A First Nations Child Stolen from Country, the purposeful severing of Motherhood and why Australia must lead the way in meaningful Hague Policy reform
By Grant Wyeth
On Christmas Day last year a two-year old Australian First Nations child who had been forcibly taken from her mother by Australian authorities was put on a flight to Europe.
After being coerced at seven-months pregnant to travel to Europe in 2019, the mother and infant, who were unable to return home for the birth due to abuse that caused medical complications, finally returned to their homeland in 2020, when the infant was just seven months old. Despite there being an Apprehended Domestic Violence Order (ADVO) out against the father, that cited death threats, violence, and abuse had been perpetrated against the mother and child, Australia’s Family Court ruled that the Hague Convention needed to be upheld and the First Nations child ‘returned’ to Europe. Australia’s attorney-general, Mark Dreyfus, refused to intervene.
Readers would be well aware of the failures of the Hague Convention, how it has now become a tool used by abusive men to seize children from mothers who are fleeing domestic violence and child abuse. What is additionally appalling is that governments are now fully aware of the convention’s faults, yet they continue to commit themselves to its harmful implementation.
“In the current application of the Hague Convention, a child can, and is, returned in many cases to their abusers…this, as any other form of violence against women and girls, cuts across institutions and rights and conventions.”
Reem Alsalem — United Nations Special Rapporteur on Violence against Women and Girls
Aside from these stark institutional failures, this case concerning a First Nations mother and child has an added dimension of cruelty — a dimension that tears at one of the great scars of Australia’s modern history.
From a period between 1910s and the 1970s in Australia, ‘mixed-race’ children were forcibly taken from their mothers, and placed in institutions or sent to live with white families. Prior to the formation of Australia in 1901, various colonial governments also had similar policies. These policies — enacted by newly formed state governments — were designed to “assimilate” First Nations children into the dominant European culture by breaking any connection to their own culture — using the most direct link by severing their connection to their mothers. These children became known as the “Stolen Generation.”
This policy of child removal was driven by the pseudoscientific — and now thoroughly discredited — theories of eugenics. This was a belief that there were groups of “fit” and “unfit” people, and that “unfit” people needed to be “bred out” of societies. That this would “improve” the nation. The assessments of what constituted fitness were primarily based on racial considerations — a conviction that there was a natural hierarchy of ethnicities, to which Europeans had conveniently placed themselves on top.
When forcibly removing children from their mothers there was no appraisal of their actions as parents, to support or explain these inhumane government policies. First Nations mothers were deemed unfit parents solely because of race-based ideologies. The love, kindness, nurturing, and custodial responsibility that they had for their children were deemed irrelevant considerations. There was no regard for maternal bonds, or bonds of family, community and culture.
Australian governments believed they were doing these children a favour by taking them from their mothers and from their cultures. Or so they liked to tell themselves. Couching their acts of force and coercion in lies, myths and pseudoscience has always been a way for colonial forces to justify their own behaviour. It has been a prominent feature of European colonial ventures to claim that their acts of brutality were actually acts of benevolence.
Yet there is very little more brutal than the removal of children from their mothers. The essential biological and spiritual bond children have with their mothers is a natural law that requires a deep respect. For humanity to be in harmony with itself this maternal bond should be considered sacred, something societies revere, protect, and empower to perform its essential role in both childhood development and overall social health.
Natural harmony is a core social and spiritual idea for Australian First Nations. When they speak of their connection to Country they describe more than a national pride in one’s residence that Western societies may feel. Instead the idea of Country (always capitalised) is a broader and deeper concept that encompasses an interdependent and spiritual relationship between the people — past, present and future — and the land, waterways, air, trees, animals, and plants. First Nations leaders speak about walking in Country, not on Country, which is a more apt way of visualising how First Nations people feel.
This is a recognition of the harmony of natural laws and humanity’s place within them. Country is a relationship, a deep spiritual connection that has been forged over thousands of years, between people and place that is distinct from the more individualistic notions of humanity that come through Western philosophical traditions.
Alongside a sense of natural harmony between people and land, Country is also about responsibility. It is a sense of custodianship not just towards Country and cultural knowledge, but of ancestors, those alive, and those yet to be born. This is a spiritual sovereignty that exists outside of a Western conception of sovereignty as simply being power or control-based. These are timeless bonds of responsibility and reciprocity that are at the core of First Nations customs, spirituality and approaches to the world.
Government policies like the forcible removal of children — alongside many others — smashed through these bonds like a wrecking ball. These policies were not just brutal to the mothers, children, and extended family members who were affected on an individual level, but they created a social dissonance within First Nations communities. Nations that had lived and developed on the Australian continent for at least 65,000 years had their deep and abiding connection to Country and community fractured. These state-sanctioned crimes persist as a form of collective and intergenerational trauma that, despite the commitment to healing within First Nations communities, may never fully mend.
I see the concepts of Country and of maternalism as being complementary. Both recognise humanity as not a series of individual wants and desires to fulfil — or power to obtain — but as important responsibilities and duties that we owe each other and the world around us. Because mothers develop children inside their own bodies they have an intrinsic spiritual connection to their children, and an innate and compelling drive to nurture and protect. This spiritual connection mirrors the First Nations’ connection to Country, an affinity to the land and environment born from an intertwined identity forged over millennia.
Like the purposeful disruption of First Nations’ connection to Country, the purposefully disrupting maternalism from legal systems undermine a fundamental aspect of human existence. It places us in disharmony with ourselves. It is a hindrance to our future, and a grave disrespect to our past.
Family courts have become deeply suspicious of this eternal bond, and the Hague Convention has internationalised this suspicion. Mothers’ protective spirit and keen sense of danger have become distrusted by these institutions. Instead they have chosen to defer to a lust for power and control over responsibility and natural harmonies. Like Australian governments during the 20th Century, these courts have become mired in a misguided sense of superiority and a blunt ignorance of the familial and social damage they are creating.
Ripping a two-year-old First Nations child from her mother’s arms and forcibly transporting her out of the country — out of her Country — is what irresponsibility looks like. Governments owe children the deepest care and respect that comes from them being with their mothers. The Australian government owes First Nations children the further respect of maintaining connection to Country and of being keenly aware of not repeating the grave state-led crimes of the past.
Although, officially, the policies of First Nations child removal have been ceased, First Nations children remain vastly overrepresented in out-of-home care. The Family Matters report released in December last year by the Secretariat of National Aboriginal and Islander Child Care (SNAICC) highlighted that 22,000 First Nations children are currently in out-of-home care, many are removed as infants, and there are no plans in place for reunification with their families. This cannot be due to a lack of love and responsibility First Nations have for their children, instead it is an indication of a persistent suspicion of First Nations people that remains embedded in Australia’s governing structures.
Over the past few weeks I have been corresponding and speaking with the First Nations mother in this case. She is a proud Wiradjuri woman — from the land of the three rivers in what is now known as central New South Wales. She is currently in Europe — needing to be as close as possible to her daughter — however, her former partner is only allowing her to see her daughter via video calls. This despite submitting a letter of guarantee to the Australian Appellate Court that he would allow the mother to be with her daughter in Europe for at least half the time. Being aware of how abusive men manipulate legal systems, it is unsurprising that he hasn’t fulfilled this promise. It is also unsurprising that Australian courts and the Australian government allowed themselves to be duped by such a promise.
Relying on weak “protective measures” like this is consistently a way governments worldwide overcome Article 13(b) of the Hague Convention that states: “a court is not bound to order return of the child if the court finds that the party opposing the return has established that return would expose the child to a ‘grave risk’ of physical or psychological harm” or otherwise place the child in an intolerable situation.” It is a way to feign concern for children’s welfare while maintaining a commitment to paternal authority.
At the time of publication the First Nations child has still not been reunited with her mother. It has been over eight months. Given the deep bonds between mothers and infant children — and added consideration of her cultural heritage — this should constitute “psychological harm”, even without the very real physical threats to her well-being.
Through my discussions with the mother, she has told me about how on video calls she is able to see signs suggestive of physical abuse on her daughter’s body, and her daughter has told her about the abuse she has suffered. I have personally seen a video of the child being placed in front of the camera with what looks to be an injured lip, and when the mother asked the child what happened to her mouth, the child responded by saying, “he hit me hard”.
For a mother to witness such abuse of her child and be told by governments in both Australia and Europe that there is nothing she is allowed to do about it — is deeply distressing. When every fibre in her being tells her that the protection of her daughter is her primary responsibility. To have to watch this abuse via a video link is a perverse form of inhumanity.
Beyond this obvious heart-wrenching anguish, there is also the additional pain of both mother and child being separated from their Country. This is something that has come up repeatedly while writing to, and speaking with, the mother, and it is clearly an integral part of who they are as human beings. The evident pain and betrayal through herself and her daughter being separated and forced off Country in this cultural context is profound. Severing this connection to Country and each other has serious cultural ramifications that may not be fully understood by those who aren’t First Nations (it is through this case that I am personally now beginning to understand its significance).
In 2008, then-Australian prime minister, Kevin Rudd, issued a formal apology from the Australian government for the crimes committed against the country’s First Nations peoples. This was an official acknowledgement of the existence and ongoing impacts of these past policies that removed First Nations children from their families and their culture. It recognised the deep harm and the loss that was and still is inflicted upon First Nations people, and sought to take an important first step in the process of national healing.
Yet in Rudd’s apology there are now claims that clearly have not been fulfilled:
“We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians. A future where this Parliament resolves that the injustices of the past must never, never happen again.”
The echoes of the brutal policies of the Stolen Generations cannot help but be heard in the removal of this Wiradjuri child from her mother and her Country. If Rudd’s apology was a positive step forward, the Australian government has clearly now taken a step backwards. This case was a test presented to the Australian government, to live up to the sentiment expressed in the apology, and to try to meet the invitation and generous outreach of the Uluru Statement From The Heart.
Leading on from the Uluru Statement From The Heart, later this year Australia will face a collective test with a referendum to enshrine within the country’s constitution the establishment of a permanent Indigenous Voice to the Parliament of Australia. This body’s role will be to advise and make recommendations to the government on matters concerning First Nations’ affairs.
Had the Voice been operational last year it could have provided strong institutional advocacy that the Australian government needed to intervene in this Hague Convention case. It could have stressed the importance of connection to Country, the need to respect the natural harmony of the mother and child bond, and to ground government decision-making in a core ethos of responsibility. These arguments were, of course, presented to the Attorney General, but without the Voice to Parliament they were easier for him to ignore.
“We have always had a voice, but we have never been listened to.”
Vanessa Turnbull-Roberts, Bundjalung Widubul-Wiabul woman
The upcoming referendum offers each Australian the opportunity to grasp this responsibility themselves and in turn, make it clear that they expect the voices of First Nations people to be respectfully responded to. It’s an opportunity to acknowledge the deep trauma that has and is still being inflicted upon First Nations people through harmful government policies, to embrace solidarity in the present, and to demonstrate duty towards the future. If the concept of the Voice to Parliament is too abstract to consider its implications, then this Hague Convention case — and the distress of this Wiradjuri mother and child — should be a practical example of its necessity.
The harrowing treatment of children under the Hague Convention remains a negligent failure of our responsibility to ourselves. The convention undermines both the United Nations Convention of the Rights of the Child, as well as, in this case, the Declaration of the Rights of Indigenous People. Creating an unsustainable tension between the ideals that we rightly strive towards and the laws we allow to persist.
In a hopeful development, a new cross-party committee in Australia’s Senate has recommended changes to the Family Law Act that may lead to greater responsibility within Australia’s family law system. This includes an expectation that courts “better recognise and protect the right of Aboriginal and Torres Strait Islander children to enjoy their culture” as well as a consideration of the child’s perspective, including if a child objects to a return order under the Hague Convention.
Although any proposed changes to Australia’s Family Law Act won’t be applied retrospectively, meaning the life of this Wiradjuri child will still be imperilled. Highlighting that the Australian government’s responsibilities to children, maternalism and Country remain very much in the present, not just the future.
Join with First Nations leaders and Community in their advocacy for this child and sign the petition to urge the Australian government to #bringherhome
