Some parents talk about being involved with DCJ as “playing the game.”
“The narratives they give you, the system is causing you harm, they are hurting your kids, you need to ‘play the game’ so that you can protect your kids as best as you can. And you need to prepare yourself for a long battle that might not end well.”
– Parent, Bring Them Home, Keep Them Home research
Aboriginal parents have used a strategy that has been called ‘strategic compliance.’ This is when they agree to do what DCJ is asking them to do or go above and beyond it, in their own way. Parents are not blindly following what DCJ says, or even agreeing with them, but understand what could happen if they do or don’t do what DCJ says or do even more than they are asking. This can be a hard decision for parents to make because it can feel like you are admitting to doing something wrong when that might not be what’s actually happening. But if you don’t do what they say, they might label you as uncaring or unsafe. A way to deal with this is by creating your own evidence. If you do choose to do what DCJ say:
Examples of ‘strategic compliance’:
“If they say to do that course, go do two, go do three courses, do more than what they ask. If they ask you, oh slow down on the drugs, get off the drugs all together… If you start showing initiative for yourself then they will do more. For example, I started doing more activities with my son. I would bring stuff with me to do crafts and activities. Most parents, including me at first, would rely on [Non-Government Organisation (NGO)] to do all of that, but when I started doing it on my own [NGO] started writing that in their reports and it started making me obviously look better as a parent.”
– Parent, Bring Them Home, Keep Them Home research
“If they want you to do something you have to do it, you know what I mean? So, if you don’t achieve the goals they’ll say, listen, you didn’t do everything that we asked. They’ll stretch it.”
– Parent, Bring Them Home, Keep Them Home research
“They were like, oh, well, you’ve been clean for so long – and you’re working, all this, we’ll just cut them down for you. Then they just stopped giving them to me, my urines. I made them start urine-ing me again, because coming up to Christmas, as well, you know what I mean.”
– Parent, Bring Them Home, Keep Them Home research
Some families have told us that their family members pretended to agree with DCJ so they could keep a relationship with their children, because it became clear that DCJ was not helping parents to stay connected to their kids, even though they are legally required to (Section 12A, Children and Young Persons (Care and Protection) Act 1998). Other parents refused to let DCJ into their house.
“I said to them straight out, youse think I don’t know my rights. I know my rights and youse ain’t coming, because you’ve got nothing to come to my house for. I said, does your concerns concern anything to do with – was any reports made on my house? She goes, no. I said, well, there you go – you’re not coming to my house. Yeah, they dropped it. They rang us up and said, oh, we don’t need – I spoke to the manager, we don’t need to come. I said, I already know you don’t need to come – and even if you did, you’re not coming…”
– Parent, Bring Them Home, Keep Them Home research
“We also came up with a little scheme. I said, look, I bet you if I take off for a month, I bet you you’re getting the kids back. So, I took off for a month and, lo and behold, she was actually getting to see them and everything…yeah, that was horrible. I was jumping the fence, leaving at five o’clock in the morning, jumpin at 12 o’clock just to spend time with the newborn.”
– Parent, Bring Them Home, Keep Them Home research
“Everything had to be a secret…The girls were programmed. You can’t say that you live with your mum, but yet my mum and dad never really tried to deny me of that. They bent the rules as much as they could, and I suppose earlier in the piece, I was separated from the girls, which was really hard…because mum and dad were just adamant that it had to be the way DoCS said, and then DoCS started showing their true colours, and mum and dad started to see through it and started to go, you can go down to your mum’s now”
– Parent, Bring Them Home, Keep Them Home research
“You’re not coming in, you’re not stating this shit, you’re not doing all this. When they tried to take [child] again because of him being at hospital… So my son was neglected in the care of the minister… I begged for them to check him up and they didn’t do it. They couldn’t tell me if I was going to get my son taken off me or not… I said… I don’t give a fuck who you think you are, I don’t give a fuck what you done last time, it’s not happening for a third time because I’m not going down without a fight.”
– Parent, Bring Them Home, Keep Them Home research
A family meeting involving your family, community members, and supporters, can be a chance to decide on what you want as a family in a way that works for you, led by your family and supports, without DCJ.
“I was very determined… to get them to put him into Aboriginal family care straightaway because I was like straight onto them, I said no, I want him to be with family… They were constantly moving him around, so how am I supposed to know if he’s okay or if he’s safe there..? As soon as I knew that he was with family my stress levels were down to zero and it was like, yeah.”
– Parent, Bring Them Home, Keep Them Home research
Often DCJ will ignore the Aboriginal and Torres Strait Islander Child Placement Principles, skip finding family members, and place the kids with foster carers, even though they are not meant to (Section 13, Children and Young Persons (Care and Protection) Act 1998). Aboriginal parents have said that DCJ often use information they already know about family members to say that they don’t need to have conversations with them. What you can do is:
If you think your child will be removed, think of family and community members that could take care of your child temporarily. Even if you are fighting for your child to be with you, sharing details of family members who can care for your child is important. These family members are also important and significant people for supporting culture, if your child is removed and not placed with family.
You can decide to make a family arrangement legal through the Family Court to try and avoid DCJ involvement. You can go to family court and hand over interim parental responsibility to a family member through an affidavit (a written statement) or consent orders. DCJ can still be a part of the court proceedings in family court, but they cannot remove the child if there is a family arrangement in place with no worries or risks. Once DCJ has taken a child, you must go through the children’s court, not family court. Ask your lawyer if family law can help your situation and how to do this.
If this family member gets a Working With Children’s Check (WWCC), character reference, police check or any other probity checks, this could make it harder for the Court to say no to them being a carer. However, not being able to get a WWCC is not the end of things. You should talk to your lawyer about this. The Court can give Parental Responsibility to a family member who does not have a WWCC. The WWCC is only needed if DCJ has Parental Responsibility and they are looking to make your family member an authorised carer (approved to provide out-of-home care (OOHC) to children).
Placing your child with someone else does not always mean it is forever. Your child being placed with a family or kin can make restoration (coming home) easier. It also means that your children are with someone that they know.
If you need to talk to DCJ and you think they are not listening or don’t understand your story, you can ask for a ‘group supervision’ session with them. This meeting can involve yourself, advocates, lawyers, and support services. You can email DCJ and are entitled to request this meeting under the Family-led decision making is mentioned in Section 12 of Children and Young Persons (Care and Protection) Act 1998. This provides legislative authority to the participation of Aboriginal families and communities in decision making and actions affecting them, including being consulted in the care and protection proceedings of their children. You can say why you want the meeting, which might include going over the details and timelines of what happened, talking about if there has been a communication breakdown, and planning what you and DCJ need to do next. Your advocate, support service, or lawyer could help you by writing this email and coordinating the meeting.
“They make you believe that they can do whatever they want, and you’ve got no rights. I still to this day don’t even know my rights. No one actually has ever told me what my rights were at that time and what should have happened.”
– Parent, Bring Them Home, Keep Them Home research
The child protection system is guided by laws. To put these laws into practice, they write policies. DCJ is supposed to follow these laws and policies. There is also a practice framework that is supposed to guide the way they work with families and communities. In reality, sometimes DCJ follow these and sometimes they don’t.
DCJ workers have to follow the law called the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). The Aboriginal and Torres Strait Islander Child and Young Person Placement Principle (Section 12A of the law) has five sections: placement, prevention, partnership, participation and connection.
Prevention: A child or young person has the right to be brought up within their own family, community and culture.
Partnership: Community members should participate in designing the services and in the decisions about individual children and young people.
Participation: A child, young person, their parents and family should participate in decisions about the care and protection of the child or young person
Connection: DA child or young person should be supported to maintain connections to family, community, culture and country.
Placement: Aboriginal and Torres Strait Islander children should be placed in out-of-home-care (OOHC) in this order (Section 13 of the law):
Over half of Aboriginal and Torres Strait Islander children are still being placed with a non-Aboriginal carers (AIHW, 2022), even though this is meant to be the last placement option.
The law says “Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young persons with as much self-determination as is possible.”
Aboriginal and Torres Strait Islander families, communities, and representative organisations must be given a chance, through ways approved by the Minister, to be involved in decisions about where their children are placed and other important decisions about their children under this law.
These are the actions taken by DCJ to support you, that are quick enough, practical, ongoing, culturally appropriate, and in partnership with your family and community. DCJ are legally required to make active efforts so that your child does not go into out-of-home-care (OOHC), or to return them home. Active efforts will look different for each family because they need to be based on your own family’s unique needs. DCJ are required to document their active efforts in paperwork (Section 14 of the law) that is sent to the Court that the Judge reads. If there were no active efforts made, or they were not good enough, in some situations a lawyer can use this as an argument to the Court for your child to stay home with you, or for them to come home. This is not very common, but the law does allow for this to happen. Examples of active efforts are when DCJ refers someone to a service, they shouldn’t just make the referral and leave it at that. They should talk to the person to make sure the service is the right one for them. If there are long waiting times, DCJ should work to make sure the person is helped quickly. (DCJ can skip waitlists and prioritise cases under section 17 of the Care Act). They might also offer transport to get to the service, introduce the person to someone who can help, and check in later to see how things are going. If DCJ only give/provide the phone number to a service without any extra help or follow-up, this would be an example of not making active efforts. This means the parent would have to figure out the rest on their own, without support. By making these extra efforts, DCJ should make sure the person gets the right service and the best support along the way.
A parent has said “So, I feel like they (DCJ) should be working a lot more with the families before taking the children. If I had had even an eighth of the support that I had with my baby to keep my children in the first place, we wouldn’t be here. I never had nothing. I never had any kind of family support meeting. I never had any of that sort of stuff to put things in place before they took them.” (Parent, Bring them home, keep them home research).
This tells DCJ how they need to be led by your family in assessments and decision making, called Aboriginal Family Led Decision Making (AFLDM) and Aboriginal Family Led Assessments (AFLA).
DCJ is required to follow the Practice Framework Standards. This is a set of principles DCJ must follow when working with you and your family. The principles say DCJ must be culturally safe, respectful, and focus on your strengths. They must also support self-determination, family-led decision-making, and the preservation of children’s connections to their culture, community, and Country. ‘Dignity giving’ means that they cannot blame victims of violence or blame mothers for the violence perpetrated against them and their children.
In the DCJ Practice Framework Standards document, there is a list of questions you can ask your DCJ caseworker to ask you. These are questions like “have I helped you understand what your rights are and made sure that your rights and needs are met, on your terms?” and “do you think I have a good understanding of who is in your family and who is important to you?” (Practice Framework Standards (go to page 44). You can write down this conversation and give it to your lawyer for evidence.
DCJ say that they are responsible for upholding these Standards when they work with you. They also say that if you have questions or feedback about your experience and the Standards, to talk to your caseworker, or ask to talk to the casework manager. You can also contact the Enquiry, Feedback and Complaints Unit on 1800 000 164, or email [email protected].
Litigation is the formal process of taking legal action through the Courts. The Government and its agencies (like DCJ) are required to act as a model litigant. ‘Model litigant’ means acting in the highest professional standards. DCJ should act honestly and fairly in litigation (in court), not hold up the case, and avoid litigation when they can. If litigation has to happen, DCJ shouldn’t take advantage of someone who doesn’t have the resources (such as money) to go to Court. They should not be unnecessarily causing delay in Court either. DCJ is required to apologise if they acted inappropriately.
DCJ say that if you put “adequate measures” in place without DCJ’s direction, monitoring or support, then your child is not ‘in need of care and protection’ and should not be removed* DCJ might still have concerns, but they should understand that there are other people there to support your family that are not them (section 35 of the law states that DCJ may take no action if it considers that there are proper arrangements for child protection in place, or any issues giving rise to a report have been adequately dealt with).
* DCJ document not publicly available.
These legal principles suggest that DCJ should use the least intrusive interventions, create opportunities for family-led decision-making and make ‘active efforts’ in casework.
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AbSec and our partners acknowledge the Traditional Custodians of Country throughout NSW and their continuing connections to land, waters, and communities. We also acknowledge the lands on which these stories were told, the lands of the Dharawal, Yuin and Wonnarua people.
We acknowledge the Elders, leaders and advocates that have led the way and continue to fight for our children. We also acknowledge the Stolen Generations who never came home and the ongoing impact of government policy and practice on Aboriginal and Torres Strait Islander children, young people and families.
This website shares the experiences and advice of Aboriginal families involved in the NSW child protection system who participated in the Bring Them Home, Keep Them Home research at UNSW. We acknowledge and thank the families who generously gave permission to share their stories.
These experiences reflect what worked for those families and do not constitute advice or views of AbSec. AbSec recommends seeking independent legal advice for your own circumstances.
