Foster homes and out-of-home care 1969-present
Following the end of the Aborigines Protection Act 1909 (NSW) in 1969, placement of Aboriginal children in foster home and out-of-home care was governed by general child welfare laws. There has been an increasing focus on maintaining familial and cultural connections.
In 1969, children who had been placed with a foster parent under the Aborigines Protection Act became a ward of the state. From 1969 until 1987, the Child Welfare Act 1939 () governed the treatment of Aboriginal children in foster homes and out-of-home care.
Over the last 40 years there have been efforts to mandate that Aboriginal children be kept in family care, as opposed to being placed under guardianship of the state. This approach has also informed Children’s Court and regulatory processes, which have moved away from being solely litigious (where matters have to be decided by a court) to incorporate greater family involvement through alternative dispute resolution.
The Children and Young Persons (Care and Protection) Act 1998 (NSW) () now governs child protection in NSW. Importantly, the Act includes the Aboriginal Child Placement Principle (see SUB0121), aimed at addressing the disproportionate representation of Aboriginal children in out-of-home care.
In 2019, the Family is Culture: Independent Review of Aboriginal Children and Young People in Out of Home Care final report was released (). It made 126 recommendations for systemic reform, including recommendations for legislative change.
In 2022, the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW) incorporated some of the report’s recommendations ().
The 2022 legislative amendments introduced the principle of ‘active efforts’, requiring the Secretary to demonstrate to the Children’s Court the active efforts they have taken ‘to prevent children and young persons from entering out-of-home care’ before seeking removal of a child. The provisions do not apply to emergency removals or removals without a warrant (). The ‘active efforts’ provisions also require the Secretary to make active efforts to safely restore children who have been removed to their parents or place them with family, kin or community (, ).
The 2022 amendments also expanded the circumstances in which the Children’s Court could temporarily allocate parental responsibility to the Minister for a period of longer than 24 months (). This allows the Court to maintain restoration of a child as an option in situations where support and other resources could have adequately addressed child protection concerns but were either unavailable to parents in the community (e.g. drug and alcohol treatment in regional areas) or had long waiting lists (e.g. social housing) ().
The documents in this subject explore the detrimental effects that arbitrary decision-making has had on children in NSW child protection systems. The importance of maintaining familial and cultural connections is emphasised throughout (). Statistical examples also point to the disproportionate number of Aboriginal children in foster and/or out-of-home care.
One Case Study () demonstrates the damaging consequences improper placement can have where the best interests of the child are not properly considered and no regard is had for cultural connection.
The law and policy in this subject is accurate as of 1 June 2024.