“They got all that sorted and then a couple of weeks later, she went and lived with my mum, but I think if something happened, touchwood, if something happened to my mum, where does that leave [child]? Does she have to go and live with a foster parent until she can come home? I just think she should be here. Apart from I want her here and she’s my daughter, but with my dad being so unwell, my mum now just had a mini stroke, a TIA. I don’t know.”
– Parent, Bring Them Home, Keep Them Home research
– Parent, BTHKTH research
It’s harder to get restoration legally once your child is on long- term final orders in the care of the Minister. Restoration from long-term orders is different because the Court has made a finding (decision) that restoration was not realistic before making that long- term order. Changing that decision means the Court must look at your case again and make a different decision.
There’s also no Family Action Plan for Change (FAP/FAPFC) when your child moves to long-term orders, which makes it hard because you can only get a case plan goal changed when there is a FAP in place.
If the Court says that restoration is not achievable, your OOHC agency or DCJ should still be helping you and your family stay connected with your child. The Aboriginal and Torres Strait Islander Child and Young Person Placement Principle (Section 12A of the Children and Young Persons (Care and Protection) Act 1998) says that DCJ are required to support a child or young person to maintain connections to family, community, culture and country. Keeping a strong connection with your child is also important because if your child’s placement breaks down or their carer can’t look after them anymore, you have a stronger case to be considered for restoration.
DCJ or the service that has case management are meant to be doing yearly Case Plan reviews, where the Case Plan goal is looked at again. But this is rarely happening that way in real life, and it’s not common for a Case Plan goal to change from a Case Plan review.
Casework changes when long-term orders are made, because the system focuses on ‘permanency,’ which they take to mean where your child is living.
Thinking about what the right case plan goal is for a child is part of out-of-home care (OOHC) case plans. The caseworker should always be getting your child’s views on their carer, parents, and community. A caseworker can look at restoration on long- term orders when:
DCJ can say that they either won’t support restoration; that they want to see you do more things and make more changes, or that they will support restoration. To have a conversation about this with your supports:
A Case Plan meeting for restoration should be with your OOHC agency, and with all of the important people in your family’s life. A Case Plan meeting is a space to talk about how the legal process will go and to focus on what your child needs.
Two new documents should be made to outline how restoration will go. The first is an OOHC Case Plan for your child with the new goal of restoration (or assessing restoration) and the second is a Family Action Plan for Change (FAP). It is less likely that the Case Plan will change, as they are required to match what was in the original filed Care Plan for your child, which would say ‘no realistic possibility of restoration’.
DCJ can request that the Court make orders that have the effect of immediately restoring your child. This can include them giving legal parental responsibility back to you. They can also ask that Parental Responsibility goes back to the Minister (PRM) before it goes back to you, for a certain amount of time.
They can ask that you do specific ‘undertakings’ which means doing things DCJ see as important, like doing urinalysis or parenting programs. Although many other parents have already been doing these things for years because DCJ told them they had to. The undertakings DCJ ask you to do should directly relate to the reasons your child was removed, but parents tell us that DCJ change the goalposts and the reasons for making restoration harder or denying it is not for the same reasons as removal. This has made parents feel like no matter what they do it won’t ever be good enough for the system. One parent said:
“every time they make a promise to me of leaving me alone, they find an excuse. A new excuse every time to still stick around.” Another parent said that the reason for removal never stayed the same, saying “I don’t know, take your pick. Every time I spoke to someone, it was a new story. I honestly can’t even tell you, I don’t know.”
– Parent, Bring Them Home, Keep Them Home research
Another parent said that the reason for removal never stayed the same, saying:
“I don’t know, take your pick. Every time I spoke to someone, it was a new story. I honestly can’t even tell you, I don’t know.”
– Parent, Bring Them Home, Keep Them Home research
Your legal service (such as the Aboriginal Legal Service or Legal Aid NSW) should be putting together their ‘bundle’ of documents from the past and undertaking a review of it at the same time.
Once your child is home, it’s common for the Court to make a supervision order for up to 12 months. It can be shorter. This happens so that DCJ can support you once you have legal responsibility back and your child is back in your home. However, it is often the experience of parents that they feel watched by DCJ.
It is also the experience of parents that this supervision period makes them feel constantly worried that anything they do could result in their child being taken again. If you are being properly supported, you should not feel this way, and if you do, you should talk to your lawyer to get advice about what you can do.
Before a Section 90 is filed, what the OOHC agency can do is try to assist you in gathering evidence to consider whether restoration is a good idea or not and support your connection with your child. But they can’t actively transition your child home without there being a restoration plan in place.
Sometimes emergencies do happen, where a child self-places or your child’s carer gets sick. If there is a big change like that in your child’s life, then your OOHC agency can and should assist you to start the process for a Section 90 application for restoration.
DCJ’s ‘Interim Restoration Assessment Approach’ manual 2024 (page 23)* states “If you think on the balance of information that restoration may be a realistic possibility, share your evidence and analysis with the Children’s Court. DCJ must seek leave of the Court via a section 90 application to change the permanency goal to ‘assess restoration’.”
This means If DCJ thinks your child could go back home safely, they should share their evidence with the Court. DCJ must ask the Court (through a Section 90 application) to change the plan to assess restoration. If your DCJ caseworker thinks your child could return home but doesn’t want to do a Section 90 application, you can remind them that their restoration guide says this and they should be following it.
*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.
