CARE & PROTECTION
Overview
Care and Protection is the area of law that focuses on the safety of children and their protection from neglect, abuse and generally a risk of harm. When you are contacted by caseworkers at the Department of Communities and Justice (previously known as the Department of Family and Community Services), it is often in response to reports that your child is at risk of significant harm and caseworkers need to investigate the reports to ensure the child’s safety and protection from harm. While this may be done in good faith, some situations arise where the allegations contained in the reports are untrue and drastic measures are enforced to the extent that families become fractured and stressed. During these difficult times, it is important that you seek immediate legal advice and engage a lawyer to help guide you through the Children’s Court of NSW.
It is important to note that care and protection matters in the Children's Court are different from family law matters that are heard in the Federal Circuit Court or Family Court of Australia. That said, there are situations where both types of proceedings may be running at the same time.
​
​
INFORMATION FOR PARENTS & CARERS
Care Proceedings in the Children's Court
Care and protection proceedings concern the safety, welfare and well-being of a child who is considered by caseworkers to be at risk of significant harm.
​
Whereas the Family Court usually deals with private disputes between families, the care and protection jurisdiction usually deals with disputes between the state and the family.
After caseworkers from the Department of Communities and Justice file an Application Initiating Care Proceedings, the dispute is heard by a Magistrate in the Children’s Court of NSW. The dispute usually involves issues such as the Minister assuming complete or partial parental responsibility for the child, removal of the child from one or both parents, restoration of the child to an appropriate guardian or parent, placement of the child into the care of another, and contact orders. If the final decision of the Magistrate is challenged, a party to the proceedings can appeal the decision.
​
On appeal, such disputes are heard in the District Court (s91). The President of the Children’s Court is a District Court Judge however the President sits in the Children’s Court and hears matters at first instance (and not as an appellant Judge). Appeals from the President of the Children’s Court are heard in the Supreme Court (Children’s Court Regulation 2009, Rule 5).
​
All actions and decisions made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) concerning a particular child or young person, are justified by considering the safety, welfare and well-being of the child or young person. Section 9 of the Act states this must be the paramount consideration. This principle prevails over all other considerations, even where it conflicts with the rights or interests of the parents: [2016] NSWSC 794 at [69].
​
Objects of the Care and Protection Act: Why do we have care and protection proceedings?
While the paramountcy principle under section 9 underpins the decisions and conduct of care and protection proceedings, section 8 also defines objects of the Act which need to be borne in mind throughout care and protection disputes. Section 8 states:
(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and
(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and
(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.
What is “Unacceptable Risk”?
In cases where issues such as removal, restoration, custody, placement and contact are to be determined, the proper test to be applied is that of “unacceptable risk” of harm to the child or children concerned: M v M (1988) 166 CLR 69 at [25]; Re Tanya [2016] NSWSC 794 at [69].
The application of that test is twofold. Firstly, it requires a determination, of whether a risk of harm exists, and secondly, a finding as to the magnitude of that risk. Once a risk is found to exist and its magnitude is assessed, the Court must balance that risk against the risk that the child may be harmed by lack of contact with the parent when determining whether the risk of harm is unacceptable: [2010] CLN 2 at [45]; Re Tanya [2016] NSWSC 794 at [69].
There may be several possible sources of risk, none of which is proved on the balance of probabilities, but nonetheless the accumulation of those possible risks could justify an overall finding of unacceptable risk.
Although the High Court in M v M (1988) 166 CLR 69 was concerned with the risk of harm by sexual abuse, the “unacceptable risk” test does not arise solely in respect of allegations of physical or sexual abuse; unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and those matters are examined in light of an accumulation of factors proved: [2013] NSWChC 5 at [146]–[149]; [2016] NSWChC 3 at [32]–[33].
While the Court’s decisions is guided by the paramountcy principle to protect the children’s safety, welfare and well-being of the child or young-person, it is also guided by other factors listed in subsection 9(2) of the Care and Protection Act 1998.
These factors include the following:
(a) the child’s views must be given due weight
(b) account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child
(c) the least intrusive intervention in the life of the child and his/her family must be taken, consistent with the paramount concern of protecting the child from harm and promoting their development
(d) children temporarily or permanently deprived of their family environment are entitled to special protection and assistance from the State, and his/her name, identity, language, cultural and religious ties should, as far as possible, be preserved
(e) arrangements for out-of-home care should be made in a timely manner; the younger the child, the greater the need for early decisions regarding permanent placement
(f) a child in out-of-home care is entitled to a safe, nurturing, stable and secure environment. Unless contrary to his/her best interests, and taking into account their wishes, this includes retention of relationships with people significant to the child (birth or adoptive parents, siblings, extended family, peers, family friends and community)
(g) if a child is placed in out-of-home care, the permanent placement principles (see below) are to guide all actions and decisions regarding permanent placement.
​
Australia’s treaty obligations under the United Nations Convention on the Rights of the Child are also relevant to determinations under the Care and Protection Act. Although the paramountcy principle is reflected in Article 3.1 of the Convention, other Articles may be relevant in determining the best interests of the child during care and protection proceedings, particularly Articles 3.2, 5, 8.1, 9.1, 12.1, 29 and 30.
If caseworkers from the Department of Communities and Justice have become involved with your family, please contact KF Lawyers to arrange a consultation and discuss your options.
​
The Establishment Phase
Care and protection proceedings in the Children’s Court that deal with care applications have two stages. First the establishment phase, and then the permanency planning phase.
If the Court is satisfied that the child or young person is in need of care and protection, pursuant to sections 71 or 72 of the Care and Protection Act, a final care order may be made. A finding that the child or young person is in need of care and protection means that case has been “established” and the Court needs to remain involved in the matter. If the care is not established, then the proceedings are dismissed and no care order are made.
Section 71 provides a number of grounds on which the Children’s Court can find that the child or young person is in need of care and protection. Subsection 71(1) lists the following grounds:
(a) there is no parent available to care for the child as a result of death or incapacity or for any other reason,
(b) the parents acknowledge that they have serious difficulties in caring for the child and, as a consequence, the child is in need of care and protection,
(c) the child has been, or is likely to be, physically or sexually abused or ill-treated,
(d) the child’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,
(e) the child is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,
(f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children’s Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service,
(g) the child is subject to a care and protection order of another State or Territory that is not being complied with,
(h) s 171(1) applies in respect of the child [the Secretary has requested that the child be removed from statutory or supported out-of-home care].
The reasons identified in s 71(1) are not merely facts or particulars but are grounds, at least one of which the court must be satisfied before a care order is made.
Different to section 71, section 72(1) provides that a care order may only be made if the Court is satisfied either that the child “is in need of care and protection” (the s 71 criterion) or, in the alternative, that the child is “not then in need of care and protection”, but:
(a) was in need of care and protection when the circumstances that gave rise to the care application occurred or existed,
(b) would be in need of care and protection but for the existence of arrangements for the care and protection of the child made under ss 39A, 49, 69 or 70.
Read in conjunction with one another, sections 71 and 72 provide alternative bases for making a care order. The alternative created by section 72(1) is relevant and applicable only when the Court is not satisfied there is an existing need for care and protection. The Court must be satisfied that, despite the absence of an existing need, both the circumstances identified in paragraphs (a) and (b) of section 72(1) exist.
If the Court is not satisfied of either basis for a need for care and protection, it may dismiss the application: section 72(2).
What is a Care Plan?
Once a child or young person is found to be in need of care and protection, and an order is sought for removal of the child from the care of his or her parents, it becomes the responsibility of the Secretary to prepare a care plan are required by section 78(1) of the Care and Protection Act 1998. A care plan must also be prepared by an applicant for a guardianship order made under section 79B(8).
Section 80 of the Care and Protection Act provides that a court must not make a final order for removal of a child or for the allocation of parental responsibility for the child unless a care plan has been considered. Section 78(3) provides that the care plan “is to be made as far as possible with the agreement of the parents of the child”. Importantly, the care plan must be capable of being implemented by the persons affected and it must address specific matters listed under section 78(2).
Section 78(2) provides that the care plan must make provision for the following:
(a) allocation of parental responsibility between the Minister and the parents for the duration of any period for which the child is removed from the care of the parents,
(b) the kind of placement proposed, including:
(i) how it relates in general terms to permanency planning for the child, and
(ii) any interim arrangements proposed for the child pending permanent placement and the timetable proposed for achieving a permanent placement
(c) arrangements for contact between the child and parents, relatives, friends and other persons with whom they are connected,
(d) the agency designated to supervise the placement in out-of-home care,
(e) the services that need to be provided to the child.
The care plan must also contain information about the child’s circumstances such as their family structure, history, development and experience, relationship with their parents, cultural background, medical issues, in accordance with clause 22(2) of the (NSW). Additional matters also required to be set out in the care plan, pursuant to clause 22(3) include resources required for the implantation of the care plan, roles and responsibilities of each person, agency or body participating, and the frequency and means by which the progress of the plan will be assessed.
​
​
Permanency Planning
“Permanency planning” refers to the making of a plan that aims to provide a child with a stable placement that offers long-term security and:
-
has regard, in particular, to the principles set out in sections 9(2)(e) and (g);
-
meets the child’s needs; and
-
avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1).
Section 83 of the Care and Protection Act states that where the Secretary makes a care application seeking removal of the child, it must prepare a permanency plan and submit it to the court for consideration.
A care plan is required to provide how the placement sought relates to the permanency planning of the child. In practice, the care plan incorporates the permanency plan required by section 83.
What if there is a realistic possibility of your child being restored to your care?
When filing an Application to remove a child from their parents, it usually means that the Secretary does not consider the child to be safe with the parent or either one of them, and the Secretary for the Department of Communities and Justice still needs to consider permanency. Depending on the Secretary’s assessment, the permanency plan must provide for either restoration or another suitable long-term placement, as required by sections 83(2)–(3) of the Care and Protection Act 1998.
The Secretary is nonetheless required to assess whether there is a realistic possibility of the child being restored to his or her parents within a reasonable period, pursuant to section 83(1). A “reasonable period” is no more than 24 months.
There are two limbs involved in the assessment of whether there is a realistic possibility of restoration, as prescribed by section 83(1). The two-limb assessment requires consideration of:
(1) the child’s circumstances, and
(2) evidence, if any, that the parent(s) are likely to be able to satisfactorily address the issues that led to the removal of the child from their care.
The requirement that the possibility of restoration be “realistic” means that the possibility of restoration needs to be real or practical and not fanciful, sentimental or idealistic, or based upon “unlikely hopes for the future”. This was recognised in the case of [2008] CLN 10 at [13]–[14]; and subsequently recognized in the case of [2011] NSWSC 761 at [56]. The case of [2016] NSWSC 794 at [69] warns that this concept is not to be confused with the mere hope that a parent’s situation might improve.
If the permanency plan provides for restoration of the child to the parents, section 84(2) of the Care and Protection Act 1998 states that the plan must include:
(a) a description of the minimum outcomes the Secretary believes must be achieved before it would be safe for the child or young person to return to his or her parents,
(b) details of the services the Department is able to provide, or arrange the provision of, to the child or young person or his or her family in order to facilitate restoration,
(c) details of other services that the Children’s Court could request other government departments or funded non-government agencies to provide to the child or young person or his or her family in order to facilitate restoration,
(d) a statement of the length of time during which restoration should be actively pursued.
Importantly, the court must not make a final order unless it expressly finds, in accordance with section 83(7):
(i) permanency planning for the child has been appropriately and adequately addressed, and
(ii) if the permanency plan involves restoration, that there is a realistic possibility of restoration within a reasonable period.
​
​
Section 90 Applications
If final or interim care orders have been made and you need to seek a variation or rescission of those orders, you can make an application to the Children’s Court under section 90(1) or section 90AA of the Care and Protection Act 1998.
What are Section 90 Applications?
Section 90 applications are applications before the Children’s Court seeking a variation or rescission of final care orders. Before the application can proceed, the Children’s Court must first grant leave (i.e. permission).
Section 90(1AA) provides that applications for a rescission or variation of final care orders may be made with leave of the Court by either of the following:
-
The Secretary for the Department of Communities and Justice;
-
The child;
-
A person with parental responsibility for the child;
-
A person from whom parental responsibility for the child was removed; or
-
Any person who considers him or herself to have a sufficient interest in the child’s welfare.
Section 90(2) provides the Court may only grant leave if it “appears that there has been a significant change in any relevant circumstances since the care order was made or last varied”. Accordingly, to be successful in a Section 90 Application, you will need to demonstrate an improvement in your circumstances that justify the Court making a variation of the orders or rescinding the order. For the purpose of the Court’s assessment, a comparison is required between the situation at the time the application is heard and the facts underlying the decision when the order was made or last varied. A non-exhaustive list of factors which indicate a significant change are listed in clause 5 of the .
The Court has a very wide discretion in deciding whether or not to grant leave under section 90(1) of the Act. Even if you can establish a significant change in a relevant circumstances since the care order was made or last varied, the Court is not obliged to grant leave. Further, even if the parent has addressed all the issues of concern which led to removal of the child, the length of time the child has been in a stable placement, the age of the child and the expressed wishes of the child that their placement not be disturbed may together strongly support a finding that it is not in the best interests of the child to disturb their current placement: [2012] NSWChC 2 at [51].
What does the Court take into account for Section 90 Applications?
Although the Court has broad discretionary powers in deciding whether to grant leave, there are matters that must be taken into account when a Section 90 Application is put before it. Section 90(2A) prescribes mandatory matters for the Court’s consideration when determining whether to grant leave.
For applications for leave under section 90(1) that were made prior to 4 February 2019, the relevant matters are listed in section 90(2A).
For applications made on or after 4 February 2019, as a result of amendments by the , the list of considerations to be considered by the court is split into primary and additional considerations under sections 90(2B) and 90(2C).
Primary considerations listed under section 90(2B) include:
-
the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views,
-
the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements,
-
if the Children's Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person.
Additional considerations listed under section 90(2C) include:
-
the age of the child or young person,
-
the nature of the application,
-
the plans for the child or young person,
-
whether the applicant has an arguable case,
-
matters concerning the care and protection of the child or young person that are identified in:
-
a report under section 82, or
-
(ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150.
The Children’s Court may dismiss applications if satisfied they are frivolous, vexatious or an abuse of process, or if satisfied the application has no reasonable prospect of success and the applicant has previously made a series of unsuccessful applications for leave: sections 90(2D) and 90(2E).
​
Section 90AA Applications - Variation of interim care orders
The (commenced 4 February 2019) inserted s 90AA to provide that a party to care proceedings may apply to the Children’s Court to vary an interim care order. The Court may vary an interim care order if satisfied that it is appropriate to do so, pursuant to section 90AA(2).
Section 90(9) now expressly provides that section 90 does not apply to an application to vary an interim care order.
Section 90AA extends to proceedings before the court that were pending (but not finally determined) immediately before 4 February 2019.