NSW law will 'lead to a new stolen generation'

Demonstrators at the Stop Forced Adoptions protest outside Parliament House in Sydney.

Another stolen generation appears certain to be created in NSW, after the Coalition government passed a new adoption law making it easier for a child to be adopted by a foster family without parental consent.

The new adoption law, Children and Young Persons (Care and Protection) Amendment Bill, passed on November 22 despite fierce opposition, imposes a two-year limit on fostering a child. The Children’s Court now has the power to decide whether a birth parent should be reinstated as the child’s primary carer or order that the child should be adopted.

Indigenous groups, unions, the NSW Greens and the Labor Party oppose the new law and organised several protests outside NSW Parliament. Seventy-nine organisations and more than 2000 individuals signed an open letter to the Premier, urging her “to put these reforms on hold and engage in genuine dialogue with all stakeholders, including Aboriginal communities and community organisations supporting children in families”.

A new generation of stolen Indigenous children

Grandmothers Against Removals spokesperson Debbie Swan said she worried the law will lead to a new generation of stolen Indigenous children as they are cut off from culture and country. “Our kids lose that connection to the country, they lose that connection to their people, they lose that connection to the community,” she told SBS’s NITV.

Aboriginal children only make up 5% of under-18 year olds in NSW, but 38% of all young people in care. A Community Legal Centres NSW briefing paper on the legislation said there are 810 Aboriginal children subject to guardianship orders, who, with the passing of this bill, could be immediately adopted without their parents’ consent.

According to the briefing paper, the most concerning aspects of the Bill include:

  1. The two-year maximum time limit for restorationwhich is arbitrary and sets families up to fail”.
  2. The proposed changes to the Adoption Actcreates a fast-tracked pathway to adoption without an adequate framework to protect the interests of the most vulnerable children”.
  3. The introduction ofadditional hurdles for parents” who try to “vary current care and protection court orders, which will further limit their access to the courts”.
  4. The Department of Family and Community Services (FACS) requirement that families engage in alternative dispute resolution before seeking court orders but which doesn’t  guarantee families access to free, independent legal advice. “Access to such advice is essential to address power imbalances between parents and FACS, to support parents to fully participate in a culturally safe process and to ensure that placing a child in out of home care is always considered as an intervention of last resort.”
  5. The lack of adequate consultation on these “significant reforms, which puts the government on a pathway to repeating past mistakes”.

Labor’s spokesperson Tania Mihailuk, who campaigned hard against it, described the new adoption and guardianship law as “draconian” and accused the NSW government of “neglecting the child protection system”.

In a marathon five and half hour speech on November 20, she criticised the bill, which she said would “allow the court to make a guardianship order by consent, without first finding that there is no realistic possibility of restoring the child to his or her parents or family”.

“Even those that work quite closely with the government are now conceding that the particularly arbitrary 24-month time frame is a serious concern,” Mihailuk said.

“Nobody in this place wants children to be languishing in care”, she said. But, she said, it was a “serious concern” to impose an arbitrary 24-month figure on the decision about whether or not a foster family had adoption rights over the rights of the child’s biological parents.

Mihailuk said that it was well known that minister Pru Goward “presides over one of the most dysfunctional child protection systems in the state”, underspending $100 million over two years “to make savings in the Family and Community Services budget”.

Intergenerational trauma

Figures from the Australian Institute of Health and Welfare show that out of the 17,664 Aboriginal children in foster care in mid-2017, only four children were adopted: one child was placed in an Indigenous home; the other three went to non-Indigenous homes.

Child protection specialist Paul Grey from the Aboriginal Child, Family and Community Care State Secretariat told SBS that family and community services already had Aboriginal and Torres Strait Islander placement principles it must follow in finding safe homes for Aboriginal children. He said the purpose of the principles is to preserve the Aboriginal child’s sense of identity and connection to culture.

A cross-party Legislative Council report Unfinished Business from June 2016 acknowledged that while financial reparations are an important part of delivering justice to stolen generations, non-financial forms of reparation are “equally important”.

“Overcoming the intergenerational trauma and Indigenous disadvantage that has occurred as a result of forcible removal policies is much more of a challenge for government”, it said.

Mihailuk said a discussion paper was circulated to stakeholders last year highlighting changes to better support the child protection system, but it had been ignored by the architects of the new law.

She said budget cuts to FACS, as well as the five- to 10-year long wait lists for housing in most parts of Sydney and regional NSW, would make it impossible for many Indigenous and marginalised families to demonstrate to the Children’s Court that their children should be restored to them.

She also said that due to budget cuts, FACS caseworkers have not been able to undertake the necessary face-to-face assessments. There is a pattern of neglect from those in charge of fixing the system.

A 2015 independent review of out-of-home care found that the NSW system was “ineffective”, “unsustainable” and “not client effective”. It found that “expenditure is crisis driven”, “not aligned to an evidence base” and that “the system is failing to improve the long-term outcomes for children and families with complex needs”.

In 2017, more than 92,000 children were reported as being at significant harm, with some 60,000 yet to receive face-to-face assessment. In 2018, more children were reported as being at risk of significant harm, but fewer have received face-to-face assessment.

Mihailuk said the changes to guardianship and adoption orders had not been discussed prior to the new bill being put forward and Goward, a champion of less restrictive adoption laws in NSW, was trying to cement a “legacy for herself at the expense of vulnerable children” in the dying days of the NSW parliament.

Goward has been a long-time advocate of making it easier to adopt. Her high-profile supporters include actors Deborra-lee Furness and Hugh Jackman. Jackman is associated with Adopt Change, a charity based in Wollongong with a close association to Continuum, one of the NSW government’s preferred child protection subcontractors.

Family support needed

NSW Greens spokesperson David Shoebridge questioned the system in which just 7% of child protection funding goes to keeping children at home while the rest goes to out-of-home care. He asked why more support was not being given to families who are struggling to cope.

“The most common reason the state government gives for taking Aboriginal children is so-called neglect,” he told NITV on October 25. “That’s often an indicator of real, ongoing, entrenched poverty, inadequate housing, health outcomes, and income. Those problems are rarely if ever fixed in a two year period.

“The child protection system is racially biased towards Aboriginal families and puts more resources into tearing families apart than supporting them. Child protection services need to focus on early intervention and prevention and allow Aboriginal people and organisations to lead this desperately needed reform.”

Under the 1909 Aborigines Protection Act, the Aborigines Welfare Board had the power to remove Aboriginal children from their families and place them into care under its “assimilation” policy. The result was the Stolen Generations.

Despite the widely-acknowledged trauma and destruction to individuals, families and communities of such policies, the NSW Coalition government has shown how determined it is to revert back to a race-based paternalism.