Current key issues

Permanent care orders for Aboriginal children

Right now, Aboriginal children make up almost 40% of children in out-of-home care in Australia, despite being just 5% of the population under the age of 18.

When children are removed from their families, there are different pathways for their ongoing care, depending on their home situation. These include permanent care orders.

What are permanent care orders?

Permanent care orders include guardianship and adoption. In both instances a child or young person is not considered to be in out-of-home care, but in the independent care of their guardian or adoptive parents.

Under a permanent care order, guardians and adoptive parents have full care and responsibility for a child or young person, until they are 18. They make decisions about health and education, and manage contact between a child or young person and their parents, family and important people in their lives. They are also responsible for the child’s emotional, social, cultural and spiritual needs.

Why are we opposed to them?

In AbSec’s view, permanent care orders like guardianship and adoption lack key features to uphold the rights of Aboriginal children and young people and support them to thrive.

These types of orders do not have safeguards or checks in place to ensure children are safe and well cared for. This means we have no idea whether the kid is happy and safe, whether their cultural and spiritual needs are being met, or whether they are able to enjoy ongoing relationships with their family and connections to their Aboriginal community. These things are very important for an Aboriginal child’s safety and wellbeing. That is why we believe these orders are not in the best interests of our kids.

Children and young people who have been removed from their birth families often have complex and ongoing needs, such as education requirements or mental health issues. It can be difficult to predict exactly how each child’s needs might change over time, and what new needs might emerge. It’s important that their carers are supported to address these needs, so that kids receive the best and most appropriate care possible. We are concerned that under guardianship and adoption, there is no oversight or ongoing support to make sure this happens.

We also have ongoing concerns about how decisions are made about Aboriginal children’s safety and wellbeing. The child protection system intervenes in the lives of Aboriginal families far more than in non-Indigenous families, so we believe it’s important for Aboriginal communities to have a say in how the system works. Permanent decisions about Aboriginal children and families made by non-Aboriginal processes are deeply problematic and fail to respect the principle of self-determination.

What do we suggest?

We think the best way forward is a rights-based approach that puts the unique needs of Aboriginal children at the centre. Simply put: a system created by Aboriginal people for Aboriginal people, because we know what will work best for our own communities. This system would respect the self-determination of local communities, prioritise the voices of Aboriginal children and families in decision-making, provide holistic services that tie into one another, and be transparent and accountable to Aboriginal people.

You can read more about our position on permanent care orders and the best interests principle here. The UN Committee on the Rights of the Child has outlined how this principle and other rights in the UNCRC should be understood for Indigenous children, which you can read here.

Changes to law concerning children in out-of-home care

At the end of 2018, the NSW Government made some serious changes to the Children and Young Persons (Care and Protection) Act 1998. These laws outline and govern what happens to children and young people who are removed from their families by the child protection system in NSW.

The system removes Aboriginal children and young people from their families at 10 times the rate of non-Aboriginal children. Almost 40% of all children removed are Aboriginal.

What are the changes?

The new laws expand the powers of Family and Community Services to permanently remove children from their families. They have done this by:

  • Making it easier for a child to be adopted without permission from their parents
  • Introducing a two-year limit when deciding whether the child can safely be returned home
  • Limiting opportunities for families to petition the court to have their children returned home safely

There are other worrying changes to the law too, including new restrictions on sharing public information about children in out-of-home care, and new measures for families and Family and Community Services to make decisions out of court – which we worry opens the possibility for vulnerable families to be coerced without legal guidance.

Other changes require FACS to offer opportunities for alternative dispute resolution such as family group conferencing to families, or enable courts to make contact orders for the life of guardianship orders. While these may have positive implications for families, it is important that advocacy and monitoring processes are in place to ensure these provisions are used appropriately and these potential positive outcomes can be realised.

Why are we concerned?

Together, these changes will lead to fast-tracked adoptions and guardianship orders, removing key safeguards that ensure children are safe, well cared for and have their rights upheld, and increasing the likelihood that Aboriginal children will be permanently disconnected from their family, community and culture. The negative consequences of these practices will be deeply felt by Aboriginal children, families and communities for generations to come. Past apologies to the Stolen Generations and those affected by forced adoptions ring hollow if governments continue to repeat past mistakes.

Further, AbSec is disappointed that the amendments failed to strengthen safeguards for Aboriginal children and young people. In particular, principles of self-determination, participation and the Aboriginal Child Placement Principles are central to safeguarding Aboriginal children, with current provisions in NSW unable to ensure these principles are applied in practice. This reflects a missed opportunity to make a positive difference for Aboriginal children and young people.

Open adoptions can still be forced

Whether an adoption is “open” is a very different issue to whether it is “forced”.

In AbSec’s view, forced adoption includes adoptions that involve the coercive influence of the statutory system, progresses without family consent, or arises in the context of long-term systemic neglect of the cultural rights of Aboriginal children in out-of-home care that undermines their connections to family, community and culture. The power imbalance between families and FACS means that Aboriginal families often aren’t empowered to freely make decisions in the statutory system, and may be coerced into orders without appropriate supports or advocacy. There are also broad powers adopt children without the consent of their parents – powers that have been expanded in the recent amendments, and a lack of accountability when safeguards for Aboriginal children are not followed.

While modern adoption law promotes open adoption- meaning that information may be shared between birth families and adoptive families, and contact is encouraged between the families – there is limited evidence about how well children and families are supported to enjoy this openness through ongoing contact, or what information (if any) is shared with children and young people about their family.

What are we doing about it?

AbSec has launched a petition calling for strengthened safeguards to keep Aboriginal children safe and supported in their own families, communities and culture. You can sign here.

We wrote to the Minister about these concerns. You can read that letter here.

We have also launched a paper outlining key reforms needed to improve the system for Aboriginal children and young people, including the establishment of an appropriately empowered Aboriginal Child and Family Commission. You can read more about those proposals here.

Closing the Gap

Closing the Gap is a government strategy that aims to reduce disadvantage and improve outcomes among Aboriginal and Torres Strait Islander people with respect to life expectancy, child mortality, access to early childhood education, educational achievement, and employment. While we have seen some progress, few of the targets are on track.

What is the Government doing?

The Council of Australian Governments (COAG) announced plans to refresh the Closing The Gap agenda in December 2016. AbSec has welcomed plans to refresh the framework, and has emphasised the need to work in genuine partnership with Aboriginal and Torres Strait Islander peoples on holistic community-led solutions. We also advocated for recognition of the importance of child and family welfare as a foundation of lifelong wellbeing, and the need for a concerted strategy and targets in this area, such as a target to reduce the over-representation of Aboriginal children in out-of-home care.

What’s happening now?

In December 2018, AbSec CEO Tim Ireland, representing the Coalition of Aboriginal Peak Organisations in NSW, joined other Aboriginal peak bodies in taking this message to Prime Minister Scott Morrison. Before this intervention of Aboriginal peak bodies, COAG was due to settle on a new Closing the Gap framework and targets without the full involvement and agreement of Aboriginal and Torres Strait Islander people through our own representatives.

Prime Minister Morrison and COAG agreed to establish a full partnership approach between Aboriginal and Torres Strait Islander peoples and government to finalise the refreshed framework and targets. This approach will include a Ministerial Council on Closing the Gap with expanded membership to include COAG representatives and Aboriginal and Torres Strait Islander peak body representatives. The details of this partnership will be established in February 2019.