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Shaping a Better Child Protection System

The Children and Young Persons (Care and Protection) Amendment Act 2018 will strengthen services to keep children safely at home with their families and restore children to their families when it is safe to do so.

Overview of legislative reforms

Overview of legislative reforms Factsheet PDF, 174.26 KB

The Children and Young Persons (Care and Protection) Amendment Act 2018 will commence on 4 February 2019.

The Act amends the Children and Young Persons (Care and Protection) Act 1998 and the Adoption Act 2000 to support current child protection reforms. The amendments will strengthen services to keep children safely at home with their families and restore children to their families when it is safe to do so. When this is not possible, a safe and loving home will be secured for children through guardianship or open adoption.

The amendments aim to support further reductions in the number of children and young people in out-of-home care (OOHC) and improve the timeliness and quality of services for these children and their families.

Key amendments:

Earlier family preservation and restoration

  • Alternative dispute resolution such as Family Group Conferencing must be offered to a family before orders are sought from the Children’s Court (unless there are exceptional circumstances). This empowers families to work together to develop their own plan to keep their children safe.
  • The Department of Family and Community Services (FACS) can ask an agency or funded service provider to give prioritised access to services for children at risk of significant harm and their family.
  • The Children’s Court is able to assess the realistic possibility of restoration in a 24 month period, allowing the Court to consider whether restoration will be possible into the future.
  • Children will be able to be restored to their parents up to 12 months before a court order involving restoration expires (the current limit is up to 6 months).
  • Shorter term court orders will focus casework planning to secure long term permanency outcomes sooner and reduce the time children spend in OOHC.
    • For care plans involving restoration, guardianship or adoption, the maximum period of an order giving parental responsibility to the Minister will be 24 months, unless the Children’s Court is satisfied that special circumstances exist.
  • Currently the Supreme Court can approve a child’s adoption by authorised carers, without parental consent. This authorisation now extends to a child’s guardian.
  • Court processes have been streamlined to focus on each child’s experience and what is in their best interest. These changes are designed to minimise lengthy litigation processes and respond to a child’s need quickly.
  • The Children’s Court will be able to:
  • make a guardianship order where both parents consent, without the need to make a finding that there is no realistic possibility of restoration of the child to their parents
  • make contact orders for longer than 12 months where a guardianship order is made and it is in the child’s best interest
  • relist a matter and review progress in implementing the care plan if the Court is not satisfied that proper arrangements have been made for the child’s care and protection
  • prioritise the views of children in applications for leave to vary or rescind a care order
  • dismiss an application for leave to vary or rescind a care order if the Court is satisfied that it is frivolous, vexatious, an abuse of process, or one of a series of unsuccessful attempts by the applicant
  • vary an interim order on an application by a party during proceedings if the Court is satisfied that it is appropriate to do so.
  • When a guardian or carer with full parental responsibility dies, care responsibility for a child will now sit with the FACS Secretary for 21 days. This will give FACS time to ensure appropriate care arrangements have been made.
  • The publication or broadcast of the names of children in a way that identifies them as being in OOHC will be prohibited in most situations.
  • Supported OOHC (other than temporary care arrangements) will only be provided for the placement of a child in care with a relative or kin where a relevant court order exists, consistent with existing practice.
  • FACS will monitor and report on the changes to ensure that they are supporting better outcomes for children, families and Aboriginal communities.

Focus on permanency for children and young people

  • Shorter term court orders will focus casework planning to secure long term permanency outcomes sooner and reduce the time children spend in OOHC.
    • For care plans involving restoration, guardianship or adoption, the maximum period of an order giving parental responsibility to the Minister will be 24 months, unless the Children’s Court is satisfied that special circumstances exist.
  • Currently the Supreme Court can approve a child’s adoption by authorised carers, without parental consent. This authorisation now extends to a child’s guardian.

Streamlined court processes

  • Court processes have been streamlined to focus on each child’s experience and what is in their best interest. These changes are designed to minimise lengthy litigation processes and respond to a child’s need quickly.
  • The Children’s Court will be able to:
  • make a guardianship order where both parents consent, without the need to make a finding that there is no realistic possibility of restoration of the child to their parents
  • make contact orders for longer than 12 months where a guardianship order is made and it is in the child’s best interest
  • relist a matter and review progress in implementing the care plan if the Court is not satisfied that proper arrangements have been made for the child’s care and protection
  • prioritise the views of children in applications for leave to vary or rescind a care order
  • dismiss an application for leave to vary or rescind a care order if the Court is satisfied that it is frivolous, vexatious, an abuse of process, or one of a series of unsuccessful attempts by the applicant
  • vary an interim order on an application by a party during proceedings if the Court is satisfied that it is appropriate to do so.

Other changes

  • When a guardian or carer with full parental responsibility dies, care responsibility for a child will now sit with the FACS Secretary for 21 days. This will give FACS time to ensure appropriate care arrangements have been made.
  • The publication or broadcast of the names of children in a way that identifies them as being in OOHC will be prohibited in most situations. To learn more about these changes, view the 'Prohibition on publication OOHC status' Factsheet.
  • Supported OOHC (other than temporary care arrangements) will only be provided for the placement of a child in care with a relative or kin where a relevant court order exists, consistent with existing practice.

Monitoring and reporting

  • FACS will monitor and report on the changes to ensure that they are supporting better outcomes for children, families and Aboriginal communities.

Impact on Aboriginal families

Impact on Aboriginal families Factsheet PDF, 196.83 KB

The NSW Government remains committed to working with Aboriginal communities and Aboriginal organisations across NSW to increase Aboriginal self-determination and Aboriginal participation in child protection decision-making.

The legislative amendments contained in the Children and Young Persons (Care and Protection) Amendment Act 2018 will help ensure that more Aboriginal children and young people are supported in culturally safe environments. Aboriginal families will have greater opportunities to be involved in decisions about the care of their children to reduce the number of Aboriginal children entering out-of-home care (OOHC).

The NSW Government condemns the past practices of the forced removal of Aboriginal children from their families, kinship groups and communities. It is unfortunate that the media attention on these amendments has reminded many Aboriginal people and communities of the trauma, grief and loss of past practices.

The amendments do not change the existing safeguards to ensure that Aboriginal children and young people remain with family, kinship groups or community wherever possible. This includes the Permanent Placement Principles and the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in the Children and Young Persons (Care and Protection) Act 1998 (Care Act) relating to self-determination, participation in decision-making, and placement of children in OOHC.

Adoption remains the last resort for permanent placement for Aboriginal children and young people. Claims to the contrary are false.

Keeping families together

Our first goal is to keep Aboriginal children and young people at home with their families and in their communities. Several of the amendments will help this happen. Families and kin will be supported to work together to address issues affecting the safety of their children.

The Department of Family and Community Services (FACS) will now have to offer Alternative Dispute Resolution to families (except in exceptional circumstances) before applying to the Children’s Court for a court order. Alternative Dispute Resolution will mostly be in the form of Family Group Conferencing or similar forms of family led decision making. A Family Group Conference is a non-legal process, led by an independent facilitator who encourages the family and whoever they invite to develop a plan to keep their children safe and kept away from OOHC wherever possible.

For Aboriginal families, the Family Group Conference process supports self-determination through increased family participation in decision making. The process can be supported by an Aboriginal caseworker and facilitator or the facilitator and the family can talk about other cultural support needed. This may be from a family or community member or additional support that can be arranged by FACS.

Timeframes for permanency

Shorter term court orders will mean that the Children’s Court will only make court orders allocating parental responsibility to the Minister until a child is 18 years of age where restoration or guardianship for an Aboriginal child or young person is not possible. The maximum length of a court order allocating all aspects of parental responsibility to the Minister will now be 24 months where the Court approves a permanency plan for restoration, guardianship or open adoption (unless the Children’s Court is satisfied that special circumstances exist). Adoption is the last option for the permanent placement of Aboriginal children and young people.

This means that FACS needs to focus on achieving the permanency goal sooner to reduce the time that children and young people spend in OOHC. This will lead to better outcomes for Aboriginal children and young people. Once the 24 month court order expires, parental responsibility will go back to the birth parent unless FACS applies for more time to successfully restore the child to their family or achieve other permanency outcomes approved by the Court, such as a guardianship order in favour of relatives or kin.

The period for which the Children’s Court is able to decide whether there is a realistic possibility of restoration has been extended to 24 months, allowing greater flexibility to consider whether restoration will be possible with the right supports for the family. Previously the Children’s Court had to make the decision about the realistic possibility of restoration on the date of the hearing. It can now look at the real possibility of whether a child or young person will be able to live safely at home if the steps in the restoration plan are achieved successfully.

Children and young people will also be able to return to their families up to 12 months before the restoration date specified in the care plan (the timeframe is currently six months).

Changes to guardianship

Parents will be able to make a decision that someone else will be a guardian for their child without going through a lengthy court process. The Children’s Court will be able to make a guardianship order by consent. To make sure people understand the impacts of this decision, there has been a change to ensure people receive independent legal advice. The Court can also appoint a legal representative for a child or young person.

When parents’ consent to a guardianship order, the Children’s Court will no longer need to make a finding that there is no realistic possibility of restoration of the child or young person to their parents. This empowers parents to agree to orders that will keep their child safe and that are in the child’s best interests. The Court will need to be satisfied that the making of the guardianship order by consent will not contravene the principles of the Care Act.

All existing safeguards for Aboriginal children and young people remain in place. Where a guardianship order is being considered for an Aboriginal child with a non-related, non-Aboriginal carer, a comprehensive Cultural Care Plan must be completed and FACS Executive District Director approval is required to proceed with the guardianship application. A Cultural Care Plan must also be presented to the Children’s Court.

Changes to adoption

There have been claims that the legislative amendments could lead to forced adoptions of Aboriginal children and young people. These statements are incorrect. Forced adoptions are not possible under existing law and will not be possible under the amendments.

In the past five years around 12,000 Aboriginal kids have spent some time in OOHC in NSW. Of these, 13 have been adopted. There have been so few adoptions because adoption is last resort for permanent placement of Aboriginal children and young people in NSW. This has not changed.

The change to the legislation means that the Supreme Court will now be able to dispense with the requirement for the consent of parents or persons with parental responsibility to applications for adoption made by a child’s guardians like the Court can currently do for authorised carers. The Supreme Court can only dispense consent if the child has established a stable relationship with their guardian, the adoption will promote the child’s welfare, and all other alternatives to adoption have been considered for Aboriginal children and young people. The Supreme Court cannot make an adoption order unless it is sure that the Aboriginal child placement principles under the Adoption Act have been properly applied and the best interests of the child will be promoted by the adoption.

The safeguards associated with guardianship or adoption of Aboriginal children and young people in the Care Act and Adoption Act 2000 (Adoption Act) have not been changed. The Adoption Act makes specific provisions that address the needs of Aboriginal children, families and communities and sets out additional requirements specific to adoption applications for Aboriginal children. The Secretary of FACS must agree to the adoption of any Aboriginal child from OOHC.

FACS is strengthening its cultural capability and practice

FACS is strengthening the cultural competency and practice of its workforce and building the capacity of the non-government sector to deliver better outcomes for Aboriginal families and communities.

The FACS Aboriginal Outcomes Strategy 2017-2021 sets out our approach to delivering better outcomes for Aboriginal children, young people and communities. This includes more access to early intervention services for Aboriginal families and a focus on reducing the over-representation of Aboriginal children in OOHC.

The NSW Practice Framework launched in 2017 places children, young people and their families at the centre of our child protection practice and our decision making. It is driven by evidence informed approaches including Family Finding and promotes the importance of working with family and culture.

FACS has also developed an Aboriginal Case Management Policy in partnership with the Aboriginal Child, Family and Community Care State Secretariat (AbSec). It promotes a culturally-embedded case management approach that is child focused, encourages Aboriginal family-led decision making, values community involvement and is designed to preserve families.

Family is Culture, the Independent Review of Aboriginal Children and Young People in OOHC (the Review) is investigating the reasons for the high numbers of Aboriginal children and young people in OOHC in NSW and developing strategies to improve their outcomes. It is expected that the final report and recommendations of the Review will inform further changes to practice, policy and systems. The final report is due to be delivered to the Minister for Family and Community Services by 31 July 2019.

Open adoption

Open adoption Factsheet PDF, 249.39 KB

The NSW Government is committed to the principle of open adoption. Open adoption recognises that there is a benefit for children when they can maintain a relationship with their birth families and when both families (birth and adoptive) remain in contact with each other after an adoption order has been made.

What will change?

Only one amendment will be made in order to streamline adoption orders. The Supreme Court already has the power to dispense with parental consent to an adoption where the application has been made by an authorised carer. The amendment to the Adoption Act 2000 extends this power to applications by guardians.

The Supreme Court can only dispense with the consent of a birth parent if the child has established a stable relationship with their guardians or authorised carers, the adoption will promote the child’s welfare, and in the case of an Aboriginal child, all other alternatives to adoption have been considered.

Birth parents still have the right to join the adoption proceedings and oppose their child’s adoption.

Adoption of Aboriginal children

For Aboriginal children, adoption remains the last resort for permanent placement after all other options have been thoroughly considered. The existing safeguards in relation to the adoption of Aboriginal and Torres Strait Islander children and young people under the Children and Young Persons (Care and Protection) Act 1998 and the Adoption Act 2000 remain unchanged, including:

  • Independent evidence-based assessments to determine that the carer holds attitudes, cultural understanding and capacity to support connection to family, community and culture.
  • Consultation with family and kin, community and/or Aboriginal practitioners regarding cultural needs of the child.
  • The Secretary of the Department of Family and Community Services must be satisfied that an adoption order for an Aboriginal child is clearly preferable and in the best interests of the child to any other action that could be taken.
  • The Supreme Court cannot make an adoption order unless it is satisfied that the Aboriginal child placement principles have been properly applied and the best interests of the child will be promoted by the adoption.
  • An adoption application for an Aboriginal child requires:
    • the Aboriginal child placement principles to be applied
    • Aboriginal participation in decision-making
    • consideration of all alternatives to placement for adoption
    • the opportunity for birth parents to participate in the development of an adoption plan
    • consultation with a local community based and relevant Aboriginal organisation
    • mandatory written information to be provided to birth parents and the child – this includes information about alternatives to adoption, financial and support services, possible emotional effects, the legal process and rights and responsibilities of parties, including FACS
    • counselling by an Aboriginal counsellor or, if the person refuses counselling, the provision of written information on Aboriginal customs and culture before a person gives consent or refuses to consent to the adoption
    • a preliminary Supreme Court hearing before the placement for adoption of an Aboriginal child with a prospective adoptive parent who is not Aboriginal.

Additional information on the impact of the legislative amendments on Aboriginal children, young people and families

Guardianship orders by consent

Guardianship orders by consent Factsheet PDF, 130.03 KB

The reforms to guardianship orders empower families to decide who can best parent their children where they recognise they are unable to. Where both parents consent to a guardianship order, this means less time in court and a greater focus on the best interests of the child or young person.

The amendments make it clear that guardianship orders can be made by consent. Where a guardianship order is the agreed best possible outcome for a child or young person, these agreements can now be legally formalised in the Children’s Court, without the need for a hearing. The Court will no longer need to rule that there is no realistic possibility of restoration.

Legal advice

The amendments require that parties consenting to a guardianship order, taking parental responsibility away from a parent, must receive independent legal advice. The Children’s Court must be satisfied that the parties understand the nature and legal effect of the proposed guardianship order and that their consent has been freely given. The Court can also appoint a legal representative for a child or young person to ensure that they also understand the proposed guardianship order.

The child is at the centre of all decisions

The Children’s Court must also be satisfied that the proposed guardianship order will not contravene the principles of the Children and Young Persons (Care and Protection) Act 1998. For example, the Court could refuse to make a guardianship order by consent if it finds that the order would contravene the principles that the paramount consideration is the safety, welfare and wellbeing of the child or young person. Or that the order will contravene the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles.

Contact orders

Currently, where the Court decides that there is no realistic possibility of restoration of a child or young person to their parent and it grants a guardianship order, the Court is only permitted to make contact orders for 12 months in the first instance. The amendments provide that the Children’s Court will be empowered to make contact orders for the life of a guardianship order if it is in a child’s best interests. However, if a child’s needs or circumstances change, parties may agree to vary or rescind the contact orders by a contact variation agreement. To be binding, these agreements need to be in writing and registered with the Children’s Court. Free alternative dispute resolution is available from Legal Aid NSW for contact mediations where there is a dispute about contact or a proposal to change contact orders.

These changes don’t mean that FACS intends to supervise contact where a guardianship order has been made by the Children’s Court.

This will give children and young people, and their parents and families, the assurance of an ongoing connection with each other during the life of a guardianship order, where this is appropriate.

Shorter term court orders

Shorter term court orders Factsheet PDF, 125.09 KB

The amendments make it clear that shorter term court orders can be made to support the objectives of the Permanency Support Program in achieving earlier permanency for children and young people.

Shorter term court orders mean that the Department of Family and Community Services (FACS) needs to focus on achieving the permanency plan goal earlier to reduce the time that children spend in out-of-home care. This will lead to better outcomes for children.

Orders allocating parental responsibility to the Minister

Where the Children’s Court has approved a permanency plan involving restoration, guardianship or adoption, the maximum period of an order giving parental responsibility to the Minister will be 24 months, unless the Court is satisfied that special circumstances exist.

Previously, long term parental responsibility orders were often sought until a child turned 18 years of age. This practice did not support ongoing assessment and service delivery where the case plan goal is restoration, guardianship or adoption.

Shorter term court orders will provide greater certainty that a child’s permanency plan will be achieved within 24 months after the order is made by the Children’s Court.

Realistic possibility of restoration

The Children’s Court must not make a final care order unless it has independently and expressly determined whether or not there is a realistic possibility of restoration. The Court will now be able to assess the possibility of restoration within 24 months. FACS will need to produce evidence to satisfy the Court that restoration is realistic with the provision of required support to parents.

Under the current approach, the Children’s Court has to make this decision as a point in time assessment on the date of the hearing. The Court can now look at the realistic possibility of whether a child or young person can be restored to their parents within the next two years if the steps in the restoration plan are achieved successfully.

Earlier preservation and restoration

Earlier preservation and restoration Factsheet PDF, 126.22 KB

Our first priority is to keep families safely together

The amendments build on recent NSW Government initiatives including the Permanency Support Program, Their Futures Matter and the Targeted Earlier Intervention reforms. These reforms aim to strengthen family functioning and support families to stay together.

Alternative dispute resolution

To further strengthen efforts to keep families together, the amendments require the Department of Family and Community Services (FACS) to offer alternative dispute resolution (ADR) processes to families before seeking orders from the Children’s Court. Unless there are exceptional circumstances. Participation in alternative dispute resolution processes by families will remain voluntary, but will be actively encouraged.

In most cases the preferred form of ADR will be Family Group Conferencing (FGC). FGC has shown to be successful in NSW and internationally in keeping families together and preventing entries into care. FGC supports family-led decision-making. An independent facilitator helps bring families together to create a plan to keep their children safely at home or explore other permanency options that avoid unnecessary entry into care.

Prioritised access to services for children and families

The amendments strengthen the obligation on government agencies and funded non-government organisations to give prioritised access to services to a child or young person who is at risk of significant harm and their family.

Restoration timeframes

The Children’s Court can decide whether there is a realistic possibility of restoration in a 24 month period, allowing the Court to consider whether restoration will be possible into the future. Previously the Court had to decide whether restoration was possible on the date of the hearing. The Court can now look at whether a child will be able to live safely at home in the next 24 months if the steps in the restoration plan are achieved successfully.

Children will now be able to be restored to their parents up to 12 months before a court order involving restoration expires (previously it was 6 months).

Streamlining court processes

Streamlining court processes Factsheet PDF, 123.01 KB

Court processes have been clarified and streamlined to ensure that a child or young person’s needs will be responded to quickly and to minimise litigation.

Changes relating to guardianship orders

The amendments clarify that the Children’s Court can make guardianship orders by consent. Where a guardianship order is the agreed best possible outcome for a child or young person, these agreements can now be legally formalised in the Children’s Court by consent, without the need for a hearing. The Court will no longer need to rule that there is no possibility of restoration, empowering families to make decisions about the care arrangements for their children.

The Children’s Court will also be empowered to make contact orders for longer than 12 months where a guardianship order is made. Providing the assurance of an ongoing connection between children and their parents where this is appropriate and in the best interests of the child or young person.

Progress reviews of suitability of care arrangements

The Children’s Court will reopen and review the progress in implementing a child or young person’s care plan if it is not satisfied proper arrangements have been made for their care and protection.

This is an important safeguard for children and young people to complement shorter term court orders. It will create a better pathway for children to remain visible to the Court after final orders are made.

Variation and rescission of care orders

The amendments provide that an application to vary or rescind a previous care order may only be made following approval by the Court. The Court may only approve an application if it appears that there has been a significant change in any relevant circumstances since the care order was last made or varied.

The Court must take certain matters into consideration before approving an application. When the Children’s Court reviews the care arrangements for a child in considering an application to vary or rescind a care order, the Court must now prioritise the views of the child or young person. This means that children and young people are more active participants in decisions affecting their lives.

There are times when repeated applications for leave to vary or rescind a care order can be particularly destabilising for a child or young person. The Children’s Court can now dismiss an application for leave to vary or rescind a care order if it is satisfied an application is frivolous, troublesome, an abuse of process or is one of a series of applications made by the applicant with no reasonable prospects of success. This is consistent with the statutory powers available to other Courts and Tribunals.

Care proceeding participants can now make an application to vary an interim order during the proceedings. This may shorten care proceedings and be fairer to participants.

Prohibition on publication of out-of-home care (OOHC) status

Prohibition on publication of out-of-home care (OOHC) status Factsheet DOCX, 204.9 KB

Section 105 of the Children and Young Persons (Care and Protection) Act 1998 prohibits the publication or broadcasting of the name of a child or young person involved in proceedings in the Children’s Court or subject to a report to Family and Community Services (FACS) in any form accessible by people in NSW at any time before, during or after the proceedings.

This prohibition applies to the publication or broadcast of the child or young person’s name or any identifying information until the child or young person turns 25 years of age or dies.

Amendments to section 105 have been made to strengthen the prohibition on publishing the names and identifying information of children and young people in OOHC.

What has changed

The amendments put beyond doubt that the status of a child or young person being in OOHC or under the parental responsibility of the Minister is not to be published, unless an exception exists.

What this means is it will be illegal to publish or broadcast the name of a child or young person and say they are or have been in OOHC, foster care, a ward of the state, in the care of an authorised carer or under the parental responsibility of the Minister, in whichever way this is expressed.

The safety, privacy and welfare of children and young people in OOHC is important. The change was made to the legislation to make it clear that it is prohibited to publish information identifying that a child or young person is or was in OOHC or under the parental responsibility of the Minister. The change will allow a child or young person’s OOHC status to remain private and confidential given the stigma or feelings of shame that may arise for a child or young person if it becomes widely known that they are or were in OOHC.

A child has a right to privacy and to participate in decisions that have a significant impact on their lives – this includes decisions to publish information disclosing that the child is in or was in OOHC. It is also important that a child or young person is able to control who knows that they are in or were in OOHC.

Exceptions

Section 105 contains exceptions to the prohibition on publishing names and identifying information. These exceptions have been retained and include:

  • where a young person consents
  • in the case of a child, where the Children’s Court consents
  • in the case of a child or young person under the parental responsibility of the Minster, where the Secretary of FACS consents if the Secretary considers the publication or broadcast is to the benefit of the child or young person.

The amendments have also introduced two new exceptions that allow the Coroner’s Court to:

  • publish the name of a child or young person in its findings in an inquest concerning the suspected death of the child or young person
  • consent to the publication of the name of a child or young person whose suspected death is the subject of an inquest by the Coroner and the publication would be in the public interest.

Responses to frequently asked questions

Responses to frequently asked questions PDF, 157.45 KB

Alternative dispute resolution (ADR)

Difference between ADR and FGC

FACS must now offer all families ADR before a care application is made in the Children’s Court.

ADR is a process where an accredited independent person helps people reach an agreement. There are different models of ADR that families can consider. More information on ADR can be found here.

The Department of Family and Community Services (FACS) promotes the use of Family Group Conferencing (FGC) as the preferred ADR process. FGC supports family-led decision-making to resolve child protection concerns. It has been shown to be successful in NSW and internationally in keeping families together and preventing entries into care.

Access to legal advice

Families can obtain independent legal advice before deciding to accept an offer of ADR.

Where no Children’s Court proceedings have commenced, families are able to access free legal advice through LawAccess NSW or their local Community Legal Centre. Families can also seek legal advice and assistance from other free legal services such as Salvos Legal or through the NSW Law Society’s pro bono scheme. Families can also obtain legal advice and representation from their own lawyer.

When Children’s Court proceedings have commenced, or where a registered care plan and consent orders are proposed under section 38 of the Children and Young Persons (Care and Protection) Act 1998 (Care Act), families can apply for a Legal Aid grant to obtain free legal advice and representation in relation to ADR and legal proceedings.

Evidence of matters discussed during ADR, the conduct of the parties and documents prepared specifically for the ADR process are inadmissable in any proceedings before the court or tribunal.

Referral

Participation in ADR is voluntary and confidential.

Consent from the family must be received prior to an ADR referral being completed. Once consent is obtained FACS will make the referral to an independent facilitator.

For Aboriginal families, this process can be supported by an Aboriginal caseworker and facilitator or the facilitator and the family can talk about other cultural support needed.

Guardianship orders by consent
Access to legal advice

All parties consenting to an order that allocates parental responsibilitity away from a parent must receive independent legal advice. The Children’s Court must be satisfied the parties have received independent legal advice, that they understand the nature and effect of the proposed order and their consent has been freely given.

When Children’s Court proceedings have commenced, or where a section 38 registered care plan and consent orders are proposed, families can apply for a grant of Legal Aid to obtain free legal advice and representation in relation to ADR and legal proceedings.

A guardian can seek to be a party to the proceedings and would therefore obtain legal advice. Legal Aid can provide advice to a proposed guardian.

Guardianship assessment process

The assessment process for guardians remains the same. A suitability assessment, suitability statement and care plan still need to be filed with the Children’s Court. Evidence of quality cultural planning is also required.

The assessment is robust and lengthy because a guardian has to demonstrate their ability to look after a child without the involvement of FACS or a funded service provider that provides out-of-home care (OOHC).

Ongoing support and family contact

Guardians receive the guardianship allowance to help them meet the needs of the child or young person. The guardianship allowance is the same as the carer allowance. In some circumstances additional guardianship support payments are available. Guardians may also be eligible for benefits and concessions from the Australian Government Department of Human Services (Centrelink). Guardians can also access training and support provided by My Forever Family NSW.

A contact order can now be made for children on guardianship orders up until the child is 18 years of age. The expectation that the guardian maintains and supports the contact remains. If contact isn’t proceeding as planned either party can approach Legal Aid NSW for free mediation. Contact orders can be amended through mediation and the change registered with the Children’s Court.

Restoration
Timeframes

The Children’s Court can now decide whether there is a realistic possibility of restoration in a 24 month period, allowing the Court to consider whether restoration will be possible into the future. This should lead to more children being safely restored because restoration is assessed over a longer period of time. An application to extend a court order can be made if more time is needed to achieve restoration.

If a shorter term court order has been made with a goal of restoration, children can be restored to their parents anytime during the 12 months prior to the date the order expires.

If the restoration does not proceed before the expiry of the court order, FACS will need to apply to vary or rescind that order and provide evidence about why the restoration has not been achieved within the required time frame.

Evidence supporting the restoration of a child to their parents The evidence threshold for parents to achieve restoration remains the same. As always, children need to be safe.
The court will want to see a comprehensive plan detailing the supports provided to the family and concrete steps of what FACS and the parents need to achieve by certain dates.
Section 90 considerations
Views of children

Consistent with a child’s rights, their views will be sought regardless of age. The weight given to those views by the court will depend on the child’s age and development.

Children and young people over 12 years of age provide direct instructions to their legal representative. For children under 12 years, their legal representative acts in their best interests.

Open adoption
Guardianship is not a pathway to adoption Guardianship and adoption are separate permanency options. Guardianship is not a pathway to adoption and guardians do not have preferential access to adoption.
FACS involvement in applications by guardians

A guardian can seek to adopt a child in their care. This requires the adoption assessment process to commence which is different to the assessment process for becoming a guardian. Only in exceptional circumstances would FACS make the adoption application on behalf of a guardian.

For a relative guardian, a relative can make an adoption application without consulting FACS. For a non-relative guardian, FACS would need to either consent to the adoption application or be the applicant.

Adoption of Aboriginal children and young people

Adoption is the last permanency option for an Aboriginal child or young person.

The safeguards to ensure that Aboriginal children and young people remain with family, kinship groups or community wherever possible have not changed. This includes the Permanent Placement Principles and the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles relating to self-determination, participation in decision-making, and placement of children in OOHC.

The Adoption Act 2000 makes specific provisions that address the needs of Aboriginal children, families and communities and sets out additional requirements specific to adoption applications for Aboriginal children.

The Secretary of FACS must agree to the adoption of any Aboriginal child from OOHC.

Miscellaneous
Do the legislative changes permit forced adoptions? There are many legal safeguards that protect against forced adoptions, including providing parents with mandatory written information about adoption and the adoption process. Birth parents must be provided with the mandatory written information and have received counselling from a registered adoption counsellor before they can give consent to their child’s adoption. Birth parents must also be notified of any adoption application and can oppose that application in the Supreme Court. The NSW Government remains committed to open adoption in recognition of the benefits for children where both families (birth and adoptive) remain in contact with each other after an adoption order is made.
Is there a two-year limit on children remaining in care?

Shorter-term court orders will only apply where the permanency plan is restoration, guardianship or adoption. For permanency plans involving restoration, guardianship or adoption, the maximum period for which an order may be made allocating all aspects of parental responsibility to the minister will be 24 months, unless the Children’s Court is satisfied that special circumstances exist.

In practice, the time between a care application being made and a permanency plan being implemented extends this period to 30-36 months depending on the age of the child.

Will all children be adopted from care after two years? No. Children will not be automatically adopted from out-of-home care. The Permanent Placement Principles and the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles within the Care Act determine the preferred order for placing a child or young person safely in a permanent home. Adoption remains the last resort for Aboriginal children.
Can parents still apply to get their children back?

Yes. Parents will still be able to apply to the Children’s Court to have the care orders for their children varied or rescinded (cancelled). The opportunity for a parent to bring a section 90 application under the Care Act to change a care order has not been removed. The Children’s Court may grant leave to vary or rescind the order if there has been a significant change in circumstances since the order was last made or varied.

The Children’s Court must now prioritise the views of children and young people in applications for leave to vary or rescind a care order. This will assist a parent’s application in some cases.

The changes do give the Children’s Court power to dismiss a section 90 application in certain circumstances including where it is an abuse of process or where a person has brought a series of unsuccessful applications and the current application has no reasonable prospects of success.

What support do birth families get in Court in relation to orders for guardianship and adoption?

The amendments provide that parties consenting to a guardianship order must receive independent legal advice. The Court must be satisfied that the parties understand the nature and effect of the proposed order and that their consent has been freely given. The Court can also appoint a legal representative for a child or young person. The Court must also be satisfied that the guardianship order will not contravene the principles of the Care Act (including that the principle that the safety, welfare and wellbeing of the child or young person is the paramount consideration).

For adoptions, the Secretary of FACS must ensure that parents are given mandatory written information before they consent or refuse to consent to an adoption. The information provided to parents includes detail on where they can obtain legal advice. Legal Aid NSW also provides free legal advice in relation to adoptions.

How were stakeholders consulted in developing the legislative amendments? More than 100 written submissions were received in response to the discussion paper Shaping a Better Child Protection System discussion paper from a diverse range of stakeholders. FACS also held seven workshops with stakeholders across NSW, including Aboriginal stakeholders. The report on the outcomes of the consultation process is available on the FACS website.

Information for funded service providers

This practice guidance has been developed to provide detailed information to funded service providers about the changes and implications for casework practice with children and their families.

Resources for families

These two resources have been designed to provide information about the legislative reforms in a plain English format. One is specifically designed for working with Aboriginal families.

Changes to child protection and what it means - web version

Changes to child protection and what it means - print version (To print you will need to use the option ‘2-Sided Print, Flip on Short Edge’ so it can be folded correctly.)

Working with Aboriginal families - Changes to the law - web version

Working with Aboriginal families - Changes to the law - print version (To print you will need to use the option ‘2-Sided Print, Flip on Short Edge’ so it can be folded correctly.)

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Last updated: 21 Dec 2018
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