Children and families policies and legislation

The two major pieces of legislation covering Community Services work with children and families are the Community Welfare Act 1987 and the Children and Young Persons (Care and Protection) Act 1998.

The main legislation which outlines legal obligations in the provision of care for children and young people who cannot live with their families is the Children and Young Persons (Care and Protection) Act 1998. This Act sets standards for Communities and jusirce (DCJ) and other agencies which provide out-of-home care (OOHC), including foster care.

New OOHC legislation

Key OOHC provisions contained in certain sections of Chapters 8 and 10 of the Children and Young Persons (Care and Protection) Act 1998 were proclaimed in a three-stage program between July 2003 and March 2004.

Adoptions

Adoption of children in care can be facilitated by DCJ under the Adoption Act 2000.

New regulations

Regulations have been written around existing and new sections of the Act and these are also legally binding.

Community Services staff have been given comprehensive information and training on the implications of the legislation for Community Services, our staff, other foster care agencies and service providers, foster carers, children and young people in care and their families.

Your foster care caseworker or supervisor can answer any questions you might have on how this legislation affects you as a foster carer.

Children and young people entering care come with a network of relationships. Providing information about a child’s placement to parents and other significant people in their lives can help maintain those relationships and support a young person’s sense of belonging and identity. Providing this information can also help provide a smooth transition from care back to home.

Following extensive consultation with carers, a law was introduced in March 2007 to establish requirements for providing placement information to parents and significant others.

This law:

• considers the safety, welfare and well-being of children and young people, their carers and the carer’s family or household
• provides opportunities for children and young people, their carers and significant others to participate in decisions about the release of placement information
• identifies the significant people to children or young people as those with whom they have a close bond
• enables carers to appeal decisions about the release of placement information, via internal review and the Administrative Decisions Tribunal
• provides clear details about when information is given and to whom.

What information may be given?

Two different types of information may be released:

1. General (non-identifying)
2. High level (identifying) information

General (non-identifying)

Includes information about significant events in the life of the child or young person or contextual contact information that does not identify the placement. Examples include:

• first name of authorised carer or carers
• culture and language spoken in the authorised carer or carers’ household
• general household composition details (number of children, age of children)
• the religion of the authorised carer or carers
• pets and types of accommodation
• births, deaths and life threatening illness or accidents of key people that have impact on child or young person’s life
• moving house or school (the event, not address)
• departure or arrival of other (non-idenitified) children or young people in the household
• post office box address (where this does not identify that the authorised carer/s live or work in a particular small community)
• carer or carers’ mobile phone number
• child or young person’s mobile phone number.

High level (identifying)

Information that identifies where the child and carers live, work or attend school. Actual placement details including names and addresses of carers are given to parent or parents only if it is assessed that there is no risk to the safety, welfare or wellbeing of the child or young person, the carer or members of the carer household. Carers must be asked for written consent to the release of this information.

Examples include:

• surname of carer or carers and others in their household
• street address and locality of the placement
• landline phone number of the placement
• description of carer or carers’ work role or activities which may lead to identification of work location or identity (for example, high school teacher in Bathurst or Scout leader in Windsor)
• name of the school the child or young person attends or a description that may lead to identifying the location (for example, High School in Armidale)

Who issues and receives this information?

The designated out-of-home care agency is responsible for providing information and gaining the carer’s written consent to release high level identification information. Parents and significant others, such as siblings and grandparents, may receive information only if it does not pose any risk to the safety, welfare or wellbeing of the child or young person, their carer or any member of the carer’s household. Significant others may also include previous long term carers.

When is information not given?

High level identification placement information will not be released where there is a risk to the safety, welfare and well being of the child or young person, their carer or members of the carer’s household. The wishes of the carer and the child or young person will be considered when making the decision to provide or withhold this information.

How can a carer appeal the release of information?

If a carer does not consent to the release of high level identifying information they have 28 days (from the date of the decision) to request that the agency conduct an internal review.

If the decision is upheld, the agency must explain in writing why the release of this placement information is not a risk to the safety, welfare and well-being of the child or young person or carer or carer’s family or household.

If the carer does not agree with the decision following the internal review, they have 21 days (from the date of being notified of the outcome of the internal review) to appeal to the Administrative Decisions Tribunal (ADT) for the information to be withheld.

Alternatively, carers can request that the designated agency appeal to the ADT on their behalf. A carer cannot appeal to the ADT without first requesting an internal review. All applications to the ADT are assessed by an independent panel and no information will be released until all appeals are finished.

DCJ will pay for reasonable legal representation costs where requested. An appeal requires the Tribunal to review whether the decision of the agency was appropriate.

For more details on the ADT contact: (02) 9223 4677 or www.lawlink.nsw.gov.au/adt

Statutory Guidelines for Designated Agencies on Disclosing Out-of-Home Care Placement Information to Parents and Other Significant People have been developed by the Office for Children’s Guardian. These are available at https://www.kidsguardian.nsw.gov.au/statutory-out-of-home-care-and-adoption/guidelines

Section 13 of the Children and Young Persons (Care and Protection) Act 1998 provides for a general order of placement for Aboriginal children. The aim is to ensure that if possible and assessed as safe, Aboriginal children and young people are placed within their biological family, extended family, local Aboriginal community or wider Aboriginal community and culture.

The purpose of the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles is to enhance and preserve Aboriginal children’s sense of their Aboriginal identity. The objective of the principles is to ensure an Aboriginal child’s right to be raised in their own culture. They also recognise the importance and value of family, extended family, kinship networks, culture and community, in raising Aboriginal children.

This general order of placement aims to ensure that, where possible, children and young people are placed within their family, community or other Aboriginal community to stay connected with their Aboriginal culture. This reflects the NSW Government’s determination to avoid a repetition of past practices which had a devastating impact on so many Aboriginal families.

Effective applications of the principles requires Aboriginal families, extended family and Aboriginal community representatives to be consulted and involved in decision-making about care arrangements for Aboriginal children and young people.

The principles also support the importance of Aboriginal people having increased and ongoing involvement and control in Aboriginal child and family welfare, and child protection matters