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
About Child Protection and Child Wellbeing legislation
The Children and Young Persons (Care and Protection) Act 1998 (the Act) establishes the legislative framework governing child wellbeing and providing child protection and out-of-home care services in NSW.
This section provides a summary of the legislative framework that supports child protection and child wellbeing in NSW, including the Keep Them Safe reforms. The Keep Them Safe legislation fact sheet provides a helpful overview of the recent legislative changes.
The objects and the principles of the Act provide direction and guidance in the administration of the Act. The over-riding principle of the Act is that the safety, welfare and wellbeing of children or young people must be paramount in all decisions (section 9). All agencies must work together to achieve this. Other principles include:
- account should be taken of the culture, disability, language, religion, and sexuality of the child or young person
- any intervention should be the least intrusive in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm or promote their development
- special protection and assistance from the State should be given to a child or young person temporarily or permanently deprived of their family environment
- as far as possible the name, identity, language, cultural and religious ties of a young person deprived of their family environment should be preserved
- a safe, nurturing and stable environment should be provided for a child or young person in out of home care
- the younger the age of a child in out-of-home care the greater the need for early decisions to be made in relation to a permanent placement
- retention of relationships with significant people is important unless it is contrary to the best interests of the child or young person, and taking into account the wishes of the child or young person
- where possible, a child or young person who is able to form his or her own views concerning his or her safety, must be given an opportunity to express those views
- the child or young person should be given information and assistance to participate in decisions
- the child or young person should be given information about the outcome of decisions concerning them.
Aboriginal and Torres Strait Islander principles
The Act makes special provisions relating to Aboriginal and Torres Strait Islander children and families (sections 11-14). The Aboriginal and Torres Strait Islander principles focus on self-determination and on participation in decision making.
This includes the opportunity to participate in significant decisions that are to be made about an individual child who is Aboriginal in the context of child protection, including the decision to remove a child or young person from the care of their parent or caregiver.
If Aboriginal or Torres Strait Islander children and young people require out-of-home care placements, these placements must occur in the context of the placement principles.
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.
Care applications and the Children's Court
From January 2010, changes to using a report instead of an affidavit will occur in a staged manner over six months.
Care applications under section 61 are made by 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 or young person is in need of care and protection as well as any interim orders being sought.
Community Services is not required to file all its evidence at the commencement of proceedings.
The relevant documents on the child protection file which support the statements made in the report will be made available to the parties.
Applications to the Children’s Court must be made no later than 72 hours after removal or assumption of care. Section 45(1) provides the timeframe within which to lodge applications that follow a removal or an assumption of care responsibility.
The Court should receive the best information possible about making a decision in relation to a child or young person’s long term needs for care and protection.
Sections 78A and 83 of the Children and Young Persons (Care and Protection) Act 1998 make it clear that the exact long term placement details in a permanency plan need not be provided. However, the permanency plan must be sufficiently clear and particularised so as to provide the Court with a reasonably clear picture as to the way in which the child or young person’s needs, welfare and wellbeing will be met in the foreseeable future.
The Court’s role is to expressly find whether permanency planning for the child or young person has been adequately addressed.
The permanency plan also sets out for everybody involved in the future care of the child, what needs to be done once the plan has been approved by the Court. The designated agency supervising the placement is responsible for decisions relating to the implementation of the plan.
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.
Background checks for people working with children
Employers of people in child-related employment, as defined in section 33 of the Commission for Children and Young People Act 1998, need to register with the relevant Approved Screening Agency which can carry out the required Working With Children Check.
These agencies include the Catholic Commission for Employment Relations, Department of Arts, Sport and Recreation, Department of Education and Training, Communities NSW (Commission of Children and Young People) and NSW Health.
The Prohibited Employment Declaration must be completed by all people before starting in child related employment.
The Working With Children Check is a check that an employer must have done before a person starts in primary child-related employment.
Primary child-related employment includes employment that primarily involves direct contact with children and young people, where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment.
Sections 33 and 37 of Commission for Children and Young People Act 1998 detail those covered by this requirement.
Included in the definition of primary child-related employment are foster carers and those engaged in paid child-related employment.
Legislative amendments commenced on 31 March 2010 which require additional categories of people to be background checked, including:
- students working for Community Services
- Child Wellbeing Unit assessment officers
- prescribed children’s services managers
- principal officers of adoption service providers
- certain contractors whose work involves direct unsupervised contact with children, and
- volunteers mentoring disadvantaged children or providing intimate personal care to children with disabilities.
From 31 March 2010 Section 45 of the Commission for Children and Young People Act 1998 applies background checking provisions to adults who live with an authorised carer or children’s service provider on a regular basis of not less than three months.
The Children and Young Persons (Care and Protection) Act 1998 is supplemented by a range of other legislative and regulatory instruments. For example:
- Children and Young Persons (Care and Protection) Regulation 2000 also forms part of the framework for providing OOHC services, particularly the need for providers to be accredited as designated agencies through the NSW Children’s Guardian
- Children’s Court Act 1987 establishes the roles and responsibilities of the Children’s Court
- The Adoption Act 2000 is the legal framework for the adoption of children in NSW and (in conjunction with other legislation) those from overseas
- The Community Welfare Act 1987 aims to ensure the provision, to the maximum extent possible, of services for and assistance to people disadvantaged due to lack of food, shelter or other basic necessities, natural disasters (for example, floods), disability, age, ethnic group membership, lack of family support
- Privacy and Personal Information Protection Act 1998 which sets out requirements for the collection, storage, access and accuracy, use and disclosure of personal information
- Health Records and Information Privacy Act 2002 which sets out the requirements for the collection, storage, access and accuracy, use and disclosure of personal health information
- Privacy Act 1998 (Commonwealth) which sets out the requirements for the collection, use and disclosure of personal information (including non-government agencies)
- State Records Act 1998 directs each public office to maintain full and accurate records of the office’s activities
- Community Services (Complaints, Reviews and Monitoring) Act 1993 which provides the Ombudsman with the power to conduct systemic reviews of the deaths of children at risk of harm or those in care
- Ombudsman Act 1974 which sets out the role of the Ombudsman in monitoring and reviewing the provision of community services, oversighting employer handling of allegations of reportable conduct against their employees and complaint handling.
- Guardianship Act 1987 which sets out the responsibilities, functions, orders and principles that the Guardianship Tribunal applies when appointing guardians for people with disabilities, including young people aged 16–17.
- Crimes Act 1900 which defines criminal conduct
- Coroners Act 1980 which requires the Coroner or the Deputy Coroner to examine certain child deaths, including those 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 and a child whose death is or maybe due to abuse or neglect or that occurs in suspicious circumstances.
- Victims Rights Act 1996 and Victims Support and Rehabilitation Act 1996. A child or young person who has experienced abuse may be eligible for compensation. Victims Services New South Wales runs the scheme, which also helps victims in other ways, such as with counselling, support and information.
- Commission for Children and Young People Act 1998 which provides for conducting the Working with Children Check and also administering the Child Sex Offender Counsellor Accreditation Scheme
Commonwealth legislation relating to children and families
Federal and state law relationship
Section 69ZK of the Family Law Act 1975 prevents the Family Court from making any order under the Family Law Act (other than a child maintenance order) about a child or young person who is under the care of a person under a child welfare law unless the order comes into effect when the child is no longer in care or with the consent of the relevant child welfare officer.
Section 69ZK(2) provides that any order or authority to act pursuant to a child welfare law is not affected by the Family Law Act.
That is, Community Services may take action (for example removing a child from a parent) notwithstanding the fact that there is an existing family law order (for example providing for the child to live with that parent).
Subsection (3) provides for an adjournment of Family Court proceedings pending the outcome of proceedings under the Children and Young Persons (Care and Protection) Act 1998.
Family Law Act 1975 - child protection aspects
The Family Law Act 1975 gives the Family Court of Australia and Federal Magistrates Court of Australia power to make decisions about children, usually as part of family law proceedings.
The Family Court of Australia and Federal Magistrates Court of Australia can make orders in respect of children.
The Family Law Act covers disputes between persons with an interest in the child’s care (usually parents) about decisions for the child where the child is not necessarily ‘at risk’.
In contrast, the Children and Young Persons (Care & Protection) Act 1998 applies in relation to disputes between the state (Department of Human Services NSW, Community Services) and the ordinary guardians of the child, where the child or young person is considered by the Director-General to be at risk of significant harm and in need of care and protection.
Parenting orders in Australian Courts made after 1 July 2006 usually deal with the following concepts:
- Where will the children live? (a “live with order”)
- How much time will the children spend with the person with whom they do not live? (a “spend time with order”)
- Who will make important decisions about the children? (a “parental responsibility order”)
- Other matters including but not limited to paternity testing, adult child maintenance, some child support matters.
On occasion, Community Services can be asked to join proceedings before a court exercising family law jurisdiction. On other occasions Community Services can commence proceedings before a court exercising family law jurisdiction.