Children’s Court of NSW Resource Handbook — Jurisdiction

The Children’s Court of NSW is one of the oldest children’s courts in the world. It is a specially created stand-alone jurisdiction whose origins can be traced back to 1850.

Historically, the criminal law did not distinguish between children and adults, and children were subject to the same laws and same punishments as adults and were dealt with in adult courts.

Indeed there were a number of children under 18 years transported to NSW in the First Fleet of 1788 as convicts.

The precise number of convicts transported is unclear, but among the 750–780 convicts, there were 34 children under 14 years of age and some 72 young persons aged 15–19.^[2]

The first special provision in NSW recognising the need to treat children differently was the Juvenile Offender Act 1850.^[3] This legislation was enacted to provide speedier trials and to address the “evils of long imprisonment” of children.

Then, in 1866, further reforms were introduced, including the Reformatory Schools Act 1866,^[4] which provided for the establishment of reformatory schools as an alternative to prison, and the Destitute Children Act 1866,^[5] under which public and private “industrial schools” were established, to which vagrant and destitute children could be sent.^[6]

Since those early beginnings there was a steady, albeit piecemeal, progression of reform that increasingly recognised and addressed the need for children to be treated differently and separately from adults in the criminal justice system.

Ultimately, in 1905, specialist, discrete Children’s Courts were established at Sydney, Newcastle, Parramatta, Burwood and Broken Hill. Two “Special Magistrates” appointed from the ranks of existing magistrates commenced sitting at Ormond House, Paddington in October 1905.

Since then, the idea of a separate specialist jurisdiction to deal with children has prospered and developed until the present time.

Over that time the legislation that governs the way in which the Children’s Court deals with cases has become more complex but the fundamental principle upon which the court was established remains the same: that children should be dealt with differently, and separately from adults.

In 2023, the Children’s Court of NSW consists of a President, 15 specialist Children’s Magistrates and 14 Children’s Registrars. There are four courts specifically designated as Children’s Courts located at Parramatta, Surry Hills, Woy Woy and Broadmeadow.

Specialist Children’s Magistrates also deal with Children’s Court cases at shared Local Court facilities at Campbelltown, Sutherland, Wyong and in the Illawarra, Hunter, Mid-North Coast, Northern Rivers, Western and Riverina regions as well as Moss Vale and Goulburn. In rural and regional areas outside these locations, the sittings of the Children’s Court coincide with the sittings of the Local Court and are conducted by Local Court Magistrates.

The President of the Children’s Court is a District Court judge who has judicial leadership and other, statutory responsibilities as prescribed by the Children’s Court Act 1997, which include the administration of the court and the arrangement of sittings and circuits; the appointment of Children’s magistrates in consultation with the Chief Magistrate; convening meetings of Children’s magistrates and overseeing their training; convening and chairing meetings of the Advisory Committee which is responsible for providing advice to the Attorney General and Minister for Family and Community Services; and conferring regularly with community groups and social agencies on matters involving children and the court.

The current President is her Honour Judge Ellen Skinner.

Emergency care and protection orders, made under ss 43–45 Children and Young Persons (Care and Protection) Act 1998 are common and it is worth discussing the procedure with someone before you embark on a care day.

The Children’s Court is the State Parole Authority for most parolees who are sentenced for offences committed when they were under 18 years of age (see s 40 Children (Detention Centres) Act 1987). This jurisdiction is exercised by any Children’s Court magistrate (but not a Local Court magistrate sitting in the Children’s Court): s 41. Parole matters are dealt with only at Parramatta.

The Local Court Bench Book, which has basic information about both care and protection matters and criminal matters, provides a useful introduction: links will be provided under the relevant headings in the Resource Handbook.

The Sentencing Bench Book has a chapter on the Children (Criminal Proceedings) Act 1987. The chapter refers to the leading cases involving this piece of legislation and other helpful material. You may access these bench books from here or from relevant points within the Resource Handbook.

For your convenience, legislation to all the relevant pieces of legislation has been hyperlinked within this Resource Handbook. The hyperlinks are to the JIRS collection of legislation. If you wish to access hard copies of the legislation, apart from printing out the relevant provision, you may wish to check the 4 volume looseleaf LexisNexis publication Criminal Practice and Procedure NSW, which is available within the court.