Families' rights following child removal 1998-present
Since 1969, Aboriginal children have been governed by the same child welfare laws as other children in NSW. These laws allow for appeals against child removal orders. This period has also seen a growing recognition of the importance of Alternative Dispute Resolution processes.
The Children and Young Persons (Care and Protection) Act 1998 (NSW) () governs child welfare law in NSW. It allows for appeals against child removal orders. An application can be made to have a Children's Court order changed or cancelled where there has been a significant change to the relevant circumstances. An appeal can also be made to the District Court, where a new hearing with fresh evidence can be held. Parties have 28 days to do this.
In 2006, amendments to the Children and Young Persons (Care and Protection) Act made it compulsory for the Court to consider any evidence that a parent or caregiver had a child removed in the past and that care and protection of that child had not been restored. If so, this amounted to ‘prima facie’ evidence that the child needed care and protection and the onus was on the parent or caregiver to prove the child did not need care and protection (). This presumption was removed in 2022 by the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW) ().
Further amendments to the Act in 2018 introduced a two-year time frame within which a removed child must be either returned to their family or permanently placed another family/caregiver ().
This means that if a child is removed, and the Court is considering a permanency plan that allows for restoration, guardianship or adoption, the maximum period that an order may be made allocating all elements of parental responsibility to the Minister is 24 months ().
The time limit has been criticised for being ‘arbitrary’ and for not providing Aboriginal families with time to change their circumstances so their children can be returned ().
In 2022, the circumstances in which the Children’s Court could temporarily allocate parental responsibility to the Minister for a period of longer than 24 months were expanded ().
Since 1969, there has been a growing recognition of the importance of Alternative Dispute Resolution processes, especially in matters involving children. The Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW) () allowed the Children’s Court to require the parties to attend alternative dispute resolution before the Court makes a decision.
The Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW) () further established the role of alternative dispute resolution which has the potential to resolve matters without a formal hearing.
The Case Study documents in this subject illustrate the Children’s Court appeal process. One District Court case () demonstrates the difficulties of the appeal process and the implications resulting from the lack of trust in government by Aboriginal people. The Case Study and Discussion and Analysis documents call for increased cultural competency in both the policy and practice in the child protection system.
The law and policy in this subject is accurate as of 1 June 2024.