The Aboriginal Children and Young Persons Principle and Child and Young Person Placement Principles 1987-present

From 1987, laws and policies began to incorporate the Aboriginal Child Placement Principles (ACPPs), which aim to prioritise the placement of Aboriginal children with their extended family or kinship group, members of their Aboriginal community, or local Aboriginal families and involve Aboriginal families and organisations in decision-making about placement. However, non-compliance with the ACPPs, challenges in implementation and inadequate resourcing have hindered their effectiveness, contributing to ongoing overrepresentation of Aboriginal children in out-of-home care.

Before the 1980s, laws did not consider 'the cultural needs of adoptees or the impact of removing children from their natural families' (DOC0853). In the mid-1970s, the NSW Department of Youth and Community Services began involving Aboriginal people in the placement of Aboriginal children removed from their families (DOC0016). By 1985-1986, changes in policy recognised that Aboriginal children fare better when cared for by their own kin or communities and aimed to address the disproportionate number of Aboriginal children in non-Aboriginal care (DOC0530).

In 1987, the Children (Care and Protection) Act 1987 (NSW) (DOC0121) introduced a less developed model of the ACPP. If an Aboriginal child was removed and could not be placed with a member of their extended family, a member of their Aboriginal community or with a local Aboriginal family, the Act required consultation with the child’s extended family and an Aboriginal welfare organisation to find a suitable person.

The Children and Young Persons (Care and Protection) Act 1998 (NSW) (DOC0309) included the same consultation requirements as the 1987 Act. In addition, a principle of the Act is that Aboriginal families, kinship groups, representative organisations and communities are to be given the opportunity to participate in decision making.

The Adoption Act 2000 (NSW) (DOC0294) also includes a placement hierarchy and requires Aboriginal participation when placing Aboriginal children for adoption. The law also states that ‘Aboriginal people should be given the opportunity to participate with as much self-determination as possible in decisions relating to the placement for adoption of Aboriginal children’ (DOC0294).

In 2001, amendments to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (DOC0323) required compliance with the placement hierarchy during permanency planning and adoption.

In 2009, the NSW Government’s Keep Them Safe Report discussed the need for increased consultation with Aboriginal communities in relation to the child protection system, including through empowerment of local Aboriginal community decision-making and the need for integrated locally-based services (DOC0722).

The Children's Guardian Act 2019 (NSW) (DOC0981) includes the ACPP as a guiding principle for decision-making.

In 2022, the Aboriginal Children and Young Persons Principle (ACYPP) was introduced by the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW) (DOC4885). The ACYPP applies to all decisions made about Aboriginal children under the Act (ie in addition to the ACPP). It has five elements:

• Prevention: recognising children's rights to grow up in family, community and culture.
• Partnership: recognising the participation of community representatives in service design, delivery and individual decisions about children.
• Placement: placing children in out-of-home care in accordance with the hierarchy set out in the ACPPs.
• Participation: recognising that children and their family should participate in decisions about the care and protection of children.
• Connection: recognising children’s rights to maintain connections to family, community, culture and country (DOC4885).

This reflects the five elements outlined by the Secretariat of National Aboriginal and Islander Child Care (SNAICC) in 2013, summarised as Prevention, Partnership, Participation, Placement and Connection (DOC0329). These five elements reflect the original intentions of the ACPP and were designed to address critiques that the ACPP was being employed solely as a placement hierarchy in practice.

In the period of 2004 to 2014, the Productivity Commission found the ‘proportion of Aboriginal and Torres Strait Islander children being placed in out-of-home care has increased, the proportion placed according to the [ACPP] has decreased’ (DOC3174).

Dr Terri Libesman, expert in Aboriginal children and the law, has noted that ‘a frequent complaint is that Aboriginal people are inadequately consulted with, their opinions given little weight, that their voices are often not heard in the Children’s Court and that the placement principle is applied without consulting relevant family and community members, leading to a loss of children from Aboriginal families and communities’ (DOC1143).

Current practice falls far short of full implementation of the ACPP. Reports have highlighted a lack of adherence to the principles and decreasing compliance over time (DOC0714, DOC0722, DOC0622, DOC3171, DOC0228). In June 2024, the NSW Audit Office found that ‘[the Department of Communities and Justice cannot demonstrate that all possible placement options are considered under the Aboriginal child placement hierarchy for each child’ (DOC5961).

The ACPP has been found to be fully applied in only a small percentage of child protection cases (DOC0615), and Aboriginal children remain grossly over-represented in out-of-home care (DOC0620, DOC0619, DOC0680).