“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
– Parent, BTHKTH 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, Aboriginal parents have said that sometimes DCJ follow these and sometimes they don’t. What you can do is:
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 Care Act) 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: A 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 Care Act):
The agency that has case management for your child (could be DCJ, an NGO, or ACCO) “must inform the parents of the child or young person as to the progress and development of the child or young person” (section 163 of the Care Act).
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 documentation (section 14 of the Care Act) 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. Parents have said:
“So, I feel like [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
“I’m like, why didn’t you move me here in the first place? Why wasn’t this an option back when I was going through all these struggles? Then I wouldn’t have had to get my son taken away at all.”
– Parent, Bring Them Home, Keep Them Home research
“They never supported me one bit. So, they could have helped me…get off the drugs. They could have helped me get drug and alcohol counselling. They could have helped me see my daughter more. They could have helped me with housing. They done nothing…They could have made it easier for me to see my daughter more. They could have explained what was going on. I had no idea what was going on at all. All I knew was my daughter was gone and I wasn’t getting her back till she was 18. So, they could have done everything and they absolutely done nothing.”
– Parent, Bring Them Home, Keep Them Home research
DCJ are required to make “reasonable efforts” to tell you and your child about the removal in a way that you and your child understand (Section 64 (1) (2) and (3)of the Children and Young Persons (Care and Protection) Act 1998). They are required to give you written notice of why they removed or assumed at the time of the removal. This is important because you can take that document to your lawyer. They should be specific about what they put in this document, although they are often not written that way. They also need to give (serve) you a copy of the care application as soon as possible after it has been made. The only time that they are not required to serve you is if they determine that giving you paperwork might make your child or someone else in the Court proceedings (the Court process) unsafe. If they think they shouldn’t serve you, they need to apply to the Court to dispense with service (they don’t have to serve the paperwork to you) (section 256A of the Care Act). This is happening more when there are allegations (claims) or concerns about serious DFV. The care application they file with the Court has to be written in a way that you can understand. It will also have the time, date and location of your first Court date. A Parent has said:
“I had no support. In fact… they got my ex-partner to tell me that my child wasn’t going to go home to me.”
– Parent, Bring Them Home, Keep Them Home research
This is an example of DCJ doing the wrong thing. If DCJ did not communicate with you about the removal of your child, or in a way you understand, talk to your lawyer. There are circumstances where DCJ will not tell parents, sometimes calling parents a ‘flight risk’, meaning they think you could run away if you know what they are planning to do. If DCJ don’t tell you about the removal in a way you understand, the case will still be heard in Court
Aboriginal Case Management Policy (ACMP): 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 Practice Framework Standards
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. DCJ must also be dignity giving which 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 (e.g., 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. Your lawyer should be pointing out to the Court when DCJ is not being the model litigant.
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 Policy, interim approach to assessing risk2). DCJ might still have concerns, but they should understand that there are other people there to support your family that are not them. This is what the law says in section 35 of the Care Act which says 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. The principles in the Care Act say that DCJ should use the least intrusive interventions, create opportunities for family-led decision-making and make ‘active efforts’ in casework.
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.
