Pressure is growing for the New South Wales government to review its out-of-home care providers after it was revealed in court that a faith-based service refused to assess an Aboriginal kinship carer because of her sexual orientation.
The call comes as two of the biggest Aboriginal organisations in NSW claim racism in the child protection system is “rife” and closing the gap measures to reduce the number of Aboriginal children taken into care will fail unless the Minns government overhauls the sector.
AbSec, the peak NSW body for Aboriginal children and families, has called for a “cultural audit” of all out-of-home providers in NSW, following revelations that Anglicare Sydney refused to assess an Aboriginal woman as a kinship carer for her infant niece because she was in a same-sex relationship.
According to court documents, Anglicare Sydney and the Department of Communities and Justice (DCJ) were aware there were close family members who could be assessed but sought instead to have the child fostered “with a view to adoption in the future” by a non-Indigenous family.
The magistrate presiding over the matter, Tracy Sheedy, was scathing of the conduct of Anglicare Sydney and DCJ.
“It is disturbing that DCJ filed a care plan ignoring the possibility of the potential of a kinship placement,” Sheedy said.
“It is incredibly disturbing that the court could have approved the care plan and made final orders. Those orders would have robbed baby Daisy of the opportunity of being raised within her Aboriginal family, had the DCJ caseworker not found and filed an affidavit stating that Anglicare had refused to assess a close family relative because of her being in a same sex relationship,” she said.
DCJ told the court that Anglicare Sydney is approved by the Office of the Children’s Guardian to provide out-of-home care in NSW. But Sheedy said the DCJ must have known about the policy and “must have known that the application of this policy could lead to decisions being made that are contrary to the best interests of children”.
In December, the court heard probity checks led to a decision by DCJ ruling the woman out as a suitable carer. The case is back before the magistrate in March.
On Tuesday, the NSW minister for families and communities, Kate Washington, asked for a review of the case “to better understand how the Aboriginal child could have been supported to remain with family”.
Washington also met with Anglicare Sydney and expressed her “concern” with its policy regarding same-sex foster carers, a DCJ spokesperson said.
“The minister was assured by Anglicare that the potential carer was referred to other out-of-home care providers,” a DCJ spokesperson said.
Anglicare Sydney said it was a “Christian Not-For Profit that serves in accordance with the doctrines of the Anglican Diocese of Sydney, which believe the best interests of a child are best served by giving access to both mothering and fathering, wherever possible”.
“In cases where Anglicare Sydney does not undertake an assessment of a potential carer for this or any other reason, we consult with DCJ, with DCJ either conducting the assessment themselves, conducted via independent assessment or referred to another Foster Care provider,” an Anglicare Sydney spokesperson said.
That assessment was finalised in December, after being requested by Magistrate Sheedy.
DCJ said it welcomed carers “from all walks of life”.
“The best interests of children are paramount. DCJ supports all eligible families that want to care for children in NSW, including members of the LGBTIQ communities.
“We encourage foster carers from all walks of life to open their homes and hearts to children in need, whether single, in a de-facto or same-sex relationship,” the spokesperson said.
But according to AbSec, this case was “not an isolated incident”. The CEO, John Leha, told Guardian Australia that AbSec had received a number of calls from Aboriginal LGBTQ+ people who said they had been excluded by faith-based organisations as potential carers.
Leha is now calling for a “cultural audit” of out-of-home care providers, to ensure they are “sound and suitable” to provide services to Aboriginal children and families.
“To not recognise LGBTIQ First Nations people as part of that ecosystem is discriminatory,” he said. “And I think the department [should] take a serious look at whether or not these providers are sound and suitable to continue to provide services to the most vulnerable members of our community.
“Child protection is complex, we understand that. But … it’s not enough to just say, it’s so complex. There is an onus and responsibility on all people in child protection to know what they’re doing, to understand and interpret the practice guidelines that are provided by the sector, and to ensure that they are acting in the best interests of children,” he said.
The union representing workers in the child protection sector, the Public Service Association (PSA), said it wanted the Minns government to exclude religious and “for-profit” providers from the out-of-home care system.
The assistant general secretary of the PSA, Troy Wright, said “it’s time to admit the experiment with external providers has failed”.
“At the very least Chris Minns must close the loophole in the state’s laws which allows for ‘legalised homophobia’ against family members who want to care for their nephews and nieces by religious groups in our child protection system,” Wright said.
“Our union supports the review into this case by the Minister for Families and Communities, Kate Washington. This is a good start,” he said.
A DCJ spokesperson said reducing the overrepresentation of Aboriginal children in the child protection system was a key priority of the Minns government, and it was working to reform the system in consultation with Aboriginal organisations.
According to DCJ statistics, 47% of all children who entered out-of-home care in 2022-23 were Aboriginal.
The government has signed up to the Closing the Gap target of reducing the overrepresentation of Aboriginal children in out-of-home care by 45% before 2031.
“The system remains geared towards removing children rather than investing in early intervention services that could support them to live safely at home with their families,” Leha said.
The Aboriginal Legal Service (NSW/ACT) said it wanted DCJ to reform the way caseworkers respond to prenatal reports.
“When expectant parents are flagged in the system, they should get the culturally appropriate support they need to safely birth their babies and bring them home. It’s the most horrific injustice when the system rips newborns from their mother’s arms in the hospital, and it happens far too often,” the CEO of the Aboriginal Legal Service, Karly Warner, said.
Both the ALS and AbSec said they wanted the NSW government to recognise the key role of Aboriginal community-controlled organisations in supporting families.
“Racism in the so-called child protection system remains rife. Non-Indigenous caseworkers are too often conflating poverty with neglect and failing to appreciate the effects of intergenerational trauma, including the challenges facing parents who were themselves stolen from their families. When does the cycle end?” Leha said.
