Child wellbeing and protection laws in NSW

The Children and Young Persons (Care and Protection) Act 1998 (the Care Act) establishes the primary legislative framework for child protection in NSW. The Children’s Guardian Act 2019 (Children’s Guardian Act) and the Child Protection (Working with Children) Act 2012 also include important legislative provisions relating to children.

This Part includes the following sections:

• The Care Act
  • Objects of the Care Act
  • Principles of the Care Act
  • Permanent placement principles
  • Aboriginal and Torres Strait Islander principles
  • Child protection reporting
  • Care applications to the Children’s Court
  • Information sharing
  • Out-of-home care
• Child Protection (Offender Registration) Act 2000
• Child Protection (Working with Children) Act 2012
• Children’s Guardian Act 2019
  • Accreditation and monitoring of adoption service providers and out-of-home care (OOHC) agencies
  • Reportable conduct scheme
  • Official Community Visitors scheme
• Other legislation relating to children
  • NSW legislation relating to children and young people
  • Commonwealth legislation relating to children and young people

Objects of the Care Act

The objects of the Care Act are contained in section 8, and provide:

(a) that children receive such care and protection as is necessary for their safety, welfare and wellbeing, having regard to the capacity of their parents to other persons responsible for them, and

(b) recognition that the primary means of providing for the safety, welfare and wellbeing of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(c) that all institutions, services and facilities responsible for the care and protection of children provide an environment for them that is free of violence and exploitation, and provides services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(d) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

Principles of the Care Act

The overriding principle of the Care Act is that the safety, welfare and wellbeing of the child or young person must be paramount in all decisions concerning a child (section 9 of the Care Act). All agencies should work together to achieve this.

Subject to the paramountcy principle above, some of the other principles to be applied are:

(a) Children must be given an opportunity to express their views freely and those views given due weight in accordance with the developmental capacity of the child.

(b) Account must be taken of the culture, disability, language, religion and sexual orientation of the child.

(c) In deciding what action is necessary to take to protect a child, the course to be followed must be the least intrusive intervention.

(d) If a child is unable to remain in their family environment, they are entitled to special protection and assistance from the State and their name, identity, language, cultural and religious ties should be preserved.

(e) If a child is placed in out-of-home care (OOHC), they are entitled to a safe, nurturing, stable and secure environment.

The Convention on the rights of the child is the main international human rights treaty on children’s rights, which Australia ratified in 1990. The Care Act principles reflect the CRC. For example the first Care Act principle refers to children being given the opportunity to express their views which is also a guiding principle of the CRC.

Permanent placement principles

The top priority is for children to remain in the care of their parents or carers. Where this is not possible, the permanent placement principles under section 10A of the Care Act guide how we provide children with a stable and safe home.

The preferred order of permanency options for a child is:

1. Keeping them with or returning them to their family (preservation or restoration).
   • Our first priority is to keep families safely together. Alternative Dispute Resolution (ADR) must be offered to a family when a child or young person is found to be in need of care and protection in an effort to prevent them from being taken into care. ADR may be offered to a family when a child is in care and restoration is being considered. ADR can be used to inform a Family Action Plan after safety and risk issues are assessed.
   • A parental responsibility contract made under section 38A is a voluntary agreement between DCJ and one or more primary carers of a child. It aims to improve the parenting skills of the carers and encourage them to take specific actions to assist them in taking greater responsibility for their child. A parental responsibility contract can be offered when DCJ has assessed that there are concerns for a child’s safety and wellbeing, and the primary carers can commit to taking realistic steps to address these.
   • A parental responsibility contract is not a court order, but is registered with the Children’s Court. It is time limited to periods not exceeding 12 months and can only be entered into once within any 18 month period with the same primary carer.
2. Guardianship - the child is placed with a guardian who is a relative, kin or other suitable person.
3. Open adoption - where a child becomes a legal member of the adoptive family although remains connected with their birth family and cultural heritage (except in the case of an Aboriginal or Torres Strait Islander children where this is the least preferred option).
4. Parental responsibility to the Minister.

Applying the permanent placement principles in practice means considering the best interests of a child. This may mean, when a child is in foster care, considering permanency options such as guardianship and adoption to determine what is in the child’s best interests.

For more information on permanency pathways see Permanency Support Program.

Aboriginal and Torres Strait Islander children

There are specific principles in the Care Act relating to Aboriginal and Torres Strait Islander children and families (sections 11-14).

The Aboriginal and Torres Strait Islander Principles focus on self-determination, participation in decision making and ensuring an Aboriginal and Torres Strait Islander child’s continued connection to identity, family and community. The principles acknowledge the paramount importance of each child staying connected to their family, community, culture and country. They recognise Aboriginal and Torres Islander people have the knowledge and experience to make the best decisions concerning their children, and enable Aboriginal people and communities to guide the implementation of the principles to ensure the best placement outcome for the child.

If Aboriginal or Torres Strait Islander children and young people require statutory OOHC, placements must be in line with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles as outlined in section 13 of the Care Act. The purpose of these placement principles is to ensure immediate recognition of Aboriginal and Torres Strait Islander children and prioritisation of their cultural permanency, by setting out a general order of placement aimed at ensuring the right to be raised within their own culture. The principles recognise the importance and value of family, extended family, kinship networks, culture, community, and identity, in raising Aboriginal and Torres Strait Islander children.

The general order of placement of Aboriginal and Torres Strait Islander children is, where practical and in the best interests of the child, with a:

• member of their extended family or kinship group
• member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs.
• member of an Aboriginal or Torres Strait Islander family residing in the vicinity of the child’s usual place of residence.
• suitable person approved by the Secretary after consultation with members of the child’s family or kinship group and Aboriginal or Torres Strait Islander organisations that are appropriate for that child.

The Adoption Act 2000 allows for Aboriginal and Torres Strait Islander children to be adopted, but additional requirements must be met before the child is placed for adoption and an adoption order is made. Other placement options in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles are preferable to meet the cultural needs of the child.

For more information visit Understanding and applying the Aboriginal and Torres Strait Islander Child Placement Principle.

Child protection reporting

Mandatory reporters have a legal obligation to report children whom they suspect may be at risk of significant harm. The list of mandatory reporters can be found at section 27 of the Care Act. Anyone who is not a mandatory reporter but suspects a child or young person may be at risk of significant harm is also strongly encouraged to make a report to the Helpline. This is provided for under section 24 of the Care Act.

The Mandatory Reporter Guide (MRG) assists mandatory reporters to:

• Determine whether a report to the NSW Child Protection Helpline or Child Wellbeing Unit is needed for concerns about possible abuse or neglect of a child or young person.
• Identify alternative ways to support vulnerable children and their families where a mandatory reporter’s response is better served outside the statutory child protection system.

Mandatory reporters should use the MRG and their professional judgement, and/or seek advice to assist them in decision making about whether a situation is one of suspected risk of significant harm. Reporters are strongly encouraged to use the MRG except in cases where suspected risk of significant harm is clear.

A child protection report can be made by calling the NSW Child Protection Helpline on 13 21 11. The Child Protection Helpline is open 24 hours a day, 7 days a week.

For more information on child protection reporting, including mandatory reporting see Reporting and responding to child wellbeing and safety concerns

Care applications to the Children’s Court

Care applications made under the Care Act involve filing a report in the Children’s Court in support of the application. The report provides factual information to support a determination that a child is in need of care and protection and the orders being sought.

Applications to the Children’s Court must be made within three working days after the child is removed from their parents or assumed into care (section 45).

DCJ is responsible for bringing care applications to the Children’s Court. The Court should receive the best information possible to assist in making a decision about a child’s long term needs for care and protection.

The Children’s Court may make a care order if they are satisfied that the child is in need of care and protection for any reason, including:

• There is no parent available to care for the child as a result of a death or incapacity or for any other reason.
• The child has been or is likely to be physically or sexually abused or ill-treated.
• The child is suffering or likely to suffer serious psychological harm as a consequence of the domestic environment they are living in.
• The child’s basic physical, psychological or education needs are not being met by his or her parents or primary care givers (section 71).

The Children’s Court can make a variety of care orders depending on the individual circumstances of the particular case it is dealing with. For example, the Children’s Court can order that a child is subject to supervision (section 76) or that they must attend a medical assessment (section 53).

Further information about Children’s Court proceedings and the specific types of orders available can be found in Courts involving children and young people

Information sharing

Chapter 16A of the Care Act provides the legal basis for many organisations that work with children to share information that relates to a child’s safety, welfare or wellbeing. Under Chapter 16A, information can be shared proactively or in response to a request.

For more on information sharing between prescribed bodies, including the type of information that can be shared and process for sharing information see Information sharing for service coordination

Out-of-home care

There are three types of OOHC which are provided for in the Care Act and the Children’s Guardian Act.

Statutory OOHC (sections 135, 135A and 136 of the Care Act) – Statutory OOHC is OOHC provided to children and young people for a period of more than 14 days either pursuant to an order of the Children’s Court, or by virtue of the child being a protected person. Statutory OOHC can only be provided by an authorised carer.

Supported OOHC (sections 135, 135B,151, 152, 153, 154, 155 of the Care Act) – Supported OOHC is arranged, supported or provided as a result of the Secretary forming the opinion that the child is in need of care and protection. These are more informal arrangements than statutory OOHC, they include:

• Temporary care arrangements – these are voluntary arrangements between a parent and DCJ. They can only be made without the parent’s consent if the parents are incapable of providing consent. During these arrangements the Secretary has care responsibility for the child which can only be delegated to an authorised carer. These arrangements can only be made if there is a permanency plan involving restoration. The arrangement is for a period of three months, but may be extended for a further three months. A child can only be under a temporary care arrangement for a maximum of six months in any 12 month period.
• A placement with relative or kin who has parental responsibility and provides care at a place other than the child’s usual home. The person with parental responsibility must have it by virtue of a court order from the Children’s Court or the Family Court (in proceedings where the Secretary was a party).

Voluntary OOHC (section 135 of the Care Act and sections 76, 77 and 79 of the Children’s Guardian Act) – Voluntary OOHC is an arrangement where a child is cared for outside of the family home, and the parent/s retain responsibility of the child. Voluntary OOHC can only be provided by a designated agency, a registered agency or an individual who is authorised by one of these types of agencies or the Children’s Guardian to provide voluntary OOHC. It provides increased protections for children in these arrangements.

A child may remain in voluntary OOHC for more than a total of 90 days in a 12 month period only if the care is provided by a designated agency or supervised by a designated agency or the Children’s Guardian.

For voluntary OOHC periods of more than 180 days in any 12 month period, a care plan must be developed by the designated agency or the Children’s Guardian that meets the needs of the child. This does not apply to a number of voluntary arrangements, including children staying with friends over school holidays, or boarding school arrangements.

The Child Protection Register was established by the NSW Police Force in 2001 under the Child Protection Offender Registration Act 2000 (CPOR Act).

The CPOR Act requires offenders who have been convicted and sentenced for certain offences involving children or child abuse material to register with police when they re-enter the community.

The information provided by each registrable person assists the NSW Police Force to investigate offences against children and through monitoring, intervene and prevent risks to other children.

Further information about the Child Protection Register can be found on the NSW Police Force website.

This Act provides the legislative basis for the Working with Children Checks (WWCC) scheme in NSW. A WWCC is required for people in NSW who undertake child related work. It involves a National Police Check (criminal history record check) and a review of reportable workplace misconduct. The outcome of a check is either a clearance to work with children or a bar against working with children.

Section 6 of Child Protection (Working with Children) Act 2012 provides that child related work (including voluntary work) includes:

• Providing services for children (including - child protection, health, disability services, clubs or other bodies, child care, education, religious services, residential services and transport services)
• Where the work involves direct contact with children
• Where contact with children is more than incidental to the work.

Authorised carers and adults who reside or stay regularly (i.e. several nights a week for a total of more than 21 days) on the property of an authorised carer also require a WWCC.

If cleared, the WWCC will be valid for 5 years even if the employee moves jobs. However, applicants are continuously monitored during this period. Applications for a WWCC are made to the Office of the Children’s Guardian through its website.

The Children’s Guardian Act 2019governs the functions and responsibilities of the Children’s Guardian to:

• Accredit and monitor adoption service providers and OOHC agencies
• Regulate children’s employment
• Administer the Reportable Conduct Scheme
• Administer the Official Community Visitors scheme (in relation to children).

Accreditation and monitoring of adoption service providers and OOHC agencies

Agencies must be accredited by the Children's Guardian to provide adoption services or statutory OOHC under the NSW Children’s Guardian Act. The accreditation process provides a formal framework based on standards for service delivery.

The NSW Child Safe Standards for Permanent Care 2015, which were developed in consultation with the OOHC and adoption sector, are applied by the Children’s Guardian for the accreditation of agencies in NSW. The standards establish a clear benchmark for quality of care that is nurturing, safe and secure from every organisation that provides OOHC. These are strength-based to encourage agencies to continuously strive for best practice.

Reportable Conduct Scheme

The Reportable Conduct Scheme monitors how certain organisations that provide services to children investigate and report on allegations of types of conduct ('reportable conduct' or 'reportable convictions') made against their employees, volunteers or certain contractors. Organisations that are required to comply with the scheme include: schools, child care centres, health services providers, OOHC providers and religious bodies.

When the head of one of these organisations becomes aware of an allegation of reportable conduct or a reportable conviction they must notify the Children’s Guardian within seven business days and conduct an investigation into the allegations (section 29).

‘Reportable conduct’ includes a sexual offence, sexual misconduct, ill treatment of a child, an assault against a child, neglect of a child and behaviour that causes significant emotional or psychological harm to a child (section 20). A ‘reportable conviction’ means a conviction (including a finding of guilt without the court proceeding to a conviction) of an offence involving reportable conduct (section 19).

If the organisation’s final report is not ready to submit within 30 calendar days, the head of the organisation must provide an interim report with information about the progress of the investigation and an expected timeframe for completion (section 36).

For more information on the reportable conduct scheme see Reporting and responding to child wellbeing and safety concerns

Official Community Visitor scheme

The Official Community Visitor Scheme, operated by the Office of the Children’s Guardian, provides support to people living in supported accommodation across NSW. Children in residential OOHC are a focus group of the scheme.

Official Community Visitors (OCVs) have a wide array of powers including:

• entering and inspecting a place where residential OOHC is provided confer with a child who is a resident and
• providing the Children’s Guardian with advice or reports on any matters relating to the conduct of the service (section 145).

OCVs provide an independent voice raising issues on behalf of residents to improve the standard of care they receive, and ensure they achieve their goals, and lead meaningful lives. OCVs come from a wide cross-section of the community, including people who have direct experience and expertise in areas such as disability services and supports, mental health, child protection, OOHC, advocacy, and health care.

NSW legislation relating to children and young people

Adoption Act 2000 and Adoption Regulation 2015 – form the legislative framework for the adoption of children in NSW and (in conjunction with other legislation) those from overseas.

Carers (Recognition) Act 2010 - enacts a Carers Charter to recognise the role and contribution of carers to our community and to the people they care for.

Children and Young Persons (Care and Protection) Regulation 2012 - supports the Care Act including provisions relating to care plans, guardianship orders and medical examinations and treatments.

Children’s Court Act 1987 - establishes the roles and responsibilities of the Children’s Court.

Children (Detention Centres) Act 1987 - includes provisions in relation to the establishment of detention centres, treatment of detainees, parole of detainees and hearing procedures.

Community Services (Complaints, Reviews and Monitoring) Act 1993 - provides the NSW Ombudsman with the power to review certain administrative decisions made by government agencies, conducts a review of the situation of a child in care, systemic reviews of the deaths of children and young people at risk of harm or those in care, and establishes the Child Death Review Team.

Community Welfare Act 1987- aims to ensure the provision of services and assistance to disadvantaged people due to lack of food, shelter or other basic necessities, natural disasters, disability, age, and ethnic group.

Coroners Act 2009- provides a senior coroner with jurisdiction to hold an inquest concerning the death of suspected death of a child in care, a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within three years preceding their death or the death of their sibling or a child whose death is or maybe due to abuse or neglect or occurs in suspicious circumstances.

Disability Inclusion Act 2014 – The Act commits the NSW Government to promoting inclusion of people with disability, to enrich community life for everyone. It is recognised that children with disability are likely to experience discrimination, be disempowered by others or feel invisible. Children with disability have equal rights as all children. These rights are set out in Article Seven of the Convention on the Rights of Persons with Disabilities. The principles of the Disability Inclusion Act 2014 reflect the Convention of the Rights of Persons with Disabilities.

Education Act 1990 – relates to the education of school children in NSW. The principles of the Act provide that every child has the right to receive an education, the education of a child is primarily the responsibility of the child’s parents. It is the duty of the State to ensure that every child receives an education of the highest quality and the primary responsibility of the State in the education of children is the provision of public education.

Ombudsman Act 1974 - sets out the role of the NSW Ombudsman in monitoring and reviewing the provision of community services including investigating complaints about a public authority and providing special reports to Parliament.

Victims’ Rights and Support Act 2013 - recognises and promotes the rights of victims of a crime and establishes the Victims Support Scheme to provide financial and practical support to victims of violent crime. A child or young person who has experienced abuse may be eligible for victims support and assistance including counselling, support and information.

Young Offenders Act 1997 - establishes an alternate regime of dealing with young persons who commit certain offences by diverting them from the Children’s Court by offering a warning, caution or referring the matter to a youth justice conference.

Commonwealth legislation relating to children and young people

The Family Law Act 1975 (Family Law Act)gives the Family Court of Australia and the Federal Circuit Court of Australia the power to make decisions about children and young people as part of family law proceedings.

The Family Law Act covers disputes between persons with an interest in the child or young person’s care (usually parents) about decisions where the child or young person is not necessarily ‘at risk’.

For more information see Courts involving children and young people