Crown Solicitor's Office

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Recent developments in child protection law and practice including amendments to the Children's and Young Persons (Care and Protection) Act 1998 – eight months on

Jayeanne Carney, Children's Magistrate, Campbelltown Children's Court

Summary of a seminar dated 24 June 2015

Child care and protection system

New initiatives which aim to strengthen the child protection system are being implemented over the next four years as part of the Safe Home for Life reforms. These reforms include new policy and practice, legislative change, and a redesign of the use of technology in child protection. The key areas of change are:

  • Parenting resources.
  • Open adoption.
  • Permanent placement principles.
  • Guardianship.
  • Contact.
  • Alternative Dispute Resolution.

The Minister for Family and Community Services ("FaCS") expects up to 16,000 child cases from FaCS to be transferred to non-government organisations ("NGOs") by 31 December 2016 as a result of the Safe Home for Life reforms. This transition is expected to create challenges in regards to:

  • those working with Indigenous families and their children
  • the accreditation of new NGOs
  • out of home care standards.

A key issue emerging from the transition from statutory authorities to out of home care managed by NGOs is selecting and training suitable carers. Ensuring carers are properly qualified and aware of the needs of Indigenous children is particularly important due to their overrepresentation in care – 2,600 out of approximately 7,800 children in community services care in 2013 were Indigenous.

What's new in the Children's Court?

Practice Notes

There are seven care and protection Practice Notes applicable to the filing of care applications in the Children's Court:

  • Initiating documents for care applications.
  • Alternative dispute resolution procedures in the Children's Court.
  • Short term care orders pilot project.
  • Case management in care proceedings.
  • Children's Court Clinic Assessment Applications and attendance of authorised clinicians at hearings, dispute resolution conferences and external mediation conferences.
  • Joint conference of expert witnesses in care proceedings.
  • Parenting capacity orders.

Circuit courts

A number of new circuit courts have been implemented, including the Northern River Circuit and Hunter Circuit, which commenced in August 2015.

Youth Koori Court

The Youth Koori Court is a pilot program at Parramatta Children's Court which commenced in February 2015. It involves deferred sentencing and aims to:

  • increase Indigenous community participation and confidence in the justice system
  • reduce the risk factor of reoffending
  • assist with an increased compliance of bail conditions.

Care Circles

Care Circles are an alternative dispute resolution process targeting Indigenous children and families who are involved in care proceedings. Care Circles were first initiated as a pilot program in Nowra in 2008. Their aim is to:

  • increase the participation and decision-making about Indigenous children and young people by their families and communities
  • empower Indigenous families and communities by reducing barriers that may currently exist
  • enhance the viability of undertakings to be agreed to by a parent
  • improve support services to parents with parental responsibility.

The Children's Court may refer an appropriate matter to a Care Circle for mediation. A children's magistrate trained in ADR conducts the mediation. Care Circles involve elders who can give cultural advice and provide cultural authority to parents in an attempt to encourage personal change. The agreements reached at a Care Circle can be incorporated into a Care Plan.

Matters discussed at a Care Circle are not admissible in court proceedings, allowing the parents and caseworkers to ventilate and talk in a more relaxed environment.

Key changes to the Children and Young Person's (Care and Protection) Act 1998

Time standards – section 83(5)

The introduction of time standards is a major shift. Section 83(5) sets out time periods which dictate how long the Children's Court has to make a decision on whether there is a realistic possibility of restoration to the parent/s.

Permanent placement principles – section 10(A)

This section sets out in order of preference, principles to be followed when making decisions about the placement of a child. For both Indigenous and non-Indigenous children the first preference is for the child to be restored to the care of the parent. If this is not possible, the second preference is guardianship of a relative, kin or other suitable person.

The section then differentiates between Indigenous and non-Indigenous children, preferring adoption for non-Indigenous children before placing the child under the parental responsibility of the Minister. For Indigenous children on the other hand, placing the child under the parental responsibility of the Minister is preferred, with adoption as a last resort.

Introduction of guardianship orders – section 79(A)

Guardianship orders allocate a suitable person all aspects of parental responsibility for a child until they reach the age of 18 years. The Children's Court must not make a guardianship order unless it is satisfied that:

  • there is no realistic possibility of restoring the child to his/her parents
  • the prospective guardian and the environment provided is suitable
  • the guardianship order complies with the principles in relation to the placement of Indigenous children under s. 13
  • if the child is over 12 and capable of giving consent – consent of the child is given.

Amendments to making contact orders – section 86

The recent changes affect how contact orders are made and the powers of the Children's Court to make these orders:

  • courts are now allowed to make a contact order under s. 86 as a stand-alone application
  • the Children's Court must take into consideration whether an attempt has been made to reach an agreement about contact arrangements by participating in alternative dispute resolution – s. 86(1D)
  • if the parties have not done so, the Children's Court can order the parties to attend a dispute resolution conference – s. 86(1D)
  • Legal Aid have been funded to conduct mediation as a result of these changes.

Extended definitions of 'relative' and 'kin' – section 3

The definition of 'relative' under the Act has been extended beyond direct relatives to include:

  • a person with parental responsibility of the child
  • a person with care responsibility of the child under the Adoption Act 2000 (NSW)
  • the extended family or kin of an Indigenous person.

Similarly, the definition of 'kin' of a child now means 'a person who shares a cultural, tribal or community connection with a child or young person that is recognised by that child or young person's family or community'.

Parent capacity orders – Part 3

The parenting capacity program is regarded as an effective mechanism to reduce the escalation of risk and re-engage parents who have become disengaged from voluntary prevention and early intervention support. Only two parent capacity orders have been filed in NSW since 29 December 2014.

Some key features of the parent capacity orders include:

  • they are stand-alone orders (an application for initiating care proceedings is not required)
  • the application can be made prior to statutory intervention as a parent capacity order is not a "care order" under the Act (s. 60)
  • the threshold for making a parenting capacity order is much lower compared to an interim order
  • applications before the court are governed by Practice Note 10 – requiring applications to be referred to a dispute management resolution conference.​

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