When DCJ becomes involved with your family, it’s good to know some key things. There is usually a first visit to your house, which could be a check-in or a safety assessment. But DCJ will always be assessing you when they are with you.
If your child has just been removed by DCJ, get legal advice or representation as soon as possible. Try and find a lawyer that you trust will fight for you and your children. You can contact the Aboriginal Legal Service, Legal Aid NSW, or ask around in your community.
The process of getting your child home is called ‘restoration.’ It is DCJ’s position that restoration is the next best option after removal. In reality, only 8.3% of Aboriginal and Torres Strait children in OOHC were restored to their family in NSW in the year 2021/2022.
It’s important to establish a family time visit schedule with your child as early as possible. You have a right to see your child, outlined in your child’s case plan. You still have a right to this if you are in environments like prison or hospital.
When DCJ becomes involved with your family, it’s good to know some key things.
There is usually a first visit to your house, which could be a check-in or a safety assessment. But DCJ will always be assessing you when they are with you. DCJ is required to be transparent and honest at home visits. Try and make sure you have someone there with you. DCJ say they should be speaking respectfully about you when they are talking with your child. You don’t have to tell DCJ anything until they do the safety assessment with you.
If you do say something, write down what you told them. They are required to plan for the most effective and respectful approach during assessments. When DCJ first contacts you, it’s helpful to write down what they say and do. Right after they leave, look for legal advice or a lawyer and an advocate. Ask for a copy of their notes. They will take notes for every single one of your meetings. Ask DCJ how many reports are on your file, when were these reports made, and what were the reports about. Ask DCJ what they think the current safety worries are. You have a right to ask the caseworker if they have done a cultural consultation, so they can better understand your cultural experiences and needs.
Contact a lawyer as soon as DCJ contacts you. Getting a lawyer early could help avoid your case going to Court. They can help you understand your rights and responsibilities. Not all lawyers have the time to support you in the way you need or may give you advice that you don’t think is right. If you think that the lawyer is not going to support your case in the way you need, then you can ask for a different lawyer. DCJ may give you a piece of paper called a Temporary Care Agreement or a Family Action Plan. It’s important to check this with a lawyer, even if you think you understand it or think it is okay. You have a right to legal advice before signing anything. If your court date comes and you don’t have a lawyer yet, (you may still be waiting to hear back), you will be given a Duty Lawyer.
Make your own evidence. Create a story that goes against DCJ’s version of your family. Write down everything that happens, the things that you and DCJ are both doing. Try to keep all communication between you and DCJ in messages and emails so it’s written down. DCJ caseworkers are required to give families copies of assessments, case plans, and safety plans. Keep copies of everything. Writing about your family must be “respectful, fair, and accurate”. The context of any actions or words by you or your child should be included. Ask people who know about what happened to make a record of it. If violence is mentioned, it should be described clearly, with responsibility given to the person who was choosing to be violent. Make a note of what you agree with and don’t agree with in all documentation.
Get your support team together. Your support team can be people who understand you and will support you in ways that work for you. Other Aboriginal parents have said this made the biggest difference. Make a list of family, mob, friends, lawyers, advocates, and support services or others who understand the child protection system. In all meetings with DCJ you are entitled to have a support person with you. Make sure they understand how you want them to support you. Identify people who are safe and unsafe to talk openly to. All workers funded to work with children are mandatory reporters which means they have to tell DCJ if they think what is happening is something they have to report under the law. Tell the mandatory reporter you would like to do the report together, so that you can say what is going on. They can do this, but they don’t have to.
Each support service is different but can make a big difference. Ask around in your community or look online for local services that you think will be most helpful to you. There are two different types of child and family support services: Aboriginal Community-Controlled Organisations (ACCO) and Non-Government Organisations (NGO’s). ACCO’s are Aboriginal led organisations that have culturally safe services created for mob and are accountable to the communities they work in. It’s important for you to have choice in the support you want or need. Additional support services like mental health and wellbeing services, drug and alcohol services, and domestic and family violence services can also be helpful supports. Some ACCOs are a ‘one stop shop’ and offer a range of these services under one roof. If you are actively involved with support services, DCJ will see that you have access to formal supports, which could address some of their worries about your family. Depending on the service you want to use, you might need a referral from DCJ but ask the service to make sure.
Advocates and support people can help you say what you need, explain what is going on and make you feel less alone or scared. Advocacy is something that is done. It is not a particular job. It could be a worker or someone in your community. They can also do things outside of meetings like write support letters and send emails to encourage workers to support you. Find someone who fits this role and meet with them before you meet with DCJ, so they understand where you are at, what you need, what your experience has been, and what you are worried about. Parents and advocates say that some DCJ workers don’t really like you having advocates and sometimes DCJ can try to make your life harder. This does not mean that you should not have one. You are entitled to have a support person, including an advocate, with you.
Some parents talk about being involved with DCJ as “playing the game.” Aboriginal parents have used a strategy called ‘strategic compliance’. This is when they agree to do what DCJ is asking them to do or go above and beyond it, in their own way. Parents are not blindly following what DCJ says, or even agreeing with them, but understand what could happen if they do or don’t do what DCJ says, or do even more than they are asking. This can be a hard decision for parents to make because it can feel like you are admitting to doing something wrong when that might not be what’s actually happening. But if you don’t do what they say, they might label you as uncaring or unsafe. A way to deal with this is by creating your own evidence. Find out what DCJ’s concerns are and ask your support team what you can do to get ahead of DCJ’s plan. If there are things DCJ might see as an ‘issue’, you can work with your support team to begin working on this before DCJ even finds out about it. Think about if the actions on the plans are going to help the situation or make it worse. Make sure that what you say you are going to do is something that you know you can do. Write emails and messages to the DCJ workers and support service workers, saying every single thing you are doing to work towards DCJ’s goals.
A family meeting involving your family, community members, and supporters, can be a chance to decide on what you want as a family in a way that works for you, led by your family and supports, without DCJ. A family meeting without DCJ can be really helpful at any stage in the process especially before DCJ get involved, but if they do get involved, it would be best to do this as soon as possible. Write down who is going to do what and how and by when. This is so everyone is clear on what they are doing, but also it can be used as evidence of the support you have. Getting people to sign the agreement can be helpful. Everyone can take a photo of what they are agreeing to.
If DCJ are looking to remove, they are legally required to place your child with their Aboriginal family. But sometimes DCJ will ignore placement principles, skip finding family members, and place the kids with foster carers, even though they are not meant to. Advocate early for your children to be placed with family. 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 with Aboriginal family. You can remind DCJ of their responsibility to follow the Aboriginal Case Management Policy (ACMP), which says decisions should be led by Aboriginal family. You can bring family along to DCJ meetings so that the workers get to know them, even if they think they already know them. If you think your child will be removed, think of family and community members that could take care of your child temporarily. If this family member gets a Working With Children’s Check (WWCC), character reference, police check or any other probity checks, this could make it harder for the Court to say no to them being a carer.
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 thing called a practice framework that is supposed to guide the way they work with families and communities. Laws, policies and practice frameworks are not always followed. You can read them if you want to see if DCJ caseworkers are doing what they should be. You can ask DCJ how they are making sure they are following them when they work with your family. 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.
If your child has just been removed by DCJ, get legal advice or representation as soon as possible. Try and find a lawyer that you trust will fight for you and your children. You can contact the Aboriginal Legal Service, Legal Aid NSW, or ask around in your community to find out who a good lawyer is. Working with a lawyer could change the outcome of DCJ’s involvement with your child. Start to get together any evidence you may have of what has happened and what you have done to work towards DCJ’s goals.
DCJ are required to make “reasonable efforts” to tell you and your child about the removal in a way that you and your child understand (Section 64 (1) (2) and (3)of the Children and Young Persons (Care and Protection) Act 1998). This means they need to notify you that it happened and also have to give you a copy of the care application as soon as possible after it has been made. DCJ or the Out of Home Care agency are legally required to tell you information about the placement (Section 149c of the law) unless they think there would be a danger to your child, other family members, or the carers for you to know this information (Section 149I of the law). They must write to you to tell you why. DCJ must tell you if your child is staying with family or kin. If DCJ do not tell you this, ask your lawyer, advocate, and support service to ask DCJ if your child is placed with a family member or not. DCJ says that “The caseworker will make a time for your child to see and hear from you. The caseworker must also give you updates about your child. The caseworker will let you know how your child is going when they are in care” (Guide for Families, 2024). Ask you lawyer, advocate, and support service to contact DCJ to make sure you get updates and a visit is organised as soon as possible.
The 72 hours after removal can be critical. There is a brief session in Court where the judge reviews the case and decides the next steps, called a Court mention. This happens within 3 working days, or 72 hours, of a child being removed. 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 collected to remove your child. You should receive a copy of the initial report written by DCJ to say why your child was removed. Make sure you go to this first Court date to understand what is being said about your family. This shows them that you are serious about 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 systems own laws and policies to do this.
You can ask for interim (temporary) parental responsibility to go to a family member, or be shared with you, instead of it going to the Minister (DCJ). 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. 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. It’s important to advocate for this because sometimes DCJ will ignore placement principles, skip finding family members, and place the kids with foster carers, even though they are not meant to. You can remind DCJ and the Court of their responsibility to follow the responsibility to follow the Aboriginal and Torres Strait Islander Child and Young Person Placement Principle, which says the first option should be placing an Aboriginal child with their 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 an Aboriginal family (AFLDM).
Trying to get your child home straight away is uncommon but can happen. You can instruct your lawyer to object (challenge) an interim order. You can ask your lawyer to do an urgent affidavit (a document with your own evidence). You and your lawyer will need to have evidence to prove it is safe for your child to go home with you. People can give sworn evidence (statements made under oath) and you’ll need to give the Court notice for this.
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 thing called a practice framework that is supposed to guide the way they work with families and communities. Laws, policies and practice frameworks are not always followed. You can ask DCJ how they are making sure they are following them when they work with your family.
You have a right to have a say in decisions. 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 (Section 12, Children and Young Persons (Care and Protection) Act 1998.) Your Aboriginal family has the right to participate in decisions about the care and protection of the child or young person for your child to maintain connections to family, community, culture and country (Section 13, Children and Young Persons (Care and Protection) Act 1998.) 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” (Section 11, Children and Young Persons (Care and Protection) Act 1998.) Use these laws with your lawyer, advocate, and support service to try and make decisions for your family.
DCJ workers must follow the Children and Young Persons Act 1998, which includes the Aboriginal and Torres Strait Islander Child and Young Person Placement Principle in Section 12A. This principle has five parts, which are placement, prevention, partnership, participation and connection. The law explains the order that should be followed when deciding where a child should live. First, children should live with Aboriginal or Torres Strait Islander relatives, extended family or other family members. If that doesn’t happen, they should then live with Aboriginal or Torres Strait Islander people from their community. If that is not possible, the next option is Aboriginal or Torres Strait Islander carers. Only when none of these choices can be used should a child live with a non-Indigenous carer or in a residential home. Even though a non-Indigenous carer is meant to be the very last option, more than half of Aboriginal and Torres Strait Islander children are still being placed with non-Aboriginal carers.
Active Efforts 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 (Section 9A of the Care Act). DCJ are legally required to make active efforts to work towards your child coming home. Active efforts will look different for each family because they need to be for your own families’ unique needs.
The Aboriginal Case Management Policy tells DCJ how they need to be led by your family in assessments and decision making. Workers should make sure that your family and community is participating in decisions and actions affecting them. Ways this can happen include having an Aboriginal Community facilitator, making sure family are key decision-making partners, there are family made ‘family plans’ and follow up efforts. This should happen early on in your involvement with DCJ. DCJ workers should prioritise culturally valid assessment tools to identify and clarify the concerns related to the risk assessment that DCJ does. They should work through a cultural lens and be supported by Aboriginal practitioners where possible.
The process of getting your child home is called ‘restoration.’ It is DCJ’s position that restoration is the next best option after removal. In reality, only 8.3% of Aboriginal and Torres Strait children in OOHC were restored to their family in NSW in the year 2021/2022. This number does not show how hard parents have fought for their kids to come home.
When DCJ is involved with your family, there is a ‘case plan goal.’ This goal can either be preservation, long term care, guardianship, or restoration. DCJ are the one’s who decide if they will support restoration as the case plan goal. They are required to assess whether restoration is realistic as part of the law. If your child is under two years old, DCJ are guided to make this decision within six-months of removal. For children over two years old, it should be decided within a year. These times can be extended, and you can ask your lawyer about when that can happen.
The things 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 to start working towards restoration as soon as you can. Document the things you have been doing well and your engagement with services.
Who makes the decision on restoration depends on the type of Court order. If it is within the two-year time frame (interim orders), the decision is on DCJ. If it’s been longer than two years, it can be started by parents, children and young people themselves, or DCJ (all through a Section 90 application). Starting the process usually includes having a higher amount of family visits and DCJ changing the direction of their casework. A parent can initiate 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 one you can’t file to change is an order for adoption.
Young people can directly instruct a lawyer to apply for their own Section 90. More often though, children and young people go home without a change to the Court order (self-placing). Some people refer to this as ‘voting with their feet’. If the Court says they will reopen your case, your lawyer can use this to argue for other orders, such as restoration or guardianship. You have to show that what you are asking for is likely to be successful.
A section 90 application goes to the Court and 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. There are two steps. The first is the Court has to think about if they should open the door of restoration. The second is if 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 your child’s placement isn’t disrupted. This makes timing important and frustratingly difficult to navigate. It is most helpful when both DCJ and your support service are working together to achieve restoration, but it is possible without it. The Court looks at all of DCJ’s past concerns to work out what the change has been. There is an application that is needed to change or cancel a previous order of the Children’s Court, called a recission and variation of care orders (the orders keeping your child in Out Of Home Care). A section 90 can technically be applied for as soon as the day after final orders have been approved from the Court. But most lawyers won’t suggest this because the Court wants you to show there has been ‘significant change’, and you usually need time to show this. The change can be obvious (like leaving jail), but the tricky part is showing what is “significant” and relevant to the reasons for why the Court did not decide on restoration.
If there is a Court approved restoration plan, a child can legally be returned home within the first 12-months of the restoration date. You shouldn’t have to wait to full two years if you are ready. It is the experience of parents that DCJ has a long 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 restoring children to their families. Restoration shouldn’t happen only when the foster carer placement is not safe or breaks down. Children should always be in safe and happy placements while families are going through the process. 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.
It’s important to establish a family time visit schedule with your child as early as possible. You have a right to see your child, outlined in your child’s case plan. You still have a right to this if you are in environments like prison or hospital. As soon as the removal happens, ask when you can see your child, how you are going to see them and request to have a schedule of frequent and regular family visits. In your Court negotiations, you can ask your lawyer to make an agreement with DCJ about having a high amount of family time.
Family visits can happen as often as everyday and you can advocate for this with your lawyer or support service. How you have family time and how often it happens depends on a number of things, including their age, like if they are going to school, and whether they want to supervise your family visits. Once the amount of visits have been set, it can be hard to get more, but easier to get less. You have the right to ask to have an Aboriginal worker present at your family time visits. You can ask for copies of the reports written about your family time visits. You have a right to ask for more time with your child, change where the visits are, and ask for overnight stays. DCJ has to provide reasons for their decisions around family time. DCJ are legally required to support a child or young person to maintain connections to family, community, culture and Country under Section 12 of the law.
You don’t have to have family time visits in the DCJ offices and you can ask for them to be in a better space. If you have a new bub or are breastfeeding, work with your lawyer, advocate and support service to try and get more family time for this important bonding time. Parents have said it was helpful to have family time visits outside places like DCJ offices, McDonalds or TimeZone. You can ask to go to places of cultural or community significance instead. Keeping the focus centred on your child, where you can ask if your child can have say over where they would like to spend their time with you, could help to change it to a better place. One way to stay connected during this time is to arrange for your family visits to be at a supported playgroup. You can attend with one of your family members, and this gives both yourself and your kids time to connect with community and feel ‘normal’. Some communities have didge, dance and weaving groups for kids. These are great if you have kids who are of school age. It is also great for their connection to community and culture and helps with their own wellbeing and grounding. Be mindful that DCJ might not let the person leading a group community activity to be the supervisor of your visit, which might mean bringing a DCJ worker into a community space.
It is a legal right for Aboriginal and Torres Strait Islander children to have a cultural support plan (Section 83A (3) Children and Young Persons (Care and Protection) act 1998). It says that the cultural support plan needs to explain how your child’s Aboriginal and/or Torres Strait Islander identity and connection with family and community will be maintained and developed. The law says that consultation with the child, the child’s parents, family, kin, and the relevant Aboriginal organisations needs to happen to develop the plan (Section 83A (c)). The cultural support plan needs to be led by your family, using what is called Aboriginal family led decision making and recognise how your family and community have already been meeting your child’s cultural needs, and arrangements to keep this continuing. The cultural support plan needs to show family is central to culture, and arrangements need to be made to support this.
If DCJ are not following through on what they said they would do and there is a pattern of it, such as not picking you up for contact visits, or cutting them down, you can keep asking for your visits and ask your lawyer to email the DCJ lawyer to ask what is happening. You can also ask for your family time reports. Mediations are often considered a good first step towards restoration. This is where everyone involved meets to try to come up with contact changes you all agree to. If you come up with an agreement, the new orders can be registered with the Court as a ‘contact variation agreement’ (in accordance of section 86A of the Care Act). Section 86(1A) of the Care Act says an order can be made by the Court to set minimum requirements for how often and how long a child or young person must have contact with his or her parents, relatives, or other persons of significance to the child or young person. It’s important to get legal advice about what application to make.
You can remind DCJ and the carers that they are legally required to support a child or young person to maintain connections to family, community, culture and Country under Section 12A, of the Children and Young Persons (Care and Protection) Act 1998) and to follow the plans for family time in the care plan, contact order or final orders. DCJ’s ‘Interim Restoration Assessment Approach’ Guide 2024 (page 26) says “Whether children are returning home or not, children benefit from strong relationships and time with family. Think about whether supervision is needed and who is best placed to provide this – consider supervision by a family member or kin, moving towards unsupervised family time.”
Carer’s have to follow something called the ‘Code of Conduct for Authorised Carers.’ It explains what carers have to do to support the rights of children and young people in care. Carer’s have to respect and support family relationships. Carers have to follow care plans and Court orders. Carers must support contact arrangements that have been approved by the Court or included in the care plan. Every child has the right to stay connected with their family, culture, and community where it is safe.
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.
