Moves towards adoption in NSW and nationwide put Aboriginal kids at risk
26 November 2018
Disturbing actions from both the NSW and Federal governments in the past month have shown a determination to pursue adoption of Aboriginal children, despite opposition from Aboriginal groups.
On 22 November, NSW Parliament passed the State Government’s regressive changes to adoption law, seeking to streamline adoption orders for all children in out-of-home care.
As 38% of children and young people in out-of-home care are Aboriginal, these changes stand to disproportionately affect Aboriginal kids and families.
The legislative changes came despite sustained opposition from AbSec and more than 70 other organisations (both Aboriginal and non-Indigenous) who expressed deep concern over the reforms. NSW Labor and The Greens also opposed the changes.
The NSW legislative reforms
Changes to the Children and Young Persons (Care and Protection) Act include many complex elements, but these are the ones that cause us most concern:
- Expanding grounds to dispense with consent for adoption
- Introducing an arbitrary two-year limit on considerations for restoration
- Reducing judicial discretion on key issues, including grounds for restoration
The combined effect of these changes will be to:
- Increase permanent separation of children in out-of-home care from their families
- Take away opportunities for families to address safety issues and bring their kids back home
- Reduce judicial oversight over the decisions of Family and Community Services (FACS)
Before the legislative amendments were passed in Parliament, we sent a letter to the Minister for Family and Community Services to raise these concerns.
The national report
Meanwhile, the Federal Parliament published a report from its inquiry into local adoption (meaning adoption inside Australia, not internationally), which was held from May to September 2018.
AbSec CEO Tim Ireland presented to the inquiry alongside other Aboriginal leaders, arguing strongly against adoptions of Aboriginal children imposed by the state, and emphasising that adoption from out-of-home care lacks compelling evidence and removes key safeguards necessary to ensure children are safe and their rights are upheld. The forced adoption of Aboriginal children from out-of-home care is not in the best interests of Aboriginal children.
Despite this strong opposition from Aboriginal people, the resulting report – Breaking barriers: a national adoption framework for Australian children – seems to accept as fact that forced adoption is not only a good policy for Australian children, but a policy to be actively pursued.
Even while promoting adoption, the report notes that there is a lack of evidence demonstrating that outcomes for children post-adoption are better. There is scant evidence to show that children are actually able to enjoy ongoing relationships with their birth family, and there’s not even enough evidence to prove they are safe after adoption orders are made.
The report urges early on that the paramount principle guiding practice in adoption is the principle of best interest. Under the United Nations Convention on the Rights of the Child, the best interest principle refers to the full enjoyment of all rights, including cultural rights. However, when the report considers Aboriginal children, it asserts that the paramount consideration is not the best interest of the child, but the narrower consideration of safety. This subtle shift denies Aboriginal children enjoyment of key rights that are extended to non-Aboriginal children, and falsely frames Aboriginal culture and communities as inherently unsafe for our children.
This report demonstrates that the Committee’s logic is not only deeply flawed and poorly evidenced, but also fails to uphold Australia’s obligations to Aboriginal children under the UNCRC, deliberately applying a narrower consideration to Aboriginal children that deprives them of key rights. AbSec specifically rejects the misrepresentation of our submission to support this flawed ideological position.
Judge for yourself
What the Committee claimed we said:
“Importantly, the Committee was advised that the safety of Aboriginal and Torres Strait Islander children is paramount over cultural considerations”.
What we said (emphasis added):
“Given the significant and enduring impact of adoption orders, and the significant risks they present to the rights, safety and wellbeing of Aboriginal children, AbSec and our communities have deep concerns regarding their use for Aboriginal children, particularly where administered by non-Aboriginal processes. Such processes, and the failure to appropriately consider the cultural rights of Indigenous children in child welfare practice continues to have a devastating effect on our children, families and communities. That is not to say that culture trumps other considerations of safety or relationships and attachment, but rather that it is our responsibility, as communities and governments, to uphold the best interests of Aboriginal children, which must be understood through a cultural lens. Orders that are unable to guarantee full enjoyment of these rights, and fail in our basic obligation to ensure that children and young people are safe and secure in those placements, cannot be considered to be in the best interests of Aboriginal children.”
Adoption puts our kids at risk
Our key concern remains that forced adoptions will risk the safety of children by removing accountability and oversight mechanisms that exist in out-of-home care – key mechanisms that were strongly recommended by the recent Royal Commission into Institutional Responses to Child Sexual Abuse. It’s particularly disturbing that governments seem to be in a rush to remove these oversight mechanisms by shortening timeframes and reducing judicial review processes.
We are extremely disturbed that governments continue to develop these policies without any specific provisions for Aboriginal children, who are 10 times more likely to be removed from their homes by child protection authorities right across Australia.
We know from past inquiries including Bringing Them Home and the Royal Commission into child sexual abuse that Aboriginal children are safer, happier and healthier when they have strong connections to their community and culture. These forced adoption reforms, much like forced child removal policies of the past, fail to respect or safeguard these connections.
Taking into account the failed policies of the past and the mostly ignored recommendations of Bringing Them Home, it is shocking that governments are pursuing adoption from out-of-home care despite the lack of evidence for its viability, appropriateness, and the long-term impacts on children.