Care and Protection proceedings in New South Wales are conducted in the Children’s Court of NSW in the first instance. The act governing such proceedings is the Children and Young Persons (Care and Protection) Act 1998 and accompanying regulations. The Court deals with matters where concerns have arisen regarding the safety, welfare and well-being of a child or children under the age of eighteen (18) years.
There are numerous Children’s Court operating across New South Wales.
In broad terms, proceedings of this kind relate to intervention by the agency with responsibility for child welfare in New South Wales, the New South Wales Department of Communities and Justice (“the Department”) (the government organisation formerly referred to as DOHS, DOCS or Family and Community Services).
In care and protection cases, the Secretary for the Department of Communities and Justice will be referred to in the application to the Court.
How are the court proceedings started?
Care and protection cases commence by way of filing of an application at a Children’s Court registry.
Once an application is filed, the proceedings must be listed within three days before a Children’s Court.
Who will be at Court?
The Department is a party to all proceedings in the care and protection jurisdictions. .
Ordinarily, the parties to the proceedings will be:
- The Department;
- The parent or parents of the child;
- The child’s representative.
A person who can show a genuine concern and interest in the safety, welfare and well-being of a child may apply to become a party to the proceedings. That is an application is not automatically granted and there are tests under the legislation that need to be met before someone is joined as a party.
If a child or young person is living with someone other than a parent or parents, it may be that the person who was caring for the child immediately prior to the proceedings commencing is also a party, but that will depend on the circumstances of the matter.
Are the proceedings the same as Family Law matters?
The proceedings are not the same as Family Law matters, although they deal with the interests of children and family dynamics. The Family Court usually deals with private matters and disputes between families, in general terms, the care and protection jurisdiction usually deals with matters concerning the State and the family.
The Department may elect to intervene in Family Law proceedings also but that is a separate jurisdiction and discrete from care and protection proceedings.
What decisions can the Court make?
The focus of the proceedings is the safety, welfare and well-being of the child or children the subject of the proceedings. The Court has the ability to make numerous types of orders and findings concerning children, including, but not limited to the following:
a. Interim care orders – orders that operate until they are varied by the Court (changed) or final orders are made. Interim orders may deal with issues of short-term parental responsibility and other matters including orders for supervision.
b. Orders accepting undertakings – undertakings are effectively promises to the Court to undertake or not do certain things. A breach of undertaking can result in proceedings being re-listed.
c. Orders for supervision – that is supervision of a child/children.
d. Orders allocating parental responsibility for a child or young person on a final basis – often referred to as the making of Final Orders.
e. Contact orders – these are orders regarding the time a child spends with a parent, sibling, other relative, or family members. Contact orders are not available in circumstances where the Department or the government agency with case management is to facilitate and coordinate contact for the child and their family.
f. Guardianship Orders – generally, these are orders allocating parental responsibility for a child to a family member as an alternative to allocating parental responsibility to the Minister.
The Court’s primary function is to consider how the safety, welfare and well-being of the child or children the subject of the proceedings may be best served through the orders the Court is capable of making.
The other functions of the Court involve numerous considerations – such as whether a child in long term out of home care should have contact with her or her birth parents and what that contact might look like – for example, will it be supervised and if so, by whom?
The Court is also tasked with determining parental responsibility – that is, who should make decisions of the child or children if their parents are not found presently to provide adequate care for them.
We use the term “out of home care” as the proper term that is used to refer to a child who is placed with authorised carers. You might be more familiar with the term “foster care”.
The primary focus of court proceedings is child protection: considering the safety, well-being, and welfare of the child, children, or young persons, making sure they’re kept from any serious harm.
Who will preside over the matter?
At first instance, care and protection disputes are heard by a Magistrate in the Children’s Court. The Magistrate is referred to as “Your Honour” in the proceedings.
Engaging Care and Protection Lawyers
Care and Protection proceedings can be complex, emotional and of a very serious nature.
Parents often find themselves before the Court without much of an opportunity to seek legal advice given the generally urgent nature of care matters.
Care and protection is a very specialised area of practice and you might find it very difficult to know where to start.
You will receive paperwork that will tell you the date, time and location of your court appearance.
Legal Aid will make available at Court a Duty Solicitor whose role is to assist parents and other parties who may not have had a chance to engage a solicitor in the proceedings at the first Court date. Because of COVID, there are procedures in place where Legal Aid usually arranges a solicitor to contact a parent in a new matter to reach out and offer legal assistance at least for the first mention of the matter. This is often a “one off” service and then it will be up to you to make steps to engage a solicitor.
Your solicitor will let you know whether or not you need to attend Court in person on a particular day.
Legal Aid may provide you with a list of solicitors who can help you with your matter going forward after the first Court date.
