“ 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. I said I don’t want him to be like 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
– Parent, BTHKTH research
A family arrangement is the least intrusive placement option that exists, and can support Aboriginal children to continue being raised with their kin, community, and culture. A family arrangement is when a family makes their own plans for the children to stay with family, without getting DCJ or legal processes involved. Direct engagement with the system is often harmful to kids, so other Aboriginal families have been strategic in trying to make sure that these systems are not involved.
Informal family arrangements are an agreement with a family member about caring for your child without a Court Order. This means families do not have to go to Court, and the child’s parents are still their legal guardians, and keep parental responsibility. In an informal family agreement, there are limits to the decisions a relative or kinship carer can make without the parent’s consent. These arrangements are often verbal. Financial support for informal relative and kinship arrangements are not available from DCJ. The ‘Supported Care Allowance’ is only available where there is a Court Order in place, meaning the child is in out-of-home care (OOHC). This can make things difficult for families, as they then have to choose between having DCJ involved in their lives so they can get financial help, or going without that help because having DCJ involved is very often harmful. It’s the experience of families that when they have asked DCJ for financial help, care applications have been initiated.
A family arrangement can be used as a preventative measure if you suspect DCJ is planning to remove your child. It can also be used when the situation with DCJ has reached a crisis, and you want to make sure your child stays with family. You can decide to make a family arrangement legally binding through the Family Courts to try and to avoid further DCJ involvement. You can go to Family Court and hand over what DCJ call ‘interim parental responsibility’ to a family member through submitting an affidavit (a letter) to the Court. DCJ can still be a part of the Court proceedings in Family Court, but they shouldn’t remove a child if there is a family arrangement in place with no concerns of risk or harm. Once DCJ has taken your child, you must go through The Children’s Court, not the Family Courts. If you think your child will be removed, make a list of family and community members who could take care of your child. If you think there is a chance of your child being removed soon, family members can apply to get a Working With Children Check (WWCC) and have a National Police Check done ahead of time. Then, if it comes to your child being removed and going to Court, the Judge might have a more difficult time saying ‘no’ to that family or community member taking care of your child.
For anyone to be a carer they need a Working With Children Check (WWCC). If you think your child will be removed, to make sure they are placed with a family or a community member they need to apply and hold a current WWCC.
It can be helpful for restoration: Family arrangements can be very helpful in working towards your children returning home, because they allow for more self-determination and family-led decision-making that is not influenced by DCJ.
A family arrangement should be the first option DCJ considers instead of removal. DCJ need to do the least intrusive thing, involve your family in decision-making, and make active efforts to avoid removal. However, it is the experience of other Aboriginal families that these laws and policies are not always being followed. DCJ workers have to follow the law called the Children and Young Persons (Care and Protection) Act 1998. The Aboriginal and Torres Strait Islander Child and Young Person Placement Principle (section 12A of the Care Act) has five sections:
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):
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.
DCJ caseworkers should be listening to you when identifying the safe people in your family and community who can support you in caring for your child. It is the responsibility of DCJ to identify the safe family or community members who could possibly be a carer for your child. This is outlined in Standard 2 of the Practice Framework Standards, which says DCJ need to provide evidence of their efforts like: “the Aboriginal Placement principles have been followed with all efforts to identify and locate family and kin” recorded in the Care plan, case plan, and placement record. Even though this is DCJ’s responsibility to do, it does not always happen in real life.
DCJ is required to include Aboriginal family and community members to be involved in decision-making processes. This is known as Aboriginal Family-Led Decision Making and is a right that is protected by both law and policy (Section 12, the Children and Young Persons (Care and Protection) Act 1998).
‘Active efforts’ need to be made by DCJ to prevent an Aboriginal child from going into out of home care (OOHC). ‘Active efforts’ means the actions taken by DCJ to support you, that are quick enough, practical, ongoing, culturally appropriate, and in partnership with your family and community (Section 9A of the Children and Young Persons (Care and Protection) Act 1998). Active efforts also means that DCJ need to be in partnership with the child’s family and community and be culturally appropriate. Active efforts will look different for each family because they need to be based on your own family’s unique needs. If they do not take active efforts, this can be used against DCJ in court.
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.
