The Problem with Permanent Care Orders in the Northern Territory

By Monique Hurley
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Earlier this year, the Northern Territory government rushed through legislation to introduce a “permanent care order” regime in its Care and Protection of Children Act 2007 (the Act). With Aboriginal children five times more likely to be in out-of-home care when compared to non-Indigenous children, the new laws have been described by some as akin to a second Stolen Generation.

Permanent care orders offer a type of care that sits halfway between foster care and adoption, with the grant of a permanent care order transferring parental rights to a third party in a similar way to adoption. Once a permanent care order is made, a child will no longer be in foster care and their permanent carer will be able to make all the day-to-day and long-term decisions for the child. Unlike adoption, however, a permanent care order will not change a child’s surname or birth certificate.

The legislative regime was introduced by the Northern Territory’s Minister for Children and Families, Mr John Elferink, to offer a “more permanent option” for children who are unable to be reunited with family. The haste with which this regime was introduced has been a cause of concern in the Northern Territory. The regime is likely to disproportionately affect Aboriginal children because, as reported by the Productivity Commission, the number of Aboriginal children on protection orders in the Northern Territory was 840, compared to 149 non-Indigenous children.

While the introduction of the permanent care order regime is not an entirely radical step, given that similar legislation already exists in South Australia and in Victoria, the content of the Northern Territory legislation is alarming. This is because it does not include safeguards to:

  1. ensure that permanent care orders are only made as a last resort; and
  1. protect the connection to culture and family of Aboriginal children who end up in the permanent care of non-Aboriginal carers.

These issues, among others, were explored in a Joint Submission made by the North Australian Aboriginal Justice Agency (NAAJA) and Northern Territory Legal Aid Commission (NTLAC) in relation to the Care and Protection of Children Amendment Bill 2014 (the Bill). This submission was endorsed by a number of organisations, all with experience working with Aboriginal people and the child protection system. In particular, the Joint Submission called on the Northern Territory government to invest in early intervention, intensive family support and reunification services.

Many of the other issues identified by NAAJA and NTLAC in their Joint Submission, which related to the wording of the Bill, could have been addressed by the Northern Territory government looking to Victoria’s Children, Youth and Families Act 2005 (the Victorian Act). Some protections could have included:

  1. setting additional requirements to be met before permanent care orders can be made when Aboriginal children are going to be permanently placed with non-Aboriginal carers (see, eg, section 323 of the Victorian Act);
  1. allowing the Court to place conditions on permanent care orders regarding Aboriginal children’s contact with parents and other family (see, eg, sections 321(d) and (e) of the Victorian Act);
  1. mandating the preparation of a cultural plan to set out how Aboriginal children can remain connected to community and culture (see, eg, section 176 and section 321(f) of the Victorian Act); and
  1. creating an independent Aboriginal child care agency with a monitoring and advisory role (see, eg, section 6 of the Victorian Act).

During the second reading speech of the Bill, the Minister for Children and Families pointed to section 12 of the Act and its “Aboriginal child placement principle”. This section provides that, when determining whether an order under the Act is the best means of meeting a child’s needs, a carer is required to give a commitment to maintain family and cultural connections.

The protections afforded by this section are insufficient. This is because, when a permanent care order is made, the relevant government department will cease to monitor the child’s placement and, as a result, there will be no guarantee that commitments made by carers will be honoured. As explained by the CEO of NAAJA, Priscilla Collins, on radio with the Central Australian Aboriginal Media Association:

Once [a] child is placed under this Act… it’s an adoption, so it’s hands-off from the NT government… there’s no more monitoring, there’s no more cultural plan, they don’t have to pay that carer anymore…

The failure of the Northern Territory government to include safeguards like those set out above, and to engage and consult with relevant organisations, has been criticised by peak Aboriginal organisations. By way of example, the CEO of the Secretariat of National Aboriginal and Islander Child Care, Frank Hytten, said that:

The order allows for children to be removed until they’re 18, so let’s say a young mum has an alcohol problem, the child can be removed from the mother from the hospital ward at birth and disappear into the system never to be returned.

Parliamentarians also discussed the Bill’s flaws, and the government’s failure to consult with, and listen to, the submissions made by relevant organisations. During heated debate, references were made to similarities between the policy in place when the Stolen Generations took place and the Bill. In particular, the member for Arnhem, Ms Larisa Lee, was particularly aggrieved with the government’s failure to consult with Aboriginal people and Aboriginal organisations before introducing the laws:

“If you have not sat down and talked to anybody – especially Indigenous people, Indigenous organisations and stuff like that – it is exactly how they see this. It is another Stolen Generation. I am just being honest.”

In response, the Minister for Children and Families slammed any comparison between the Bill and the Stolen Generations. He also said that he was “aware” of submissions made by NAAJA and NTLAC and understood “their caution in this space”. The Minister did not, however, grapple with the substantive issues raised in the Joint Submission or by his colleagues.

While it is true to say that a permanent care order regime is different to the policies in place when the Stolen Generations took place, the symbolism of the government legislating on this topic, without consultation and without including any specific legislative safeguards, it is not difficult to see why such comparisons have been drawn. This is especially the case in light of allegations of a “culture of discrimination” in Northern Territory government child protection agencies.

This is particularly important in cases where Aboriginal children will be permanently placed with non-Aboriginal carers. This is a risky path for the Northern Territory government to take, in light of the high number of Aboriginal children in out-of-home care and the intergenerational effect of cultural dislocation on Aboriginal people.

While introducing a permanent care order regime is not a bad or unprecedented move, the lack of adequate safeguards in the Northern Territory’s current legislation is disappointing. This is because many of the concerns about laws could have been avoided, to a large extent, by implementing some straightforward legislative safeguards that already exist in another Australian jurisdiction.

Monique Hurley is a Melbourne lawyer. She has volunteered with the Homeless Persons’ Legal Clinic and interned with Justice Connect and the Castan Centre for Human Rights Law.

Featured Image: QUOI Media Group/Flicker

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