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Changes to court processes as a result of Keep Them Safe

Keep Them Safe included a commitment to simplifying processes in the Children’s Court to make it easier for children and families to participate effectively in care proceedings. The Children and Young Person’s (Care and Protection) Act 1998 (the Act) has been amended to achieve this in the following ways:

  • the time for filing an application with the Children’s Court has been extended to no later than 3 working days or 5 days whichever is the lesser after removal or assumption of care
  • the initial care application no longer needs to be accompanied by a formal affidavit – instead a report summarising why the child or young person is in need of care and protection is to be filed with the initial care application
  • clear details are required in a permanency plan detailing how a child or young person’s needs will be met in the foreseeable future – so that everyone involved in the future care of the child or young person will know what needs to be done once the plan has been approved
  • appointment of a President of the Children’s Court to provide leadership to the Court in regards to the complexity of the work carried out by the Court for the care and protection of children and young people
  • introduction of new Alternative Dispute Resolution measures that will provide more opportunities to resolve matters through processes where an impartial person assists the family, Community Services, the child’s legal representative and other relevant parties to resolve the issues between them in a way that involves children, young people and their families in the decision-making process
  • when making a final care order, the Court must give consideration to the permanency plan prepared by Community Services and determine its appropriateness – implementation of the plan is the role of the designated agency supervising the placement.

The Children's Court

The Children’s Court deals with matters related to the care and protection of children and young people, applications for Compulsory Schooling Orders and matters where children and young people are charged with committing a criminal offence.

The role of the Children’s Court is to:

  • hear and determine applications for care orders relating to children and young people
  • hear and determine matters where the child or young person has been charged with a criminal offence
  • hear and determine applications for compulsory schooling orders with respect to the parents of a child, and in some cases the child, who has not been attending compulsory schooling
  • ensure that the best interests of children and young people are the paramount consideration in care proceedings
  • ensure that children and young people’s views are heard by providing them with an opportunity to participate in care proceedings.

Care proceedings in the Children’s Court are conducted with as little formality and legal technicality as possible. The Magistrate can obtain information by asking questions rather than just hearing the arguments and evidence provided by the parties.

The Court may consider any statement, document or information that will assist it to make decisions and generally, the rules of evidence do not apply. However, in criminal proceedings the rules of evidence apply to ensure that allegations against a child or young person are fairly tested and the accused is afforded due process.

A Magistrate will usually hear the matter, but sometimes matters are heard by the President of the Children’s Court, who is a Judge.

This section contains information about:

  • attending the Children’s Court
  • participation of children and young persons
  • Court etiquette
  • legal representation
  • special assistance and support agencies or persons
  • witnesses and expert witnesses
  • attendance at Court by the media.

Attending the Children’s Court

The Children’s Court is a ‘closed court’. Anyone, even people connected to the matter, can be excluded from the Court if the Magistrate decides their presence is not in the best interests of the child or young person. Depending on the matter, the media may also be excluded from the Court. The general public cannot attend Children’s Court hearings.

In relation to criminal proceedings the prosecutor and accused person has a right to appear and be legally represented. In relation to care and protection cases the following people have a right to appear and be legally represented in the Children’s Court:

  • the child or young person
  • each person having parental responsibility for the child or young person
  • the Director-General of the NSW Department of Family and Community Services
  • the Minister for Family and Community Services.

‘Appearing’ is a technical term used to describe the act of attending or presenting at court for a particular matter. If a person appears in person they can address the Magistrate or Judge directly. Being legally represented means that you have a solicitor who will appear on your behalf and will address the Court on your behalf. If someone is legally represented, all communications with the Court or other persons will be made via the legal representative.

If, in the Children’s Court’s opinion, there are other people with a genuine concern for the safety, welfare or wellbeing of the child or young person they can be granted leave to appear.

If a person has been served with an application relating to the child or young person and has been given notice of when to attend Court, but does not do so, then the application might proceed and be heard in their absence.

There are legislative rules concerning the attendance of witnesses and other persons in court proceedings and the production of documents to the Children’s Court.

These rules provide information on attendance at court, the issuing of subpoenas for the appearance of a person to give evidence before a court and production of documents. The person named in the subpoena must attend court on the specified date and time.

Participation of children and young persons

Participation of children and young people is a key principle of the Children’s Court. The Court has the responsibility to ensure:

  • the child or young person has the opportunity to be heard and participate in the proceedings
  • their age and developmental capacity is taken into account so that they understand the proceedings and their implications
  • procedures and rulings are fully explained to them if they ask for an explanation.

While participation is encouraged, in relation to care and protection matters a child or young person is usually not required to attend unless specifically requested to do so by the Court.

If a child or young person subject to care proceedings does attend, the Court may direct them to leave the Court room if circumstances arise or evidence is to be given that might be considered harmful to them.

In regards to care and protection matters, Community Services is required to assist the child or young person in meeting their solicitor before Court, so that they can have the proceedings explained and express their views and where appropriate, give instructions.

Court etiquette

While the Children’s Court is conducted with less formality than other Courts, it still follows general Court practices and conventions, which are:

  • being punctual when attending
  • turning off mobile telephones in the Court room
  • not eating or drinking in the Court room
  • not talking unnecessarily in the Court room
  • not wearing a hat inside the Court room
  • bowing when the Magistrate enters or leaves the Court room
  • remaining standing until the Magistrate is seated
  • standing when the Magistrate leaves the Court
  • bowing to the Magistrate as you enter or leave the Court room, while Court is in session
  • not approaching the Magistrate directly unless specifically asked to do so
  • where a person is represented by a solicitor, not talking to the Magistrate directly, as all conversations while at Court are conducted through the solicitors, unless the Magistrate requests otherwise
  • if asked to speak to the Magistrate (besides when giving evidence in the witness box) stand and move to the front of the row of seats and ensure that you show respect and courtesy at all times
  • addressing the Magistrate as ‘Your Honour’
  • asking permission of the Magistrate before handing over documents to the Court officer
  • not entering or leaving the Court room when a person is taking the oath/affirmation
  • not walking between the bench and the bar table unless directed to do so by the Court .

Legal representation

The Children’s Court may appoint a legal representative to act for a child or young person in care and protection matters. If a child or young person is old enough (usually 12 or over) or capable of giving instructions, the legal representative will act as a direct legal representative. If a child or young person is not able to give instructions the legal representative will act as an independent legal representative.

If a guardian ad litem has been appointed (see below) the independent legal representative will act on the instructions of the guardian ad litem.

A direct legal representative should ensure that:

  • the Children’s Court hears the views of the child or young person
  • all relevant evidence is available to the Children’s Court
  • they act on the instructions given by the child or young person.

The independent legal representative should also ensure that the child or young persons’ views are heard by the Court and that all relevant evidence is available to the Court. The independent legal representative does not have to take instructions from the child or young person and must act in the child or young persons best interests, even where this is different from what the child or young person might want.

The Children’s Legal Service is a specialist unit of Legal Aid NSW. Legal Aid solicitors provide advice and represent children and young people under the age of 18 who are involved in criminal matters in the Children’s Courts. Their aim is to ensure that children and young people have access to professional, face-to-face or telephone-based legal advice at any stage of their legal proceedings.

Children and young people who need advice about criminal law problems are encouraged to contact the:

  • Youth Hotline on 1800 101 818,
  • Bidura Children’s Court on 02 9219 5120
  • Parramatta Children’s Court on 02 8688 3800
  • Aboriginal Legal Service (NSW/ACT) Ltd on 02 8303 6600

Sometimes the Court will also appoint a person other than a solicitor to look out for the best interests of the child or young person during proceedings. This person is known as a guardian ad litem, meaning a guardian for the lawsuit.

A guardian ad litem is usually appointed in special circumstances where age, disability or illness is a factor and their role is to instruct the solicitor (acting for the child or young person) in accordance with the child or young person’s best interests.

In some matters a guardian ad litem is appointed to safeguard the interests of the parent/s and to instruct the parent/s solicitor.

Special assistance and support agencies or persons

It is important to recognise that all children and young people may require general assistance when involved in a Children’s Court process. The Court operates under a legal structure which may be confusing for children and young people.

In addition, a child or young person may require special assistance:

  • with language, via the services of an interpreter
  • if the child or young person is Aboriginal or from a culturally or linguistically diverse background
  • because of a physical, intellectual or learning disability or cognitive impairment.

A support person can attend the Children’s Court to assist, but does not typically appear on behalf of people appearing in court. A support person’s attendance will generally not be allowed if:

  • the proposed support person is a witness
  • the child or young person opposes the support person’s presence
  • there is another reason to deny permission, such as where the support person’s presence is considered against the best interests of the child or young person.

A support person must comply with any direction given by the Magistrate during the hearing or other Court attendance. A support person is not allowed to give instructions to a solicitor at the hearing, but may act as an interpreter if the Court agrees. It is important that the support person or agency maintains a focus on the best interests of the child or young person who is the subject of the proceedings.

Witnesses and expert witnesses

Professionals or workers from government and non-government organisations may be called upon to give evidence in care proceedings. The role of these witnesses is to assist the Court to gain as thorough an understanding as possible of the family or child’s situation.

Professionals and workers from government and non-government organisations can provide information about the services that have been provided to a family and in most circumstances, evidence will be submitted to the Court in affidavit form. The Court can require witnesses, who have sworn or affirmed an affidavit, to give further oral evidence in Court.

Professionals or workers who may be able to assist the Court in this way include community health workers, family doctors, counsellors, early intervention workers and, where a child is placed away from their parents, contact workers or designated agency workers.

Expert witnesses may be called on to provide an expert’s report or to give opinion evidence in proceedings before the Children’s Court.

Expert witnesses are generally engaged to assess the child, family, or another party once the Court proceedings have started. Expert reports can be ordered by the Court, or a party may call their own “expert witness”.

Expert witnesses are different to other witnesses in that they are not limited to describing events, actions or situations but are required to provide an opinion on an issue or a number of issues relevant to the proceedings, such as a person’s capacity to care for a child or the nature of a child’s injuries.

Expert witnesses are engaged because they have particular skills, experience and expertise in relation to an area of knowledge which enables them to provide a report or form an opinion which the Court can use to assist in making its decision. For example, the Children's Court Clinician, who provides independent expert clinical assessments of children, young people and their families, is an example of an expert witness. Other people who may be called as expert witnesses include paediatricians, psychiatrists and other medical experts.

An expert witness’s duty is to assist the Court impartially and not to act as an advocate for any party.

An expert witness’s conduct must be guided by the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedure Rules 2005.

Attendance at Court by the media

The media generally has a right to attend Court and report on proceedings, but in any report, article etc cannot identify any child or young person:

  • who is the subject of the matter
  • who gives evidence in the matter
  • who is mentioned in the matter.

The Court can direct that the media be excluded for some or all of the proceedings.

If for some reason the media wish to publish identifying details, they need to obtain consent from:

  • the Children’s Court, if the child is under the age of 16
  • directly from the young person in question, if they are aged 16 or over
  • the Director-General, if the child or young person is under the Minister’s parental responsibility.

The rules of non-identification apply before, during, and after any court or non-court proceedings until the child or young person reaches 25 years of age. They also cease to apply if the child or young person dies before the age of 25.

If the media does not comply with these rules and a child or young person is identified without appropriate consent, then a criminal offence has been committed.

Care and protection proceedings in the Children's Court

Removing children and young people from their parents' care

There are times when Community Services or the Police have to remove a child or young person from their parents or carers. This step can only be taken when:

  • there are reasons to suspect that the child or young person is at immediate risk of serious harm, and
  • an Apprehended Violence Order will not be sufficient to protect the child or young person from harm.

A child or young person can also be removed where it is suspected that the child or young person is in need of care and protection and:

  • is, or has recently been, on premises being used for prostitution, child prostitution or pornographic purposes, or has been participating in prostitution or used for pornographic purposes, or
  • in relation to a child, he or she is not subject to the supervision or control of a responsible adult, and living in or habitually frequenting a public place and is in need of care and protection.

Generally, in these circumstances a child or young person will be removed without a search warrant and Community Services will be required to make a care application in respect to that child or young person in the Children’s Court within three working days.

However, sometimes Community Services or Police will obtain a search warrant to remove a child or a young person where the child or young person is at risk of serious harm.

A search warrant can also be obtained to:

  • search for and remove a child from premises and present that child or young person to a medical practitioner where there has been a failure to comply with a notice requiring medical examination, or to
  • locate and return a person who is under the parental responsibility of the Minister who has left or been removed from the care responsibility of the Minister.

If the child or young person is at risk of serious harm, but currently safe (for example in a hospital) their care might be assumed by the Director-General without the need for them to be physically removed from where they are.

If a child or young person is removed or assumed into care without a Court Order, Community Services must advise the Children’s Court about the removal or assumption within three working days.

Where a child or young person is already the subject of care proceedings and cannot remain in the care of their parents or carers, an application for their removal and placement in the care of the Minister can be made even where Children’s Court proceedings are already underway.

Further information about removing children and young people from their parent(s) care can be found at: Removal and assumption of care flowchart.

This section provides more information about key stages in Court proceedings:

  • First mention or return date
  • Adjournment
  • Interim Orders
  • Alternative Dispute Resolution
  • Care Circles
  • Determination Hearing
  • Final Orders
  • Care Plans
  • Challenges to Court Orders
  • Stay of Proceedings
  • Children’s Court proceedings flowchart

First mention or return date

Once Community Services 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.

Adjournment

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.

Interim orders

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 Community Services, 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 Conferences 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 Conferences 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

Community Services 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 convenor 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 Community Services, 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.

Care Circles

The Care Circles program currently operates in the Nowra/Ulladulla area where Aboriginal community representatives help Community Services 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)
  • Magistrate
  • Community Services legal representative
  • Community Services Manager Casework.

Sometimes others may participate in the Care Circle such as:

  • the Community Services 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, Community Services prepares a care plan taking into account those recommendations.

At the second Care Circle, the Community Services 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.

Further information about how a Care Circle operates can be found at the Care Circle flow chart.

Determination hearing

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.

Final orders

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 Community Services.

That care plan must make provision for the allocation of parental responsibility, the type of placement that Community Services 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.

Care plans

A care plan is used to formalise agreements between parties (usually between Community Services 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 Community Services.

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.

Children’s Court proceedings flow chart

A visual depiction of Children’s Court proceedings can be found in the Children’s Court proceedings flow chart.

Orders made by the Children’s Court in care and protection matters

The Children’s Court may make a range of orders to ensure the safety, welfare and wellbeing of a child or young person.

Community Services can and should make a care application to the Children’s Court if there are reasonable grounds to believe that a child or young person is in need of care and protection.

Before the Court makes an order, Community Services must submit a care plan to the Court. As far as possible a care plan should be made with the agreement of the child or young person and their family.

The Children’s Court must take into account the interests of any siblings of the child to which the care plan relates in determining what orders are made.

The Children’s Court often uses expert assessments to guide the making of an order.

This section  provides more information about:

  • Emergency Care and Protection order
  • Children’s Court Clinic
  • Assessment order
  • Parent responsibility contract
  • Other care orders

Emergency Care and Protection Order

In situations where there is an urgent need to protect a child or young person, Community Services can apply to the Children’s Court for an Emergency Care and Protection order. The Children’s Court may make an Emergency Care and Protection order when satisfied that the child or young person is at risk of serious harm.

The Emergency Care and Protection order places the child or young person in the care responsibility of the Director-General, or the person specified in the order. It has effect for a maximum of 14 days and can be extended once only, for a further maximum of 14 days.

The Children’s Court may dismiss an application for an Emergency Care and Protection order if it finds the child or young person is not at risk of serious harm.

Children’s Court Clinic

The Children’s Court Clinic provides independent expert clinical assessments of children, young people and their families involved in care proceedings. These assessments assist the Court in making its decisions.

Assessment order

An application may be filed with the Children’s Court to assess:

  • a child or young person’s physical, psychological, psychiatric or other medical needs
  • a person’s capacity for parental responsibility.

Parent responsibility contract

A parent responsibility contract is a voluntary agreement between Community Services and one or more primary carers of a child or young person. It aims to improve the parenting skills of the carers and encourage them to take specific action such as attending a support service.

A parent responsibility contractt is not a Court Order. It is a tool to support the attainment of a case plan goal and it specifies actions to be undertaken e.g. counselling or drug testing.

If an agreed target in a parent responsibility contract is breached, a contract breach notice may be filed in the Children’s Court where it will be presumed by the Court that the child or young person is in need of care and protection. The onus is then on the primary carer to rebut this presumption.

Parent responsibility contract are time limited to periods not exceeding six months and can only be entered into once within any 12 month period with the same primary carer.

Free legal advice

Other care orders

The Court can make a range of other orders that includes:

Removing a child or young person or assuming care responsibility

Removal of a child or young person from their parents or carers is only considered where there are reasonable grounds to believe that:

  • the child or young person is at risk of serious harm, and
  • the risk is immediate, and
  • less intrusive actions are insufficient to reduce the risk of serious harm.

A child or young person may be removed with or without a search warrant. Where a child or young person is at risk of serious harm and it is not in their best interests to be removed from the premises where they are currently located (such as a hospital, respite care, or other service), Community Services may assume their care responsibility instead of removing them.

Assuming care responsibility occurs by serving an Order for Assumption in Hospital or Other Premises on the person who appears to be in charge of the premises, whether or not they are a parent of the child or young person. The order does not cease to have effect merely because the child or young person is transferred to different premises.

Exercising this power ensures that a child or young person is not returned to an environment where they are in immediate risk of harm or further abuse.

Where a child or young person has been removed or their care responsibility has been assumed the following actions occur:

  • information is provided to the child or young person and carer
  • parents or usual carers are kept informed
  • the child or young person is informed they may apply for discharge
  • a placement is arranged
  • the matter proceeds to the Children’s Court within 3 working days.

Other care orders

A care application may be made to a Children’s Court by Community Services where there are reasonable grounds to believe that a child or young person is in need of care and protection. There are a number of different care orders that can be sought. They include:

  • Order prohibiting act by a person: this order prohibits any person, including a parent of a child or young person, from doing anything that could be done by the parent in carrying out his or her parental responsibility. This includes taking a child or young person out of the state or country, disciplining a child or young person in a particular manner, consenting to an unusual medical procedure that is highly likely to be detrimental or leaving a child or young person in the care of a particular person.
  • Order for supervision: this is considered where a child or young person is assessed to be in need of care and protection, the concerns do not prevent the child or young person from residing with their family or usual carers but close monitoring and/or direction of the child or young person is required.
  • Order accepting undertakings: this is a formal promise to the Court by a child, young person or their birth parent(s) to act, or to refrain from acting, in a particular manner.
  • Order for the provision of support services: this requires a service provider to deliver services to the family.
  • Order to attend therapeutic or treatment program: such orders can be made to facilitate appropriate therapy and intervention where a child under the age of 14 years has displayed sexually abusive behavior.
  • Order for contact: this may be applied for by any party to proceedings to direct contact between a child or young person and any other person who is significant to them, including requirements such as minimum contact and supervision. Orders for Contact are only sought when informal arrangements are inappropriate because previous contact arrangements have failed, or because current arrangements cannot be resolved by agreement.
  • Order allocating parental responsibility: where a child or young person is in need of care and protection the Court may make an order allocating parental responsibility, or aspects of it. The specific aspects of parental responsibility that may be allocated include, but are not limited to, the child or young person’s:
    • residence
    • contact arrangements
    • education and training
    • religious upbringing
    • medical treatment.

Criminal matters in the Children's Court

Children and young people can be charged with criminal offences from the age of 10. Most proceedings for criminal offences are commenced in, and determined by, the Children’s Court. However, some proceedings may need to be determined by the District or Supreme Court depending on the gravity of the offence. Proceedings for traffic offences will ordinarily be dealt with in the Local Court provided the person alleged to have committed the offence was old enough to obtain a license or permit.

When hearing charges against children and young people, the Children’s Court operates as a criminal jurisdiction.

The Court can request that Juvenile Justice become involved with the child or young person under the terms of the:

  • Children (Detention Centres) Act 1987
  • Children (Community Service Orders) Act 1987
  • Young Offenders Act 1997
  • Children (Interstate Transfer of Offenders) Act 1988.

This section provides more information about:

  • Right to legal representation
  • Attending Court
  • If a child or young person pleads not guilty
  • If the child or young person admits the offence or the offence is proven
  • Attending Court by audio visual link
  • Orders
  • Sentencing

Right to legal representation

By law, children and young people have the right to get legal advice before making a formal statement to Police.

When a child or young person is going to Court they should have their own legal representation or ask to see the duty solicitor before going into the Court room.

The Children’s Legal Service is a specialist unit of Legal Aid NSW. Legal Aid solicitors provide advice and represent children and young people under the age of 18 who are involved in criminal matters in the Children’s Court. Their aim is to ensure that children and young people have access to professional, face-to-face or telephone-based legal advice at any stage of their legal proceedings.

Children and young people who need advice about a criminal law problem are encouraged to contact the:

  • Youth Hotline on 1800 101 810 (toll free from a landline)
  • Bidura Children’s Court on 02 9219 5120
  • Parramatta Children’s Court on 02 8688 3800.

Attending court

If a child or young person is given a Court Attendance Notice or charged, they will have to attend the Children’s Court on a set date. They must be present at Court by the time specified in the Notice, but ideally earlier to meet with their lawyer or the Court’s duty solicitor.

The child or young person is entitled to be represented by a duty solicitor who will interview them at Court on the day they appear, if they (or their parents) have not appointed their own lawyer. Where possible, the child or young person’s parents or carers should also make themselves available for interview by the duty solicitor. If the child or young person is already in contact with a Juvenile Justice Officer, that Officer can also be contacted to discuss a child or young person’s appearance at Court.

On their first appearance at Court for a specific offence(s), the child or young person will be asked to enter a plea - guilty or not guilty. The decision on how to plead should be made by the child or young person following advice from a duty solicitor.

If a child or young person pleads not guilty

The child will have to come back to Court for a hearing where witnesses, including the Police, will give evidence. Once all the evidence has been heard, the Magistrate will decide whether the charges have been proven.

If the child or young person is found not guilty, the charges will be dismissed and no record of charge will be kept. Any related fingerprints or photographs will be destroyed.

If the child or young person admits the offence or the offence is proven

The Magistrate may ask the child or young person’s parent(s) or carers, if appropriate, to address the Court, although usually representations to the Magistrate are made by the young person’s solicitor. The Magistrate will then decide the child or young person's sentence on that day, or adjourn the matter until Juvenile Justice can provide a background report on the child.

If the Magistrate asks for a background report, the child or young person will have to return to Court another day for sentencing after the report has been submitted and lodged with the Court. The Magistrate may decide to refer the child or young person to a Youth Justice Conference (detailed below under “Orders”) instead of issuing a sentence.

Attending Court by audio visual link

If the child or young person is being detained in a Juvenile Justice Centre pending hearing of the matter before the Court, they can appear by audio visual link instead of physically attending the Court. This entails the child or young person being taken to a booth at the Juvenile Justice Centre. In the booth is a screen displaying the:

  • Courtroom
  • Court officials
  • child or young person’s solicitor
  • Magistrate
  • Police prosecutor.

Images of the child or young person appear on a screen in the Court and the Court hearing proceeds as if the child or young person was physically present.

Orders

The Children (Criminal Proceedings Act) 1987 and the Young Offenders Act 1997 permit the Court to make any of the orders listed below in relation to a child or young person who has committed a criminal offence.

Dismissal and/or caution

It is possible for the Court to give a “Caution” to a child or young person who pleads guilty to an offence. This involves the charges being dismissed without conviction. However a formal caution record is kept by the Police. A child or young person cannot receive a caution by a Court on more than three occasions even if the previous offences resulting in a caution have not been of the same kind as the current offence. The Court may also direct that the charge be dismissed, with or without caution as it sees fit.

Youth Justice Conferencing

The Court may refer the child or young person to the Youth Justice Conference Program. This Program aims to bring young offenders, their families and support people face to face with victims and the victim’s support people. The child or young person discusses the offence with the victim in the presence of family and support persons. Together, they negotiate and agree on a suitable outcome.

A suitable outcome can include an apology, reasonable reparation to victims, or steps to reconnect the child or young person with their community to help them refrain from further offending. Juvenile Justice will monitor whether the child or young person completes the required outcomes and report back to the Court. The child or young person will be given a specific timeframe in which to complete or comply with the outcomes.

Non-completion or non-compliance with the agreed outcomes will result in the matter being returned to Court at which time it may be decided that a Court imposed sentence may be more appropriate. If the outcome is successfully completed, the charge will be dismissed.

Fines

The Court can impose a monetary penalty on a child or young person. The Court will consider the means of the child or young person when determining the monetary amount to be paid. The Court may order a bond in addition to a fine.

Compensation

The Court can order the child or young person to pay compensation for specific damage or an injury that they were responsible for. In making an order for compensation, the Court will have regard to the child or young person’s means and income. An order for Compensation cannot be made as a condition of a bond.

Supervision

The Court may determine that a child or young person needs to be supervised by Juvenile Justice for the period of any Order that has been imposed. Supervision requirements may be imposed as a condition of probation or a good behaviour bond, control order or a suspended sentence. The level of supervision will depend on the Order imposed and will stipulate a minimum level of contact with Juvenile Justice.

If the child or young person fails to comply with supervision requirements, Juvenile Justice is permitted to give warnings to the child or young person for breach of the Order. If the child or young person receives three warnings, a breach notice will be lodged with the Court. The Court will then determine whether a further sentence or additional Orders should be imposed.

The nature of supervision by Juvenile Justice involves contact between the young offender and their Juvenile Justice Officer. The frequency of contact is established on the basis of needs and assessment. Often a Good Behaviour Bond will be imposed in conjunction with a Supervision Order.

Good behaviour bond

The Court can order a child or young person to enter into a good behaviour bond:

  • with or without conviction
  • with or without conditions of supervision by Juvenile Justice.

The conditions of supervision overseen by Juvenile Justice can be similar to those listed under bail conditions. There can also be a condition to engage in offence focused counselling. The Juvenile Justice Officer has a practice of giving three warnings to the child or young person for failure to comply with the conditions of the bond. Further failure to comply after such warnings will usually result in a breach notice being lodged at the Court. This may require the young offender attending Court again at which time he or she may receive an additional supervision conditions or an alternative penalty.

Probation order

The Court can issue a child or young person with a Probation Order, usually where an offence is more serious. This can be with or without the supervision of Juvenile Justice and other additional conditions that the child or young person must comply with.

A Probation Order is similar to a Good Behaviour Bond. It is issued for offences that are considered to be more serious. Under a Probation Order, the child or young person will be required to have more extensive contact with Juvenile Justice.

Community Service Order

The Court can order the child or young person to complete a Community Service Order. This may be imposed as an alternative to a custodial sentence. In order for a Community Service Order to be imposed, Juvenile Justice must provide a report stating that the child or young person is a suitable candidate. Under such an order, the young person may be placed and work within a community organisation, actively attend an employment program or engage in work groups organised by Juvenile Justice, such as graffiti removal.

Suspended Control Order sentence

A custodial sentence can be suspended and the child or young person released into the community as an alternative to remaining in custody. A custodial sentence can be suspended subject to the child or young person entering into a Good Behaviour Bond. The Court must first impose the sentence and then suspend it.

A Suspended Control Order Sentence must be supervised by Juvenile Justice and the child or young person must comply with any conditions imposed, similar to those conditions set out above which can be imposed when granting bail.

If the child or young person breaches the conditions imposed by the bond or re-offends the matter will be referred back to the Court and the Court may Order that the child or young person comply with the original custodial sentence.

Control Order

A Control Order imposes a period of full time custody in a detention centre. This can only be imposed where the Court considers no other order to be appropriate. When a Court is contemplating a sentence of six months or less, the Court must give reasons as to why an alternative sentence was not considered appropriate.

Before imposing a Control Order, the Court must have a background report which is an assessment of the background of the child or young person completed by Juvenile Justice to assist the Court.

Parole

A child or young person may become eligible for parole during their Control Order. Release on Parole is subject to approval by the Magistrate who will hear the matter at a Parole Hearing at which time Juvenile Justice will submit a parole report. The report summarises the child or young person’s behaviour in custody, level of compliance, engagement in programs and their plan for post release. If a child or young person receives parole, they are required to comply with very strict reporting and behaviour conditions which is supervised by Juvenile Justice. If a Parole Order is breached, the child or young person will be required to attend Court and further orders may be imposed.

Youth Conduct Order

Youth Conduct Orders are being piloted as a scheme aimed at reducing levels of antisocial behaviour by targeting children and young people charged with, pleading guilty or found guilty of certain criminal offences.

Bail

The Court may grant unconditional bail, or conditional bail, and place the child or young person under the supervision of Juvenile Justice until the matter is finalised by the Court. Some common bail conditions may include:

  • residing as directed, by either Juvenile Justice or Community Services
  • regularly attending school or place of employment
  • not associating with certain people, co-offenders
  • not consuming non-prescription drugs or alcohol
  • reporting to Juvenile Justice as directed and complying with reasonable directions given by Juvenile Justice and/or parents/carers
  • complying with curfews
  • not attending certain places or premises e.g. a particular train station
  • not contacting the victim.

If bail conditions are breached the child or young person will be arrested by the Police and be required to re-appear at the Children’s Court at which time the Magistrate will re-assess the order granting bail.

Sentencing

When a Court is sentencing a child or young person the Court is required to consider the matters set out in section 6 of the Children (Criminal Proceedings) Act 1987. The Court will also:

  • give more weight to individual treatment and rehabilitation of the offender than punishment and general deterrence
  • consider how close in age the offender is to 18
  • give consideration to the age of each offender and how the offender’s youth has contributed to their offending behaviour and should be given weight in determining the correct penalty
  • look at the particular circumstances of each matter when considering the deterrence element of a sentence
  • take into account a guilty plea, and accordingly reduce any order it might otherwise have made.

Other orders, courts, tribunals and proceedings

Apprehended Violence Order

Sometimes an Apprehended Violence Order will be sought from the Local Court to protect a child or young person. This might be needed when there has been:

  • physical abuse but the abuser’s actions are not serious enough to warrant removal or criminal charges
  • physical and psychological abuse but the person associated with causing risk or harm does not live in the home and an Apprehended Violence Order may stop them coming to the home or school
  • probable sexual abuse but:
    • charges are not likely to be laid
    • the child will not be removed, and
    • there is a protective parent or carer ensuring there is no contact with the person associated with causing risk or harm
  • they are between the ages of 14 and 18 years at the time of the commission of the offence and have a demonstrated drug or alcohol problem.

When applying for an Apprehended Violence Order special care must be taken to check any existing Family Law Act 1975 orders relating to who has care and responsibility for the child or young person.

Youth Drug and Alcohol Court

The Youth Drug and Alcohol Court Program can help young people who have been charged with an offence overcome their drug or alcohol problem. The aim of the program is to reduce the child or young person’s level of substance abuse and therefore decrease subsequent offending behaviour. At the end of the program the child or young person will be sentenced, with the Court taking their participation in the program into account.

Program participation can be stopped if the child or young person continues drug and alcohol use or commits other offences. If the child or young person does not comply with the program, they are warned and the program may be altered or they may be required to return to Court to face their initial charges.

Young offenders at the Children’s Court can be referred to the Youth Drug and Alcohol Court if they:

  • plead guilty
  • are charged with an offence that the Children’s Court can deal with
  • have a serious drug or alcohol problem
  • live, or identify with, the Program catchment area
  • are not eligible for a Young Offenders Act Caution or Youth Justice Conference
  • are suitable for treatment and rehabilitation
  • agree to participate in the Program while on bail.

At their first appearance before the Youth Drug and Alcohol Court, the Magistrate will determine whether the child or young person is legally eligible to participate. The Magistrate has, at this point, a discretion to exclude a legally eligible child or young person because a Caution or Youth Justice Conference is more appropriate, or because the child or young person’s offence or history of offending is so severe that the child or young person would be sentenced to a Control Order even if he or she successfully completed a Youth Drug and Alcohol Court Program.

Each child or young person who is legally eligible to participate in the Youth Drug and Alcohol Court Program has their matter adjourned for 14 days, while they undergo an in-depth, holistic assessment of their needs. These assessments are conducted by the Joint Assessment and Review Team to determine whether a suitable program plan can be developed for the child.

The Joint Assessment and Review Team is comprised of representatives of the Departments of Health, Education and Communities, Family and Community Services and Attorney General and Justice (Juvenile Justice).

Where a suitable program plan has been developed and the child or young person agrees to enter the program the Youth Drug and Alcohol Court will accept the child or young person into the program. Under the Program the child or young person will have ongoing personal interactions with the members of the Youth Drug and Alcohol Court Team, which consists of the sitting Children’s Magistrate, Police Prosecutor, Legal Aid Solicitor, Youth Drug and Alcohol Court Registrar and a representative of the Joint Assessment and Review Team in an effort to foster rapport.

Most children and young people will meet with the Youth Drug and Alcohol Court Team fortnightly. The average number of Court attendances is 17 times over an average of eight months.

Young people should ask their solicitor if they are eligible for the Youth Drug and Alcohol Court Program or phone the Youth Drug and Alcohol Court Legal Aid Solicitor on 0418663574.

The Family Court

The term ‘Family Courts’ refers to the various Courts in NSW that have jurisdiction under the Family Law Act 1975 to make orders relating to children and young people. They are the Family Court of Australia, the Federal Circuit Court and State Local Courts.

Family Courts manage and adjudicate disputes between parents and others with parental responsibility for children and young people, including:

  • living arrangements
  • time spent in the company of parents
  • communicating with parents
  • other parenting issues.

Family Courts are responsible for:

  • ensuring that the best interests of the children or young people are the paramount consideration in any decisions about them (this includes the need to protect the child or young person from physical or psychological harm and any family violence involving the child or young person or any member of the child’s or young person’s family)
  • ensuring that Court processes are independent, impartial and fair to all concerned
  • identifying and reporting a child or young person suspected of being at risk of significant harm to FACS.
  • providing conciliation, counselling and mediation to assist families to resolve their disputes without the need for a contested hearing (this should be done in a way that promotes the best interests of the children or young people involved).

Under the Family Law Act 1975 Community Services can become a party (or ‘intervene’) in Family Court proceedings to assist the Court child protection issues which have come to light either through Family Court proceedings or at the same time as Family Court proceedings.

Sometimes Family Court matters that involve serious allegations of child abuse go into the Court’s Magellan program. A Magellan team, consisting of judges, registrars and family consultants manages cases from start to finish. Generally, the aim is to complete Magellan cases within six months from the case being placed on the Magellan list.

A Family Law matter might be prevented from proceeding where a child or young person concerned is already subject to orders of the Children’s Court or Community Services is currently taking steps to ensure the safety of the child. In such a case the Minister can consent to the Family Law matter proceeding.

Family Court contact orders do not apply while the child or young person is in the Director-General's care responsibility pursuant to a temporary care arrangement, removal/assumption of care responsibility or a care order.

The Supreme Court

The Supreme Court has the power to hear applications about Children’s Court matters but will only do so where there are exceptional circumstances.

The Supreme Court can also exercise parens patriae jurisdiction in respect of a child or young person. That is, the Supreme Court has the power to make decisions about a child or young person as though it was the parent of that child or young person, where it considers that the circumstances require the child or young person to be afforded the Court’s protection.

Most commonly the Supreme Court would exercise its parens patriae powers to make orders for the medical treatment of children and young people or to make orders for the care of children and young people in out-of-home care or who are awaiting adoption.

The Coroner’s Court

If there is a death of a child or young person in the circumstances detailed below then it must be reported to the State Coroner:

  • death of a child or young person in care
  • death of a child or young person which may be due to abuse or neglect
  • death of a child or young person, or their sibling, where the child or young person has been the subject of a risk of significant harm report made to Community Services in the past three years.

The Coroner will examine each death as to its manner and cause and decide whether an inquest is necessary. These deaths are also reviewable by the Ombudsman.

Administrative Decisions Tribunal

The Administrative Decisions Tribunal reviews specific administrative decisions of NSW Government agencies when a person disagrees with them.

Reviews of decisions under the Community Services Division of the Administrative Decisions Tribunal often include certain decisions in relation to:

  • authorised carers
  • adoption services
  • children’s services and family day carers
  • children’s employment
  • transfer of a child protection order to another state.

Guardianship Tribunal

The Guardianship Tribunal may appoint a guardian to assist young persons (aged 16-18 years) who have a disability and are unable to make decisions alone. The types of decisions which guardians might assist with include:

  • accommodation
  • medical and dental treatment
  • financial decision making.

Victims Compensation Tribunal

A victim of an act of violence may apply for compensation to the Victims Compensation Tribunal. This includes people who suffered injury directly as a result of the violent crime, people who suffered an injury as a result of witnessing the violent crime and immediate family members of a person who dies as a result of a violent crime.

The victim needs to establish they have been a victim of a violent crime and as a result sustained a specified compensable injury. There does not need to be an arrest or a conviction for an award of compensation to be made. Compensation can include payment for the injuries sustained and financial loss.

If a person is convicted of the crime for which a victim receives an award of compensation the State may take action to recover the money from the offender. The victim does not have to give evidence or be involved in these proceedings.

An application for victims compensation can be made online, or alternatively call 1800 633 063 (toll free from a landline). More information can be found at the Victims Services website.

Victims Services

Victims Services, part of the Department of Attorney General and Justice, provides support, information, referrals, counselling and compensation services to victims of violent crimes and witnesses to violent crimes. Victims Services also provides compensation and counselling services to relatives of someone who has died as a result of a violent crime.

NSW has established a Charter of Victims Rights, to protect and promote the rights of victims of crime. The Charter requires government agencies and a range of service providers, such as non-government organisations and contractors funded by the State, to meet the needs of victims in a range of ways. Victims Services have also produced a version of the Charter in a format that is appropriate for children as well as a range of tools to familiarise children with court processes.

Information about accessing compensation, approved counselling and other services for victims of crime can be obtained from the Victims Access Line (VAL), an information and referral support service, which provides a range of services including information about accessing Victims Registers and preparation of Victim Impact Statements.

VAL operates 24 hours a day, 7 days a week and can be contacted on 02 8688 5511 or 1800 633 063 (toll free from a landline). VAL also provides a Walk in Service where clients may meet with a Referral and Support Officer to discuss their support needs as victims of crime at its Parramatta Office.

More information about accessing victims services can also be obtained from the Victims Services website.

Counselling

A child or young person who has been abused or neglected may receive counselling from:

The Victims Services Approved Counselling Scheme can provide up to 22 hours of free counselling to any victim of violent crime (sexual assault, domestic violence [including child witnesses], physical assault, armed robbery and homicide). Any counsellor providing this service to children must have proven their capacity to provide therapeutic services to children.

Victims, or services working on behalf of victims, can complete an online form to apply for counselling. Further information is available at the Approved Counselling Scheme website or call 1800 633 063 to apply over the phone.

A convicted offender does not need to be identified for a victim to qualify for counselling or compensation, although the victim needs to be able to provide substantiation of the act of violence.

Compensation

An eligible victim can contact Victims Services and make an appointment to speak to one of the case managers who can assist with completing their compensation claim. The case manager will explain and assist the victim through the process of the claiming for compensation and Victims Services can, with the victims consent, obtain their medical records and information to assist in the claim.

In the cases requiring a care plan, case managers are encouraged to explore options for victims compensation on behalf of children and young people this approach is consistent with recommendations from the NSW Ombudsman 2010 report highlighting the need to better support children and young people in statutory care who have been victims of violent crime.

Information about accessing victims services can also be obtained from the Victims Services website.

Children as witnesses in criminal proceedings

A child or young person who is appearing as a witness to give evidence in criminal proceedings may have special needs for information to assist their understanding of the Court process and procedures. An adult to support them through the Court process may also be required.

In matters where a child or young person is a victim or witness and is being called on to give evidence, the solicitor for the Office of the Director of Public Prosecutions should meet with the child or young person and their parents/carers before the proceedings begin to:

  • assess the child or young persons competence to give evidence, including their language and concentration skills and understanding of time and locality
  • decide whether a pre-recorded statement will be the main evidence
  • understand the child or young persons level of anxiety in relation to the proceedings.

All children and young persons appearing as witnesses have the right to:

  • the presence of a support person while giving evidence
  • give their main evidence in the form of a recording, wholly or partly
  • give all their evidence by closed circuit television (CCTV), or when CCTV facilities are not available, by alternative arrangements.

Children and young people who will be attending Court as a victim should refer to the Victims Services website where they can learn about the interactive resources are also available to provide information about the law and Court processes to help prepare them to attend Court.

The Witness Assistance Service works closely with agencies to ensure young witnesses and their carers receive counselling and support.

The Supporting victims of crime guidelines and Supporting victims of Crime: Information for OOHC NGO caseworkers factsheet provide assistance to NGO OOHC service providers in understanding and meeting their responsibilities towards victims of crime

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