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Briefing Paper: Children & Young Persons (Care and Protection) Amendment Bill 2018
Community legal centres share the government’s commitment to providing safe futures for our children. However, the proposed changes tip the balance in the wrong direction, creating a fast-tracked pathway to adoptions and adoption-like guardianship orders that will repeat the harms caused by past policy failures.
In particular, the reforms will have a disproportionate impact on Aboriginal children and families:
- In 2016-17, 38% of the 18,780 children in out-of-home-care were Aboriginal.
- There are about 810 Aboriginal children subject to guardianship orders. If this Bill is passed, these children could be immediately adopted without their parents’ consent.
- There has been a marked increase in the adoptions of Aboriginal children in care. Of the 13 Aboriginal children adopted between 2012-13 and 2017-18, six were adopted in the 2017-18 financial year alone.
If pursued, the legacy of these reforms will be another government apology to yet another generation of vulnerable and traumatised children, reforms enacted by the same Minister who delivered the NSW Government Apology for Forced Adoption Practices in September 2012.
The most concerning aspects of the Bill are:
- The two-year maximum time limit for restoration, which is arbitrary and sets families up to fail. The proposal fails to recognise the significant systemic barriers families face in accessing appropriate services, particularly in regional, rural and remote areas.
- The introduction of guardianship orders by consent and proposed changes to the Adoption Act, which creates a fast-tracked pathway to adoption without an adequate framework to provide oversight and protect the interests of the most vulnerable children.
- The introduction of additional hurdles for parents to meet when seeking to vary current care and protection court orders, which will further limit access to the Courts. Rather than creating additional hurdles, the Government should ensure parents have access to free, independent legal advice.
- The requirement for FACS to engage families in alternative dispute resolution (ADR) before seeking court orders, which doesn’t guarantee families access to free, independent legal advice. Access to such advice is essential to address power imbalances between parents and FACS, to support parents to fully participate in a culturally safe process, and to ensure that placing a child in out of home care is always considered as an intervention of last resort.
- The lack of adequate consultation on these significant reforms, which puts the government on a pathway to repeating past mistakes. These reforms are significant and will have a disproportionate impact on the most vulnerable children and families in NSW, including Aboriginal and Torres Strait Islander people. It is critical there is adequate consultation with Aboriginal organisations and other stakeholders.
To address these concerns, we recommend that the Bill be withdrawn, or at the very least, referred to a parliamentary committee for a thorough inquiry into the practical consequences of proposed amendments, particularly for children and families with complex needs.