Contemporary adoption of Aboriginal children 1983-present
This period has seen an increasing focus on consultation with Aboriginal families however alongside this laws and policies that facilitate adoption by foster carers have been criticised by many commentators.
Responding to the placement of eight Aboriginal children with non-Aboriginal families, the 1983 Aboriginal Community Workers conference proposed that the Department of Youth and Community Services shift their policy to ensure that ‘before an adoption surrender is taken from an Aboriginal woman - an Aboriginal worker from the Department interview the expectant mother and advise her of the alternatives’. This led to changes in departmental policy specifically relating to Aboriginal and Torres Strait Islander children. As a result, there was a 12% reduction in the number of Aboriginal children removed and an increase in consultation with Aboriginal communities ().
In 1998, the Children and Young Person’s (Care and Protection) Act 1998 (NSW) () significantly changed the process of placing Aboriginal children in out-of-home care, by requiring Aboriginal consultation during the placement of an Aboriginal child. However, the Adoption of Children Act 1965 (NSW) still applied to adoption (see SUB0303).
In 2000, the Adoption Act 2000 (NSW) () repealed the Adoption of Children Act. The new Adoption Act required the Director-General and Court to be satisfied that adoption was in the best interests of the child. It also required a report concerning the proposed adoption be provided to the Court.
The Adoption Act defines an Aboriginal child to mean ‘a child descended from an Aboriginal’. ‘Aboriginal’ has the same meaning as the Aboriginal Land Rights Act 1983 (NSW), which applies a three-limb test – a ‘member of the Aboriginal race’, identifying as Aboriginal, and accepted by the Aboriginal community as an Aboriginal person) ().
The Act also allows the Court to determine that a child is Aboriginal for the purpose of the Act, even where they do not meet the requirements under the three-limb test ().
In 2012, the NSW Government began to pursue changes to child protection laws to outline that adoption was preferred to long-term foster care ().
The 2014 amendments to the Children and Young Persons (Care and Protection) Act 1998 (NSW) required that adoption for Aboriginal children be a ‘last resort’ (see SUB0235).
The NSW government committed $17 million over four years to the Adoptions Taskforce, which aimed at ‘reducing red tape to halve the average time of the adoption order process’().
In what was considered a backwards step by numerous commentators, the Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW) () made the process of adopting Aboriginal children from foster care simpler.
The changes include making it possible to adopt an Aboriginal child from the state foster care system without parental consent and making it more difficult for an Aboriginal parent to apply to a court regarding the adoption of their child. It also places a two-year limit on reinstating the child with their family before their foster parents may apply to adopt them.
These changes were criticised by representatives of Aboriginal communities and families. AbSec stated, ‘[w]e firmly believe the lifelong wellbeing and safety of Aboriginal children is at risk here’ and these changes create a ‘pathway to adoption of Aboriginal children in NSW’ ().
The law and policy in this subject is accurate as of 1 June 2023.