Care & Protection
This area of law is changing.
The NSW Parliament is reviewing Care and Protection Laws, and is considering new legislation which allows for adoption of children as a highly ranking option for ongoing care, which will be considered at the time that the child is first taken into care.
The new proposed laws allow for orders to affect unborn children, and also for binding parenting agreements between parents and the Department.
The new proposed laws also allow for children to be adopted if they are not restored to their parents within 2 years of being taken into care.
What are the important principles in Care and Protection?
The Children’s Court must think about the following things when making a decision about care and protection:
The safety, welfare and wellbeing of the child is the most important thing.
Children are entitled to an environment free of violence and exploitation, and one which encourages their health, developmental needs, spirituality, self-respect and dignity.
Where appropriate, assistance should be given to parents or other people caring for children in order to promote a safe and nurturing environment.
The views of the child are to be taken into account, to the extent appropriate given the circumstances and the child’s level of maturity.
Children are to be given the opportunity, information and assistance necessary to help them say what they want for their lives and participate in decisions that affect their lives.
The court should also think about the culture, language, religion, disability and sexuality of the child or young person, and of the parent or other person with parental responsibility.
When action is necessary to protect a child from harm, the course taken from amongst appropriate options must be the least intrusive intervention into the life of the child and family.
A child removed from home is entitled to continuing contact with parents, siblings, extended family and friends, unless this is not in the child’s best interests. The child’s name, identity, language, culture and religion should be maintained as much as possible.
A child placed in out-of-home care (e.g. foster care) should be provided with a safe, nurturing and stable environment. Early arrangements for a suitable permanent placement should be considered, particularly for younger children.
The law provides that Aboriginal and Torres Strait Islander people “are to participate in the care and protection of their children with as much self-determination as possible”.
The law also says that Aboriginal and Torres Strait Islander families, kinship groups, communities and organisations are to be given opportunity to participate in decisions made under the Act concerning their children, and those programs and strategies for self-determination may be negotiated by Aboriginal and Torres Strait Islander people and Community Services.
Aboriginal and Torres Strait Islander children in statutory out-of-home care are to be placed, where possible, in the care of:
a member of the child’s extended family; or, if this is not practicable or in the child’s best interests -
THEN a member of an Indigenous community to which the child belongs; or, if this is not practicable or in the child’s best interests -
THEN an Indigenous person living near the child’s usual home; or, if this is not practicable or in the child’s best interests -
THEN a suitable person approved by Community Services in consultation with members of the child’s extended family and relevant Indigenous organisations.
The spoken or written wishes of the child are also to be considered.
The principles do not prevent an Indigenous child with a non-Indigenous parent from being placed with the non-Indigenous parent or family, if this is determined to be in the child’s best interests.
Where a child has one Indigenous and one non-Indigenous parent, arrangements must be made to ensure that the child maintains connection with both families, communities and cultures.
The Court Process
Filing and Service
To start Court proceedings, Community Services “files” with the Court a written Application for a Care Order. This is accompanied by a written Report, which should summarise the facts Community Services is relying on in alleging that the child is in need of care. You and the child’s other parent must be given a copy of the Application and any supporting documents (“service”).
Interim (Temporary) Orders
If your child has already been removed, Community Services must file an application for a Care Order within 72 hours of the removal. If this happens, Community Services is likely to ask the Court to make an Order for emergency care and protection of the child.
If Community Services believes that your child is in need of care and has not already removed the child, Community Services can ask the Children’s Court to make an “interim” Care Order. An Interim Order puts in place arrangements for care of the child until the Court proceedings are finalised (which often takes months).
An Interim Order may place your child under the parental responsibility of the Minister for Community Services.
Community Services may decide to place your child with a relative, or in temporary foster care, for the period of the Interim Order.
If your child is removed from your care under an Interim Order, it is important to ask the Court to make orders or recommendations for contact with your child.
If the Court doesn’t make contact orders, the amount of contact you have with your child in the interim period will be up to Community Services to decide, as an exercise of its parental responsibility.
At some stage during the Court proceedings, and before the final hearing, a “preliminary conference” is usually held. It is run by a Children’s Registrar, who is an officer of the Court, but who doesn’t make decisions on your case.
The Registrar’s role is to help the parties identify important issues and discuss solutions. The preliminary conference is less formal than being in Court, and is an opportunity to try to resolve the case by agreement. You can be represented by a lawyer at the conference.
The Court may make an Order for assessment of your capacity to care for your child. This assessment cannot proceed unless you consent. It is normally carried out by a psychologist from the Children’s Court Clinic, which is independent of Community Services.
You should discuss with your lawyer any concerns you have about an application for an Assessment Order, or the contents of a Children’s Court Clinic report.
Before final Orders are made in an application for the removal of your child from your care, Community Services must present to the Court a “Care Plan”.
This document should cover:
the background to the case;
proposed arrangements for allocation of parental responsibility;
where the child is to be placed;
long-term goals for the child’s care (“permanency planning”);
any proposed contact between the child and his/her parents, family and friends; and
services to support the child.
The Act requires the Care Plan to be made “as far as possible” with the agreement of the parents. The child’s views should also be taken into account as far as possible and appropriate.
At every stage of Court proceedings, you are entitled to dispute the application and allegations made by Community Services, and to seek that your child be restored to your care.
Alternatively, if it is unlikely that your child will be returned to you in the short-term or long-term, you may wish to express your views about who else is best suited to care for your child, and what steps you might take to work towards having the child placed back in your care.
Tips for Dealing with Community Services
It is a natural response as a parent to be distressed about your child being removed, or to be upset about questions being raised about your parenting ability.
But please, do not take your anger out on Community Services and its workers, as this will not help either you or your child – in fact, all of your dealings with Community Services become evidence in the matter and the Court will see the Department’s notes about how you dealt with their staff.
Try instead to focus on your child’s best interests, and where possible negotiate with Community Services about what you can offer to meet your child’s needs.
If you disagree with what Community Services is proposing for your child, you will need to provide evidence to the Court to support your case.
For this reason it is important to keep written notes of your dealings with Community Services and other incidents concerning your child. You can then refer back to these notes when preparing for Court.
You might want to keep a written diary. Sometimes it is hard to remember details of events and conversations, and a diary will help you with this. You should write down the date and time of your contacts with Community Services, and the name of the worker you spoke with. Write what you said, and what was said to you.
If you receive Minutes of meetings you have with Community Services, keep them, and hand them onto your solicitor. Minutes are a record of what was said and decided at a meeting. It is important for your case that you have these records.
If you do not receive Minutes, ask for them.
What is a “hearing”?
It is likely that you will have to attend Court several times before the case is complete. The case may be adjourned (put over to a later date) several times so that evidence can be gathered and presented. In the meantime the parties might reach agreement.
If you and Community Services cannot reach agreement, we can ask the Magistrate for a hearing to decide the case on the basis of all the evidence.
Who is part of the hearing?
The child, both parents, and Community Services are entitled to be parties in the hearing, and each is normally legally represented. Any other person with genuine concern for the welfare of the child can seek the Court’s permission to become a party to the case. For example, a grandparent or aunt or uncle wishing to care for the child can apply to be a party in the case, enabling that person to speak in Court and file evidence.
However, if Community Services is already proposing to the Court that the child be placed with that relative, it may not be necessary for that person to become a party and appear in Court.
Issues to be decided
Care and protection hearings are divided into two separate phases “establishment” and “placement”:
1. Establishment Hearing
The establishment hearing decides whether the child is in need of care and protection. This question is to be decided on the balance of probabilities – meaning: “is it more likely than not that the child is in need of care and protection?”
Under the Act, a child may be in need of care and protection in circumstances including:
there is no parent available to care for the child;
the parents acknowledging they have serious difficulties caring for the child;
physical or sexual abuse or ill-treatment;
the child’s basic physical, psychological or educational needs not being met;
the child’s domestic environment creating risk of serious developmental impairment or serious psychological harm;
the child exhibiting sexually abusive behaviour;
non-compliance with a care and protection order of another State or Territory;
breach of a parent responsibility contract;
other reason as determined by the Court.
Evidence that the parent has previously had a child removed by the Children’s Court, and not restored, is treated as automatic proof that the child subject of current proceedings is in need of care and protection.
It is up to you to overturn this presumption by proving to the Court, on the balance of probabilities that the circumstances resulting in the earlier removal no longer exist.
Care Orders are intended to be a last resort option. When making an application for a Care Order, Community Services must inform the Court of any support and assistance provided for the child, what alternatives were considered before resorting to Court proceedings, and why those alternatives were rejected. Support to the child and family might involve, for example, referral to parenting courses and family support services, accommodation assistance, or assistance to leave a violent relationship. If you believe you have not been given enough assistance you should tell your lawyer.
2. Placement Hearing
Next, if it is found that the child is in need of care and protection, a placement hearing may be held to decide what Orders should be made to best promote the welfare of the child.
The Act requires Children’s Court proceedings to be run with as little formality and legal rules as possible.
Before the date of the hearing, you need to give your evidence to the Court in Affidavit form (a sworn statement of the facts you are relying on).
Hearings can be conducted “on the papers” alone (nobody gives evidence in the witness box). The Magistrate makes a decision based on all the documents submitted in the case, as well as any spoken submissions made by the parties or their lawyers.
You might need to give spoken evidence from the witness box during the hearing. The first stage of evidence from the witness box is called “evidence-in-chief”, which usually is witness agreeing that his/ her Affidavit is true and correct, and sometimes giving an update on the information contained in the Affidavit.
This is followed by “cross-examination”, in which the lawyers for the other parties may question the witness about their evidence. As the child’s parent you may be cross-examined by the lawyer representing Community Services, the lawyer representing the child, and by any additional parties in the case (e.g the other parent or other family members).
The last stage of the hearing is the making of submissions. Your lawyer (or you, if you are self-represented) should summarise to the Magistrate your argument as to why she/he should make the Orders you think are best for the child.
A child is not required to give evidence in Court.
The Court is a “closed” Court, which means that people not directly involved in the case are not allowed to be there unless the Court otherwise orders.
Child’s Legal Representative
In care and protection cases the child is given her/his own lawyer. This is so that the child’s needs and wishes are represented independently from those of the other parties.
When representing a child under the age of twelve, the lawyer must act in what the lawyer believes to be the child’s best interests. If, for example, the child wants to live at home but the evidence reveals that this might place the child at risk of harm, then the lawyer may seek a different option.
There is a presumption that children age twelve and over are capable of instructing a lawyer; therefore the lawyer for a child of this age is obliged to present the case in accordance with the child’s wishes. The child’s lawyer is entitled in special circumstances to argue to the Court that a child under twelve is capable of giving proper instructions, or that a child over twelve is not.
At the end of hearing the case the Magistrate may issue a decision immediately, or may “reserve” her/his decision until a later date.
The range of Orders which may be made include:
an Order accepting “undertakings” from the parent or the child (more commonly the parent). Undertakings are a promise to the Court, recorded in writing and signed;
an Order for the provision of support services to the child, made with the consent of the person or organisation which is to provide the services;
an Order for supervision of the child by Community Services for a period of up to twenty-four months;
allocation of parental responsibility – to one parent to the exclusion of the other parent; or to another suitable person such as a relative; or to the Minister for Community Services; or a combination of these;
an Order for contact between the child and parents or between the child and another person;
requiring the child to attend a therapeutic program for sexually abusive behaviours.
The Magistrate will also decide how long the Orders will last, which could range from months, years, or until the child turns eighteen.
Disclaimer: This information is a general guide to the law. It should not be relied on as legal advice. If you have a specific legal problem you should consult a lawyer.
It applies to people who live in, or are affected by, the law as it applies in NSW, Australia. The information contained in this publication is current at 1 January 2014.