Wendy Hermeston

Permanency planning, an approach to the placement of children in out-of-home care, is central to child and family system practice, policy and law. Using the example of legislative reforms in New South Wales (NSW), Australia, this article explores how privileging legal permanence leads to ongoing failures to account for Aboriginal worldviews and child-rearing practices. Drawing on qualitative research, including Yarning Circles and semi-structured interviews that I conducted with Aboriginal community members in NSW, the findings contribute to limited evidence on permanence from Indigenous perspectives, revealing how familial and cultural connectedness shape belonging and social and emotional wellbeing and highlighting the importance of children’s ongoing connections with extended Aboriginal family, community and culture. Aboriginal understandings of permanence align more closely with cultural, relational and physical domains than with the construct of legal permanence that predominates in permanency planning approaches. Prioritizing legally permanent care arrangements above other domains poses long-term risks to Aboriginal children’s social and emotional wellbeing, demonstrating the need for “deep-level” cultural adaptation in child welfare law, policy and practice. The findings have implications for decolonizing child protection and repositioning Aboriginal conceptualizations of permanence as the foundation for legislation, policy and practice—reforms that must be Indigenous-led, culturally grounded from the outset, and anchored in full implementation of principles embedding self-determination and Indigenous children’s fundamental rights.

Across occupied Indigenous nations, child protection systems remain one of the most enduring sites of colonial power

This paper argues for a conceptualisation of self-determination with respect to Indigenous Peoples’ child protection that is grounded in human rights which are plural, relational, and collective as well as individual. This challenges the idea that human rights are universal and static standards based on a code of enumerated rights with a focus on individual rights. Conceptions of the best interests of the child, permanency in care arrangements, and attachment within colonial institutions such as children’s courts often presume non-Indigenous understandings of family and culture. These child protection concepts, which are often framed as consistent with or even necessary to attain children’s human rights, implicitly embed colonial understandings and values with respect to family and community relations. An acknowledgment of the role of law in structuring relationships is necessary for the human rights of Indigenous children to be upheld. We argue that a relational and distributional conceptualisation of these rights can help to clarify how the law can contribute to strengthening, rather than undermining, Aboriginal and Torres Strait Islander family and community relationships.

In this chapter, we bring to light the duplicity of colonial governments’ claims to support human rights and equality of First Peoples children in Canada and Australia, while not only perpetuating but defending inequality. In Australia, this is viewed through recent law reforms and in Canada through a human rights challenge. Child protection services remain deeply discriminatory against First Peoples despite apologies, reforms, and claims by colonial governments of commitments to equality, non-discrimination and a reduction of First Peoples in child protection systems. This chapter presents the continuity in claims by First Peoples to self-determination in child protection, the diverse forms of resistance to colonial violence and how these challenge the deep-seated colonial values within Australian and Canadian child protection systems.

Major permanency planning-based reforms transformed the New South Wales (NSW) out-of-home care (care) system between 2012 and 2022, in the face of strong, sustained opposition from First Peoples. Permanency, attachment and related notions, including the best interests of the child are all constructs central to permanency planning and crucial factors in judicial decision-making about children’s permanent care arrangements. Doctoral research conducted by the author, a Wiradjuri legal scholar, explored Aboriginal community member understandings of these concepts. With a focus on restoration, this article provides a critical commentary on aspects of the legislative changes implemented in NSW. Outlining literature relating to the reforms, the author notes the substantial lack of evidence from First Nations’ perspectives in support of the legislative changes made. Implications for both First Peoples and for social work are discussed. The article seeks to prompt reflection by social workers on how such evidence vacuums can cause harm to First Nations children and young people in statutory care. Social work spheres within child welfare and associated scholarship must centre First Peoples’ knowledge and experiences. If not, crucial conceptual and practice-related issues will remain poorly understood and profound child welfare system-related trauma caused to First Nations children and families will be perpetuated.