Prioritising adoption by Aboriginal families 1965-present
Developments in law and policy have seen a shift from Aboriginal children primarily being adopted by non-Aboriginal families, towards permanently placing Aboriginal children with Aboriginal families. However, this attempt to preserve and promote cultural and familial identity in children needing care has not been as effective in practice as intended.
In 1987, the Children (Care and Protection) Act 1987 (NSW) () introduced an early articulation of the Aboriginal Child Placement Principle (ACPP), which outlined preferences for Aboriginal children to be placed within care of their extended family or Aboriginal community. However, the child's ‘best interest’ as determined by those exercising power under the Act was always the paramount consideration and could override the principle. For more about the ACPP, see SUB0354.
This law was intended to keep Aboriginal children with their own families, or at least Aboriginal communities, and limit adoption into non-Aboriginal families to avoid loss of culture and identity.
Also in 1987, an amendment was made to the Adoption of Children Act 1965 (NSW) () to permit a man and a woman ‘recognised as being married according to the traditions of an Aboriginal community or Aboriginal group to which they belong’ to adopt an Aboriginal child.
While this change was made in response to an Australian Law Reform Commission Report, it has been noted that this does not align with the Report’s recommendations. Rather than recognising Aboriginal marriages as marriages, the law explicitly stated that Aboriginal marriages were not legal marriages: it only recognised the marriages for purposes of adopting an Aboriginal child ().
In 1997, a review of the Adoption of Children Act 1965 (NSW) () was completed, which recommended significant changes to adoption law with respect to Aboriginal and Torres Strait Islander children.
In 2000, the Adoption Act 2000 (NSW) () introduced the ACPP which prioritised Aboriginal adoptive families for Aboriginal children. The Adoption Act was amended in 2008 () in an attempt to ensure that proper weight was given to consultation with Aboriginal and Torres Strait Islander communities when applying the ACPP to adoption.
2014 amendments to the Children and Young Persons (Care and Protection) Act 1998 (NSW) specified that adoption for Aboriginal children was a ‘last resort’ (see SUB0235) (). They also required that adoption of Aboriginal children follow the hierarchy of permanency planning. This was the first time that adoption was legislated as ‘preferred to long-term foster care of children in OOHC’ ().
The introduction of the ACPP was an attempt to shift adoption of Aboriginal children from non-Aboriginal to Aboriginal families. For documents about the effectiveness of the ACPP, see SUB0354.
In more recent years, the Children and Young Persons (Care and Protection) Act 2018 (NSW) () introduced provision for Aboriginal children’s foster carers to adopt them in cases where family restoration is unlikely to occur within 24 months. Parental consent is not legally required for the Aboriginal children’s permanent placement with foster families.
These foster families are often non-Aboriginal, and thus the legislation undermines previous policy attempts to place Aboriginal children within their own cultural background ().
The law and policy in this subject is accurate as of 1 June 2023.