Guidelines

[6-2000] Contact guidelines

Last reviewed: May 2023

These guidelines are intended to assist magistrates to identify issues to be considered in making a decision regarding contact in care and protection proceedings. They assume the law as it stood on [date] at which time the court had power to make contact orders regarding all care matters, both those involving restoration and those where there will be no restoration.

What is the purpose of contact

Restoration to the care of a parent or other carer

If an order that will result in restoring the child to a care of a parent is made, contact will need to be sufficiently frequent to maintain or develop the relationship between the parent and child.
Maintenance of a relationship which has some positive features

Some parents will be unable to care for their child but will nevertheless be able to love and affirm the child and not undermine the placement with another carer. It is necessary to ask whether the frequency of visits enhance or destabilise the current placement.
Maintaining a sense of identity regarding kinship and culture

For some children the benefit of contact will be primarily that they understand who they are in the context of their birth family and cultural background. Contact might also help ensure that they have a realistic understanding of who the parent is and do not idealise an unsuitable parent and develop unrealistic hopes of being reunited with them.

The child’s best interests — contact must be looked at from the child’s perspective

The focus must always be on the needs of the child and what is in the best interests of the child. How will the child benefit from contact with parents and siblings? Some benefit may be achieved over a long term, i.e. by providing the foundation for a relationship between the child and the parent which will develop later.

Restoration contact

If contact is part of a restoration plan it must be sufficiently frequent to allow a positive healthy relationship between parent and child to be maintained or to develop. It will ideally be in a situation that is as natural and relaxed as possible. It may need to increase as restoration nears.

How old and at what developmental stage is the child?

Younger children will usually need more frequent contact for a shorter duration than older children to maintain a relationship. Older children may benefit more from less frequent contact of greater duration (and thus less intrusive in carer family, sporting, cultural or friendship activities).

What are the child’s wishes regarding contact

How do they react to contact that is occurring?

Often a child’s wishes can be deduced from their behaviour at contact. Older children should be able to express their views and care should be taken to ensure that this expression is not influenced. The child’s legal representative will have an important role to play in this regard.

Negative reactions immediately before or following a contact visit may not necessarily indicate that the child is not enjoying and benefiting from contact with their birth family. Contact visits tend to bring out strong emotions in both the child and the parents and negative behaviours exhibited by the child before, during or after contact may simply be an indication of their heightened emotional state. For recently removed children there may be some separation anxiety which will need to be considered.
Should the child be able to refuse to attend contact at a particular age?

As a child matures their views about contact should have increased weight. Great care should be taken about agreeing with a young child who refuses contact when there is not an apparently sound reason. It may be difficult to get an older child to contact that they don’t wish to attend without causing greater harm than the benefit to be derived from the contact. The burden placed on carers to get an unwilling child to contact should be considered.
Older children asked to reflect on contact arrangements often wish that they had more contact than occurred.

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

How long was the child in the care of the parent before removal from their care?

In most cases there will be a strong attachment between a child and a parent who has been their carer for a long time. It is likely that the child will be adversely affected if contact becomes minimal in the absence of reasons to believe that the child will be harmed by contact. An infant or very young child will not have this strength of relationship.
How does the parent behave at contact?

Some behaviour by parents at contact, if persisted with, should result in limited contact; eg attending contact substance affected, denigrating others (including carers and the Department/caseworkers), not actively interacting with their child or favouring one child over another.
Has the parent failed to attend contact without good reason?

Persistent non-attendance will be harmful to a child whose expectations will be disappointed. This will often have impacts on their behaviour and possibly affect their placement.
Is there a strong relationship that is dysfunctional?

For some children there will be a strong relationship with a parent that will be dysfunctional. The parent may encourage poor behaviour ie violence, challenging appropriate limits on behaviour, diet etc. It is better to look at the health of the relationship.

What are the practical considerations?

Is there a substantial distance to be travelled?

Younger children especially should not be subjected to long travel to attend contact.
Are there limitations on people travelling to contact eg cost, disability?

Sometimes a carer will live some distance from the parent either because the care could not be found in the local community or because a parent has changed address. Ordinarily the onus should be on the parent to travel to the contact rather than having the child travel, especially younger children. If a parent is to be travelling, cost issues might need to be addressed. Enquiries should be made as to whether the Department can assist the parent with the cost of travelling to contact.
Will there be disruption cause to the child or the household in which the child is living?

Children and carer families will have their own commitments and patterns involving such things as piano lessons, basketball games, church attendance. It is important to ensure that a child is not made to feel greatly different from others in the household because they are at contact rather than carer family events. It is also important that the child does not resent attendance at contact because it takes them away from something that they enjoy doing.

What are the arrangements for contact with siblings, extended family and other significant people?

It is very important to see children in the context of their extended family and not just their parents. Particular attention should be paid to supporting sibling relationships. Even if extended family members are unable to care for a child it is still likely that contact will be beneficial — providing information and family and cultural identity. Existing healthy relationships should be supported even if a child is to remain in and out of home care.

Balancing extended family contact and placement stability and normality requires careful consideration. For example what would be usual contact with grandparents if the child was not in care?

In some situations provision for contact with a carer will be very important even though a child is being restored to the care of a parent or moving to another carer.

What indirect contact arrangements are appropriate?

Do arrangements need to be made regarding phone calls, cards and letters, email and social networking (eg Facebook/MySpace/Twitter/Skype)

Contact can occur in other ways than face-to-face. In some situations it will be necessary to limit or prohibit indirect contact or to ensure that it is supervised. For example, it may be necessary to prohibit a parent from making any reference to the child on a social networking website. Alternatively, especially if the parent is at some distance from the child the use of electronic communication should be encouraged.

Are there special events that should be provided for — birthdays, religious events, special cultural events?

Events such as these are important ways of maintaining identity and heritage. It should also be recognised that carer families will wish to celebrate some of these events as well. Often an order that contact near a particular date will be the best outcome.

What length of order is realistic?

How will the needs and circumstances of the child change over time?

A long term order for contact may create problems as a child’s circumstances change, particularly if the contact is to be relatively frequent. School, sport, cultural activities and friendship dynamics are just some of the factors which change over time. As a child gets older less frequent but longer contact may be appropriate.

The need for contact to be supervised may also change as the child and parent’s circumstances change.
How will the needs and circumstances of the carers/parents/others change over time?

Carers are often unknown at this stage of the proceedings. In cases where carers are known their attitudes to contact should be considered, as some of the literature suggests that their attitudes can have a powerful influence on the quality and frequency of contact.

What does the Care Plan contain regarding contact?

Is there a need for a specific order or is the Care Plan sufficient?
Does the Care Plan include provision for determining location?
Will a written contact plan be provided to parent/child/carer/others? Will this include contact rules?

For many parents and children it is difficult to predict future circumstances, particularly if a specific long-term carer has not been identified. Care should be exercised in ensuring that an unduly limiting contact order is not made. It may be preferable to ensure that plans for contact are clearly set out in the care plan without contact orders being made. Even if an order is made it is likely to be for a short duration rather than until the child turns 18 so the Care Plan should contemplate as much of the longer term future as possible.

Aboriginal and Torres Strait Islander families

Contact, whether with parents or with extended family, is likely to assist in maintaining cultural identity when a child is placed outside of kinship or community. If family contact is limited there will need to be an appropriate cultural plan in the Care Plan.

What is appropriate for an interim contact order?

In making an interim order the court must to some extent predict the likely outcome of the proceedings and make orders that are in keeping with this. Nevertheless interim orders can also assist transition. For example it may be appropriate to provide for more frequent contact in an interim order than will be contemplated long-term. It may also be appropriate to provide for declining or increasing amounts of contact that are in keeping with a move to the likely outcome.

In a case where at the early stages of the proceedings it is difficult to predict the outcome, careful consideration should be given as to whether an interim contact order should be made at that early stage or whether the Department should make contact arrangements in conformity with its assessment of risks to the child.

Are there real risks to the safety, welfare and wellbeing of the child?

Should contact be supervised?

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. If there has been trauma caused by a parent a child may not feel safe unless contact is closely supervised.

In cases involving allegations of physical or sexual abuse of a child by a parent, very careful consideration should be given to the risk that any contact with the parent (even supervised contact) may bepsychologically damaging to the child: see Should contact be prohibited or restricted? below.

If there is a real risk that a parent is likely to be substance affected, affected by uncontrolled mental illness or is likely to behave in a way at contact which will be detrimental to the child or the placement, general supervision will be needed.

In some situations where restoration is planned contact can be used to help a parent improve their parenting skills. It would need to be specifically planned that this would be the case.
Who should supervise contact?

(i)

Other family or friends. There is often no reason that contact needs to be supervised by a Caseworker or contact worker organised by the Department. Grandparents, other family friends may be suitable if there is evidence that they are going to be sufficiently protective and reliable. It is more likely that timing and location of contact will be flexible and more suited to a child’s needs than if organised by the Department. It may also mean that the contact can take place in the first language of the child and the parent if it is not English. In cases where contact is to be supervised by a person other than the Director General or delegate, both the person having contact and the person to supervise the contact must consent before an order can be made: section 86(4) of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act).

(ii)

The Director General or delegate. In some situations the risk to the child will require that professional contact supervisors are involved. However, before an order can be made for contact to be supervised by the Director General or delegate, the Director General or delegate must consent: section 86(2) of the Care Act.
Are written guidelines necessary eg re non-denigration of others, not being substance affected, communication in language other than English?

For some parents it will be necessary to provide rules governing such matters as advance confirmation of attendance, the importance of not denigrating other people, that the contract may be cancelled if they attend substance affected, that they are not to communicate with the child in a language not spoken by the contact supervisor, etc. This will make it clearer that there may be consequences if the rules are broken.
Should contact with parents and others occur separately from each other?

If there is a real risk of conflict between adults present at contact separate contact should be ordered, or contact rules provide for the cessation of contact if conflict arises.

Should contact be prohibited or restricted?

In some circumstances a child will experience trauma at contact because of

trauma that they have suffered at the hands of or with the acquiescence of a parent, or
distressing behaviour by a parent at contact – eg intoxication, verbal abuse, favouritism towards one child, denigration of carers or the Department/caseworkers.

As a last resort

In rare cases contact may need to be prohibited for a period of time or subject to considerable restriction. This should only be done after careful assessment of the possibility of distress or harm to the child.

[6-2020] NSW care circles procedure guide

Last reviewed: May 2023

NSW care circles procedure guide was issued August 2011 and last amended June 2012.

[6-2040] Guidelines for conducting a dispute resolution conference

Last reviewed: May 2023

The following model is based on the LEADR Model of Mediation

Purpose of a dispute resolution conference

The purpose of a Dispute Resolution Conference (DRC) is to provide a safe environment that promotes frank and open discussion between the parties in a structured forum to encourage the parties to agree on action that should be taken in relation to the child or young person concerned.

A DRC should aim to:

Identify the risks and safety concerns that have led to the intervention or involvement of Community Services
Identify and clarify the strengths within the family, including any progress made by family members in addressing those concerns
Hear and consider the views of the child(ren) either directly or indirectly through the child’s legal representative
Focus the parties attention on the child’s (or children’s) best interests
Identify and clarify disputed issues
Identify and clarify areas of agreement
Develop options and consider alternatives
Enhance communication between the parties
Reach agreement on issues of dispute between parties to avoid, or limit the scope, of any hearing
Formulate final or interim orders that may be made by consent.

The role of the Children’s Registrar in the Dispute Resolution Conference

The Children’s Registrar is an independent convenor acting with the authority of the Court.

In that capacity, the Children’s Registrar shall generally follow this model but can apply discretion in particular cases where the Children’s Registrar believes that certain features of the model will not promote the purpose of the particular DRC or are inconsistent with their role as an officer of the Court.

The Children’s Registrar is responsible for controlling the proceedings and ensuring that each participant has the opportunity to participate fully in a safe environment.

When conducting a DRC, the Children’s Registrars should adopt an independent and objective approach, free of bias. They should encourage the participation of the parties in shaping decisions that are fair, practical and achievable and that are made in the child’s best interests.

The Children’s Registrar should also be familiar with the facts and issues involved in the application that is the subject of the conference, prior to the commencement of the conference.

In conducting a DRC, the Children’s Registrar should:

Create an environment where everyone feels able to discuss and negotiate the issues in dispute and encourage parties, particularly families, to directly participate and contribute to the process
Clearly explain how the conference will be conducted and its purpose
Explain that the conference is confidential and explain the limits to the confidentiality of the process
Address any power imbalances that arise in the conference through appropriate strategies which allow all parties to express their views freely and without fear of intimidation
Intervene appropriately if a participant becomes antagonistic or aggressive
Confirm that legal representatives have the most up-to-date instructions from their clients
Clarify the risks and safety concerns that led to the intervention of Community Services
Lead a discussion with the participants regarding the strengths within the family
Assist the parties to identify/clarify the facts, views, interests and opinions of parties to the conference and to identify and clarify areas of agreement
Provide a “court perspective” on cases of a similar nature (whilst not providing legal advice) to help parties “reality test” their positions and provide information to assist parties to identify those matters which may be of particular concern to the Children’s Court, if it were considering the case
Develop options for resolution and consider alternatives to negotiation and settlement. Assist the parties to clearly understand what is likely to happen if they cannot agree to an appropriate way forward
Structure the process to ensure that each party understands the problems and options for settlement
Outline, with the assistance of the parties and/or their legal advisers, how each party’s views/options for settlement promote, or fail to promote, the best interests of the child
Introduce options that could be considered by parties, after they have had an opportunity to generate those options themselves
Endeavour to establish agreements or settlement in appropriate cases
Ensure that the written agreement is accurate and is understood by the parties
Ensure that all parties understand that in the event that agreement is reached as to any final orders the Court can only make those orders if it independently approves them and determines that they accord with the requirements of the Children and Young Persons (Care and Protection) Act 1998 (the Act) and are in the best interests of the child.

Where a Children’s Registrar has a conflict of interest or is unable to be independent and objective, they should disqualify themselves from participating in the DRC.

Pre-conference preparation

Prior to the DRC, the Children’s Registrar will familiarise themselves with all material in the proceedings that has been filed to date in the Children’s Court.

The Children’s Registrar will speak with each of the parties (or their legal representative) approximately one week prior to attending the DRC to establish who will be in attendance, and of those, who is seeking to participate in the conference. The Children’s Registrar will resolve any questions that may arise regarding the appropriateness of a person’s participation in the DRC. In general, the participation of all who have an interest in the outcome of the proceedings should be encouraged.

The Children’s Registrar will also consider any issues that may affect the manner in which the conference is conducted (ie the potential need for a shuttle conference to be conducted using separate rooms, or one party attending via AVL).

Conference structure

1. Opening — by Children’s Registrar

At the commencement of a DRC, the Children’s Registrar will:

Explain the purpose of the DRC
Emphasise that the central consideration will always be the safety, welfare and wellbeing of the child
Explain the DRC process, including the availability of private sessions and time outs with legal representatives if required
Outline to the parties that the purpose of a DRC is to attempt to reach agreement about the resolution of the application through the parties discussing and negotiating about their point of view. When it is not possible or appropriate to reach a final agreement about the resolution of the application, it remains the purpose of a DRC to identify what has been agreed and what are the points of disagreement
Discuss the role of the Children’s Registrar, and the role of the other parties and legal representatives and the role of any support persons
Explain the potential for a second DRC in appropriate circumstances
Explain the confidentiality provisions of cl 19 Children and Young Persons (Care and Protection) Regulation 2012, including limitations to confidentiality in a way that can be understood by the parties
Explain the need for the parties to participate in good faith in a way that can be understood by the parties
Explain how the DRC fits in within the Court hearing process and the differences between a DRC and a Court hearing
Explain the role of the Court in independently approving any agreement reached by the parties during the DRC to ensure that any orders accord with the requirements of the Act and are consistent with the best interests of the child
Explain that the conference has been scheduled for a minimum of 2 hours and obtain assurances from the parties as to their availability for that period
Explain the contents of the report to the Children’s Court following the conclusion of the DRC
Ensure that the parties are aware of the location of rest rooms etc.

The Children’s Registrar will explain the following guidelines:

Everyone is expected to behave in a polite and considerate manner
When a person is talking, they must be allowed to complete what they are saying
If a person is talking “too much” and preventing or affecting the opportunity for others to have their say, the Children’s Registrar may intervene.

The Children’s Registrar will also explain that the conference can be terminated if in his/her opinion:

One or more of the participants is behaving inappropriately
There are particular problems affecting the operation of the conference
There are concerns for the safety and well-being of participants.

2. Parties’ opening comments

The Children’s Registrar will:

Summarise his/her understanding of:
- the current application(s) before the court
- the current situation regarding placement of child(ren)
- any court orders currently in place
- the orders sought by Community Services
and seek confirmation from the participants.
Give each of the parties an opportunity to state what they hope to achieve at the DRC.

Parties will be encouraged to express their views on the current situation, and their current goal. The Children’s Registrar will encourage the parties to speak for themselves, but acknowledge that some parties may find this difficult and may prefer to have their legal representatives speak on their behalf.

Parties who present the second and subsequent opening comments will be encouraged to identify all the issues that are important to them and discouraged from limiting their comments to a response to the first party’s comments.

3. Reflection and summary

After all of the parties have spoken, the Children’s Registrar will summarise the main interests and concerns of the parties and request, if necessary, clarification of any issues.

4. Agenda setting – identifying the issues

The Children’s Registrar should, in consultation with all of the parties, develop an agenda for the conference. This agenda should include all key issues that parties raised in their opening statements.

The agenda should be both neutral and mutual. The agenda should be written down. The agenda should reflect issues that are clear from the documents that have been filed as well as issues raised by the parties in their opening statements.

5. Issue exploration

The parties should work through each of the issues identified in the agenda. The Children’s Registrar should encourage the parties to directly speak with each other as a means of clarifying their respective views.

The Children’s Registrar should ask open questions that allow the parties to fully explore each issue.

The Children’s Registrar can assist parties to identify and clarify interests that have caused the parties to feel as they do. Identifying motivating interests allows the parties to see that there may be more than one way to satisfy their interests.

The Children’s Registrar should not narrow the exploration of the issues at this time to legal issues. However, the Children’s Registrar should correct or confirm a party’s understanding of the legal issues relevant to the case when appropriate.

6. Private sessions

After each of the issues identified have been fully explored, the Children’s Registrar should conduct private sessions with each of the parties. The private session is considered to be a very valuable tool in which the Children’s Registrar can reality test the positions of the parties. The Children’s Registrar has the discretion not to conduct private sessions where they feel it is inappropriate in the particular circumstances. The following issues should be considered when deciding to hold a private session:

(a)

Is one of the parties unrepresented?

If one of the parties is unrepresented the Children’s Registrar should consider

(i): whether that party may feel unfairly pressured during a private session given the authority that the Children’s Registrar holds as an officer of the court
(ii): whether there is a real risk that the party may misrepresent statements made by a Registrar during a private session

and whether these concerns can be remedied by

(i): conducting a limited private session utilising mediation techniques only rather than conciliation techniques or
(ii): holding a private session with another party (for example where another party’s interest are similar to those of the unrepresented party or with the child’s legal representative).

(b)

Do you have personal safety concerns about conducting a private session with one of the parties?

If such concerns are held the Children’s Registrar should consider whether holding the private session in conjunction with another party will alleviate the concerns. If the concerns cannot be alleviated the private session should not be held.

If the Children’s Registrar decides not to hold a private session with one party, private sessions cannot be conducted with the other parties.

The Children’s Registrar also has the discretion to invite more than one party to the private session.

In conducting the private session, the Children’s Registrar should confirm the confidentiality of the session both at the beginning and at the end. This time should be used to discuss the needs of each party, and whether all issues have been adequately covered.

The Children’s Registrar should discuss options that have been identified with the party, and reality test their propositions against the alternatives available if there is no settlement.

7. Negotiation

The Children’s Registrar will facilitate direct negotiation between the parties, and assist the parties to explore options for settlement.

The Children’s Registrar will discuss the options that have been considered thus far with the parties and what each party will need to do to make the option(s) work. The parties will be asked to identify how the option(s) is/are in the best interests of the child. The Children’s Registrar will seek advice from parties about how realistic and achievable the option(s) is/are having regard to the legislative tests and caselaw.

Children’s Registrars should provide a “reality check” for the parties, encouraging them to consider the practicality of the options; implications of the options; and whether the Court is likely to find that particular option(s) is/are within the child’s best interests.

If the conference is not considering options that appropriately safeguard the best interests of the child, the Children’s Registrar may provide further options for the parties to consider. It is preferable for any options introduced by the Children’s Registrar to be so introduced during joint sessions between the parties.

8. Private sessions (optional)

The Children’s Registrar may conduct additional private sessions if necessary. This phase is optional, and is to be conducted at the Children’s Registrar’s discretion, or at the request of one of the parties.

These sessions will be used to reflect on the options generated and any issues still outstanding, in private.

9. Agreement and closure

The Children’s Registrar will seek to clarify the agreement(s) reached and strive to ensure that all parties feel and/or appreciate that the agreement is accurate, fair, realistic and appropriate to ensure the best interests of the child.

The Children’s Registrar will confirm with the parties that the Children’s Court is the final arbiter and that the Court will decide if the proposed agreement is in the best interests of the child.

If agreement has been reached with respect to any proposed order, one of the legal practitioners present at the DRC will be nominated to draft the Minute of Care order. This ideally will be done on the day of the DRC, and will be circulated to all parties present.

Where agreement has been reached, the Children’s Registrar will announce the end of the DRC and the commencement of directions. The Children’s Registrar must make it clear that the confidentiality provisions no longer apply. Where possible, an order from the Court should be sought on the same day.

Where no agreement has been reached, the Children’s Registrar will identify with the parties the issues that there is agreement on, and those that are still in dispute. Directions may also be given for the future conduct of the matter.

The Children’s Registrar will provide a report to the Children’s Court as a record of the outcome of the conference, as detailed in the form “Outcome of Dispute Resolution Conference — Report to Court”.

[6-2060] Standardised care orders

Last reviewed: May 2023

These orders relate to interim and final orders.