“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… 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
DCJ is required to file paperwork after they have removed your child. They are required to serve you with it (give it to you). 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.
There is a Court mention (a brief session in Court where the Judge hears the care application, reviews the case and decides the next steps) at the Children’s Court at the next available Court day after the application is filed. It is supposed to be no later than 5 days after your child is removed or assumed into care. The time, date, and location of your Court mention should be written on the Application you are served with (given to you). If you are unsure (or it is not on the paperwork) you can ask your lawyer, or contact the Court registry closest to where your child normally resides (lives). Sometimes in regional areas, courts do not meet regularly, but they shouldn’t let more than 5 days pass (if the 5th day is a weekend or public holiday, then it must happen on the first working day after that) (section 45(1A) Care Act).
This first Court mention decides who has legal responsibility for your child (in the short term) while the case is happening, and DCJ must give evidence that they relied on to remove your child. They are also supposed to provide you with some documents directly from their files in a bundle (section 64(4)-(5) Care Act). You should receive a copy of the initial report written by DCJ. If you have not received the documents, ask your lawyer for help. Even if you don’t know about Court, the Court will still go ahead and make decisions and can make orders in your absence (when you are not there).
The Care Application will include documents to say why they removed your child. This must include evidence of how they tried to support you and your family, and other ways they tried to reduce the risks before the took the children (called active efforts). They will say why these plans and actions didn’t work.
DCJ will also give the court documents such as Risk Of Significant Harm (ROSH) reports any current orders (including Apprehended Domestic Violence Orders (ADVOs)), safety assessments, risk assessments, reports from other professionals and case plans. These are not filed with the Court, but can be, if your lawyer or DCJ think the Court needs to see them.
If you have not already got legal support earlier on during DCJ involvement, it is very important to do it when your children are taken. Contact a legal service to get legal representation or advice or ask a support worker to help find the agency that will help you. When an application for an Aboriginal child is filed, the Aboriginal Legal Service NSW/ACT Ltd (ALS) get notified. They can then decide who they represent if no one in the family has reached out to them, which may include representing your child in the Court proceedings.
If you want to challenge what DCJ wants, the Court will list the matter for what is called a hearing. This is where the Judge hears the different perspectives. You could ask the Court to make a quick decision, but the Court will often allow every time to put together their evidence, this is where the case will be ‘adjourned’, meaning postponed for a later date. Adjournments can happen at any time. Sometimes the Court can recommend alternative dispute resolution (ADR), or give parents a chance to participate in program/s, or get an assessment done.
Make sure you go to this first Court date to understand what is being said about your family and others involved in the case. By going to Court you show them that you are serious in fighting for your child. As a parent, you have a right to be heard in Court, which means to speak in Court and have your say. You can tell the Judge who you want your child to stay with, the reasons why they are safe, and use the system’s own laws and policies to do this. Work with your lawyer to do this. If you are unwell and cannot attend, you may be required to provide a medical certificate. If you can’t attend, it is very important that you have arranged legal representation, so someone can speak for you. If you cannot go in person, but still want to participate, you should contact the Court registry to find out details (and seek approval) to attend through the phone or video.
By now you may have an idea about what DCJ have said about you and what why they are involved. If you haven’t already, collect any evidence you may have of what has happened. This can include what you have done to reach the goals DCJ wrote up and anything else you have done to support your case. Write things down or speak them into your phone and if you have anyone who knows things that will support your case then contact them and let them know what is going on.
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.
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 (AFLDM).
It’s important to advocate for them to follow the Aboriginal and Torres Strait Islander Children and Young Person Placement Principles, required by section 13 of the Care Act, and ask for your kids to go with family/kin, because 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 [Aboriginal Medical Service] 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. Ask for interim (temporary) Parental Responsibility to go to this family member, or be shared with you, instead of it going to the Minister (DCJ). 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 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.
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.
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”.
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.
It’s uncommon for a child to return home straight after a removal (90% of the Court’s decisions agree with DCJ’s decision to remove children (Family is Culture, p.122)). But it has happened before. You can instruct your lawyer to object to (challenge) an interim order (the decision to take your child out of your legal responsibility) being made. You and your lawyer will need to give evidence to prove it is safe for your child to go home with you. This can be hard because risks are usually worries about what will happen and it is hard to predict what will or won’t happen.
You can ask your lawyer to do an urgent affidavit (a statement with your own evidence with your version of what has happened). People who support you and want your kids to go back to your care, can give sworn evidence (statements made under oath) and you’ll need to give the Court notice for this. This is where you can tell the Court if the case worker has written things that are not true.
If DCJ doesn’t have enough evidence, the Court can consider postponing (adjourning) the case but might make interim orders before you get that urgent hearing date.
Talk to your lawyer, advocate, support service, and DCJ about how you have the highest amount and time for family time as possible. Family time is important for bringing your child home (restoration).
Being ‘party to proceedings’ means a person who is formally involved in the legal case and is entitled to have a lawyer representing them, and they get access to all of the same information you and your lawyer get. The people automatically involved includes you as a parent (or the person with Parental Responsibility), your child, and DCJ and the Minister. A family member such as a grandparent, or a service provider can also apply to be a party to proceedings. To become a party, the person has to have “a genuine concern for the safety, welfare and well-being of the child or young person” (section 98(3) of the Care Act). An out-of-home-care (OOHC) agency with case management of your children will not need to be a party to proceedings to get copies of the paperwork, as they should receive them if DCJ is following Children’s Court Practice Note 17 (a practice note is a description of what the Court expects from people involved in proceedings). If you want your support service (not the OOHC agency) to join the care proceedings, you can ask for your support service and the Court for them to be a ‘party’ to the proceedings, which means they get to be involved in the Court case, and have access to all documents. However, this is uncommon.
Do not have access to Court documents. To let support workers see the documents, the Court can let them have access by giving the workers a copy of the documents, or granting (allowing) leave for you to provide them. Your lawyer can ask for the Court to be able to give copies to your support workers, especially if you are someone who is experiencing homelessness, disability, or mental health issues. Your lawyer is not able to provide documents to your support worker without the Court’s permission, and neither are you. Children’s Court proceedings (processes) and documents are strictly confidential. If a service is impacted by the decisions being made by the Court, they also have the right to be heard.
Guardian ad litems are people in the Courts whose role it is to speak for you if you have trouble understanding or speaking for yourself, like a child or adults with an intellectual disability (sections 100 and 101 Care Act). Not everyone gets a guardian ad litem, and only your lawyer can apply for a guardian ad litem. In applying, they have to explain to the Court why they cannot take “proper legal instructions” from you. The guardian ad litem appointed for you should be meeting with you, explaining their role and helping you to communicate to your lawyer. Your solicitor can ask the Court if they have an Aboriginal guardian ad litem that can work with you. Your guardian ad litem should properly explain and communicate your cultural concerns and context. You still have the right to attend Court and speak with your lawyer, however, once a guardian ad litem is appointed, your lawyer is required to follow their instructions, even if they are different to what you want your solicitor to do. Not all guardian ad litems are helpful to the people they work with, just like other workers like lawyers and caseworkers, how helpful they are will depend on the person you are given.
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):
Participation: a child, young person, their parents and family should participate in decisions about the care and protection of the child or young person (section 12 of the Care Act).
DCJ are required to support a child or young person to maintain connections to family, community, culture and country (section 13 of the 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.
