Children’s Court Resource Handbook Update 13 published

The following chapters have been updated:

Care and protection matters

The commentary in relation to care and protection matters has been significantly expanded. A discussion of the principles of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act), including the “unacceptable risk” of harm test, is included at [1-‍0000] Jurisdiction of the Children’s Court. The consideration of actions by the Department of Communities and Justice under s 34 of the Care Act is discussed at [1-0005] Consideration of prior alternatives when dealing with children entering OOHC. [1‍-0010] Removal of child into care and protection includes a discussion of the establishment and welfare stages of the Care process.

New commentary on the Aboriginal and Torres Strait Islander Principles (ATSIP), enshrined in Ch 2, Pt 2 of the Care Act, and the Family is culture review report: Independent review of Aboriginal children in OOHC, appear at [1-0015] The Aboriginal and Torres Strait Islander child placement principles. This section includes cases relevant to the identification of Aboriginal children for the purposes of care and protection matters, and issues arising from the de-identification of Aboriginal and Torres Strait Islander children. Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83, has been added, where the definition of an “Aboriginal child” in Fischer v Thompson (Anonymised) [2019] NSWSC 773 was disapproved as being too narrow. The NSWCA in Hackett held that a child is an Aboriginal child for the purposes of the Adoption Act in circumstances where evidence established that she or he was descended from the people who lived in Australia before British colonisation. A discussion on operating a trauma-informed court has been added at [1-‍0020] Practical considerations for judicial officers. A section on “cross-over kids”, discussing care-experienced children, the criminal justice system (including the relevant sections of the Bail Act 2013) in relation to both children and First Nations people is at [1-‍0025] Cross over kids.

Further articles and resources have been added, including a template for the ATSICPP Care Plan at [1-0025] and [1-0028].

Care and protection matters — important cases has been updated. The following new cases have been added:

  • Polsen v Harrison [2021] NSWCA 23 — Test is whether fair-minded lay observer might think judge might have pre-judged credibility of witness at Bias [4-0410]
  • CXZ v Children’s Guardian [2020] NSWCA 338 — Principles to be applied in determining whether person poses risk to safety of children under s 18 Child Protection (Working with Children) Act 2012 at Care and protection [4-0535]
  • The Secretary, Department of Communities and Justice v B [2020] NSWDC 736 — Care order where sexual assault of other child at Care and protection [4-0540]
  • Y (a pseudonym) v The Secretary, Communities and Justice (No 4) [2021] NSWDC 81 — Application by the Secretary, Department of Communities and Justice to set aside appellant’s subpoenas that seek production of documents at Care and protection [4-0545]

Criminal matters — remade regulations

  • Children (Criminal Proceedings) Regulation 2021 at [7-0110]. This Regulation repeals and replaces the Children (Criminal Proceedings) Regulation 2016, which would otherwise be repealed on 1 September 2021 by the Subordinate Legislation Act 1989, s 10(2).

Criminal matters — important cases has been updated. The following new cases have been added:

  • R v Connor Fontaine (a pseudonym) [2021] NSWSC 177 — Curfew conditions should not be used to attempt social engineering or for paternalistic interventions at Bail [8-0615]
  • Lacey (a pseudonym) v Attorney General for NSW [2021] NSWCA 27 — Stay may, in an appropriate case, include condition that matter be heard by female magistrate at Jurisdiction [8-1225]
  • Singh v R [2020] NSWCCA 353— Judge properly took into account applicant’s youth when sentencing at Sentencing [8-1905]
  • R v Lovett (a pseudonym) [2021] QCA 46 — Recording of conviction of juvenile did not render sentence manifestly excessive at Sentencing [8-1910]

Youth Koori Court

Two new articles have been added:

  • S Duncombe, “The trauma-informed approach of the NSW Youth Koori Court” (2020) 32(3) JOB 21 at [11-0030]
  • S Norrish, “Thirty years on from the Royal Commission, what can judicial officers do?” (2021) 33(3) JOB 29 at [11-0035]