Contemporary grounds for child removal 1969-present

Specific laws for the removal of Aboriginal children ended in 1969. From this time Aboriginal children were placed under the child welfare system used for all children in NSW. However, the grounds for removal have resulted in a disproportionate impact on Aboriginal children and their families.

In 1969, the Aborigines Act 1969 (NSW) repealed the Aborigines Protection Act 1909 (NSW) and dissolved the Aborigines Welfare Board, which previously had oversight over Aboriginal child ‘welfare’ matters (DOC0034).

This meant Aboriginal children were placed under the child welfare system used for all children in NSW, the Child Welfare Act 1939 (NSW) (DOC0236).

Under the Child Welfare Act, children who were considered ‘neglected’ could be removed by the government. The definition of neglect included where a child:

• had no visible lawful means of support or no fixed abode

• slept in the open air

• was not provided with sufficient and proper food, nursing, clothing, medical aid or lodging

• had parents who were 'drunkards’

• was living under such conditions as to indicate that the child was likely to ‘lapse into a career of vice and crime’

• was destitute, whose parents were unfit to retain the child or who without lawful excuse did not attend school regularly (DOC0236).

Parliamentary Debate documents in this subject show criticism of this broad definition of neglect in parliamentary debates, as it continued the assimilationist approach of the NSW child welfare system.

Discussion and Analysis documents in this subject explore how the definition of ‘neglect’ in the Child Welfare Act disproportionately impacted Aboriginal children and their families (DOC0236).

In 1987, the Children (Care and Protection) Act 1987 (NSW) (DOC0121) changed the definition of neglect. After this, children could not be removed based on ‘inadequate parenting’ alone. Neglect had to involve ‘behaviour that harms the child’ and that harm must have been sustained.

In 1998, the Children and Young Persons (Care and Protection) Act 1998 (NSW) did not have ‘neglect’ as a reason for child removal and included power to remove children in circumstances including where ‘there is an immediate risk of serious harm’ (DOC0309).

Research highlights the profound and ongoing negative consequences of the removal of Aboriginal children from their families, emphasising how this practice has contributed to entrenched cycles of intergenerational trauma, poverty, and family violence. The Discussion and Analysis section of this subject thoroughly examines these impacts, documenting the far-reaching effects on Aboriginal communities and the enduring legacy of these policies.

The Parliamentary Debate documents in this subject illustrate the changing attitudes regarding the importance and preservation of Aboriginal culture in Australia. There is an increased appreciation for the complexities of family law matters and calls for continued reform to the Children’s Court system. Although some improvements have been made, strong critiques of the continuing institutionalisation of Aboriginal children remain.

Case Study documents in this subject discuss the experiences of Aboriginal children in out-of-home care. Some participants recount positive experiences, while many describe negative experiences (DOC1099, DOC1147).