Proposed bill gives courts power to order adoption if children cannot be sent back to family after two years in foster care

This article is more than 1 year old

This article is more than 1 year old

The New South Wales government has quietly tabled a piece of legislation that, if passed, will have a lasting impact on the lives of thousands of children taken into state care every year.

The government says the bill, which was tabled on Tuesday night, will ensure a permanent home for every child within two years, so they are not bounced around the out-of-home-care system for years on end. But critics say NSW is “walking open-eyed towards another stolen generation”.

The bill’s appearance came as a surprise to organisations in the sector, which said they were “stunned” at the lack of transparency and public dialogue on a policy that goes to the “heart and soul of our society”.

The NSW premier, Gladys Berejiklian, said on Tuesday that children needed “a loving and safe home for life”.

“We want them to have a permanent home as quickly as possible through guardianship or open adoption,” she said.

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The bill sets a two-year limit on the amount of time a child will have to spend in foster care. The children’s court will have power to decide whether or not a child can be restored to his or her family within that time; otherwise, it can order that the child be adopted.

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.

It has refused to rule out adoption as a last resort for Aboriginal children, which has alarmed the Aboriginal Child, Family and Community Care State Secretariat (AbSec), the peak body for Aboriginal child and family services in NSW.

Aboriginal children are only 5% of under 18s in NSW but they make up 37% of all young people in care.

“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 AbSec chief executive, Tim Ireland, told Guardian Australia earlier this year.

“The reality is, Aboriginal children already have a forever family – their extended family, kinship network and community back home.

For adoption to be used as a last resort, Ireland said, is to rely on a child protection system that reports have identified as failing children and families.

Quick guide Main findings of the Tune report Show Hide • The number of children in out-of-home care has doubled in 10 years due to increases in factors driving demand, like mental health issues, as well as a lack of investment in vulnerable families’ needs before they enter OOHC • The cost of providing OOHC is growing, with the expanding NGO sector costing significantly more than the government sector • The government spends a lot on OOHC but it is not well-targeted and there is still significant unmet demand and inefficiency: “Overall, the system is ineffective and unsustainable” • Millions of dollars' worth of programs are delivered in agency silos and are not evaluated • Outcomes are particularly poor for Aboriginal children and families, who are the highest growing population in OOHC. The number of Aboriginal children being restored to their families has dropped significantly • Current programs are not aligned with what children and families need • Expenditure is crisis-driven, rather than going towards early intervention or family preservation • “The system is failing to improve the long term outcomes for children and to arrest the devastating cycles of intergenerational abuse and neglect” • A new entity, a NSW family investment commission, is needed to drive and implement personalised packages for vulnerable children and families



“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,” he said. “It’s a permanent, legal move that completely separates them from their existing extended family.”

The minister for family and community services, Pru Goward, said the reforms would offer alternatives, such as family group conferencing, to give parents “the opportunity to address child protection risks”.

The NSW Greens MP David Shoebridge said “having now read the government’s proposed law in detail, I am deeply troubled.”

“For families struggling with chronic poverty, homelessness and the often associated mental health and addiction problems, two years will rarely be enough time to get their lives in order,” Shoebridge said.

“Waiting times for public housing in this state are over six years, and it can take more than 12 months to even get admitted to a drug rehabilitation program.”

He said the Greens were drafting amendments to “unambiguously protect Aboriginal children and families from this damaging plan”.

Facebook Twitter Pinterest Grandmothers delivering the ‘Bring our children home’ message outside parliament in May. Photograph: Mike Bowers/The Guardian

“Just five years after prime minister [Julia] Gillard apologised on behalf of the Australian people for people affected by forced adoption, NSW is set to make forcibly adopting kids official policy,” he said, “It’s like we’ve learned nothing from history.”

NSW Labor says it is opposed to the draft bill.

“I have 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,” the Labor MP Tania Mihailuk said.

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“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.”

In September, more than 20 community legal centres wrote to the minister expressing concerns about the lack of transparency on these reforms.

“On 11 October, the minister replied saying the outcomes of the process and the government’s response would be released later in the year,” Community Legal Centres NSW’s executive director, Tim Leach, said.

“There was no mention at all of the proposed legislation, he said. “These reforms are being rushed unnecessarily. We urge the government to act responsibly in the interests of families in NSW and defer this legislation until proper consultation has occurred.”