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
From 24 January 2010, if there are reasonable grounds to suspect a child or young person is at risk of significant harm and there are current concerns about the safety, welfare or wellbeing of the child or young person mandatory reporters must, and any person may, make a report to the Child Protection Helpline.
The threshold for reporting has been changed from ‘risk of harm’ to ‘risk of significant harm’. This is so that only those children and young people who are likely to need the protection powers of the State under the Children and Young Persons (Care and Protection) Act 1998 are subject to it being exercised.
This means that the needs of children and young people are more likely to be addressed by the services that are most appropriate for them.
A child or young person is at risk of significant harm if the circumstances that are causing concern for the safety, welfare or wellbeing of the child or young person are present to a significant extent. This means it is sufficiently serious to warrant a response by a statutory authority irrespective of the family’s consent.
What is significant is not minor or trivial and may reasonably be expected to produce a substantial and demonstrably adverse impact on the child or young person’s safety, welfare or wellbeing, or in the case of an unborn child, after the child’s birth. The significance can result from a single act or omission or an accumulation of these.
Grounds for making a report include where parents or caregivers fail to ensure a child or young person attends school (sections 23-25).
Where concerns of risk of harm to a child or young person do not meet the significant harm threshold, the referring agency should offer and coordinate assistance or make a referral to other services, using referral networks.
Child Wellbeing Units
Section 27A provides the alternate reporting process which includes the introduction of Child Wellbeing Units (CWUs). It also establishes the role of assessment officers.
CWUs operate in three government agencies: Department of Education, NSW Police, and NSW Health.
The CWUs can assist the mandatory reporters within their agencies in determining whether a report does or does not meet the significant harm threshold – and if the report falls below the new threshold, they provide advice on the ways that families can receive the level of local help that they need.
A truly shared approach to child protection means better information sharing between agencies involved in the safety, welfare and wellbeing of children or young people.
Nevertheless, agencies should be aware that reports to the Child Protection Helpline are confidential and the reporter’s identity (if known) is protected by law if the report is made in good faith.
Section 29 (1)(f) of the Act makes it clear that the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with the consent of that person or with the leave of a court or other body before which proceedings relating to the report are conducted.
Chapter 16A of the Act gives legal authority for better interagency information exchange in the interests of children and young people.
These government and non-government agencies (known as “prescribed bodies”) may volunteer information, but if requested must supply information (subject to some specified exceptions set out in section 245D(4)) to other prescribed bodies where the information relates to a child or young person’s safety, welfare or wellbeing, whether or not the child or young person is known to Community Services.
As per section 245G, a person who provides information in good faith in accordance with Chapter 16A, will not be liable for providing this information.
Chapter 16A applies to information being supplied between prescribed bodies. It does not limit the pre-existing powers to request information from or to respond to a direction to supply information to Community Services, as set out in section 248.
Duty to coordinate provision of services
Section 245E of the legislation requires prescribed bodies to take reasonable steps to coordinate decision making and the delivery of services regarding children and young people. Amendments to the legislation to provide for better information exchange amongst prescribed bodies will assist this process.
This is in keeping with the principles of collaborative interagency responses to ensure effective delivery of services to children and young people.
All of these information exchange and coordination provisions should be interpreted in light of the principle that the safety, welfare and wellbeing of children and young persons are paramount.