More than a third of prenatal reports to NSW protective services not investigated, ombudsman finds

Other families have been unlawfully compelled to be case-managed without consent, watchdog finds

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More than a third of all reports raising concerns about the future welfare of unborn children were closed due to a shortage of allocated caseworkers, while families were unlawfully compelled to take part in prenatal case work, the New South Wales ombudsman has found.

In its findings after investigating the Department of Communities and Justice’s practice of responding to prenatal reports, which were released on Friday, the watchdog raised concerns about the number of reports about particularly high-risk children that were not referred on to further support services or a dedicated case manager due to a lack of resources.

Under the Care Act, people who suspect a child may be at risk of significant harm after their birth can make a prenatal report to the department.

“Our investigation found that DCJ closes a significant number of pre-natal reports without allocation and without referrals to support services, because of ‘no capacity to allocate’,” the NSW ombudsman, Paul Miller, wrote in the report.

According to the ombudsman’s report, DCJ data showed that out of 5,007 prenatal reports, 37% or 1,844 were closed without being allocated to a caseworker. Almost half of prenatal reports about unborn children screened as being at risk of significant harm (Rosh) were closed for the same reason. Half were referred for case management by the department.

The investigation also revealed that child protection services wrongly assumed that its legislative powers were the same for both unborn children and children after birth.

Any active case management requires the consent and the knowledge of the pregnant woman or the families – something that was not routinely sought, Miller found.

“Any engagement by prospective parents with DCJ following a pre-natal report is, if there are no other children in the household, as a legal matter, entirely voluntary ,” the report said.

“DCJ has no statutory power to compel parents to engage with it, including to attend interviews, permit home visits, respond to questions, undertake drug testing or accept service referrals.”

The report author acknowledged the “unavoidable tension” between making it clear that families should not be coerced into involvement with child protective services and the fact that their “non-engagement” can later be used as a factor against the family if welfare concerns are raised after the child is born.

Miller said the legislation does not allow the department to conduct family meetings, home visits or checks for risks of substance abuse without a family’s consent during pregnancy.

“The law does not give DCJ the power to undertake any non-consensual casework during pregnancy. The law also does not allow DCJ to pre-emptively make and act on statutory decisions, such as by deciding that a child needs care and protection warranting removal or other statutory intervention, before the child is born.”

He stressed that the DCJ cannot lawfully substantiate Rosh before a child is born but that in some cases that was “routine”, as was the use of risk assessment tools which have previously been reviewed over concerns of racial biases .

Dr Jacynta Krakouer, a Noongar woman and the Aboriginal strategy and engagement lead at Adelaide University’s Australian Centre for Child Protection, said First Nations children were overrepresented in both the child protection system and prenatal risk alerts.

“In 2023-24, the Australian Institute of Health and Welfare child protection data shows that 648 unborn reports were substantiated in NSW – 42% of these reports were for unborn Aboriginal babies,” Krakouer told Guardian Australia.

While she said pregnancy was a unique opportunity to assist and support women and their families, she cautioned against assumptions a baby might already be at risk before they were born.

“There is a big difference between identifying concerns during pregnancy and making a formal finding that an unborn baby is already at risk of significant harm.

“At this point, parents haven’t even had the opportunity to demonstrate how they will care for that baby. We need to be very careful about predicting that someone will ‘fail’ as a parent before they have even had the opportunity to parent.”

She said the structured decision-making tool used to assess Aboriginal and Torres Strait Islander families was not “objectively fair or accurate”.

“When previous child protection involvement becomes evidence of future risk, decades of greater surveillance of Aboriginal families can feed into decisions about the next generation. That risks creating a cycle where past involvement with child protection becomes a reason for further involvement with child protection.”

The ombudsman said the department had made a number of changes during the course of its investigation, including to explicitly state that the purpose of any engagement was to ensure families were better supported to reduce contact with the child protection system, and were fully informed about consent.

The DCJ told the ombudsman it was reviewing its prenatal birth alert system with the Aboriginal community-controlled child safety sector.