
It is important to situate the abuse of students with disability within broader education experiences. Students with disability are typically denied their right to a quality education. CDA’s experience is that broader community attitudes about disability are reflected within education settings. It is rare for students with disability to be welcomed as valued members whose contribution is believed to enrich the school community. Further, students with disability are rarely provided with the support required to participate in a meaningful education program. This stems from a complex range of factors, including attitudes towards disability, a lack of resourcing, and a lack of expertise among educational staff. The increasing reports of abuse in education settings received by CDA is seen to reflect a system in crisis that is struggling to meet the needs of students with disability.
CDA would also like to raise the issue of abuse experienced within domestic settings, particularly the family home, although it’s not explicitly included in the terms of reference. There is a great paucity in local data as to the prevalence and impact of family violence and abuse upon children with disability in Australia. Existing research generally does not disaggregate the location of abuse (i.e. whether it occurred in the family home or an institutional setting). The limited small scale research that does exist has typically found an increased prevalence of domestic abuse among children with disability and disability is often considered to be a ‘risk factor’ for familial abuse in child protection literature. Further, children with disability face barriers in accessing child protection services, including support regarding domestic violence. In cases where support services are accessed, staff may have limited experience and expertise in identifying and providing support to children with disability.
The issue of transport to school has raised a number of issues of significant concern. Policy and procedures vary in each jurisdiction. The most prominent concerns relate to the length of travel, pre-employment and ongoing screening of staff, qualifications and professional development for bus personnel and widespread inadequate policies and procedures. A number of incidents have occurred nationally, which illustrate that this is an environment where children with disability appear to be very vulnerable.
In Victoria, bus transport is provided to students enrolled in special schools. Presently the policy is that the travel time for each journey can be up to two hours for a student to travel to or from school – a potential of four hours per day. CDA has known that children, from as young as five years of age, are spending four hours a day traveling to and from school. In some instances this involves very short distances of less than 10km. This can mean that a child leaves home at 7.00am and returns home at 5.00pm. In many instances the families must utilise school transport because of work or other family commitments so it is not simply a preferred choice of families but the only transport option. The extensive travel time immediately denies many children significant opportunities and experiences of play, recreation, extracurricular activities and family time. All are basic rights outlined in the United Nations Convention on the Rights of the Child. Further, for children with high health and physical care needs, the long periods spent travelling to and from school inhibits the provision of necessary support. Some experiences provided to CDA include:
My eight year old son used to spend up to four hours a day travelling to and from his school which was less than 10km away from our home – Parent.
I have a 10 year old son that attends (a special school) and can be traveling for 90 minutes or more each way every day. I feel that this is a disadvantage to him and many other children therefore I believe that the education department should do a review of their current policy.
The many attributes associated with longer travel time (for my son) are:
Headaches every day from pure exhaustion due to travel time;
Dehydration from not drinking and sitting in the hot bus for long periods;
Not being able to go to the toilet for the duration of the bus trip;
No food whilst on the bus;
Sickness increased from the run down and sheer exhaustion;
More meltdowns when he gets home;
Unable to eat properly at night (because he is) too tired;
Medication given way too early in the morning in order to catch a bus;
(Sensory issues) increased with the increased noise;
We should never put a cost figure on a child with (disability), (the school) currently disadvantages our children making the buses bigger (and) trips longer instead of smaller buses and shorter routes;
The emotional and physical cost on a child;
Not being able to join sports clubs events (from) Monday- Friday (because) they come home too late and too exhausted;
Miss out on…after school therapies;
The emotional toil and stress on families due to having more meltdowns; and
Teachers at (school) would find that these children are less attentive during the day and possibly more disruptive – Parent.
In June this year, a student who attends a special school in Melbourne was left on a locked bus for five hours because the driver failed to check that all students had exited. The student had fallen asleep when the other students exited the bus at 9am and was not found until 2.30pm.
The following article published in 2013 reported a further experience of abuse experienced by a student with disability on a school bus:
Jewel Topsfield, ‘Tough discipline on the school bus,’ The Age, 8 April 2013.
Last year, Michael Teggerth was told his 11-year-old daughter Caitlyn, who has epilepsy and developmental delays, was tied up by a school bus driver, allegedly for trying to damage the bus.
''She has a very vivid imagination - she was pretending to be a lion or tiger and scratching the seat,'' Mr Teggerth said. ''When they tried to tie her up, she started fighting and the driver and the carer on the bus both slapped her.''
Mr Teggerth said when he met staff from Caitlyn's school, Ballarat Specialist School, later that day, they said nothing about the incident but complained about her behaviour. ''When she pointed out, 'I got tied up on the bus', I thought, 'That explains it'. Surely this can't happen? This is the 21st century, not the 16th century.''
Mr Teggerth will seek damages in the Victorian Civil and Administrative Tribunal, alleging discrimination and ''inhumane and degrading'' treatment in breach of the charter of human rights.
The Teggerth family's disability advocate, Julie Phillips, said the use of physical restraint against a student with a disability was far from isolated in Victorian schools. ''It is very common unfortunately, and the reason is that it seems to be accepted practice by the Education Department in the behaviour management of children with disabilities,'' she said.
A spokesman for Education Minister Martin Dixon said restraint should only be used in an emergency to prevent students from inflicting harm on themselves or others. ''The minister would be concerned if there are cases where restraint has not been used in line with that policy,'' he said.
The restraint policy is silent on seclusion even though the Education Department told the Victorian Equal Opportunity and Human Rights Commission it was a clear breach of policy.
Children with Disability Australia said ''abusive practices in schools'' included the use of a martial arts instructor to train staff in behaviour management and the use of small rooms and small fenced areas as punishment.
In another case before the tribunal, Karen Oakes alleges her autistic son, who was then six, had his challenging behaviours addressed through seclusion and restraint at Alfredton Primary.
''The seclusion involved shutting him in a room for periods of time that were long enough that he soiled and urinated upon himself,'' the complaint says. "(The Oakes) also became aware (their son) was being forced to the ground and restrained, and dragged from one place to another.''
And in a third case before the Federal Court, Anne Maree Stewart alleges her son Matthew, who has Asperger's syndrome, was subject to physical assault from staff at Maple Street Primary.
"The Department of Education admits to physically restraining Matthew and notes reflect that they did so, even for behaviour which was just described as 'silly'," the complaint form says.
A spokesman said the Victorian Education Department was unable to comment on individual cases due to respect for the privacy of students. "In addition, the department is unable to comment on cases that are subject to current legal proceedings," he said. Mr Dixon's spokesman said while the minister did not ''wish to underplay'' concerns raised, the vast majority of staff responded in an effective and caring way to the difficult circumstances that arose in schools daily.
Again, depending on jurisdiction and circumstance, many children who are dependent on this bus transport, are often denied the opportunity to eat, drink or go to the toilet while travelling.
A boy aged eight years old who was completely independent in toileting and continent was not provided with any options in the event he needed to go to the toilet if required throughout his two hour trip to and from school. After wetting his pants on a trip as he could not hold on any longer, his parents sought action from the Department of Education to ensure he could go to the toilet if needed to. The Department advised this was not an available option for him instead suggesting a number of possible options including a) wearing a nappy b) withholding of fluids during the afternoon or c) the provision of an absorbent towel in the event a situation arose if he couldn’t access a toilet and simply couldn’t hold on any longer.
In different jurisdictions it is unclear what mechanisms there are for training and supervision of staff that drive or chaperone on these transport services. The limited or poor policies and procedures in relation to school transport, notably regarding supervision, creates a significant risk. For example, in many cases there is one driver and one chaperone supervising up to 50 students. A lack of appropriate supervision can allow peer-to-peer abuse to occur, such as bullying and assaults.
The lack of supervision of staff employed in school transport services has also allowed instances of sexual abuse to occur. This was highlighted by the Royal Commission into Institutional Responses to Child Sexual Abuse’s case study into St. Ann’s Special School. In this case, a bus driver employed by the school sexually abused as many as 30 students during his time working at the school. Being the bus driver with no supervision meant he was able to groom and abuse the children without scrutiny for years.
Out of home care
The term ‘out of home care’ is often used to refer to placements for children who have been subject to a child protection order, including home based care such as foster or kinship care, family group homes, independent living placements and residential care. Children with disability are users of other types of out of home care that are not a result of a child protection intervention. Out of home disability services and supports are frequently accessed, including respite services. Out of home respite comprises a wide range of services that aim to support families and provide a break from caring. These services can be more formal, such as day or overnight respite centres or day outings with respite workers. Out of home respite can also involve less formal and voluntary out of home care.
Children with disability are believed to be overrepresented in out of home care placements that result from child protection interventions despite there being no official national data. Available research reflects this high representation. Research undertaken by the Victorian Equal Opportunity and Human Rights Commission, CREATE Foundation and OzChild indicated that the prevalence of disability within the out of home care populations surveyed was 14%, 22.5% and 73% respectively. Even when considering the lowest estimate of 14%, this is almost double the prevalence rate of children with disability in the Australian population (7.3%).
CDA believes that any existing estimates of the proportion of children and young people with disability in out of home care are likely to be an underestimation. CDA is aware that many children with disability are not recognised as they do not have a formal diagnosis or do not personally identify as having a disability. Moreover, at times the knowledge and expertise is not available within the out of home care system to identify if a child has a disability. There is no data that specifically focuses on the proportion of children with disability who experience abuse in out of home care settings, however CDA would like to highlight the risk factors for abuse in this context.
Data on the level of abuse encountered by children residing in out of home care is inconsistently collected across the states. As such, available data is likely an underrepresentation of abuse and violence occurring. The 2015 Productivity Commission Report on Government Services indicates that between 2013-2014, 365 children Australia wide were subject to a substantiated case of child abuse perpetrated by an individual living in their out of home care setting (no data available for the Northern Territory). An issue found in research by the Royal Commission into Institutional Responses to Child Sexual Abuse is that the major focus of efforts to prevent child sexual abuse in out of home care has been on peer to peer abuse, rather than caregiver to child abuse.
Research also suggests that children with disability are more likely to be in residential care than children without disability. Residential care is subject to significantly higher allegations of abuse than other forms of out of home care placement.
Reports of children and young people with disability experiencing abuse in medical and health settings have been received by CDA. An example was a young person who was shackled to a hospital bed for days, restrained by staff and subjected to chemical restraint, including being tied down and injected with sedatives. Another example is a students’ enrolment in school being contingent on the child having to take certain medication.
The following is an experience reported to CDA:
When Anthony was 12 months old he broke his tooth and required a cap. He had treatment under general anaesthetic with a medical team who did not know him. Due to sensory issues, Anthony had severe anxiety about band aids and hospital identification wristbands. Despite significant explanation and advocacy around this issue by his parents, the treating team insisted on him wearing an identification wristband whilst conscious and applying a band aid after administering by injection a pre-operation medication. Anthony subsequently was hysterical and his tortuous experience was compounded by him being forcibly restrained whilst receiving treatment. Following the treatment, he had bruises on his face from the application of a mask to administer the anaesthetic and further bruising on his arms from being restrained. For a number of years following this, Anthony was very reluctant to see any medical professional, particularly dentists. Usually if he would see any medical equipment, he would become extremely agitated and upset, often exhibiting physical signs of extreme stress such as dry reaching, heart palpitations and profuse sweating.
Criminal justice settings
At present there is no national data on the number of children with disability who have contact with the criminal justice system. Further, there is a wide disparity in results among smaller scale research on prevalence of children with disability in juvenile detention. Again, the issue of unrecognised disability may be a critical barrier to accurate data.
While there is a focus in Australia on diversion and community support for young people in contact with the justice system, there are still a number of young people in secure welfare, juvenile justice and adult prison settings. In June 2014, 58 young people under the age of 20 and 698 between the ages of 20-24 were incarcerated in Victoria. Research suggests that children and young people with cognitive disability are overrepresented in the criminal justice system. There is somewhat limited Australian research about experiences of abuse in these settings, however CDA would like to highlight criminal justice settings as a consideration for the Inquiry and flag the need for safeguards in this area.
CDA is also aware of instances where criminal justice agencies have physically abused children and young people with disability. It is important to consider whether a lack of understanding of disability and the diversity of interventions available can lead to the use of excessive force and violence.
In regional Victoria, police used a taser on a student with disability at a special school. The school had called the police because the student was carrying a knife.
Immigration detention centres
The AHRC has reported that in July 2014 there were 869 children in immigration detention, 28 of whom were children aged 2-17 years who were identified as having a disability. The Australian Government Department of Immigration and Border Protection reported that as of September 2014 there were 54 minors with identified disability in immigration detention. There is presently a lack of clarity regarding how disability is defined and identified in available data. The AHRC inquiry into children in immigration detention found that immigration detention has significant negative impacts on children’s mental health, finding that “the most common impact on the emotional health of children and their parents were feelings of sadness and ‘constant crying’.” The inquiry also found numerous incidents of physical and sexual assaults perpetrated against children and self-harm by children.
Living in immigration detention also prevents the provision of necessary supports for children and young people with disability. The following testimony provided to AHRC relates to a family in detention. Both parents and child are deaf:
The parents reported that their hearing aids had been ruined on the boat journey to Australia. Their 19 month old daughter had no hearing aid. At the time Inquiry staff met with the family they had been in detention for over six months, being three months on Christmas Island and three months in Darwin. During this time they had no hearing aids and were unable to communicate with anyone in the detention centre without extreme difficulty.
The parents said that they felt socially isolated because they could not communicate with other people and they were unsure about what their future held because they didn’t understand the conditions of their detention. They also reported concerns about their baby’s language development without a hearing aid, telling the Inquiry that their baby was “not using her voice at all.”
They said that they struggled to communicate and to play with her, and were not able to har when she was crying.
The impact of violence, abuse and neglect on people with disability, their families, advocates, support persons, current and former staff and Australian society as a whole
Personal impacts of violence and abuse
The impact of cumulative traumas on children and young people’s life outcomes and wellbeing are profound. The effects of violence, abuse and neglect on children and young people will vary for each individual. Some of the noted impacts of violence, abuse and neglect include the development of physical and mental health issues, maladaptive coping mechanisms, reduced trust in authority and learning and development difficulties.
Research has found that persistent experiences of violence, abuse and neglect can have a profound impact on the developing brain of a child. Long term, sustained maltreatment of children and young people can create a persistent fear response, chronic hyper-arousal, diminished executive functioning, delayed developmental milestones and increased difficulty reading and responding appropriately to social situations.
It has been established in research that the “frequency and duration of maltreatment and the co-occurrence of multiple forms of maltreatment” are critical determinants of how child abuse and neglect affects children and young people. The impacts of childhood trauma can endure long after the experience of violence, abuse or neglect and can have significant repercussions on a child’s life. Research indicates that adult survivors of child abuse and neglect can go on to experience higher rates of homelessness, poor mental health (including suicidality), reduced educational and employment outcomes and involvement with the justice system.
There is limited research that examines specific considerations regarding impacts of violence, abuse and neglect upon children and young people with disability in Australia. As discussed previously, abuses against children and young people with disability are often not recognised as abuse. This means that appropriate support is not provided.
Systemic and cultural impacts
It is the view of CDA that social understandings of disability underpin experiences of abuse among children and young people with disability. Historically, disability was positioned within a medical framework as a sickness, with the assumption being that children and young people with disability need to be ‘fixed’ or ‘cured.’ This informed a prevailing view of people with disability as objects o