Newborn removal 1969-present
When the Aborigines Protection Act 1909 (NSW) ended in 1969, the care and welfare of Aboriginal children came under the Child Welfare Act 1939 (NSW) ().
In 1998, the Child Welfare Act was replaced with the Children and Young Persons (Care and Protection) Act 1998 (NSW) ().
The Children and Young Persons (Care and Protection) Act has been amended in an effort to strengthen protections for children and young people; such as by the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW) ().
However, the Act still allows the Secretary of the Department of Communities and Justice or a police officer to remove a child without a warrant if satisfied the child is at immediate risk of serious harm. A care application must be made within three days of removal and an application commenced before the Children’s Court. The law also allows the Secretary to remove a child shortly after the child’s birth, a practice which is otherwise known as an ‘assumption of care’.
In 2022, the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW) () repealed the presumption that a child was in need of care and protection if their parents had previously had children removed from their care. This presumption had been introduced in late 2006 in response to the Wood Inquiry to address concerns that caseworkers were not adequately protecting siblings of children known to the then Department of Community Services ().
This presumption had been identified as a key driver in the uptick in newborn removals, including for Aboriginal families, by effectively reversing the evidentiary burden of proof in relation to a parent’s previous removals, forcing a parent to prove to the Children’s Court their newborn is a child not in need of removal (rather than the Department having to prove the child needs to be removed) ().
Much discussion and analysis of newborn removals is critical of past and present policies and practices. Key criticisms include the disproportionate number of Aboriginal newborn children taken into care, and the lack of support and early intervention for parents within the child welfare system (, ). The serious harm and intergenerational trauma caused by the forcible removal of children from their parents and families is well-documented.
The Case Study documents in this subject reaffirm the egregrious and irreversible harms of child separation on people and their families. The stories recall the harsh removal of children from their mothers shortly after birth.
The law and policy in this subject is accurate as of 1 June 2024.