Opinion: Why we should be concerned about the NSW adoption reforms

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November 14, 2018

This week, the NSW Government will seek to pass sweeping changes through Parliament that will make it easier for children to be adopted without the consent of their parents and harder for parents to have their children restored to their care after they have been removed. 

These changes have been promoted as enabling the Department of Family and Community Services (FACS) to fast-track children into permanent placements. While this may sound appealing, it is an approach that comes with serious risks.

For Aboriginal and Torres Strait Islander children, who enter the child protection system at over ten times the rate of non-Indigenous children in NSW, the stakes are particularly high.

The NSW Government conceded last week that over 800 Aboriginal and Torres Strait Islander children currently under guardianship orders could be adopted without the need for parental consent under the new proposals. 

This is despite the fact that the Australian Human Rights Commission’s Bringing Them Home report concluded that adoption is contrary to Aboriginal custom and inter-racial adoption is contrary to the best interests of Aboriginal children in the great majority of cases.

The Bringing Them Home report, released more than twenty years ago, recommended that statutory adoption be a last resort for Aboriginal and Torres Strait Islander children. Recent reviews of adoption laws in both South Australia and Victoria have affirmed this recommendation. The Victorian Law Reform Commission recommended restricting the circumstances in which adoption can occur without parental consent, concluding “consent is the cornerstone of the adoption process”.

Aboriginal organisations have, understandably, called for a greater focus on supporting families to avoid removals. These calls are not reflected in the proposals.

The proposed amendments pay lip service to the notion of early intervention, making minor changes to the ability of FACS to request services from other agencies. At the same time, the changes would introduce an arbitrary two-year maximum time limit for restoring a child to their family, restricting the Court’s flexibility to consider the best interests of each child on a case by case basis.

This approach risks severing children from their families and culture before all efforts have been made to keep them together.

Crucially, there is nothing in the proposed amendments to ensure that families are provided with additional support to meet this new strict timeframe. For many families in a time of crisis and upheaval, two years simply may not be enough time to get the assistance they require and be in a position to welcome their children home again. This is especially so given the chronic under-funding of support services and notoriously long wait times for housing and rehabilitation.

Many Aboriginal families must also contend with a legacy of inter-generational trauma from the Stolen Generations, memories of which are revived by the notion of adoption without consent.

Nobody wants to see children languish in unstable short-term foster placements.  Under current laws, the Children’s Court can already make orders that support a stable placement while still allowing for important judicial and Government supervision, and safeguarding contact between a child and their birth family.

NSW is alone in fast-tracking adoption as a solution for children in out-of-home care. While it will take children off the Government’s books, this approach does nothing to address the systemic problems that lead to the over-representation of Aboriginal children in out-of-home care.

Across Australia, there is growing recognition that we need to invest more in early support for families to reduce the number of children in care. Our child protection laws can and should support this re-orientation of the care system. 

This includes placing a clear legislative obligation on FACS to support families prior to the removal of children, consistent with international best practice. It may be surprising to many that such an obligation does not already exist. 

Unfortunately, the changes proposed by the NSW Government do little to support families. They also reduce accountability for a vulnerable group of children.  If we have learned nothing else from the multitude of recent reports about child protection, it is the importance of accountability and oversight of vulnerable children. Yet, when children are adopted, neither FACS nor the Courts have a role in overseeing the placement or in ensuing that a child continues to have contact with members of their biological family.

It is, then, no surprise that the amendments are strongly opposed by the community legal sector and Aboriginal organisations. Notably, even the Public Service Association, the union representing FACS caseworkers, are opposed to the amendments.

These changes risk repeating past mistakes with devastating consequences for the children and families involved. 

This is not a call for things to stay the same. The rates of removal of Aboriginal children from their families in NSW are unacceptable. The answers, however, are not be to found in fast-tracking permanent removal. Instead, we should be doing all we can to support Aboriginal families to provide a safe and stable environment for children.

Brooke Greenwood is a Senior Solicitor in the Indigenous Child Protection Project, which is a joint initiative of PIAC and the Aboriginal Legal Service.

Image: Flickr/ Victor Galitsky

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