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The NSW government’s plan to make it easier to adopt children in out-of-home care has been criticised for not allowing sufficient time for parents to restore their families and for potentially creating a new Stolen Generation. By Celina Ribeiro.

Adoption law changes in NSW

Activist Lynda-June Coe (right) protesting against the adoption changes outside NSW parliament.
Credit: AAP Video / Hannah Higgins

For more than six years, Sandra – not her real name – has been fighting for her two grandchildren. She’s about to head back to court for a third time to try to keep them. She says she fears a knock at the door. A knock from the Department of Family and Community Services to say they’re taking the kids. She fears that she’ll go to pick them up from school one day and they will have been taken.

The New South Wales government is currently locked in a battle with Labor and the Greens over a bill that will make it easier for adoptions to be carried out without parental consent and will place a two-year time limit on restoring kids in care to their families. The changes have community groups and academics warning of another Stolen Generation, not least for Aboriginal children who comprise nearly two of every five children in out-of-home care. Sandra, who describes herself as “just an Aboriginal grandmother from out bush”, has fears about the bill, too.

“The new changes effectively sever not only the parents’ rights, but it severs my rights, obligations, and my cultural responsibilities as a grandparent,” she says. “It also takes away the kids’ human rights to be connected with their culture.”

In the NSW upper house last week, the Greens and Labor each tabled more than 20 amendments to the reforms proposed for the Children and Young Persons (Care and Protection) Act and the Adoption Act. The bill was passed by the upper house on Wednesday night and has now gone to the Legislative Assembly. Aspects of the reforms that have drawn most concern include the fast-tracking of adoption, which could lead to guardians being awarded permanent custody of children in their care, even against the wishes of those children’s parents or when the department has not assessed those children to be in danger. Some argue the two-year time limit on restoring children to their families will reduce judicial discretion, beyond it being an insufficient amount of time for many families facing significant social barriers to regaining their children. Labor MLC Courtney Houssos called the bill “a thought-bubble attempt at a legacy item”.

In a statement to The Saturday Paper, Minister for Family and Community Services Pru Goward said that she was appalled by the Greens and Labor members leading the charge against the bill, claiming they appear to “consider it acceptable for thousands of children to languish in the foster care system for up to 12-and-a-half years without knowing if they have a permanent home”. Speaking to Sky News last week, Goward said two-year restoration time frames were in place in Queensland and Victoria.

In the lead-up to Wednesday’s upper house vote, more than 60 organisations, led by Community Legal Centres NSW, signed an open letter pleading with the premier to withdraw the legislation and engage in consultation, which they argued had been lacking. “The NSW government is on a dangerous path to ruining lives and tearing families apart. The legacy of these reforms will be another government apology for traumatising another generation of children,” the letter warns.

The Law Society of NSW also wrote to Goward opposing the legislation, echoing calls for an inquiry into the bill, and for the exclusion of Indigenous children from the amendments. The Law Society and Community Legal Centres NSW separately highlighted concerns that a requirement for families to undergo alternative dispute resolution, broadly supported, needed to be accompanied by an obligation that the state provide those families with adequate independent legal support.

NSW Greens MLC David Shoebridge told The Saturday Paper the fact that the legislation didn’t attempt to make any particular provision for Indigenous children was particularly worrying. He said about 810 Aboriginal children are currently subject to guardianship orders and could be adopted out without parental consent as a result of the legislation. “These changes have a very, very real likelihood of us coming back 10 years from now and apologising to yet another Stolen Generation,” he said.

Minister Goward told The Saturday Paper: “We are not targeting the adoption of Aboriginal children and the existing law does not rule it out when it is in the best interest of a child. To say that giving children safety, permanency and a loving home for life risks another Stolen Generation is offensive in the extreme.”

A joint statement by national Aboriginal and Torres Strait Islander peak agencies said the changes present “harrowing echoes of the Stolen Generations”. The statement also argued that the legislation would make Indigenous families more mistrustful of the system and less likely to seek help from agencies before their situations deteriorate.

Tim Ireland, chief executive of the Aboriginal Child, Family and Community Care State Secretariat (AbSec) in NSW said: “We need greater safeguards and investment in prevention, early intervention and restoration, with proactive efforts to engage families and communities in the safety, welfare and wellbeing of children. Speeding up adoptions through artificially imposed time frames will undermine rather than uphold the best interests of vulnerable children.”

The latest legislation follows a scathing assessment of Goward’s department by the Tune report – the NSW government-commissioned independent review of the out-of-home care system in the state, led by David Tune – released in June this year despite having been completed in 2016. The report criticised the out-of-home care system in the state as inefficient, crisis-driven and lacking sufficient emphasis on early intervention. It found the system failed to improve long-term outcomes for children and disrupt cycles of abuse and neglect.

The criticism to the changes to the care and adoption acts echoes grumbling in the out-of-home sector about changes to residential care, the most acute form of out-of-home care. The government in July announced a “historic shift” in residential care, moving towards a system of intensive therapeutic care (ITC). The changes are part of a whole-system reform focused on giving children a permanent home within two years of entering out-of-home care, called the Permanency Support Program, which the government began in October 2017, preceding the release of the Tune report.

The ITC system aims to limit the amount of time children spend in care to two years, with a focus on moving them into permanent homes. The principal difference compared with traditional residential models is ITC’s focus on trauma-informed care, with a specialised workforce to support that priority. According to government figures, the number of children in highly expensive residential care has been increasing. This is an issue across Australia, with the number of children in residential care rising by 18 per cent between 2013 and 2017, according to figures from the Australian Institute of Health and Welfare.

“No one would actually disagree that intensive therapeutic care is a good thing,” said Andrew McCallum, chief executive of the state’s peak body for out-of-home care, the Association of Children’s Welfare Agencies. McCallum says his concern is that in moving to the ITC system, NSW recommissioned all residential care contracts – cutting the number of providers from 33 to nine, to be rolled out over a two-year period.

McCallum said this cut would not only take some diversity and good work out of the sector but could result in insufficient places for children in need of intensive care. “What will happen when you don’t have enough places? At the end of this there are kids, and we can lose sight of that,” he said.

Laurie Matthews, chief executive of Caretakers Cottage, a Sydney-based non-government organisation that provides residential care and youth homelessness services, also doubted the new system could manage demand. “The government will come out looking good because they will be able to boast that they have reduced the number of kids in out-of-home care, particularly residential care,” Matthews said. “And you know how they’re going to do it? They’re going to just not put them into the system. There’ll be more kids flapping about in the breeze than there has ever been.

“More and more kids are going to be pushed out into specialist homelessness services and [those services] will pick up the slack.”

Several other sources in the sector speaking to The Saturday Paper echoed Matthews and McCallum’s concern that the new system will have insufficient placements. Many expected services that did not win contracts would still be asked to provide placements on an ad hoc basis. Without contracts, though, they could lack the funds to do so. Some said the proposition that teenagers with mental health, drug and alcohol problems or other complex needs might find adoptive homes wasn’t realistic.

However, the Department of Family and Community Services said that all young people in need will be found a placement in an appropriate ITC service.

Meanwhile, AbSec has raised concerns that Aboriginal organisations were not adequately consulted in the development of the new system and that none won tenders for it, a decision that fails to acknowledge the importance of culture in the wellbeing of Aboriginal children.

Sandra said an opportunity for positive change has been “completely and utterly and totally missed” with this bill. “This is about a numbers game,” she said. “A fiscal game and a numbers game.”

Whatever the outcome, she says she will not give up her grandkids. “I’d be like a bull at a gate. Seriously, I would fight tooth and nail,” she said.

This article was first published in the print edition of The Saturday Paper on Nov 17, 2018 as "Families feud". Subscribe here.

Celina Ribeiro
is a freelance writer and editor based in Sydney.