Anglicare refused to assess Aboriginal baby’s aunt as carer because she was in same-sex relationship, court hears

<span>A children’s court magistrate has criticised Anglicare and the NSW Department of Communities and Justice after a nine-month-old girl’s aunt was overlooked as her carer because she was in a same-sex relationship.</span><span>Photograph: Dave Hunt/AAP</span>
A children’s court magistrate has criticised Anglicare and the NSW Department of Communities and Justice after a nine-month-old girl’s aunt was overlooked as her carer because she was in a same-sex relationship.Photograph: Dave Hunt/AAP

Anglicare refused to assess the Aboriginal aunt of an Aboriginal baby as a long-term carer because she was in a same-sex relationship and, with the knowledge of the New South Wales government, sought to have the baby adopted to a non-Indigenous couple, a court has heard.

The nine-month-old, who cannot be identified for legal reasons and is known to the court by the pseudonym Daisy, has complex needs. At four days old, Daisy was discharged to the Anglicare adoption agency and placed with a non-Indigenous couple as “authorised pre-adoptive carers”, court documents show.

The court heard Daisy’s mother, known by the pseudonym Paula, who struggled with addiction and an acquired brain injury, and experienced unstable housing and domestic violence, had entered a voluntary agreement with Anglicare.

Daisy was diagnosed with neonatal abstinence syndrome after being exposed to illicit substances in utero and spent several weeks in hospital, where doctors found that she has “atypical neurological function”, according to court documents. She is being assessed for cerebral palsy.

The children’s court magistrate Tracy Sheedy said in a decision in December that there was “no doubt” the child’s foster parents, known by pseudonyms Greta and Peter, have “done a wonderful job of looking after Daisy”, but was “alarmed” and “disturbed” by the conduct of Anglicare and the NSW Department of Communities and Justice (DCJ) in her case.

According to court documents, in May last year, Daisy’s mother contacted Anglicare, indicating she was strongly considering requesting Daisy be returned to her care. The agency sought and was granted an order by the children’s court, who gave parental responsibility for Daisy to DCJ. Anglicare remained responsible for her day-to-day care.

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In September, Daisy’s mother said she was happy for the baby to remain there until a suitable long-term placement was found. In an affidavit, Paula expressed concern that the carers are not Aboriginal and that they are not family. She suggested her cousin as an appropriate long-term carer.

In October, the DCJ filed a care plan with the court, as required by law. In it, DCJ recommended the baby be adopted. It did not tell the court it was aware there were other family members who could be assessed and had applied to care for Daisy.

“It is proposed that Daisy remain placed with her Anglicare carers as permanent placement with a view to adoption in the future,” the DCJ care plan said.

“The placement principles for Aboriginal children are that long-term care should be considered before adoption. However, given that Daisy has significant health needs that will most likely be for the remainder of her life, adoption should be strongly considered to reduce the likelihood of placement breakdowns and to provide stability for Daisy.”

But the same day, a DCJ caseworker filed an affidavit in which she claimed Anglicare did not even assess the cousin and would not assess the aunt because she was in a same-sex relationship.

“On 11 October 2023 the Anglicare adoptions and foster carer recruitment team emailed me to advise that Anglicare were not able to contact [the cousin] to discuss whether she was interested in being assessed as a relative carer for Daisy,” the caseworker said.

“They also advised that Anglicare are not able to proceed with [Daisy’s maternal aunt] and her partner’s application to be a relative carer as per the agency’s policy on same-sex couples.”

Sheedy said she had “not been provided with a copy” of Anglicare’s policy on same-sex couples, but was scathing of their conduct and that of the DCJ.

“No explanation was offered as to why DCJ had filed the care plan proposing the Anglicare carers as the permanent placement for the child knowing that a close family member had not been assessed, for the sole reason that she was in a same-sex relationship,” Sheedy said.

The magistrate said she was “alarmed and confounded” that DCJ had filed the care plan despite being obliged to apply the principles of the Children and Young Persons (Care and Protection) Act.

The magistrate said the act “requires that Daisy, because she cannot be restored to the care of a parent, should be placed with a relative, kin or other suitable person in accordance with a guardianship order”.

If potential family placements are not appropriately considered, then the requirements of the Care Act cannot be met, she said.

“[DCJ] was not able to explain why Anglicare was being paid to case manage … when seemingly not willing to make decisions in accordance with the Care Act,” Sheedy said.

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“Instead, according to the evidence filed by DCJ, Anglicare were making decisions in accordance with its own policy to refuse to assess same-sex couples to be carers.”

DCJ told the court that Anglicare 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”.

“It is disturbing that DCJ filed a care plan ignoring the possibility of the potential of a kinship placement,” she 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,” Sheedy said.

At a follow-up hearing in December, DCJ told the court it had “undertaken probity checks” of the maternal aunt and ruled her out as a suitable carer for Daisy.

The matter returns to court in March for further evidence to be filed and for submissions.

A spokesperson for Anglicare Sydney said it would be inappropriate to comment on an active court case.

The spokesperson did not respond to specific questions about Anglicare’s out-of-home care policy in relation to same-sex couples, but said “Anglicare Sydney is a Christian not-for-profit that serves in accordance with the doctrines of the Anglican diocese of Sydney, which believe the best interests of the child are best served by giving access to both mothering and fathering, wherever possible”.

“Anglicare Sydney remains committed to Aboriginal and Torres Strait Islander child and young person placement principles,” the spokesperson said.