1

LEGAL 2001

Child Protection
Historical Essay on the evolution of childhood and child
protection in Australia

'Destitute child" shall mean any child who shall have no sufficient means of subsistence apparent to
the Board, or whose parents or other relatives who, by this Act are made chargeable with the support
and maintenance of such child, are in indigent circumstances and unable to support such child, or who,
at the time of coming into operation of this Act, shall be an inmate of any Destitute Asylum under the
control of the Board:
Neglected Child': shall mean-
I. Any child found begging or receiving alms, or being in any street or public place for the purpose of
begging or receiving alms:
II. Any child who shall be found wandering about or frequenting any street, thoroughfare, tavern, or
place of public resort, or sleeping in the open air, and who shall not have any home or settled place of
abode :
III. Any child who shall reside in any brothel, or with any known or reputed prostitute, whether such
prostitute shall be the parent of such child or not:
IV, Any child who shall associate or dwell with any person not being the parent of such child, known
or reputed to be a thief or drunkard, or with any such person convicted of vagrancy:
V. Any child who, having been convicted of an offence punishable by imprisonment, or some less
punishment, ought, nevertheless, in the opinion of the Justices, regard being had to his age and the
circumstances of his case, to be sent to an Industrial or to a Reformatory School :
VI. Any child whose parent represents that he is unable to control such child, and that he wishes him to
be sent to an Industrial or Reformatory School:
“Convicted Child” shall mean any child who shall be convicted of any offence punishable by
imprisonment: (The Destitute Persons Relief and Industrial and Reformatory Schools Act, 1872, s.
Interpretation).
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Introduction

By examining the historic evolution of the concept of childhood there is the

ability for an improved understanding how child protection policies and

practices have been influenced by the changes in society’s perspective of

young persons. In 1866 the state of South Australia enacted legislation that

was to ‘provide for the relief and maintenance of deserted and destitute

persons, and the education and advancement in life of orphan and neglected

and criminal children’.1 An analysis of this piece of legislation utilising

Durkheim’s2 functionalist perspective conforms with a mechanical society

whereby the solidarity of society is formed through a punitive approach to

maintaining the collective system. Compared with today’s society in South

Australia where the care of the child by the state can be interpreted to be a

conscience collective, focused on a restorative process instead of a punitive

framework.3 In relation to the child and the state as parent the historic

evolution of “childhood” has clearly influenced child protection policies and

practices in Australia. Central to the connection of how the child is cared for

by the state is the contexts of the concept of childhood. This paper shall

examine briefly the concept of childhood that has been constructed,

deconstructed and reconstructed over the last 150 years, and as society’s

views have changed in relation to what is a child and the “childhood” we

experience the influences this has had on child protection in South Australia.

1
Destitute Persons Relief Act, 1866. This Act also was for the establishment and governance of
asylums, schools and other institution that were required to house and hold the destitute and poor.
2
Emile Durkheim, ‘The division of Labour in Society’ in ed Kenneth Thompson, Readings from
Emile Durkheim, Travistock Publications, London, (1985) [1893], p. 33-57
3
ibid
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Childhood

Childhood is socially constructed, to have or be in a time of childhood is

dependent on the influences of the community in which a young person

lives, relevant to culture, ethnicity, gender, race and most importantly in

what spatial time.4 Historically speaking there was not as such a thing

named childhood until the more recent industrial/enlightened age. It is not

that there were no young people obviously; society viewed young people

very differently from today’s westernised Australian society. Hendrick

relates thematic perspectives on childhood where the concept of childhood

was initially a fragmented idea that moved towards the thought of childhood

that has become a coherent and uniform interpretation.5 However in today’s

society it is useful to account that it is considered more constructive to

discuss a young person’s having childhoods rather than childhood.6 This

perspective allows for reflection on the significant differences that are a

social fact of individuals.

The evolving perceptions of childhood according to Hendrick ‘can only be

fully comprehended within the context of how different generations and

social classes have responded to the social, economic, religious and political

challenges of their respective era’.7

4
Anne Lawrence, ‘The evolving social construction of childhood’, Ch 2, Principles of Child
Protection: Management and Practice, Open University Press, Glasgow, 2004, pp. 37-65, in School of
Humanities, Flinders University, Child Protection Book of Readings (Legal 2001), Flinders
University, South Australia, 2010.
5
Harry Hendrick, ‘Constructions and Reconstructions of British Childhood: An Interpretative Survey,
1800 to the Present’, in Allison James and Alan Prout (Ed), Constructing and Reconstructing
Childhood: Contemporary Issues in the Sociological Study of Childhood, RoutledgeFalmer, London,
2004, p. 35.
6
Allison James and Alan Prout (Ed), Constructing and Reconstructing Childhood: Contemporary
Issues in the Sociological Study of Childhood, RoutledgeFalmer, London, 2004, p. xi-xiii.
7
Hendrick, opcit
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The State and Visibility of Small Humans in Society

The shift of attitudes towards the child in the late seventeenth century being

a natural child, to the romantic child, to the evangelical child, to the wage

earning child of the late eighteenth century shows that in a short period of

time the conceptualising by adults of children’s roles in society was clearly

unstable.8 This instability of young person’s place in society came to

precipice where they fell into the perspective of the delinquent child in the

mid nineteenth century which was to be the focus of the states full powers of

punitive collective conscience. During the industrial/enlightened revolution

era the changing perceptions of the child in society began its most furtive

momentum. Historical explanations during this era for shifting attitudes

towards children are related to discourses on slavery, the natural order of

patriarchal domesticity, and cruelty, involving physical and moral dangers.9

Concerning slavery, and cruelty the laissez-faire political economy in

England during this time had utilised children in the labour force, this was

dramatically changed through the implementation of the Factory Act 1846.

Now that children were perceived to be fundamentally different from adults,

with constraints placed upon so many young and useful bodies where were

the children to be while their families continued to work?

BRITAIN AUSTRALIA
Industrial Schools Act 1857 (UK) Industrial and Reformatory Schools Act and
the Training Schools Act 1864 (Qld)

Neglected and Criminal Children’s Act 1864

8
Lawrence, opcit., pp. 39-42
9
Hendrick, opcit., pp. 36-45.
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(Vic)

Industrial Schools Act 1864 (WA)

Destitute Persons Relief Act 1866 SA)

Better Care of Destitute Children Act 1866

(NSW)

Public Charities Act 1873 (Tas)

The thre Table 1: Early colonial child welfare legislation10

The threat of children to social order was an initial consideration for

legislation made in relation to child protection; it would be some time before

children’s welfare was to be addressed. In Australia legislative measures

were taken to ensure that the vagrant, incorrigible and unruly children of the

colonies would become and thus be transformed into useful citizens. The

introduced legislation to protect children from destitution and neglect was

modelled on the Industrial Schools Act 1857 (UK). At this time also the

effects of positivist social science practices were influencing the perspective

of children, and schooling institutions became common where the young of

society could be developed in appropriate middle class bourgeois fashion.11

Where firstly the state was interested in protecting itself from the vagrant

delinquent child, this has now moved to the child being at risk from society

in general.

10
Shurlee Swain, ‘The State and the Child’, Australian Journal of Legal History, V. 4, no. 1, 1998, p.
57 – 77, viewed online 29th March 2010, available
http://search.informit.com.auezproxy.flinders.edu.au/fullText;dn=990606555;res=APAFT

11
Lawrence, opcit., pp. 41-42.
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The evolution of the concept of childhood has been moving rapidly since the

1900’s, as before that it had been an arduous process of the child being

recognised as anything other than a small version of an adult. With an

increase in concern for families with significant policy changes concerning

poverty, inequality and social justice, as an awareness prevailed that social

disadvantages were a link to child neglect that led to policies of

intervention.12 Clearly as the attitudes towards the status of being a child has

been determined socially and biologic over time changed so has the State

dealt with the child in its boundaries shifted from that of punitive to

reformist/protectionist. The awareness in today’s society of the phenomena

of childhood has significant ties to the states policies on protection and care

for young people within the states boundaries. Young people are citizens

and are potentially very valuable to the state and therefore the state finds it

an obligation to ensure the welfare of the citizenry of young peoples.

However research shows that social problems concerning young people and

their protection does not sufficiently address the social fact of the presence

of social and economic inequality and although definitions have changed in

relation to what is termed as child protection issues, outcomes for parents are

the same as one hundred and fifty years ago.13

Conclusion

12
Adam Jamrozik, & Tania Sweeney, ‘Child welfare: Social Care or Social Control?’, Ch 5, Children
and Society: The Family, the State and Social Parenthood, Macmillan, South Melbourne, 1996, pp.
89-113, in School of Humanities, Flinders University, Child Protection Book of Readings (Legal
2001), Flinders University, South Australia, 2010, p. 96-98.

13
Jamrozik & Sweeney, opcit., p.112.
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With highlighting on the research of child and childhood and child

protection practices and policies are contextually vast worlds apart from one

hundred and fifty years ago to the present day. Due to a focus on the child

being an important part of society they are now offered protection, where in

times ago society itself was offered protection from children. This is a vital

aspect to how children will be protected in future policies and practices of

made by the state. The states commitment to the protection of children is

consistent with the collective conscience of commitment that most adults

have towards children. It follows that this seems to be a positive partnership

of traditional values between parent, child and state to ensure that coming

generations may not hold the problematic labelling symptoms of generations

past where the state has identified children as a significant social problem.

On the other hand, with minute disciplines the individual and society now

adhere to panopticisms of everyday thus making the ideological and

repressive apparatuses of the state as a parent an easier institutionalised role

for it to posses.14

Reference List

Althusser, L, ‘Ideology and State Apparatuses’, Lenin and Philosophy and Other

Essays, New Left Books, 1979.

14
Michel Foucault, ‘Pantopicism’, in Foucault Reader, p. 212. & Louis Althuser, ‘Ideology and
Ideological State Apparatuses’, Lenin and Philosophy and Other Essays, pp. 206-213
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Durkheim, E, ‘The Division of Labour in Society’, in Ed Kenneth Thompson, Readings

from Emile Durkheim, Travistock Publications, London, (1985) [1893].

Foucault, M, ‘Panopticism’, in Paul Rainbow (Ed), Foucault Reader, Pantheon Books,

New York, 1984.

Hendrick, H, ‘Constructions and Reconstructions of British Childhood: An

Interpretative Survey, 1800 to the Present’, in Allison James and Alan Prout (Ed),

Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological

Study of Childhood, RoutledgeFalmer, London, 2004.

James, A, and Prout, A, (Ed), Constructing and Reconstructing Childhood:

Contemporary Issues in the Sociological Study of Childhood, RoutledgeFalmer,

London, 2004.

Jamrozik, A, & Sweeney, T, ‘Child welfare: Social Care or Social Control?’, Ch 5,

Children and Society: The Family, the State and Social Parenthood, Macmillan, South

Melbourne, 1996, pp. 89-113, in School of Humanities, Flinders University, Child

Protection Book of Readings (Legal 2001), Flinders University, South Australia, 2010.

Lawrence, A, ‘The evolving social construction of childhood’, Ch 2, Principles of Child

Protection: Management and Practice, Open University Press, Glasgow, 2004, pp. 37-
 8

65, in School of Humanities, Flinders University, Child Protection Book of Readings

(Legal 2001), Flinders University, South Australia, 2010.

Swain, S, ‘The State and the Child’, Australian Journal of Legal History, V. 4, no. 1,

1998, p. 57 – 77, viewed online 29th March 2010, available

http://search.informit.com.auezproxy.flinders.edu.au/fullText;dn=990606555;res=APA

FT

Destitute Persons Relief Act 1866 (SA) available,

http://dspace.flinders.edu.au/dspace/bitstream/2328/2665/1/261872.pdf

Destitute Persons Relief and Industrial and Reformatory Schools Act, 1872 (SA)

available, http://dspace.flinders.edu.au/dspace/bitstream/2328/2538/1/1218661867.pdf

http://dspace.flinders.edu.au/dspace/bitstream/2328/6335/1/07501900.pdf