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Children and custody

Foster care and adoption – controversial amendments to NSW law

By November 5, 2018October 28th, 2021No Comments

Foster care and adoption laws are set to be shaken up in NSW after a bill was introduced by the NSW Government proposing amendments to the Children and Young Persons (Care and Protection) Act and the Adoption Act to create a two year time limit on how long a child would spend in foster care.

On the face of it, the foster care and adoption amendments are positive, designed to combat low adoption rates and provide certainty for children, stopping them bouncing from one foster home to the next throughout their childhood. The aim is to find a permanent home for children within two years–and everyone wants children to have a stable, loving home.

There are thousands of children entering foster care each year, but only 136 children were adopted in the past year; four of these were indigenous kids. The NSW Premier, Gladys Berejiklian, selling the bill, said: “We want [children in foster care] to have a permanent home as quickly as possible through guardianship or open adoption”.

As such, courts would have the power to order adoptions to take place in situations where children have been unable to be reunited with their birth families after two years of foster care placement. The foster care and adoption process would mean that the Department of Family and Community Services would need to report to a court that a child has been returned home to their birth family, or alternatively that they are in guardianship or adopted.

NSW Family and Community Services Minister Pru Goward said guard­ians would be treated by the court the same way as carers. The legislation would mean the courts would have to be satisfied that a child “has established a stable relationship with his or her guardians; the adoption of the child by his or her guardians will promote the child’s welfare; and to do so is in the best interests of the child”.

However, the proposed foster care and adoption amendments has also caused consternation among critics.

Another Stolen Generation?

It’s a particularly sensitive issue for indigenous Australians, given the fact that indigenous children make up 37% of young kids in care despite only comprising 5% of under 18s in NSW. Tim Ireland, chief executive of AbSec, the NSW peak body for indigenous children and family services, said:

“Most people don’t have an intimate knowledge of the child protection system and I understand that the idea of adoption and a ‘forever family’ sounds really nice…The reality is, Aboriginal children already have a forever family – their extended family, kinship network and community back home.”

“When a child is adopted, they are issued a new birth certificate, their surname is changed and there’s no longer any departmental oversight to ensure that their cultural connections or even their basic health and safety are being upheld,” Mr Ireland said. “It’s a permanent, legal move that completely separates them from their existing extended family.”

The NSW Greens MP David Shoebridge too said he was deeply troubled after perusing the proposed law and said the Greens would be drafting amendments to ensure that indigenous families and kids were safeguarded.

NSW Labor is also against the amendment. Labor MP Tania Mihalik said: “Nobody wants to see children languishing in care. But nor do we want to see a situation where we’re setting up a stolen generation.”

Lack of consultation

There has also been criticism over the lack of consultation the government has undertaken with stakeholders and with the public before releasing its proposal and there are calls for a proper consultation period.

Lack of detail

The Guardian reports that “the government is yet to clarify how adoptive families will be selected but it has offered a fortnightly adoption allowance, from 1 July, to encourage eligible carers to come forward”.

There are also concerns over the reliance on the existing child protection system which has come under plenty of criticism in recent years. However, the NSW Government claims that its reforms will address child protection issues in various novel ways, such as implementing family group conferencing so parents have an avenue to address concerns over risk.

Arbitrary, short timeframe

Critics, such as the NSW Greens, have also voiced concerns over the arbitrary two year deadline for families to ‘get their lives in order’ to be able to have their kids returned from foster placements. Children coming into foster care often come from families suffering from numerous health and social issues such as poverty or mental health problems–chronic long term issues which make the relatively short timeframe dubious.

Labor’s Mihailuk said she had “deep reservations about how achievable this two-year timeframe is when there are 60,000 vulnerable children yet to be assessed by a caseworker and a further 18,000 children currently in care.”

Under-resourcing of foster care and adoption sectors

Ms Mihalik said the problem is also that the sector is under-resourced.

“We know that right now as we speak that the vast majority of children that have been reported at risk of significant harm are not being assessed by a case worker. How this Government thinks that they could now find the case workers or resources to be able to achieve a two-year turnaround for something of the order of 18,000 kids does not sound achievable to me.”

She said: “There is a severe shortage of foster carers but it’s very critical to understand that making a decision that within two years you will cut off that child from their family permanently is a very serious decision to make.”

Do you need advice regarding a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

You may also like to read our blog on step-parent adoption (i.e. legally adopting a child from your partner’s previous relationship, who you already take care of).

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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