Legislation covering child protection and child wellbeing services in NSW
Includes the Children and Young Persons (Care and Protection) Act 1998, care applications and the Children's Court
Section 135 of the Act provides for 3 types of out-of-home care (OOHC).
Statutory out-of-home care
Statutory out-of-home care 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, where parental responsibility is transferred, or by virtue of the child or young person being a protected person. Statutory out-of-home care can only be arranged or provided by a designated agency.
Section 150 of the Act specifies the minimum frequency of when placement reviews should occur. When an interim order is for 4 months or more, a review should occur no later than four months after the making of the interim order.
Where the order is final, a review of the placement is required within two months of the final order being made where the child is under 2 years and within four months where the child is over 2 years.
Subsequent to this, a review of the placement should be conducted every 12 months or after the death of a parent or carer or after an unplanned placement change.
Supported out-of-home care
Supported out-of-home care is OOHC provided, arranged or supported by the Director-General as a result of the Director-General forming the view that the child or young person is in need of care and protection. These are more informal arrangements than statutory out-of-home care. They include:
- temporary care arrangements (s151 and s152)
- a placement with an authorised carer, arranged other than under a temporary care arrangement, which is supported by the Director-General (s153 and s154)
For temporary care arrangements:
- placement cannot exceed 6 months in any 12 month period
- where possible it should be made with the consent of the child's parent/s. If a child or a young person enters care in the circumstances described in section 151 (3) (b) where it is considered that the parents are “incapable of consenting to the arrangements”, the temporary care agreement cannot be renewed beyond three months
- must provide written notice to parents concerning temporary care arrangements.
For other supported OOHC arrangements:
- placement cannot exceed 21 days unless the designated agency with supervisory responsibility is satisfied, following appropriate assessment, that the child or young person is unable to remain with his or her parent or parents
- within seven days after the expiration of the 21 day period, the designated agency with supervisory responsibility needs to develop either a permanency plan involving restoration or a care plan
- A review is required every 12 months where a child is in care for more than 3 months in any 12 month period, or where a change in placement has or will occur.
This is to determine how the child’s parenting needs are to be met, whether restoration of the child or young person to family is possible or whether a care application might should be made in order to provide for the reallocation of parental responsibility in relation to the child or young person.
Voluntary out-of-home care
Voluntary out-of-home care is a voluntary arrangement made by a parent/s with a designated agency or agency registered with the NSW Children’s Guardian where Community Services has no involvement in the placement.
A significant proportion of those in this form of care are children and young persons with disabilities in respite care arrangements. It provides increased protections for children and young people in these arrangements.
For a placement of less than three months, care must be provided by an agency registered with the Children's Guardian. For a period exceeding three months in any 12 month period, care must be provided or supervised by a designated agency.
For care for more than 180 days in any 12 month period, a care plan must be developed by a designated agency that meets the needs of the child.
A child or young person in a voluntary arrangement that does not meet these requirements is taken to be at risk of significant harm.
This does not apply to a number of voluntary arrangements including parent initiated kinship or relative carer arrangements or children or young people staying with friends over school holidays, or boarding school arrangements.