Contact guidelines for magistrates: background paper

T Jovanovic1

[18-5000] Introduction — making “contact” decisions

Last reviewed: May 2023

Making a decision regarding contact is often very challenging for any magistrate, particularly where different parties strongly disagree on the nature and frequency of contact. The Court is often caught between upholding the principle that there should be a continuance of a relationship between a child in out of home care and the child’s birth family, and ensuring that the safety, welfare and well-being of a child is a paramount consideration in any decision.

As Magistrate Crawford noted:

Even if the desirability of “ongoing contact” is a matter of common ground between the parties, the translating of this principle into the specifics of a workable arrangement that can be evidenced in terms of a court order, can be a difficult task. Similarly there can be the difficulty of integrating “contact” into the broader future planning for the child. The varying interests of the child and many other persons must be taken into account if a contact order is to work satisfactorily over the longer term as this necessarily requires the co-operation of all persons involved in the process.2

To make matters more complicated, his Honour pointed out that:

It is important that any decision concerning the making of a contact order be based on adequate, relevant, current and specific information. Often such information is not available.3 (Emphasis added.)

The purpose of this paper is to enable magistrates to make better informed contact orders by highlighting the main functions and purposes of contact visits, outlining key arguments in favour and against contact between children in care and their family members, analysing specific issues which children in care may encounter as a result of contact and outlining factors which may inhibit contact and which magistrates will need to carefully consider if contact is to be fostered and encouraged.

Contact orders under the Children and Young Persons (Care and Protection) Act 1998

Currently the Children’s Court has the power to make contact orders in accordance with s 86 of the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”) which states:


If a child or young person is the subject of proceedings before the Children’s Court, the Children’s Court may, on application made by any party to the proceedings, do any one or more of the following:


make an order stipulating minimum requirements concerning the frequency and duration of contact between the child or young person and his or her parents, relatives or other persons of significance to the child or young person,


make an order that contact with a specified person be supervised,


make an order denying contact with a specified person if contact with that person is not in the best interests of the child or young person.


The Children’s Court may make an order that contact be supervised by the Director-General or a person employed in that part of the Department comprising those members of staff who are principally involved in the administration of this Act only with the Director-General’s or person’s consent.


An order of the kind referred to in subsection (1)(a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.


An order of the kind referred to in subsection (1)(b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact.

Findings of the Wood Special Commission of Inquiry into the Child Protection Services in NSW regarding contact

Review of the Children’s Court’s powers under s 86

The Wood Special Commission of Inquiry into the Child Protection Services in NSW reviewed the current system of making contact orders and concluded:

The Inquiry is of the view that, on balance, the Children’s Court should retain its power to make contact orders with respect to those children and young persons about whom the Court has accepted the assessment of the Director-General that there is a realistic possibility of restoration. For all other children and young persons, that is those where the Court has accepted that there is no such possibility, the Court should have no power with respect to making orders as to contact.4

The NSW Government supports Commissioner Wood’s recommendation. As a result, the Government presently proposes an amendment to s 86 of the Care Act limiting the Court’s power to make contact orders only in cases where restoration is a realistic possibility. Until the proposed amendment comes into effect, the court will retain its power to make contact orders in both cases where restoration is and is not a realistic possibility.

Need for contact guidelines

The Inquiry was informed that there appears to be some discrepancy in the nature of contact orders made by different judicial officers. The Inquiry noted that:

Determining the duration, frequency and supervision needs for contact between children and young persons in care and those significant to them, is a complex matter. The Inquiry is aware of the competing views in the literature concerning the benefits which may accrue to a child or young person from contact being maintained, and balancing the need for stability, the likelihood of restoration, the developmental requirements of a child or young person as well as changes in the circumstances of birth families and the quality of the contact, all within the context of the best interests of the child or young person.5

The Inquiry was of the view that discrepancies may arise not only as a result of unique circumstances of each care and protection case, but due to a lack of guidance regarding matters which judicial officers should consider, and the approach which they should adopt in making contact orders. As a result, the Inquiry recommended that:

Evidence based guidelines for Magistrates should be prepared in relation to orders about contact made under s 86 of the Children and Young Persons (Care and Protection) Act 1998.6

A number of Children’s magistrates informed the court that they experienced some difficulties when faced with the task of making contact orders, and that these difficulties could be minimised by providing them with some guidance on how to approach these orders. In these circumstances, some form of guidelines would appear to be beneficial, both by informing magistrates of various matters which should be taken into account when making contact orders thereby leading to better informed decisions, and by ensuring consistency of the court’s decisions.

Basic arguments in favour and against contact

There are a number of recurring arguments in favour and against contact. It is important to note that as the circumstances of each case are unique, these arguments do not apply across the board, and the ultimate decision regarding contact needs to be based on the particular circumstances of the case.

  • Contact encourages reunification with the birth family

  • Contact maintains/encourages attachment to the birth family

  • Contact prevents idealisation of the birth family

  • Contact maintains links and cultural identity

  • Contact enhances the psychological well-being of the children in care

  • Contact is a means by which the quality of the relationship between the birth family and the child can be assessed.7

On the other hand, the following are the most cited arguments against contact:

  • Multiple attachments create confusion for children or conflict of loyalties

  • The threat of harm to the child or to the new parents may undermine the placement

  • Birth parents need to be helped towards closure as the best way of dealing with feelings of loss and guilt

  • Demands placed on new parents adversely affect the recruitment of new adopters

  • It is too risky to make such complex placements without adequate professional skills and resources which need to extend far beyond adoption

  • The push for contact arises less from the evidence on benefits than from professional desires to undo the pain of separation or because they themselves feel they have failed the birth family.8

In addition some studies have found that contact with birth families may lead to:

  • Continuation of unhealthy relationships, for example inappropriately dominant or bullying relationships, or controlling relationships.

  • Undermining the child’s sense of stability and continuity by deliberately or inadvertently setting different moral standards or standards of behaviour.

  • Experiences lacking in endorsement of the child as a valued individual eg where little or no interest is shown in the child himself, or contact where the parent is unable to consistently sustain the prioritisation of the child’s needs.

  • Unreliable contact in which the child is frequently let down or feels rejected, unwanted and of little importance to the failing parent.

Where a child is continuing to attend contact even though expressing a view that he doesn’t want the contact can make the child feel undermined.9

Different models of contact and their influence on contact orders

Before exploring specific issues which arise in relation to contact, it is useful to consider different models of contact. These models broadly demonstrate different functions of contact visits, and broadly illustrate the approach to be taken in making contact orders, depending on the function which contact is intended to serve in a particular case.

There are four basic models of contact. Namely, the rehabilitation model, the continuity model, the disruption model and the deterrence model:

  • Rehabilitation model

    Here the function of contact is to facilitate the resumption of care by a parent. When rehabilitation (restoration) occurs (as is the objective of contact), the transition from care will then be less stressful for the child. Contact allows the parent to develop caring skills gradually. Contact can be used to assess the abilities of the parent and for social workers to “teach” caring skills to the parent. Contact keeps alive the possibility of the separated parent resuming full-time care. In summary, contact under this model is a means to an end.

  • Continuity model

    Where restoration is not an objective, contact benefits the child and parent by supplying emotional security through the continuance of that relationship. Contact can help create a sense of identity for the child. As the child grows older, such contact may provide a crucial link to the past, as well as a sense of his/her own background and root. Contact is an end in itself.

  • Disruption model

    This model argues that whilst contact is desirable when restoration is an objective, if it ceases to be so then continued contact with the non-caring parent creates confusion, uncertainty and disruption for the child. Stability for the child is what is important and the social parents should replace the natural parents entirely. Non-rehabilitative contact may create confusion for the child and worry in the child’s mind of removal from the new carers.

  • Deterrence model

    This model is developed within the context of the English legislation that provides for orders “freeing” children in care for adoption. The concern that this model addresses is that potential adoptive parents will be deterred from adopting by the prospect of having to accommodate continuing contact with the natural family.

    In care proceedings both the “rehabilitation” and “continuity” models are used as a justification for the making of contact orders. The “disruption” model is sometimes used to justify the restriction or termination of contact.10

By adopting these models and determining which function contact visits are meant to serve in a particular case at the outset, magistrates will gain a broad idea of how frequent contact will need to be, whether any third parties will need to be involved, and whether visits need to be structured in any way. For example, if the circumstances of a case indicate that restoration is a realistic possibility, the Court will need to adopt a rehabilitation model of contact. As a result, the Court may consider making contact visits more frequent, and involving Community Services caseworkers who can teach the parent good parenting skills. If, on the other hand, there is no realistic possibility of restoration but the parent and child have a healthy and close relationship, the Court may adopt the continuance model and order regular, though not necessarily frequent contact. Regular visits would enable the child to maintain a sense of identity and learn about his or her history while not disrupting the child’s placement through overly frequent visits.

Purposes of contact

According to the literature, contact visits between a child and his or her birth family may serve a number of specific purposes.

  • Visitation can be a positive intervention for the entire family and can promote successful reunification.

  • Visits reassure children that their families are alive and well and still care about them. Frequent contact with parents can reduce children’s anxiety associated with separation. Other types of contact, including exchange of phone calls, cards, and letters, will also serve this purpose.

  • Frequent visitation reassures parents that the agency is committed to maintaining and strengthening family relationships.

  • Visits present the caseworker with a valuable opportunity to help family members identify their needs and strengths. By observing family members together, the worker can elicit important information about the quality of the parent-child relationship, as well as gain insight into the parents’ developmental needs, motivation, and capacity to resume care of their children.

  • Family visits can be used as interventions to achieve specific objectives. For example, foster or relative caregivers may use visits to model parenting skills and to share child management strategies. During visits, parents can practice newly acquired parenting strategies and can receive immediate, constructive feedback and coaching from the caseworker or caregiver.

  • Visits may help parents understand the importance of permanency for their child. The visits can help them make a final decision regarding whether they want to diligently pursue reunification or relinquish their parental rights, thereby allowing their child to achieve permanency through another plan, such as adoption or guardianship.

  • Sibling visitation allows these important relationships to be maintained, even when siblings must be placed in separate homes.

  • Visitation with extended family is encouraged whenever possible. Extended family connections are important to the child’s development and often serve as alternative permanency plans if reunification does not take place.11

Potential effects of contact on children in care

In order to make contact visits which promote the best interests of the child and support the goals of a care plan, magistrates need to be aware of the impact of contact on family reunification as well as the child’s psychological wellbeing.

Family reunification

As the court will soon be limited to making contact orders only in cases where restoration is a realistic possibility, it is necessary to have regard to some of the literature which analyses the impact of contact on family reunification. In particular, a considerable amount of literature supports the notion that the greater the amount of contact between a child and his or her birth family, the stronger the likelihood that the child will return home. 12It is important to note however, that some authors argue that while contact may be associated with reunification, it may not necessarily cause it.13 A variety of factors quite independent of contact will shape the ultimate decision to return a child to his or her birth family. As a result, in cases where the Court has determined on the basis of the evidence before it, that restoration is a realistic possibility, the studies suggest that orders encouraging frequent contact may further assist the child’s return to the family.

Birth/foster family attachment, loyalty conflict and the child’s psychological wellbeing

A number of studies have noted that frequent contact can have a significant impact on the child’s attachment to his or her birth family. As a result, a few studies have focused on the impact of birth family attachment on foster family attachment, and the extent to which any dual attachment produces loyalty conflict in turn causing behavioural and psychological problems for the child. The results of these studies are rather mixed. This may be in part due to different time periods over which these studies were carried out. That is, patterns of placement and contact may have been quite different twenty years ago from today. Equally, patterns may vary across countries. Further, it is difficult to compare sample sizes used in various studies. Nevertheless, these studies may be of some assistance in cases where the child is expected to return home, and should therefore be encouraged through various means including contact to retain some attachment to their birth parents, while developing an attachment to their new foster parents.

In 1990 Fanshel found that parental contact was positively related to children’s negative behavioural outcomes.14 His study concluded that children who had regular contact with their birth families had more emotional and behavioural problems both in their foster homes and as young adults.15 Fanshel hypothesized that the reason for the children’s greater disturbance may be that they come from highly dysfunctional families and that they may be drawn into their parents’ stressful life events or difficulties.16 However, as Leathers points out this hypothesis appears inconsistent with Fanshel’s earlier study which found that children with more frequent parental contact had greater adjustment problems in their foster homes and weaker attachment to their new families, even after controlling for the biological mother’s disturbance and capacity to function in the maternal role.17

Poulin’s study concluded that frequency of contact fostered stronger biological family allegiance which in turn produced loyalty conflict.18 This finding was supported by a number of later studies which also concluded that while contact is beneficial to children in short term foster placements, children in long term foster care were likely to experience loyalty conflict when visited frequently as a result of having to manage allegiances to multiple parents. The impact of loyalty conflict is not only relevant in cases where a child is placed in permanent foster care. Children who are expected to return home eventually but who remain in foster care for an extended period of time are likely to experience the same difficulties as children who are placed in permanent care but who are frequently visited by their birth parents. These findings suggest that magistrates making contact orders in cases where restoration is a realistic possibility may face the difficult task of crafting orders which encourage family reunification while at the same time limit the adverse effect that frequent contact may have on children who spend a considerable amount of time in care. On the other hand, the findings imply that in cases where there is no realistic possibility of restoration, contact should be kept to a minimum so as to prevent the child from experiencing loyalty conflict.

On the other hand Cantos et al made the following findings in relation to children in care who display behavioural difficulties in their placements and were consequently referred to therapy:

Regular parental contact in contrast to no or irregular contact was shown to be related to the child’s behavioural difficulties as reported by foster parents even when behavioural differences accounted for by the duration of the children’s stay in care and the number of placements they have been in were taken into consideration. The children who were visited regularly were rated as exhibiting fewer behaviour problems, especially problems of an internalising nature (ie withdrawal, depression, anxiety) than the children who were visited irregularly or not at all.19

Similarly McWey and Mullis found that children who were visited more frequently and who had higher attachment to their parents had “fewer behavioural problems, were less likely to take psychiatric medication, and were less likely to be termed ‘developmentally delayed’ than children with lower levels of attachment”.20

In a most recent study, Leathers made the following findings in relation to visiting and it’s impact on loyalty conflict:

Most children were not reported to have a high level of loyalty conflict … As expected, how often children had visited with their mothers was not related to the severity of their depression, anxiety, oppositional defiant behavior, or conduct problems.21

Leathers also noted:

As expected, greater loyalty conflict was associated with having a strong allegiance to both a foster family and a biological mother.

Strength of allegiance to a foster family also had a weak, negative correlation with strength of allegiance to a biological mother suggesting that maintaining strong relationships with both a biological mother and a foster family might be difficult for some children.22

Differences were also found between the effects that biological mother allegiance had on foster family allegiance of boys and girls. According to the study:

Among the subsample of girls, strong biological mother allegiance was a significant predictor of weaker foster family allegiance … Among the subsample of boys, allegiance to biological mother was a nonsignificant predictor of foster family allegiance.23

Aside from birth and/or foster family allegiance, foster parents’ attitude to contact visits was also found to have a direct impact on children’s behavioural problems. Foster parents who were opposed to, or anxious about contact, were more likely to have children with the greatest number of behavioural problems, whereas the opposite was true for foster parents who encouraged contact with the birth family.24

Overall the study concluded that “frequency of parental visiting is not directly related to the emotional and behavioural problems of young adolescents who have been placed in non-relative foster care longer than a year”.25 Instead loyalty conflict was directly related to biological and foster family allegiance. Specifically “children who have strong allegiances to both their foster families and their mothers are likely to experience loyalty conflict, but also that loyalty conflict might be associated with weaker foster family allegiance”.26

In light of the above findings it is not surprising that a number of studies have noted that children who were visited frequently and who had strong attachment to their biological families had more difficulty attaching to their foster family which in turn caused placement disturbances. These findings could have significant implications for the making of contact orders where restoration is contemplated. The literature suggests that children with strong birth family allegiance are most likely to experience loyalty conflict and placement disturbances. Given that family allegiance would be encouraged when a child is expected to return home, contact visits will need to be organised in a way that seeks to minimise loyalty conflict. Literature suggests that supportive foster carers may, to some extent, help minimise these difficulties. However foster carer support is an independent factor which may be difficult, if at all possible, to influence through court-imposed contact orders. On the other hand, the literature suggests that where restoration is not a realistic possibility, it may be more appropriate to reduce or even completely cease contact between a child and his or her birth family, as the emotional disturbance and difficulty of forming attachment to the foster carers may override the benefits of contact, and may not be in the best interests of the child.

Factors which may inhibit contact

Length of stay in care

A few studies have found that the longer children stayed in care the more likely they were to experience a gradual decline in contact with their birth families.27 Although Leathers’ study noted that stronger foster family allegiance resulted in less frequent maternal visits, the studies do not make it clear whether growing attachment to the foster family or increasing barriers to contact were the cause of reduced contact.

This is another factor which will need to be considered when making contact orders — if restoration is a case plan goal it will be necessary to ensure that the child is not placed in care for an extended period of time which may negatively affect the child’s contact with the birth family. Alternatively, contact orders may need to impose more frequent contact which could counter the effect of lengthy stay in foster care, as long as the frequency of visits does not lead to loyalty conflict.

Kinship care

A number of studies have found that kinship care encourages more contact than non-kinship care. In fact, according to Berrick et al “56% of children in kinship care received at least monthly contact visits, compared with 32% of children in non-kin care”.28 As a result contact orders for children in this type of care will need to reflect these differences.

Interestingly, despite increased contact between the child and his or her birth parents, children in kinship care tend to remain in care for longer than children in ordinary foster care. Kovalesky suggests that placing children in kinship care reduces the parents’ motivation to address their substance abuse or other issues which lead to the child’s removal.29

If the court is of the view that the child should be restored to the family, it may be necessary to impose strict contact guidelines to ensure that the child’s placement with kin does not jeopardise his or her return to birth parents.

Domestic violence, sexual abuse and parental imprisonment

Where a child has been removed from his or her family as a result of physical or sexual abuse, contact visits will most likely need to be supervised in order to ensure the safety of the child. In addition, the following matters will need to be considered prior to making contact orders:

  • Permanently placed children who have suffered severe maltreatment may be re-traumatised when they have contact with the maltreating parent

  • Children may therefore experience the permanent carers as unable to protect them and keep them safe. This will interfere with the child’s ability to develop a secure attachment with their new carers

  • Severely maltreated children who feel unsafe and insecure will continue to employ extreme psychological measures of defence which may lead to a variety of aggressive, controlling and distancing behaviours. These behaviours place great strains on the carer-child relationship and increase the risk of placement breakdown

  • In contact cases where children suffer re-traumatisation, the need to make the child feel safe, protected and secure becomes the priority. Contact in the medium term would therefore not be indicated. This decision does not rule out the possibility of some form of contact at a later date, but this will depend upon whether or not the child has achieved levels of resilience … that will equip them to deal with the emotional arousal that renewed contact with a once traumatising parent will initially trigger.30

On the other hand where a parent has been imprisoned and the reasons for the parent’s imprisonment are not linked to the child’s removal, contact should proceed particularly if the parent is excepted to be incarcerated for a short time and reunification is a case plan goal. Consideration will however need to be given to the impact of visiting a parent in prison and other physical aspects of visitation in this unique setting.31

Parents’ psychiatric illnesses

Where the safety of the child is not an issue, the Children’s Court Clinic supports ample contact with the birth parent who is suffering from a psychiatric illness. Frequent contact reassures the child that his or her parent is coping with the separation and may also alleviate any fears that the child will develop the same psychiatric issues. If the child has inherited the parent’s mood or psychiatric disorder, contact can provide a forum in which the child can discuss their mental health with their parent, and gain a better understanding of how to cope with the illness or disorder. If the child has expressed a desire to have contact with the parent contact visits will help the child feel less powerless and insignificant about his or her situation.


In order to ensure the safety and welfare of a particular child, a contact visit may need to be supervised. Where the need for supervision is evident, the court is required to make that order and is not permitted to leave the requirement for supervision to the discretion of the Director-General of Community Services.32

Factors which may warrant supervision

Circumstances where it may be appropriate that the contact be supervised by another person include (but are not limited to) situations where:

  • there are allegations that the contact parent has a psychiatric disorder, or where a parent’s emotional or mental stability may be in issue;

  • there are allegations of child abuse, whether physical, sexual or psychological in nature;

  • a child may be expressing strong views that they are reluctant to see the contact parent alone;

  • a parent’s alcohol or drug consumption may be a possible threat to a child;

  • the contact parent’s conduct is anti-social and there is a risk that such behaviour may impinge upon the welfare of the child;

  • there is a history of the contact parent engaging in abusive behaviour;

  • the child has witnessed physical or verbal abuse between the parents;

  • it will help the contact parent and the child adjust to new arrangements;

  • the child is very young and the contact parent needs assistance;

  • the child has not seen the contact parent for a long time; and/or

  • the contact parent is expected to experience some parenting difficulty.33

Effect of supervision on contact visits — children’s experience

Children view supervised visits both positively and negatively. For example, children often viewed contact services personnel as helping them to have contact in a safe environment that is free from parental conflict.34 A number of children indicated that attending contact services premises significantly decreased the incidence of domestic violence or conflict between their parents, which made them feel safer.35 These children also stated that the presence of a contact services provider made them feel safer to be with parents who had substance abuse problems, as the providers would intervene as soon as the parent became agitated or abusive.36 On the other hand some children expressed the view that the presence of a contact services provider felt like an invasion of their privacy and prohibited them from openly engaging with their parent both verbally and physically.37 Further, some children expressed their frustration at the inflexibility of re-organising contact visits, which lead to them missing out on sporting or social events.38 This view was most commonly held by older children, suggesting that the need for and nature of supervision may need to change as the child gets older, and that there should be more flexibility in contact visit arrangements. Finally some children expressed the desire for other family members who are related to the visiting parent (and who they rarely saw) to attend supervised contact visits.39

Who should supervise contact visits?

When making supervised contact orders, the court should consider who would be the most suitable supervisor in the particular circumstances of the case. Preference should be given to a family member or a family friend, unless there is a specific need for a Community Services caseworker or a delegate to supervise the visits. Experience shows that when a family member supervises visits, particularly if they do so in their own home, members of the child’s extended family often attend these contact visits. The child consequently has contact with members of the family they rarely see when contact visits occur at Community Services premises under the supervision of a caseworker, helping the child feel more as a part of his or her family despite their removal.

Resource implications of contact

Finally, magistrates making contact orders will need to be conscious of the resource implications of their orders. While it is important that contact orders adequately address a child’s needs, it is also important not to make orders which may be too burdensome on either foster carers, birth parents or Community Services. Where a child cannot be placed in close proximity to his or her birth parents the cost of travel will need to be taken into account prior to making contact orders. As the Court of Appeal clarified in George v Children’s Court of NSW [2003] NSWCA 389, the court cannot order the Director-General of Community Services to bear the cost of travel incurred by birth parents in the course of attending contact visits.

Aboriginal and Torres Strait Islander children — need for special consideration

When making contact decisions about Aboriginal or Torres Strait Islander (ATSI) children it is important to keep in mind principles governing care and protection orders in relation to those children, which are set out in ss 11, 12, 13 and 14 of the Care Act. Namely, contact orders should, as far as possible, encourage ATSI children to maintain links with their culture.

If a child cannot be placed with an ATSI carer, special care should be taken in placing a child in a location/community where the child may form and maintain those links with the Aboriginal culture even if it’s immediate carers are not Aboriginal. In addition, when making contact orders in relation to ATSI children and particularly when, for whatever reason, the child does not have regular contact with its birth parents, the Magistrate making those orders should determine whether there are any other family or kinship members with respect to whom contact orders should be made. Further, Magistrates should also be aware of special cultural events and should craft contact orders which take these events into account.

Some views on contact

Children in care

The New South Wales Community Services Commission interviewed a number of children and young people in care as part of its “Voice of Children and Young People in Foster Care” project. The Commission was informed by the children who were interviewed that:

The majority (47) wanted more contact and connection with their family members and other significant people in their lives. The only exceptions to this were those children and young people who had been placed in long-term care at a very early age and had remained in long-term stable placements with little or no family contact since. Even amongst this group however, there were many requests for more information about their families.40

The Commission also found that:

Many children and young people involved in the consultations had lost significant relationships or had these relationships seriously diminished since coming into care.41

In addition:

Some children and young people had lost multiple relationships while in care. For example, one young person, aged over 13 years at the time of the consultation, who had been in DoCS care since preschool age had lost contact with a grandmother, aunt and brother who lived a short distance away, both parents who lived interstate. The young person had never seen, since entering care, several siblings who lived interstate.42

The importance of contact with birth family for children in care is evident from individual accounts reproduced in the report. Many of these accounts indicated strong feelings of sadness, frustration and confusion on the part of the child in care.43 On the other hand a young person who was placed with her own brother indicated that that was the best aspect of foster care.44


Barnardos acknowledge the need for children in care to remain in contact with their birth families. Barnardos also recognise that a child’s need for contact does not remain static as they get older and that there is a need to regularly review contact plans and tailor them to the child’s specific needs. For example, Barnardos recognise that infants and very young children who have not formed a very strong attachment to their birth parents prior to removal will require less contact than children in their pre-pubescent or adolescent years. However, Barnardos also stress the need for a realistic understanding of the difficulties of finding and maintaining foster or adoptive families and the importance of encouraging the child’s attachment to the new family, particularly if the child is not expected to return home. According to Barnardos’ Establishing permanency for children — the issue of contact between children in permanent foster care and their birth families monograph:

For children in permanent out of home care, contact must be set at a level, which does not interfere with the child or young person’s growing attachment to their new family. A child’s attachment to their new family and their potential for future stability can be placed at risk by too many visits. Unrealistic visitation plans can jeopardise the child’s chances of permanency as it can make finding and keeping a new family extremely difficult.45

Where a child is expected to remain in long-term care, Barnardos place paramount importance on the child’s need to form an attachment to their new family, rather than on maintaining contact with their birth family. While this position is understandable, magistrates making contact orders in cases where restoration is not a realistic possibility should still have regard to the views expressed to the Community Services Commission by children in care, including views of children who had been in long-term care at the time of the interviews, and who also indicated that they needed some contact with their birth family, at the very least for identity and information purposes.

Children’s Court Clinic’s experience

For children who come from families with a history of mental illnesses, and who may be predisposed to developing a similar illness, contact visits can help the child deal with his or her removal from the family, understand his or her parent’s mental illness, and address, at an early stage, any inclination to develop similar thinking patterns to those of their parents.

Speaking of a child in these circumstances, a Children’s Court clinician explained the importance of contact in the following way:

It is important for children’s identity formation and psychosocial adjustment to know their parents as they really are, rather than idealize or demonize them in fantasy. Only access can do this.

At times contact may be emotionally fraught or disappointing to the children, which makes access visits disruptive and burdensome for foster parents who may understandably wish to minimise access.

However, it should be remembered L has 2 parents and an uncle who suffer psychiatric disorders … research clearly indicates that the thinking of individuals who are prone to mood disorder is characterised by pessimism and beliefs in their own helplessness … It is very important that L does not feel helpless and hopeless in her family situation, thinking from a young age that what she wants makes no difference.

Having formed an attachment to her mother, she should be helped to sustain it. Having been disappointed by her mother, she should be given every opportunity to express her anger to her mother by rejecting her. Her mother should show she is hurt but keep coming back until she is forgiven. Keeping them apart will make L feel little and powerless.46

Children’s mental health professionals

Children’s mental health professionals also view contact as essential to a child’s development of identity and means of dealing with any experiences of loss. In particular the professionals state that:

In our view, identity is not a static, historically based concept. We see it as a dynamic developing process, formed within the context of ongoing relationships … We think this contributes to a sense of self in terms of self-esteem and self-worth. A positive sense of identity can only be developed in a relationship that supports that identity …47

However, they warn that the reverse is also true:

Contact with a parent who is unable to do those things could have the opposite effect as it maintains the child’s idea of him/herself as worthless and not valued by the parent.48

A guide to making contact orders

Community Services’ approach

Community Services suggests that the following questions should be asked when making contact orders:


Is the goal reunification or not?


How strong is the attachment or relationship between children and their birth parents?


Are there real risks to the safety of the child? If a child has been abused it is necessary to ensure that there is no further abuse and that contact with an abusive parent does not compromise the child’s foster placement due to their perception that the foster parents cannot protect them from harm.


Are the children’s wishes for and reactions to contact taken into account?


How old and at what developmental stage is the child?


How supportive are the foster carers?


Are there changes in the relationships and situations since last assessment? In long-term fostering placements it is important that contact arrangements are monitored and reviewed over time.


Will the contact visits involve significant traveling and disruption to the child’s routines? It is important that the frequency of any birth family contact should not be such that it interferes with the child and new parents spending enough time together consolidating their position as a new family.


When more frequent visits are required under a reunification plan or interim orders, practical issues may need to be taken into consideration.


How have the birth parents reacted to contact arrangements? Decisions about continuing contact visits should consider the reliability of the parents’ visiting to date and the impact of missed visits on the child.


Has contact with fathers and other family members been considered?


Has indirect contact been considered?


Where are the contact visits to take place?49

Once the above questions have been addressed and the overall relationship between the child and his or her parent/s has been assessed it is imperative to tailor contact arrangements to suit those needs and the nature of the particular relationship. The literature suggests that any prescriptive guidelines which do not adequately take into account the multifaceted nature of a particular parent child relationship, (like the ones proposed by CS), would not be an appropriate guide to making contact orders. Instead sufficient flexibility and judicial discretion needs to be permitted in order to create the most effective contact orders.

The Children’s Court’s current approach

In Re Helen [2004] NSWLC 7 Magistrate Mitchell held that in making contact orders it is imperative to have regard to the particular circumstances of the case, and make orders which specifically address those circumstances. Magistrate Mitchell stated that the making of contact orders should be approached in the following way:

I think the best approach in a case such as this may be for the Court to identify the range of contact arrangements which will properly answer the needs of the individual child or young person, taking into account his or her age, developmental level, background, attachments, life experiences, personality, talents, emotional resilience, deficits and wishes. Then, when the appropriate range or spectrum of contact arrangements has been identified, the Court should consider the safety of the child or young person, the circumstances which brought him or her into care, the fitness and willingness of the parents to cooperate in the contact process and the degree to which the parents might support the child in the placement or act to undermine it. Those are matters which, in some cases, may impact adversely on the viability of contact. Finally, if the details of the placement are known or can be predicted with reasonable certainty, the Court should consider the circumstances of the placement and the needs of the foster carers. Clearly, there may be instances where proposed foster carers may be so unreasonable and heedless of the proper needs of a child for contact with a significant attachment figure that the contact order should be made and fresh placement arrangements then be made to accommodate the contact order. That might happen when a proposed foster carer is so bitterly opposed to contact with a particular parent that he or she simply refuses to facilitate contact which the Court has decided is necessary or where a proposed foster carer has difficulty tolerating a child’s contact with family members of a particular racial background or religious persuasion … (Emphasis added.)

Magistrate Mitchell further held that the scarcity of foster placements as well as agency policies should not dictate the manner in which contact orders are made, nor should they be seen as more important than the child’s need for contact. His Honour specifically stated:

Sometimes, as in the present case, it will be argued that the scarcity of viable placements and the difficulty of recruitment of foster carers should influence the Court in the type of contact orders which it should make. But, that influence should apply, firstly, only where there is compelling evidence as to the unavailability of a suitable placement capable of accommodating the child’s or young person’s need for contact as determined by the Court and, secondly, only where the level of contact which the proposed placement can and will support falls within that range or spectrum of contact choices which the Court can still regard as an appropriate response to the child’s needs. As to the first, I doubt that the Court should be much influenced in its decisions as to contact by the existence of a policy maintained by the agencies or even by Community Services unless that policy has been measured against and tailored to suit the particular contact needs of the individual child or young person, the subject of the particular proceedings. Secondly, the Court is unlikely to endorse the making a long term placement without reference to the child’s or young person’s contact needs as determined by the Court and it should not be assumed that those contact needs are of less than critical importance for the welfare of the child or will be met adequately by a contact regime tailored primarily to the feelings and desires of carers or potential carers or the perceived needs of the agencies.

The need for review

Once contact orders are made, they should be regularly reviewed. As Hess pointed out, contact will lose much of its treatment capacity if not “used flexibility in a carefully and continuously planned process”.50 Regular review should be left to Community Services who are best placed to monitor and review contact. However, the extent to which the Community Services will follow any prescriptions in relation to review of contact plans is questionable, particularly if the New South Wales experience mirrors that of other states. Gilbertson and Barber found that in South Australia annual case plan reviews were not conducted as frequently as prescribed by the legislation. In particular they found that “in 1998, 1999/2000 and 2000/2001, a review had been conducted within the last 12 months in [only] 47%, 40% and 48% of cases, respectively”.51 Given the importance of regularly reviewing contact plans and maintaining their flexibility, the court may need to involve itself in this aspect of contact orders as well.


Decisions regarding the appropriate level, nature and frequency of contact are difficult to make since their effectiveness invariably depends on the extent to which they address the particular circumstances of the case, and there can consequently be no definitive formula which applies to all cases. Nevertheless, determination of any application under s 86 of the Care Act must always begin by establishing whether contact is in the best interests of the child. As already indicated, this decision will be based on the particular characteristics of the child and the circumstances of his or her case, while some guidance can be obtained from the general arguments in favour and against contact, and the extent to which any of these arguments apply to the particular situation. Once the court is satisfied that continued contact with the parents or other family members promotes the child’s best interests, the court should approach the task of crafting contact orders by determining what functions or purposes contact visits are intended to serve in the particular circumstances. The court should then consider adverse effects which contact may have on children in particular situations and moderate the frequency of contact in order to prevent these effects. The court must also be aware of the factors which may in some circumstances inhibit contact visits or affect their quality, and as far as possible tailor contact orders so as to overcome these factors. Finally, when making contact orders magistrates should have regard to the views expressed by children in care and about contact, and in particular their frequent desires to have more contact with their parents, siblings and other family members.

1Research Associate to his Honour Judge M Marien SC, President Children’s Court of NSW, July 2010.

2Magistrate Crawford, “Considerations in Making a Contact Order”, 2005(9), Children’s Law News 3.


4New South Wales, Special Commission of Inquiry into Child Protection Services in NSW, Report of the Special Commission of Inquiry into Child Protection Services in NSW, 2008, at [11.227].

5ibid at [11.199].

6ibid, recommendation 11.6.

7S Taplin, “Is all contact good contact?”, NSW Department of Community Services, Discussion Paper, 2005, p 7.

8ibid, p 12.

9See Children’s Magistrate Elizabeth Ellis, “Contact Orders”, 2004, p 6.

10Magistrate Crawford, above n 1, pp 8–9.

11Maine Department of Health and Human Services, Child and Family Services Manual, Part V.E. accessed from on 22/03/10.

12J Richards, “Contact — it still needs to be encouraged” (1995) 19(3) Adoption and Fostering, at pp 43–45; E Farmer, “Family reunification with high risk children: lessons from research” (1996) 18 Children and Youth Services Review, pp 403–424; P Hess, “Visiting between children in care and their families: a look at current policy”, 2003, A Report for the National Resource Centre for Foster care Permanency Planning, Hunter College School of Social Work: A Service of the Children’s Bureau.

13K Wilson and I Sinclair, “Foster care: policies and practice in working with foster placements” (2003) in M Bell and K Wilson (eds), The Practitioner’s Guide to Working with Families, Palgrave Macmillan, Basingstoke, 2003, pp 229-245; D Fanshel, On the road to permanency, Child Welfare League of America, New York, 1982; D Browne and A Moloney, “Contact Irregular: a qualitative analysis of the impact of visiting patterns of natural parents on foster placements” (2002) 7 Child and Family Social Work, 35.

14S Leathers, “Parental visiting, conflicting allegiances and emotional and behavioural problems among foster children” (2003) 52(1) Family Relations 53, 54.





19A Cantos, L Gries, and V Slis, “Behavioral correlates of parental visiting during family foster care” (1997) 76(2) Child Welfare, 309, 324.

20L McWey and A Mullis, “Improving the lives of children in foster care: the impact of supervised visitation” (2004) 53(3) Family Relations 293, 298.

21Leathers, above n 13, p 58.



24D Scott, C O’Neil and A Minge, Contact between children in out-of-home care and their birth families — Literature review, NSW Department of Community Services, 2005, p 23.

25Leathers, above n 13, p 59.

26ibid, p 61.

27Scott et al, above n 23, p 14.

28J Duerr Berrick, “What works in kinship care” (2000), in Scott et al, above n 22, p 17.

29A Kovalesky, “Factors affecting mother-child visiting identified by women with histories of substance abuse and child custody loss” (2001) 80(6) Child Welfare p 749.

30D Howe and M Steele, “Contact in cases in which children have been traumatically abused or neglected by their birth parents” in E Neil and D Howe (eds), Contact in adoption and permanent foster care: research, theory and practice, British Association for Adoption & Fostering, London, 2004.

31P Hess and K Proch, Family visiting in out of home care: a guide to practice, Child Welfare League of America, Washington, 1988.

32Re Liam [2005] NSWSC 75 at [48].

33Redfern Legal Centre’s Lawyers Practice Manual New South Wales at [2.3.208].

34G Sheehan et al, Children’s contact services: expectation and experience, Final Report, 2005, 147.


36Sheehan, above n 34, p 148.

37Sheehan, above n 34, p 153.

38Sheehan, above n 34, p 154.

39Sheehan, above n 34, p 158.

40Community Services Commission, Voices of children and young people in foster care, Consultation Report, 2000, 84.


42ibid, p  85

43ibid, p 84–90.

44ibid, p  84.

45Barnardos Monograph 50, Establishing permanency for children — the issue of contact between children in permanent foster care and their birth families, 2003.

46Magistrate Ellis, above n 8, p 5.

47R Harris and C Lindsey, “How professionals think about contact between children and their birth parents” (2002) 7 Clinical Child Psychology and Psychiatry 147, 153.


49NSW Department of Community Services, Making decisions about contact, 2006.

50P Hess, “Case and context” (1988) 67(4) Child Welfare 311.

51See Scott et al, above n 23, p 12.