“You need to keep fighting, and you’re going to find eventually—as hard as it is and as hard as it is to keep going—you’re eventually going to find someone that says, we can help you. You can’t listen to the government people that say that you’re not good enough.”
– Parent, Bring Them Home, Keep Them Home research
– Parent, BTHKTH research
It’s the experience of other parents that the NSW Department of Communities and Justice (DCJ) do not routinely inform parents about the existence or possibility of their child coming home, called restoration. One mum said:
“I pretty much had no say in it. I mean, I wouldn’t have probably signed that bit of paper. If I knew about what restoration was, I didn’t know, they didn’t tell me even it’s a possibility. They didn’t even mention the word restoration to me at DCJ. They told me absolutely nothing.”
– Parent, Bring Them Home, Keep Them Home research
DCJ usually view restoration as a child going back into the care of their parents legally. Aboriginal communities see this differently, as going home is about children returning to their family, Country, culture and community. This doesn’t just mean restoration to parents because in Aboriginal families our cultural connections are strong, with children belonging to relatives just as much as their parents. The process of getting your child home legally is called ‘restoration.’ It is DCJ’s position that restoration is the best and first option after removal (section 10A of the Care Act),Working towards restoration after removal recognises your child’s basic human right to be with their family, connected to culture and on Country. But in reality, only 8.3% of Aboriginal and Torres Strait children in OOHC were restored to their family in NSW in 2021/2022 (Newton 2022). This number does not show how hard parents have fought for their kids to come home, but it does reflect a disconnect between DCJ’s policy and practice.
There are different pathways to restoration for children and families depending on the Court order. Children may be on interim orders (temporarily, usually under the parental responsibility of the Minister) or long-term orders (also known as final orders).
Long-term orders usually happen after the interim orders end and the Court doesn’t return the children home.
The ‘goals’ you need to achieve to keep your children in your care, or have them return home, are meant to be chosen by you. However, DCJ has what it calls a ‘bottom line.’ This is basically what DCJ believe you need to do if your child is to stay with you at home, or return home. These goals are first outlined in the Summary of Proposed Plan (SOPP), filed early in Court proceedings, which DCJ is responsible for developing, then the Family Action Plan (FAP). In the FAP, there are ‘worry statements.’ These are meant to be your worries, but they usually end up being what DCJ tell you they are worried about. Worry statements need to be true and reflect what is actually happening in your family. If you do not agree with their worries, Aboriginal parents have said that they may call you non-compliant or say that you ‘lack insight’. Work with your lawyer to remove the worries that are not based on the truth and bring your own evidence. If your child is on long-term orders, the goals may be in the care plan, even if the plan is not restoration. They will be in the section outlining why DCJ does not think restoration is possible.
DCJ’s ‘Interim Restoration Assessment Approach’ Guide 2024* sets out what DCJ should be doing and says “Being clear yourself about what needs to change so that you can be clear with parents is an important first step. It helps safeguard against families experiencing our practice as ‘shifting the goal post’ about what needs to happen for children to return home.” It is the experience of many parents that DCJ has a never-ending list of expectations and goals for parents to complete. Parents have experienced DCJ changing the goalposts, giving them unrealistic goals or timeframes, and saying their children are now attached to the carers, as reasons for not giving restoration. Restoration shouldn’t happen only when the placement is not safe or breaks down. Children should always be in safe and happy placements while families are going through the process. Unfortunately, only 2% of Aboriginal children were restored from out- of- home- care (including long-term Guardian Custody Orders) in NSW, as of 30 June 2022 (Family Matters Report, 2024). Often, DCJ see the risk of disrupting the placement as the biggest risk there is. The only way to go against this is through great advocacy and support and maintaining your relationship with your kids as best as you can.
*DCJ document not publicly available.
DCJ need to make Active Efforts (section 9A of the Care Act): These are the actions taken by DCJ to support you, that are quick enough, practical, ongoing, culturally appropriate, and in partnership with you, 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), and to return them home if they are taken from you. Active efforts will look different for each family because each family’s strengths and needs are different. If there is a restoration plan in place, active efforts can look like supporting and increasing family time. However, the law is less clear about the requirement to support restoration if the Court makes long- term orders.
DCJ’s ‘Interim Restoration Assessment Approach’ Guide 2024 (page 20)* says they will consider:
*DCJ document not publicly available.
DCJ should be getting evidence of their “strategies to connect and hear the child’s views were considered” and “the child’s views about decisions were sought, in ways that responded to their needs” in restoration (Standard 1).
Standard 5 of DCJ’s Practice Framework Standards says that they need to have evidence in restoration that “the child was asked their view about how connected they feel and who they want to be connected to.” One parent said:
“So we’re still going through Court for my daughter. But because my son is 15 years old he has blatantly said he doesn’t want to go back there. If they try and make him go – he wants to come home to his mum and they have no choice but to support that because he has basically said, I’ll kill myself, I’ll run away. He’s sick of his life being dictated by these people.”
– Parent, Bring Them Home, Keep Them Home research
This is an example from a parent of DCJ not listening to the child’s voice, and harmful things happening because of it.
When DCJ is involved with your family, there should always be a ‘case plan goal’ front and centre in the casework. This goal can either be preservation, long- term care, guardianship or adoption, or restoration. DCJ decide if they will support restoration as the case plan goal or not. They are legally required to assess whether restoration is realistic.
“It was a really hard first night. It was a hard time in general, you know what I mean. I did fluctuate, it was a roller coaster. I’d have the nights where I was really depressed and crying and wanting to end it all myself.
“But then I would get into this mindset of, no, fuck them. They told me they weren’t even going to look at giving my son back until 2022 and I told them fuckers, watch me, I’m going to get my son back in a few months, and I made sure that I did. That’s what stated the process of me finding ways on how to get my kid back. I’m a loopholer. I’m very determined and if I want something I get it. So I guess you need a mindset like that. It’s the only way things are really going to work for you.”
– Parent, Bring Them Home, Keep Them Home research
If your child is under 2 years old, DCJ is required to assess the options and make a recommendation to the Children’s Court about whether they think restoration is realistic, within 6 months of removal. For children over 2 years old, this should happen within a year. These times can be extended, and your lawyer can explain when that can happen. The things that DCJ say you need to do should be in your Summary of Proposed Plan (SOPP). This is an important document because it has a lot of influence over what the Court decides about restoration. These timeframes are what makes it important that you start working towards restoration as soon as you can. It is important that you also document the things you have been doing well and your engagement with services. DCJ and the Court are looking at whether restoration is possible in the 2 years looking forward, but you and your lawyer can argue that you need more time before the Court makes a final decision and that it will need to look beyond the 2 years into the future.
This depends on the type of Court order. If the Court has ordered restoration and there is a period of time that the Minister is holding parental responsibility to facilitate the restoration, when your children come home is a decision for DCJ or an agency. An application can be started by parents, children and young people themselves, DCJ or an interested person (such as a carer or family member) after final orders are made – all through a Section 90 application.
Starting the restoration process usually requires having more frequent family visits and DCJ changing the direction of their casework. A parent can start the process of readying for a Section 90 application, no matter what type of order was made (parental responsibility to the Minister until 18, parental responsibility to a relative, guardianship). The only order you can’t apply to change is an order for adoption.
This is an application that goes to the Court, where a Magistrate or Judge is asked to reconsider the current order made for a child. It can legally restore a child from long-term care or guardianship to the care of their family. It can also be used to stop a Court-approved restoration or to change a final order that’s already been made, so is also used by DCJ when restorations are unsuccessful. There are two steps. First, the Court must consider whether they should open the door of restoration. Second, the Court must consider whether they should go through the door of restoration (look at what orders you are asking for). There needs to be enough time to show change, but not too much time so that the child’s placement isn’t considered disrupted. This makes timing important and frustratingly difficult to navigate. It is most helpful when both DCJ and your OOHC agency are working together to achieve restoration, but it is possible without it. Young people can directly instruct a lawyer to apply for their own section 90.
If there is a Court approved restoration plan, a child can legally be returned home within the first 12 months of the restoration date, and you shouldn’t have to wait until parental responsibility moves from the Minister to you, if you are ready or if it is in the best interests of your children (section 136 (3)(b) of the Children and Young Persons (Care and Protection) Act 1998). If restoration has been assessed by DCJ as realistic, the ‘phases’ of restoration are outlined in their filed Care Plan document. Even if you are ready for restoration within the timeframe, it’s the experience of parents that DCJ drags it out unnecessarily. One mum said:
“I just think court’s taking too long… I think the longer they leave it, the harder it is for her – like she’s going – she’s 12 and she’s waiting to come home.”
– Parent, Bring Them Home, Keep Them Home research
Within the restoration plan, it should be clearly outlined when, where, and how often unsupervised visits and overnight stays should be happening. If DCJ tries to drag out the amount of time it takes to restore your children, remind them of your restoration plan and agreements they have made with you, with your lawyer, support service, or advocate. If DCJ says you need to go to a service, like rehab or counselling, they can request priority access to that service or program for your child or yourself if the child is at risk of significant harm (Section 17 and Section 18 of the Children and Young Persons (Care and Protection) Act 1998).
It can be argued that supporting successful restoration long- term is important for your child’s wellbeing, so DCJ should always request priority access for you if you are actively seeking restoration.
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.
