Roderick Best

6th World Congress on Family Law and Children’s Rights

17 – 30 March 2013Sydney Convention and Exhibition Centre

Child heritage vs child familial identity

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Is the legal status of the relationship between the carer and the child relevant when waiting to preserve the child’s identity and permit a long term stable placement

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Continuum of legal relationships for a child away from parents

• Foster care

• Guardianship

• Parenting orders

• Adoption

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Importance of identity and culture

• UN Convention on the Rights of the Child

• Aboriginal Placement Principles

• Cultural Planning

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Director-General, DoCS vs D (2007) NSWSC 762

• Removal near time of birth

• Single placement to time of judgement when child is 4 years

• Sudanese birth parents

• Anglo Celtic carers

• No anticipated restoration

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Director-General, DoCS Vs D

• Strong connection with ethnicity and culture of origin

• Attachment

• Adoption vs parenting orders

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Adoptions

• Establishes a new family• Severs significant links with birth family – but

‘open’ adoption• Best outcomes the younger the child is adopted• Best outcomes with known adoptive parents• High levels of emotional security• Strong sense of belonging• Greater perseverance• Contact encouraged

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Tracey (2011) NSWCA 43

• Lives with family in Cambodia for first 14 months

• Travels to Australia where put in care following mothers immediate incarceration

• Placed with mother and adult daughter as carers: neither Khmer

• No anticipated restoration

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Fostering

• Limited parenting rights

• Best outcomes for older children coming into care

• Difficulties with multiple placements and poorer health and education outcomes

• Insecurity in placement vs clear connections with birth family

• Strength through involving kin

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Conclusion

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Promote legal relationship that is child centred by balancing range of issues for child’s welfareincluding:

• Stability• Secure loving relationship• Cultural identity

Thank you

Cartoons courtesy The New Yorker

and Peanuts Worldwide LLC

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