Children’s Court of NSW Resource Handbook — Principles and jurisdiction

Following consultations in 2017 and 2018, DFaCS published a report on the outcomes of these consultations in October 2018. The report, titled “Shaping a Better Child Protection System”, outlines a summary of overall feedback from stakeholders, and communicates the NSW Government’s position in relation to the child protection system.^[3]

Notably, the report recommended that the Children and Young Persons (Care and Protection) Act 1998 (the “Care Act”) be amended to provide that if a child or young person is assessed as at risk of significant harm, their family must be offered alternative dispute resolution before Care orders are sought from the Children’s Court, except where it would not be appropriate due to exceptional circumstances.

The NSW Government also recommended an amendment to the Care Act to extend the obligation of government agencies and government funded NGO’s to cooperate in the delivery of services to children and young persons, for the provision of prioritised access to services for children and young persons at risk of significant harm and their families.

This recommendation was made in light of the fact that the issues that families present to the health, education and justice systems are often associated with child protection risks.

The report recommended that the Children’s Court be empowered to make a guardianship order by consent, where the suitability assessments around guardianship have been satisfied and all parties and children have received independent legal advice.

It was recommended that all parties to care proceedings may apply to vary an interim order without the requirement of a s 90 application to be filed. This would likely shorten care proceedings and provide further procedural fairness to participants.

The NSW government also recommended that where the Children’s Court approves a permanency plan involving restoration, guardianship or adoption, that the maximum period for which an order may be made allocating all aspects of parental responsibility to the Minister is 24 months, unless the Children’s Court is satisfied that there are special circumstances that warrant a longer period.

As such, it was recommended that s 83 be amended so that, “realistic possibility of restoration” means a realistic possibility of the child or young person being restored to his or her parents within a reasonable period, not exceeding two years.

The NSW Government recommended that an amendment to the Care Act be made to empower the Children’s Court to make contact orders for more than 12 months duration for children and young persons who are the subject of a guardianship order, where it is in the best interests of the child or young person.

It was also recommended that s 90 be amended to introduce primary and additional considerations that the Children’s Court must consider before granting leave to vary or rescind a Care order.

Finally, the Government recommended that the time limit in s 136(3) be amended from 6 months to 12 months to enable greater flexibility in the restoration process.

The Children and Young Persons (Care and Protection) Amendment Act 2018 commenced on 4 February 2019. The Act amends the Care Act and the Adoption Act 2000 to support current child protection reforms.

The amendments aim to strengthen services to keep children safely at home with their families and restore children to their families when it is safe to do so. When this is not possible, a safe home will be secured for children through guardianship or open adoption.

The amendments aim to support further reductions in the number of children and young people in out-of-home care and improve the timeliness and quality of services for these children and their families.

The key amendments focus on:

Earlier intervention with families is central to the legislative changes. Alternative Dispute Resolution, such as Family Group Conferencing, must be offered to a family before orders are sought from the Children’s Court. This provides families an opportunity to work together to develop their own plan to keep their children safe.

The Department of Family and Community Services can ask an agency or funded service provider to give prioritised access to services for children at risk of significant harm and their family.

The Children’s Court is able to assess the realistic possibility of restoration in a 24 month period, allowing the court to consider whether restoration will be possible into the future. Children and young people will be able to be restored to their parents up to 12 months before a court order involving restoration expires.

The amendments also focus on greater permanency for children and young people. Shorter term court orders will focus on casework planning to secure long-term permanency outcomes sooner, and reduce the time children spend in out-of-home care. For care plans involving restoration, guardianship or adoption, the maximum period of an order giving parental responsibility to the Minister will be 24 months, unless the Children’s Court is satisfied that special circumstances exist.

The changes to legislation also aim to streamline court processes to focus on each child’s experience and what is in their best interest. The changes are designed to minimise lengthy litigation processes and respond to a child’s needs quickly.

The Children’s Court is able to:

There are a number of other ad hoc changes to care and protection proceedings. For example:

The Department of Family and Community Services will monitor and report on the changes to ensure that they are supporting better outcomes for children, families and Aboriginal communities.

The concept that “children should be seen and not heard” has become redundant as society has developed an appreciation of the value that children and young people can add when they are empowered to participate.

The qualification has been enshrined in Art 12 of the United Nations’ Convention on the Rights of the Child 1989 (UNCROC). It states:

The participation principle in Art 12 is qualified by ss 8 and 9 of the Care Act. The Care Act clarifies that a young person’s participation in decision-making is subject to ensuring their safety, welfare and well-being.^[5]

The Independent Legal Representative (ILR) or “best interests” model is consistent with the need to consider the child’s views whilst maintaining an overarching commitment to safeguarding the child’s interests. The ILR will consult with the child, but their overriding duty is to the court, to act in accordance with the safety, welfare and well-being of the child.

The Direct Legal Representative (DLR) model requires that a DLR may be appointed for any child at the age of 12 or over who is capable of giving instructions. The DLR must then advocate as instructed by the child.

A practitioner who has been appointed as a DLR may make an application to the court for a declaration that a child aged 12 years or older is incapable to giving proper instructions and that the practitioner should act as an ILR instead of a DLR. Practitioners should make such an application where the practitioner forms the view that this is appropriate.

Section 99D(b) of the Care Act provides that the role of an ILR includes the following:

The role of the ILR is critical to ensuring that the participation principles of the Act are adhered to. ILRs can do this, while preserving the safety, welfare and well-being of the child, by using participatory advocacy. The future is bright and with scientific, psychiatric and sociological advancements, we will no doubt see further discussion of alternative schemes.