Children’s Court update 2019 (care and protection jurisdiction)
Judge Peter Johnstone, President of the Children’s Court of NSW, Local Court Regional Conference, 27–29 March 2019, Port Macquarie
I would like to begin by acknowledging the traditional custodians of the land on which we meet, the Biripi people, and pay my respects to their Elders past, present and emerging. I acknowledge and respect their continuing culture and the contribution they make to the life of this region.
The purpose of this paper is to alert Local Court Magistrates to recent developments affecting the exercise of Children’s Court jurisdiction, and is designed to be a reference resource which may assist you in relation to children’s matters in either care or crime.
I will firstly canvass some more general developments affecting the Children’s Court over the past year or so, and then discuss some updates in the criminal and care jurisdictions, followed by a brief discussion of some recent case law.
Updates in the care and protection jurisdiction
There are several important updates and developments in the care and protection jurisdiction of the Children’s Court, which I will canvass briefly here.
Department of Family and Community Services Report on the outcomes of consultations: shaping a better child protection system
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.
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.
Amendments to the Children and Young Persons (Care and Protection) Act 1998 and Adoption Act 2000
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 family preservation and restoration
permanency for children and young people, and
streamlined court processes.
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:
make a guardianship order where both parents consent, without the need to make a finding that there is no realistic possibility of restoration of the child to their parents
make contact orders for longer than 12 months where a guardianship order is made and it is in the child’s best interest
relist a matter and review progress in implementing the Care plan if the court is not satisfied that proper arrangements have been made for the child’s care and protection
prioritise the views of children in applications for leave to vary or rescind a Care order
discuss an application for leave to vary or rescind a Care order if the court is satisfied that it is frivolous, vexatious, an abuse of process, or one of a serious of unsuccessful attempts by the applicant, and
vary an interim order on an application by a party during proceedings if the court is satisfied that it is appropriate to do so.
There are a number of other ad hoc changes to care and protection proceedings. For example:
when a guardian or carer with full parental responsibility dies, care responsibility will sit with the Secretary for 21 days. This will give the Secretary time to ensure appropriate care arrangements have been made
the publication or broadcast of the names of children in a way that identifies them as being in out-of-home care will be prohibited in most situations,
supported out-of-home care will only be provided for the placement of a child in care with a relative or kin where a relevant court order exists, consistent with existing practice.
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 Role of an Independent Legal Representative
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:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
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.
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:
if a guardian ad litem has been appointed for the child or young person — acting on the instructions of the guardian ad litem;
interviewing a child or young person after becoming the independent legal representative
explaining to the child or young person the role of an independent legal representative
presenting direct evidence to the Children’s Court about the child or young person and matters relevant to his or her safety, welfare and well-being
presenting evidence of the child’s or young person’s wishes (and in doing so the independent legal representative is not bound by the child’s or young person’s instructions)
ensuring that all relevant evidence is adduced and, where necessary, tested
cross-examining the parties and their witnesses
making applications and submissions to the Children’s Court for orders (whether final or interim) considered appropriate in the interest of the child or young person,
lodging an appeal against an order of the Children’s Court if considered appropriate.
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.
I hope this paper has been useful in outlining the changes in the Children’s Court jurisdiction which have occurred over the past few years, and which will continue to unfold over the course of the year.
 Family and Community Services, “Shaping a better child protection system”, at www.facs.nsw.gov.au/about/reforms/children-families/better-child-protection, accessed 4 July 2019.
 United Nations, Convention on the Rights of the Child, in force 2 September 1990, at www.ohchr.org/en/professionalinterest/pages/crc.aspx, accessed 27 June 2019.
 Care Act s 9.