“…I’d have the nights where I was really depressed and crying and wanting to end it all myself. But then I would get into this mindset of, no, fuck them. They told me they weren’t even going to look at giving my son back until 2022 and I told them f*ckers, watch me, I’m going to get my son back in a few months, and I made sure that I did…”
– Parent, Bring Them Home, Keep Them Home research
– Parent, BTHKTH research
When DCJ take children from their families, they have to prove to the Court that there are risks to safety and wellbeing. This is because they alone can’t make the decision to remove the child. They have to justify to the Court the reasons for intervening.
DCJ want to see that you will follow what they say you should do, even if what they are saying doesn’t make sense, and you think what they want you to do won’t address what they say is a risk. We often hear parents and services talk about families being “set up to fail”. DCJ might say that they want you to work with them or that you have to work with them, but this is often working with them in the way that they think is right. Parents often do what they can because they are scared that their child will be taken or will not be given back.
DCJ can accuse you of not following or doing what is in written agreement’s or Court orders (such as ADVOs) as a reason to remove. This could be a small thing you agreed to do or a big thing.
Common agreements include what actions you say you will do:
It’s the experience of parents that DCJ doesn’t always take into account other factors that contributed to you maybe not being able to complete the action, like grief from removal, your own experiences of being in the system (if you were in out-of-home care (OOHC)) or systems issues like no availability at services, travel time, or Centrelink being cut.
Going against a Court order has more straight forward consequences than going against an agreement. DCJ can still change their minds about what they will do if you go against an agreement, but if you go against a Court Order, there might also be legal consequences involving the Court. What happens if you breach a Court order depends on the order and what happened.
When parents don’t do what they are told, case workers often assume this is because the parent doesn’t understand how bad something is, especially if you have not done what they told you to do. They call this “lacking insight”. They think that if you understood what they understood then you would do something different, or you would agree with them about what it takes to fix it. Another way they might say this is “the parent does not understand the impact on the children.” Most parents understand better than anyone the challenges that they face but rarely does the case worker take the time to build enough trust and understanding to create helpful actions that benefit everyone involved.
This is about when lots of smaller concerns when put together can amount to something more concerning, and where there are concerns about those little things together having a long-term impact on children. Some parents have said that DCJ have used this in domestic and family violence (DFV) situations by blaming a mum for being a victim / survivor in more than one DFV relationship. It has also been used to describe multiple types of harms happening over a period of time, like DFV, neglect and mental illness. They say that when kids experience a range of bad life events, this is not good for their mental and physical wellbeing. The problem with this is when DCJ don’t work with you in a helpful way and instead target and blame you for experiencing poverty and violence. When caseworkers are not recognising the failures of systems (such as lack of housing, long waiting lists to see psychiatrists or medical professionals) that might result in cumulative harm, they are not really looking at the whole picture. It’s the experience of parents that when DCJ talk about cumulative harm or risk, they don’t consider everything that is happening for the family. One mum has said:
“The thing that gets me is that, okay, my mental health was bad, the drug and alcohol was bad, the DV was bad. But I feel as though if I had the intervention or support around me to help support me with my issues rather than just taking my kids off me then a lot of things wouldn’t have worked out the way that they did. I just remember feeling so alone and I had to do everything myself.”
– Parent, Bring Them Home, Keep Them Home research
Things that could lead to bad things happening.
It’s the experience of parents that DCJ uses ‘parental mental health’ as a reason or a part of the reason to take their children. But DCJ’s manual2024* says they need to understand that “mental health” concerns do not always impact the way a parent cares for their children.’ In this manual, it says they need to consider how the parental mental health issue:
*DCJ document not publicly available.
“He liked to lock me in psych wards, even when I am just sitting on the lounge, having a cuppa with the baby breastfeeding, and the cops walk in and go, you’re crazy. Come into the psych ward. No I’m not… He was – he used the law as a tool, and he knew his shit.”
– Parent, Bring Them Home, Keep Them Home research
“I always felt like they made me out to be this mentally unstable woman who just was mentally ill. But now they say to me that they know that I was gaslighted, I was manipulated, I was abused for a very long time and everything that I was trying to tell you now, do youse hear me now.”
– Parent, Bring Them Home, Keep Them Home research
“I did that little test that they did, and no, it was – they wanted me to say I had suicidal tendencies and depression and things like that. I’m like, nope, nope, nope. I’m actually pretty okay right now, but they didn’t like that.”
– Parent, Bring Them Home, Keep Them Home research
It’s the experience of parents that DCJ can try to get parents to admit to having mental health issues so that they can get treatment and then the parent has to follow that treatment plan (medication or counselling advice etc) and if a parent does not do this then they are seen as resistant, lacking insight or non-compliant.
Other parents have said to avoid getting a mental health care plan, using words like “anxiety” or “depression”, or filling out forms with these questions. They have said it doesn’t help your case with DCJ and it’s better to speak to your supports or a separate counsellor about how you are doing. Sometimes DCJ looks at diagnoses you received a long time ago. If you think things have improved for you, you could seek medical advice about being assessed again. For example, if diagnosed depression related to a particular incident or event that has passed and you are feeling better, you could talk to your doctor so there is a record of you speaking to them about feeling well.
Domestic and Family Violence (DFV)
Authorities may form a view that a child is ‘at risk of significant harm’ if they determine that there are worries for the child’s safety, welfare and wellbeing because of certain things, including if a person is using violence against another person. This is usually one parent against another parent, but sometimes it is a family member that is not a parent who is using violence. DCJ should be supporting victim/survivors of DFV but sometimes the way that DCJ respond can make it more unsafe for the victims of DFV (these are called systems generated risks).
DCJ often blame the mother for the perpetrator’s use of violence. They may do this by only working with the mother and trying to get her to make changes in the hope that she and the kids will be safe, instead of working with him to not use violence. It’s the experience of parents that DCJ has said there is something the mother is doing to cause the father’s violence. This goes against what they should be doing. When a mum leaves the DFV relationship, this does not always mean her children came home. This is because DCJ can use the label of ‘lacking insight’ against you, to say that because you were in a DFV relationship before, you are more likely to enter another one. This is a form of victim blaming.
Parents have also said that they knew the options DCJ were giving would not keep them safe. This is why being connected with other services like an ACCO is helpful, because they can give you support that wraps around you as a family. They can work with you to do a safety plan and also address DCJ’s worries.
“DCJ made it worse. Because there was no support there …then when DCJ become involved…and this is no word of a lie, when DCJ become involved, I copped more hidings – over DCJ. Because he couldn’t accept that he was the reason… The violence escalated.”
– Parent, Bring Them Home, Keep Them Home research
“I didn’t feel supported by any of the workers…in the past all these workers have not worked with me. They’ve worked against me… Everything just went against me as a mother. It was like I was being held accountable for the father’s behaviours. So I paid the price for it. They didn’t pay the price for it.”
– Parent, Bring Them Home, Keep Them Home research
DCJ’s Interim Approach to Assessing Risk manual 2024* says that DCJ need to think about how DFV “perpetrators may attempt to undermine and discredit the parent/carer by saying they have mental health problems.”
DFV doesn’t just include physical violence. It is also:
Parents report that DCJ can either be unhelpful or helpful when it comes to housing and that you can’t rely on them to help.
“I begged them to help me get into a refuge, everything. Nothing. They dropped me off at a police station and that was it…Then I moved into my Aunty house …and she had a few kids, and they [DCJ] come there, and they said, well, do you think this is an environment to have [child] in? I said, what do youse want me to do? Youse won’t frigging help me.”
– Parent, Bring Them Home, Keep Them Home research
“What was the reason? Because I didn’t have – I wasn’t on a lease yet. I was signing a lease the next week and I hadn’t signed it yet because I gave birth to [child] early. But then it got – I couldn’t sign it the next week because they took the kids… because its it’s temporary family accommodation, you need your kids to live there – everything just went sideways.”
– Parent, Bring Them Home, Keep Them Home research
DCJ can say that if a parent does not have safe and stable housing, they cannot take care of the kids. Parent’s have said that DCJ being involved made their housing situation worse and they didn’t consider structural issues, even though they should be supporting families to stay together.
Neglect
Child neglect issues, or a suggestion that the child’s basic, physical, psychological or education needs are not being met, or are likely not to be met, by his or her parents or caregivers” is the most common reason that Aboriginal children are being taken and put into OOHC, according to Family is Culture Report (Davis 2019:45). Many people report that racist assumptions and judgements about poor people are held by case workers, especially towards Aboriginal and Torres Strait Islander families. Punishing poverty happens when poverty and neglect are seen as the same thing. For many families they feel punished because they do not have enough money or don’t have a car to take things to the tip or get the kids to appointments. DCJ can also use medical neglect as a reason, even if you didn’t have enough money for appointments or you don’t want to go to somewhere like a hospital because of racism. The Family Is Culture report confirmed that DCJ caseworkers still see poverty as a risk factor and equate poverty with abuse and neglect (Davis 2019:214). It’s the experience of families that workers can choose to either blame you or support you.
This includes physical, sexual, or emotional abuse (ill-treated). DCJ is also looking at the risk of abuse and where there is a pattern of abuse, they might say that it is likely that you will abuse your child and they intervened to prevent it from happening again. If there is a serious assault or injury requiring hospitalisation of your child, and you are suspected of inflicting that injury intentionally, there will almost certainly be a ROSH report made.
These are the different legal ways they can take children. There are different categories under the law that make a difference for what happens after they are taken away.
Except for an emergency removal, removal should only be happening after a safety assessment and the outcome of ‘unsafe’ and DCJ have decided there are dangers that cannot be helped with a safety plan. If the outcome is safe with a plan, the focus should be to keep your kids at home with goals and supports. If your child has been removed, DCJ needs to file an Application and Report Initiating Care Proceedings (s 61) in the Court within 3 working days of the removal (section 45(1A) Children and Young Persons (Care and Protection) Act 1998 (NSW) (the ‘Care Act’)). DCJ, the child’s legal representative and parents will go to Court. When this kind of application is used, DCJ usually requests a temporary removal of the legal responsibility you have to make decisions about your children (your parental responsibility) during the Court proceedings. To see what forms DCJ use to do this and the kind of information that needs to be included, click here.
Assumption of care is when DCJ do not physically remove a child from a place, but take on the responsibility of care (section 44 of the Care Act). DCJ have to be satisfied that it’s not in the best interests to remove the child from where they are living or staying, but have reasonable grounds to suspect that the child is ‘at risk of serious harm.’ The most common example of this is the assumption of care of a baby in hospital.
An emergency removal is when DCJ and or the police take kids away without going to the Court first to get permission to take the children (by warrant). This is supposed to be the exception to the rule. They can remove the children and then go to Court after they did it. It is supposed to be done only when there is no other way to make the kids safe and or when the kids are at immediate risk of serious harm (section 43 of the Care Act), when things like an (ADVO) or other supports would not protect the child or young person from that risk, there is no one else to provide supports, or they are afraid a parent will leave with the child (sometimes being called a ‘flight risk’). Sometimes they do this on a Friday afternoon which makes it hard to contact the workers over the weekend to find out where the kids are and lawyers won’t be as easy to contact. Some parents report not even knowing where the kids are taken to. Emergency removals often mean children are put with authorised carers (instead of family/ kin) which means the kids will probably be put in a different home the following week. DCJ needs to file an application (they take the paperwork to the Court to say why they removed the children) to the Court within 3 working days, which doesn’t include weekends or public holidays (section 45(1A) of the Care Act). This gives them more time to put together the paperwork. Emergency removals also mean that the requirement to offer families an Alternative Dispute Resolution (ADR) is pointless, and sometimes doesn’t occur. DCJ have been criticised for using the emergency removal too much, especially for Aboriginal children. Over half (65%) of Aboriginal children are removed by DCJ and/ or the police using an emergency removal (Safeguarding the rights of Aboriginal children in the child protection system, audit report 2024, page 37)
Another option DCJ have is called an Emergency Care and Protection Order (ECPO) (section 46 Care Act). DCJ can apply to the Court removing your parental responsibility and ability to make decisions about your children for a maximum of 14 days. It can then be extended again for another 14 days, but only once (section 46 Care Act). Because this application is time-limited, you should have a clear idea of when your child will return to your care. The Court order lasts for a maximum of 14 days. It can then be extended again for another 14 days, but only once (section 46 Care Act).
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.
