It’s important to advocate for them to follow the Aboriginal and Torres Strait Islander Children and Young Person Placement Principles as required by section 13 of the Care Act and ask for your kids to go with family/kin, because it’s the experience of Aboriginal parents that often DCJ will ignore placement principles, skip finding family members, and place the kids with foster carers, even though they are not meant to. This is important because it could make it easier for them to come home to you if they are placed with family. One parent said:
“because my mum and dad done all these courses and all this stuff to have a police check, working with children’s check and all this stuff to get [child] to stay with my mum and dad and DOCS just said no. She has to stay with her other grandparents. But even AMS say DOCS could have been a lot of trouble because my mum already had my son and really she should have went and stayed with them. But DOCS done nothing about it.”
– Parent, Bring Them Home, Keep Them Home research
You can get together as many family, community members, friends, and supporters to show up to the court, so there is a really big group of people.
This could show the Judge that your child has a large and loving support system that is ready to help you in raising your child or take on the care of your child (short term or long term). But they might not all be able to come into Court because the decision about who can be in the room is up to the judge (it’s a closed Court).
If there is a family or community member that is saying in Court that they can take on the care of your child, the Court could have a harder time saying no to them because they are there in person showing they are ready and willing.
Parental Responsibility means the person who has legal decision-making power about things like where your child lives, who they see, their health, education, and religion. Your family member doesn’t need to do a kincare assessment for them to get interim Parental Responsibility. The Court has the power to invite them to give evidence in person and they may not need to complete any paperwork. You should ask your lawyer about those powers under section 107 of the Care Act It’s rare for you or a family member to get Parental Responsibility, but it can happen, and it might only happen if you ask. Parental Responsibility is usually first given to the Minister (DCJ) in 99% of cases, and this number is reduced to 90% at the ‘establishment phase’ of Court (Family is Culture, p.122).
It’s possible for the Minister to have parental responsibility, and for your child to stay at home with you. This means the government is in charge of deciding things like health, education, and where your child lives, while you also have an agreement with DCJ and the Courts that your child will stay home with you. This doesn’t happen often, but it is possible.
Even if DCJ are asking for an order for parental responsibility to the Minister, you can ask for the Court to make an order for supervision and undertakings, which would allow your child to stay living with you, under conditions and with you making promises to the Court about what you will or won’t do to keep them safe in your care. The Court has the power to make any interim (temporary) order they consider appropriate (section 70 of the Care Act). The supervision order allows DCJ to monitor your child in your care, and the most common undertaking in these circumstances includes a promise to the Court to “follow the reasonable directions of DCJ”. They might also include agreeing to do urinalysis (type of drug testing) or make sure your child continues to attend school. The promises have to relate to the concerns DCJ have. You should talk to your lawyer about this option.
While family members have to make an application (to be joined as parties to the proceedings (section 98(3) of the Care Act) to the Court themselves, you can tell the Court that you support that application. You can also tell the Court that your family member plans on making an application, so they know it is coming. To be successful in their application, your family member has to explain to the Court how their position is different from yours, or anyone else’s in the proceedings.
Sometimes DCJ say that a family member is not suitable if they are seen as not agreeing with the department about theirs or if worries or if they think that they are going to let you see the children unsupervised. You can remind your DCJ caseworker of their legal responsibility to follow the Aboriginal and Torres Strait Islander Child and Young Person Placement Principle, which says the first option should be to place an Aboriginal child is with Aboriginal family (section 13 of the Care Act and the Aboriginal and Torres Strait Islander Child and Young Person Placement Principle.) You can also remind DCJ and the Court of their responsibility to follow the Aboriginal Case Management Policy (ACMP), which says decisions should be led by Aboriginal family as part of the Aboriginal Family Led Decision Making (AFLDM) process (see section 12 of the Care Act).
Remind DCJ of their responsibility to follow the law, including the Children and Young Persons (Care and Protection) Act 1998 (NSW). As long as it’s in the child’s best interests, and the child wants to, they should be able to keep in contact with the important people in their life, like their parents, brothers and sisters, other family members, friends, and community (section 9(2)(f) of the Care Act). The Court must think about what is best for siblings when deciding what orders to make (section 103 of the Care Act). Remind DCJ of their responsibility to follow their policy, which says “the placement of an Aboriginal child is with their siblings. If this is not possible, case planning supports lifelong connections by setting out arrangements which enable the child and their siblings to participate in family time and cultural activities as a sibling group” (Permanency Case Management Policy) Standard 5.2 of DCJ Practice Framework Standards says DCJ should “Keep siblings together wherever possible and keep them genuinely connected. This includes siblings who may not have yet met”.
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.
