Stages of court proceedings in care and protection cases
On this page:
- first mention or return date
- interim orders
- alternative dispute resolution
- care circles
- determination hearing
- final orders
- care plans
- challenges to court orders
- stay of proceedings.
Once FACS has filed an application on behalf of a child or young person a date will be set for the application to be heard in court. This is referred to as the first mention or return date.
At the mention the court is informed about the application and issues such as:
- where the child or young person is living
- who is caring for them
- whether the application will be contested.
Where a care application is contested, the court will list the matter for hearing and make directions as to the filing of evidence on which parties wish to rely. While the parties are preparing the evidence, the matter will be adjourned. The court will use mentions to ensure that the directions made have been followed.
The court may also refer the parties to an alternative dispute resolution program, such as a dispute resolution conference, prior to a final hearing as a way of:
- identifying areas of agreement
- identifying areas of disagreement
- trying to determine the best way of resolving the matter without having to proceed to a hearing.
The Children’s Court may grant an adjournment at any time to:
- gather more evidence
- obtain an assessment report
- enable parents or the child or young person to participate in a service or program that could reduce the need for the court’s intervention
- enable parties to participate in an alternative dispute resolution program, such as a dispute resolution conference.
As matters before the Children's Court should proceed with as little delay as possible, adjournments should only occur if it would not be contrary to the best interests of the child or young person.
Sometimes the Children's Court is required to make an interim order affecting the child or young person after the care application is filed and prior to the application being finally determined.
Interim orders will generally relate to who will have parental responsibility for the child or young person, where they will live and when they will see their parents while the Children’s Court proceedings are being conducted, that is until final orders are made.
In making an interim order, the court must be satisfied that the order being sought is appropriate for the safety, welfare and wellbeing of a child or young person pending the conclusion of the proceedings.
Alternative dispute resolution
Alternative dispute resolution (ADR) is an umbrella term used for processes other than judicial determination, in which an impartial third person assists those in dispute to resolve the issues between them. It can result in consent orders which may be approved by the court and as such remove the requirement for the matter to go to hearing or it can help parties identify areas of agreement, making any subsequent hearing shorter and simpler.
The report of the Special Commission of Inquiry into Child Protection Services in New South Wales recommended that ADR be used more, both before and during care proceedings.
The Keep Them Safe reforms intend that ADR will help the flow of information and support collaborative decision-making between FACS, children and young people, families and service providers.
ADR processes have the following advantages:
- they can produce care plans and other child protection measures that are supported by all parties
- they can strengthen and extend support networks to increase the chances of children and young people living safely with their families or communities
- they can assist the early resolution of child protection matters
- they can divert child protection matters from court and reduce court time in resolving matters.
Dispute resolution conferences
The parties may be directed to attend a dispute resolution conference held under section 65 of the Act. Dispute resolution conferences have replaced preliminary conferences.
The primary purpose of the dispute resolution conference is to provide the parties with an opportunity to agree on the action that should be taken in the best interest of the child or young person.
Dispute resolution conference can take place at any stage during care proceedings, after a care application has been filed. Parties will be referred to a dispute resolution conference at the discretion of the magistrate.
These conferences follow a conciliation model and are convened by a children’s registrar specially trained in alternative dispute resolution. They are designed to:
- identify areas of agreement
- identify issues in dispute
- determine the best way of resolving any issues
- develop orders that could be consented to by all parties.
Dispute resolution conference run for a minimum of two hours and take place within courthouse accommodation. All parties (with the exception of the child or young person) are required to attend the dispute resolution conference in person.
Any agreement reached during a dispute resolution conference is independently reviewed by the magistrate. Orders relating to the child or young person can be made by consent if the magistrate concurs that the agreement is in the child’s best interest.
The Children’s Court can also utilise other forms of alternative dispute resolution.
New programs have been introduced to encourage the greater use of ADR at every stage of the care continuum. These include:
Family group conferencing
FACS will be piloting the use of family group conferencing as one tool for working with families in the Metro-Central and Northern Regions.
Family group conferencing allows families, extended family and other significant people to be involved in the planning for children where there are child protection concerns. Examples of cases that would be considered suitable include families who are being assessed for intensive support casework or where contact arrangements and supervision arrangements are being arranged.
The intention of family group conferencing is to be family-centred, strengths-based, culturally-sensitive and to empower families to protect and support their children.
The role of service providers and caseworkers in family group conferencing is to provide information, resources and expertise to assist the family group to make appropriate decisions.
Family group conferences are facilitated by an independent convener and will be offered to families to resolve disputes and make significant decisions at various points in a child protection intervention. Conferences conducted as part of the pilot will be held prior to a care application being filed in the Children’s Court.
External care and protection mediation pilot
A pilot of court-referred external mediation is being run for 100 Children’s Court care matters, based on the Legal Aid NSW Family Dispute Resolution model.
Selected matters will be referred under section 65A of the Act, either from the Bidura Children’s Court in Glebe at the discretion of the Children’s Magistrate or from any other court, at the discretion of the President of the Children’s Court.
Referrals can take place either after the child has been found in need of care and protection or after the granting of leave, in the case of a section 90 application.
A skilled, neutral mediator will facilitate discussion between FACS, parents or carers, the child’s legal representative and other relevant parties. Legal Aid currently manages the panel of independent care and protection mediators.
Mediations run for a minimum duration of three hours, and take place at Legal Aid NSW’s head office in Sydney.
Resolving contact disputes
An independent evaluation of dispute resolution conferences and the external care and protection mediation pilot is underway. Findings from the evaluation will be used to inform any changes made as to how contact is approached in the future by the Children's Court and designated agencies.
The Care Circles program currently operates in the Nowra/Ulladulla area where Aboriginal community representatives help FACS and families to develop strategies that aim to identify safe, culturally appropriate options for Aboriginal children and young people that are in need of care and protection.
Care Circles are based on effective components of family group conferencing and circle sentencing. Care Circles aim to:
- improve outcomes for Aboriginal children and young people in care matters
- prevent future harm to Aboriginal children and young people
- reduce barriers which may exist between Courts and Aboriginal people
- increase participation by Aboriginal families and communities in decision-making about Aboriginal children and young people
- improve the effectiveness of agreed undertakings made by parents
- increase confidence in, and understanding of, the care process
- improve reporting of children and young people who are considered to be at risk of significant harm
- ensure all parties adhere to the Aboriginal and Torres Strait Islander Child and Young Persons Placement Principles (section 13 of the Act)
- contribute to the self determination of Aboriginal people.
Matters can be referred to a Care Circle at any time once the Children’s Court has determined that a child or young person is in need of care and protection. Any party may apply for a matter to be referred to a Care Circle.
The Care Circle is reliant on the availability of community members to participate in the process. As well as community members a Care Circle may include the:
- child or young person (if their legal representative recommends their participation and the Magistrate approves it)
- child or young person’s legal representative
- parents and persons with parental responsibility
- parents’ legal representatives (both legal representatives may be present if represented separately)
- FACS legal representative
- FACS manager casework.
Sometimes others may participate in the Care Circle such as:
- the FACS caseworker
- other family members
- significant others who have been made parties to the proceedings by the Children’s Court.
Generally there are two Care Circle meetings for each matter. All participants are provided with a summary of the case which outlines the relevant issues pertaining to the young person and their parents. A discussion is held, which the Magistrate summarises. Community members then make recommendations.
After the Care Circle, FACS prepares a care plan taking into account those recommendations.
At the second Care Circle, the FACS manager casework:
- presents the care plan
- reports on placement options
- addresses whether the recommendations of the community representatives have been incorporated in the care plan.
Care Circle members have an opportunity to comment on the care plan. If possible, the parties then reach an agreement about possible consent orders and the Magistrate will proceed to make the orders by consent. If no agreement has been reached the matter will be adjourned for hearing in the Children’s Court.
Before the Children’s Court is able to make a final care order for a child or young person, it must make a determination that the child or young person:
- was in need of care and protection at the time the care application was made, and
- would still be in need of care and protection were it not for any arrangements that have been made since the care application.
In determining whether a child or young person is in need of care and protection, the Children’s Court will consider and evaluate the evidence placed before it. This evidence is usually in written report or affidavit form, but can include witnesses giving evidence in person.
If the Children’s Court determines that the child or young person is not in need of care and protection then the application will be dismissed.
If the Children’s Court has determined that a child or young person is in need of care and protection, the court must then determine what care orders are necessary to ensure the child or young person’s needs are met in the future. If there is a dispute about this, the matter will be listed for a placement hearing.
If the court decides that the child or young person is in need of care and protection then it will make final orders about what should happen to ensure the safety, welfare and wellbeing of the child or young person.
Prior to the Children’s Court making final orders for the removal of a child or young person from his or her parent, or for the allocation of parental responsibility for the child, the Children’s Court must have considered a care plan for the child or young person submitted by FACS.
That care plan must make provision for the allocation of parental responsibility, the type of placement that FACS proposes for the child or young person, any agencies that will be required to supervise the child or young person and any services that the child or young person may require.
A care plan is used to formalise agreements between parties (usually between FACS and parent/s or caregiver/s) and aims to address the risk of significant harm concerns affecting a child or young person. A care plan has a particular role under the Act in care proceedings before the Children’s Court.
The Children’s Court cannot make a final order allocating parental responsibility, or aspects of parental responsibility, unless it has had a care plan presented to it by FACS.
Care plans are made, as far as possible, with the agreement of the child or young person and their parents or carers.
The type of care plan will depend on the risks identified for the child or young person, and the action required to address their safety, welfare and wellbeing. There are several types of care plans.
Registered care plans [section 38 (1)]
A care plan is registered with the Children’s Court with the agreement of the family, the child and young person. Such action may be utilised when a more formal approach is required, that is, other than an agreement made during casework with the family or during the case planning process and/or case meetings.
These care plans are registered with the Children’s Court as evidence of an attempt to resolve the matter without a care application. Registration occurs when the care plan is filed with the Court, without the need for any further action by the court. These care plans do not require care orders for their implementation.
Care plans which require consent for a change in parental responsibility [section 38 (2)]
Allocate parental responsibility or aspects of parental responsibility with the consent of the parents to a person other than a parent. The allocation of parental responsibility will only take effect when the Children’s Court makes an order to give effect to the changes in parental responsibility.
Care plans requiring consent orders with no change in parental responsibility [section 38(3)]
Involve the Children’s Court making other care orders by consent, where there is no change in parental responsibility, if they have been developed by agreement with the relevant parties. Only those aspects of the care plan that are reflected in the orders made by consent are legally binding. Before making orders by consent the Children’s Court will require the matter to be heard in Court and be satisfied:
- the proposed care orders do not contravene the principles of the Act
- all parties to the care plan understand the effect of the care plan and any proposed orders and have freely entered into it, and
- the parties to the care plan have received independent advice concerning the care plan and proposed orders.
Care plans presented to the Children’s Court before a final order is made in relation to a care application
Under section 78 a care plan must be submitted to the Children’s Court before a final order is made, where the Director-General has applied for an order (other than an Emergency Care and Protection order) for the removal of a child or young person from his or her parents.
Challenges to court orders
A party (for example the child or young person’s parents) can challenge a decision or final orders made by the Children’s Court by appealing to the District Court of NSW.
The District Court will then rehear the matter and can hear new evidence. The District Court’s final decision will be taken as the decision of the Children’s Court.
Where a party wishes to challenge interim orders made by the Children’s Court an application might be able to be made to the Supreme Court of NSW. However, the Supreme Court will need to be satisfied that there are exceptional circumstances for it to intervene in the hearing of the matter by the Children’s Court.
Stay of proceedings
An appeal to the District Court of NSW will not on its own affect the operation of the order made by the Children’s Court.
If a party wishes to delay the Children’s Court orders having affect, they can apply to the court for a stay of the Children’s Court decision. This will delay the order from taking effect and allow time for an appeal to be considered in a higher court.