NSW Bill planning to overhaul child protection laws risks another stolen generation

October 31, 2018

Australian Lawyers for Human Rights is deeply concerned by the NSW Government’s proposed amendments to the The Children and Young Persons (Care and Protection) Amendment Bill 2018 and the Adoption Act 2000. ALHR fears the measures tabled in parliament last week risk creating another stolen generation in NSW and could result in more children permanently removed from their birth families. The Bill is said to be aimed at streamlining Court applications for guardianship, however, it also includes measures aimed at facilitating faster adoption whereby children in NSW’s foster care system would be placed in permanent homes within two years.

Although there appear to be some welcome changes, such as the increased use of alternative dispute resolution processes and prioritised access to services for children, there are also grave concerns about the underlying purpose of the Bill and whether it is aimed at a greater push for faster and forced adoptions.

ALHR is worried the measures will predominantly impact Aboriginal and Torres Strait Islander children, as well as children from other vulnerable lower socio-economic groups. ALHR is further concerned these measures have been tabled in parliament without adequate consultation with stakeholders including Aboriginal community bodies, and community legal advocates.

ALHR President Kerry Weste says, “The Government should not be rushing such a significant piece of legislation with profoundly serious consequences for the children involved. It appears there has not been adequate consultation or transparency with public and sector stakeholders, consequently these proposals may not be reflective of evidence-based best practice. Sadly, it is ultimately children and families who will suffer the consequences of the NSW Government’s failure to allow a meaningful public engagement and consultation process.”

“ALHR is alarmed that the Bill has been tabled with no specific protections for Aboriginal and Torres Strait Islander children and their families. This is shocking given the lessons governments across Australia should have learnt from the Bringing Them Home report and the National Apology to the Stolen Generations.”

Ms Weste continued, “The NSW Government is obliged to ensure that any laws relating to the permanent removal of children from their families are consistent with the Convention on the Rights of the Child (CRC) and the UN Declaration on the Rights of Indigenous Peoples.

“International law makes it clear that, in all actions concerning children, the best interests of the child must be a primary consideration. Measures that remove the requirement of parental consent in adoptions and introduce a two-year arbitrary timeframe may very well render it impossible for the best interests of individual children to be appropriately considered on a case by case basis.”

“No clear basis for the two-year timeframe has been explained, and ALHR is concerned that it does not provide enough time for struggling families who may be waiting on public health sector rehabilitation services, families who have mental health issues, families affected by domestic violence or families dealing with intergenerational trauma.”

“There will be times where adoption may be in the best interests of the child but Australia’s international legal obligations demand that all laws concerning the permanent removal of children be drafted in a manner consistent with the CRC and its core principles of non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child.

“Separating families on a permanent basis after two years, sometimes without parental consent, raises serious concerns with respect to infringements of these obligations and could lead to another stolen generation. This is of particular concern considering the already extremely high rates of Aboriginal and Torres Strait Islander children in out of home care, some of whom have not been placed with Aboriginal foster carers in accordance with the fundamental goal of the Aboriginal and Torres Strait Islander Child Placement Principle.”

ALHR reminds the NSW Government that Australia will appear before the UN next year to report on its compliance with the CRC and calls on it to put forward a redrafted Bill following an adequate period of comprehensive consultation with the public, including children and young people, and Aboriginal communities.”

Contact: Matt Mitchell, ALHR media manager 0431 980 365.

ALHR was established in 1993 and is a national association of Australian solicitors, barristers, academics, judicial officers and law students who practise and promote international human rights law in Australia. ALHR has active and engaged National, State and Territory committees and specialist thematic committees. Through advocacy, media engagement, education, networking, research and training, ALHR promotes, practices and protects universally accepted standards of human rights throughout Australia and overseas.

 Any information provided in this release is not intended to constitute legal advice, to be a comprehensive review of all developments in the law and practice, or to cover all aspects of the matters referred to. You should take your own legal advice before applying any information provided in this email to specific issues or situations.