“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
– Parent, BTHKTH research
The NSW Department of Communities and Justice (DCJ) are required to follow laws and policies, but this is not always happening.
The child protection system is built with laws in it. To put these laws into place, the government writes policies. DCJ are supposed to follow these laws and policies. There is also a practice framework that is supposed to guide the way DCJ work with families and communities. In reality, Aboriginal parents have said that sometimes DCJ follow these laws, policies and frameworks and sometimes they don’t.
You can learn about these policies and laws and if you feel safe enough, ask DCJ how they are making sure they are following them when they work with your family. You can mention these laws and policies to DCJ, such as wanting a family meeting, participating in decisions about your children, or having information about where your child is placed. Ask your lawyer and support team to help collect, track and write-up evidence about how DCJ have and have not followed these laws and policies.
Over half of Aboriginal and Torres Strait Islander children are still being placed with non-Aboriginal carers (AIHW, 2022), even though this is meant to be the last placement option. DCJ are required to have evidence of how they are following the Aboriginal Child Placement Principles with all their efforts to identify and locate family and kin recorded (Practice Framework, Standard 2).
“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
“There was no help really from DCJ. They are very manipulative, they played a lot of mind games.”
– Parent, Bring Them Home, Keep Them Home research
“A lot of the dads have the same problem, so DCJ is not very good at contacting you back. They do it in their own time, and then they’ll try to turn it on you and say that you didn’t reach out. So, that’s one thing that was really hard, and like really – it’s like they’re trying to break you the whole time, do you know what I mean, like you’re trying to deal with your own thing, do you get me, trying to get everything done, and like you say you’ve done this, and they’re like, well, you do this now. Like, I’ve done everything. There’s just a repetitive thing where it feels like it’s trying to break you.”
– Parent, Bring Them Home, Keep Them Home research
“I said I wanted the kids back. I’ve got housing now. I asked them to come look at the property because they have to see the property. They refused to even come look at it. They didn’t come look at the property for like two months, three months.”
– Parent, Bring Them Home, Keep Them Home research
‘My DCJ worker, because she used to work with Housing, she put a good word in for me and helped me get this place.”
– Parent, Bring Them Home, Keep Them Home research
“When he was in care, my lovely caseworker during the time spent eight months doing research. Not in secret but she didn’t want to tell anyone until she’d got something just in case it didn’t go anywhere. Yeah, she spent eight months researching each family and found him linked to two different Aboriginal tribes in Blacktown area.”
– Parent, Bring Them Home, Keep Them Home research
“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 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. 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 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 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 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).
“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).
“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).
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, 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 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 (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 Policy, interim approach to assessing risk*). 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.
* DCJ document not publicly available
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.
