The people most commonly responsible for abusing and neglecting children are their parents for the reasons outlined earlier – see Who abuses children?
There are factors that increase the risk of harm to children and factors which can help to protect them. These factors vary depending on parents, the community and the broader society. Responding to the abuse and neglect of children and trying to prevent it from happening needs to occur at all these levels and to take both short and long-term approaches. This is most clearly indicated in Aboriginal communities – it is not sufficient simply to target particular children and their families. Effective approaches need to include the community and the broader living conditions. (Child welfare approaches for Indigenous communities: International perspectives’, T Libesman, 2004, Child Abuse Prevention Issues, no. 20) The challenge is to build a child-welfare or child-wellbeing system – rather than a child-protection system – that encourages early intervention, prevention and shared responsibility so that fewer children in future experience abuse and neglect and need to be removed from their families.
Early intervention and support
Legislation and policies in NSW and across Australia are trying to steer resources and action to assist children and families before there is a need for statutory intervention. The aim of early intervention and prevention is, of course, to prevent child abuse and neglect and to promote children’s development and well-being. This means taking action before problems develop to the point where full-scale protective intervention is necessary – the action must often be early in the life of the child, or when there are early indications of problems such as emotional disturbance or behaviour problems in the child.
Early intervention programs can be universal (available to all parents or all first-time parents), or more focused and targeted on particular groups of parents (for example, young single mothers, teenage mothers or parents experiencing stress and isolation as a result of family violence, poverty, housing problems and other problems). Some community-based programs and services such as family (or child and family) support programs, early intervention programs and home visiting programs provide a range of information, advice and support services to families at the neighbourhood and community level. Due to funding and other constraints, many services must give priority to families already in crisis. This means that services are unable to develop or implement programs aimed at prevention. There is, however, increasing recognition at all levels of government and in the non-government sector of the need to support and coordinate a range of services for children and families, and to integrate and use other universal services, including good quality child care in a more effective way, to assist vulnerable children and their families.
When action is necessary to protect a child from harm, the course taken from amongst appropriate options must be the least intrusive intervention into the life of the child and family (Children and Young Persons (Care and Protection) Act 1998, s 9 (2) (c)).
- If a child is placed in out-of-home care the permanent placement principles are to guide all actions and decisions regarding the child's permanent placement
- Permanent placement principles give greater preference to a child or young person being adopted than to being placed under the parental responsibility of the Minister (unless the child or young person is Aboriginal or Torres Strait Islander)
- A child removed from home is entitled to continuing contact with parents, siblings, extended family and friends, unless this is contrary to the child’s best interests. The child’s name, identity, language, culture and religion must be taken into account in all decisions made under the Act. This includes 'open adoption' when a child has a permanent home but can maintain contact with their family where it is in their best interests.
A child placed in out-of-home care (eg foster care) is entitled to a safe, nurturing and stable environment.
When children are found to be at risk of significant harm and other measures such as family support and other services cannot resolve the problems, further action is needed. There are a number of options which involve proceedings before the Children’s Court and some, like parent responsibility contracts and alternative parenting plans, which provide for some preliminary or diversionary processes.
Parent responsibility contract
One option provided for under the Children and Young Persons (Care and Protection) Act 1998 section 38A-E is a ‘parent responsibility contract’ between the parents or caregivers and the Director-General of Community Services. This is registered with the Children’s Court and may provide for the primary care-giver to be treated and tested for alcohol, drug or other substance abuse problems, to attend counselling and parenting skills courses. Failure to meet the terms of the contract may result in a breach of contract notice being filed with the Children’s Court as the basis for an application to the Court that the child is in need of care and protection. Amendments made to section 38A in 2014 make it possible for a parental responsibility contract to apply to expectant parents of an unborn child.
Alternative Parenting Plans
A parent or young person may seek help from Community Services when a young person’s safety, wellbeing or welfare is at risk because of serious or persistent conflict between them cases or inadequate supervision. Community Services may then provide or arrange services which aim to resolve the conflict without the need for Court proceedings. This might involve alternative dispute resolution such as mediation. If the problems are so serious that the young person can no longer live with their parent, Community Services may help the family devise an ‘Alternative Parenting Plan’ (section 116). The Plan may cover matters such as parental responsibility, where the young person is to live, supervision, contact, education, and medical care (section 115). An Alternative Parenting Plan can be registered with the Children’s Court, making it legally binding (sections 119). (For more information see Kids in Care.)
In some cases, there may be a need for emergency removal of children. Community Services or a Police Officer may enter and search premises and remove a child if there are reasonable grounds to believe that the child is at immediate risk of serious harm, and an apprehended violence order would not be enough to protect the child from the risk (section 43). Following an emergency removal, Community Services must commence proceedings in the Children’s Court within three working days. Community Services must explain to the Court why removal without a warrant was considered to be necessary. In response, the Children’s Court may make an Emergency Care and Protection Order if satisfied that the child is at risk of serious harm.
The Children’s Court
The Children’s Court of New South Wales hears children’s care and protection cases (often referred to as ‘care matters’). This court also deals with juvenile criminal law cases.
The Children’s Court sits in various locations throughout New South Wales. There are seven specialist Children’s Courts in NSW (five in the Sydney metropolitan area, and one each in the Newcastle and Wollongong areas). There are also five Children’s Registrars to assist in the administration of matters before the court. There is a country care circuit to deal with cases in Lismore, Dubbo and Riverina areas. From February 2014 the Mid-North Coast will be added and Dubbo replaces Wellington. In other regional areas of NSW, the Local Court becomes the Children’s Court when a children’s case is being heard. Children’s Courts are presided over by the Local Court Magistrate or a Children’s Magistrate from Sydney.
Before a matter comes to the Children’s Court, Community Services is required to enter into discussions with the parents involved to present their concerns and try to resolve these concerns and find ways to ensure the child’s safety, welfare and well-being. This may involve alternative dispute resolution. One of the key recommendations of the Wood Special Commission of Inquiry into Child Protection Services was for the increased use of alternative dispute resolution to improve collaborative decision-making and resolve concerns about children by producing care plans and other measures that are supported by all parties and strengthen the child’s family and community support networks.
Hot Tip: What is ADR?
Alternative Dispute Resolution (ADR) is an umbrella term used for processes other than judicial determination, in which an impartial third person assists people in dispute to resolve the issues between them. This may occur before the matter goes to court or at any time during that process. It can result in consent orders which may be approved by the court; this diverts the matter from a full hearing at the court. For example, when a parent capacity order is being heard, the court can refer the matter to the Children's Registrar, who acts as a conciliator and conducts a dispute resolution conference, aiming to resolve issues in dispute by agreement between the parties.
There are four types of ADR currently in use in NSW at different stages of the process:
- Family Group Conferences are facilitated by an independent convenor and will be offered to families to resolve disputes and make significant decisions at various points in a child protection intervention.
- The Care Circles program currently operates in the Nowra/Ulladulla area and in Lismore. The program involves Aboriginal community representatives helping Community Services and families to develop strategies that aim to identify safe, culturally appropriate options for Aboriginal children and young people that are in need of care and protection. (For more information see Care circles.)
- Dispute Resolution Conferences can take place at any stage during care proceedings, after a care application has been filed. Parties will be referred to a Dispute Resolution Conference at the discretion of the Magistrate.
- Referrals to external mediation services are at the discretion of the Children’s Court and can take place either after the child has been found in need of care and protection or after the Court grants leave as in an application to vary the orders.
See Care and protection proceedings in the Children’s Court for more information.
Children’s court hearings
Community Services will apply to the Children's Court if it is not satisfied that the concerns about a child can be met without court orders.
The court will determine whether the child or young person:
- was in need of care and protection at the time the care application was made; and
- would still be in need of care and protection were it not for any arrangements that have been made since the care application.
The court must determine what orders and actions are required to ensure that the child is living in a safe and nurturing environment.
The child, the parents, and Community Services are entitled to be parties in the hearing, and may have legal representation. Any other person with genuine concern for the welfare of the child may seek the court’s permission to become a party to the case. For example, a grandparent or aunt or uncle wishing to care for the child can apply to become a party in the case. If the court grants permission, then this enables that person to speak in court and file evidence.
Once Community Services has filed an application on behalf of a child or young person a date will be set for the application to be heard in court. This is referred to as the first mention or return date. At mention, the court is informed about the care application and issues such as where the child or young person is living, who is caring for them, and whether the application will be contested.
Interim orders for the child’s living and family contact arrangements are generally made at this stage.
Hot Tip: Care and protection
The Children's Court may make orders about a child or young person when it is satisfied that the child may be ‘in need of care and protection’ (section 71 of the Children and Young Persons (Care and Protection) Act 1998).
A child who is in need of care and protection:
- has no parent caring for them, or where a parent is caring for them but has serious difficulties in providing care;
- has been or is likely to be physically or sexually abused or ill-treated;
- is not having or is not likely to have their basic physical, psychological or educational needs met by his or her parents or primary care-givers;
- is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a result of their domestic environment (includes exposure to domestic violence); and
- is under 14, has exhibited sexually abusive behaviours and an order of the Children’s Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service.
Where the care application is contested
Where a care application is contested, the court will list the matter for hearing and make directions as to the filing of evidence on which parties wish to rely. While the parties are preparing the evidence, the matter will be adjourned. The court will use mentions to ensure that the directions made have been followed.
The court may also refer the parties to an Alternative Dispute Resolution (ADR) program, such as a Dispute Resolution Conference, prior to a final hearing as a way of:
- identifying areas of agreement;
- identifying areas of disagreement; and
- trying to determine the best way of resolving the matter without having to proceed to a hearing.
While the aim is to finalise matters as soon as possible, most cases take some time in order to obtain evidence, including assessment reports (eg from the Children’s Court Clinic). The Children’s Court may also grant an adjournment to enable parents or the child or young person to participate in a service or program or to participate in an ADR program that could reduce the need for the court’s intervention.
In determining whether a child or young person is in need of care and protection, the Children’s Court considers and evaluates the evidence placed before it. This evidence is in the form of affidavits and generally includes witnesses giving evidence in person. The magistrate may call for a Children’s Court Clinic report to assist in making this decision. This report provides a clinical assessment of children, young people and their families by independent, expert clinicians who prepare the court and appear in court for questioning about the report and its recommendations.
The proceedings are intended to be conducted with less formality and legal technicality than other courts. Parents are usually legally represented and may have a guardian ad litem.
Hot Tip: Guardians ad litem
The Children’s Court can appoint a guardian ad litem (GAL) for a child or young person or parent of a child or young person when there are special circumstances such as a child, young person or a parent having an intellectual disability or mental illness.
The role of the GAL is to:
- safeguard and represent the interests of the child, young person or parent;
- instruct the legal representative of the child, young person or parent; and
- perform any services specified in the GAL Handbook. This may include being the tutor for an infant beneficiary in relation to the administration of a will.
Children are represented by a Child’s Legal Representative. When representing a child under the age of 12, the lawyer must act in what she/he believes to be the child’s best interests (Children and Young Persons (Care and Protection) Act 1998 section 99D). If, for example, the child wants to live at home but the evidence reveals that this might place the child at risk of harm, then the lawyer may seek a different option. There is a presumption that children aged 12 and over are capable of instructing a lawyer; therefore the lawyer for a child of this age is obliged to present the case in accordance with the child’s wishes. The child’s lawyer is entitled in special circumstances to argue to the court that a child under 12 is capable of giving proper instructions, or that a child over 12 is not.
If the Children’s Court determines that the child or young person is not in need of care and protection, then the application will be dismissed. The Children’s Court cannot conclude that the basic needs of a child or young person are likely not to be met only because a parent or primary care-giver has a disability or is living in poverty.
If the Children’s Court determines that a child or young person is in need of care and protection, the court must then determine what care orders are necessary to ensure the child or young person’s needs are met in the future. If there is a dispute about this, the matter will be listed for a placement hearing. This discussion may also be referred to a dispute resolution conference.
If the court decides that the child or young person is in need of care and protection, then it will make final orders about what should happen to ensure the safety, welfare and wellbeing of the child or young person. The court can make a variety of orders in relation to the care and protection of a child or young person. These include:
- an order accepting ‘undertakings’ from the parent or the child (usually the parent); undertakings are a promise to the court, recorded in writing and signed (s 73);
- an order for the provision of support services to the child made with the consent of the person or organisation which is to provide the services (s 74);
- orders for supervision by Community Services for a period of up to 12 months or up to 24 months in special circumstances (s 76);
- order (other than a guardianship order) allocating parental responsibility (or one or more aspects of it) for a child or young person for a specified period (s 79);
- orders allocating parental responsibility by guardianship order (s 79A);
- 'prohibition orders' which prohibit an act by a person with parental responsibility (s 90A);
- orders for contact between the child and his or her parents, relatives or other significant people (s 86); and
- orders requiring the child to attend a therapeutic or treatment program eg a program for sexually abusive behaviours (s 75).
The court may remove parental responsibility(or some aspects of it) from the parents and allocate it to relatives, kin or another suitable person. In some cases, a child will be removed from the family and placed in out-of-home care on a short-term order while the parent is given the opportunity to satisfy Community Services that they can provide a safe and secure environment for the child.
Hot Tip: Parental responsibility
Parental responsibility is defined in the Children and Young Persons (Care and Protection) Act 1998 as:
‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.’
As an outcome of care and protection proceedings in the Children’s Court, parental responsibility for a child may be removed from a parent or both parents and allocated to another person such as a relative, or allocated to the Minister for Community Services. The court may order that parental responsibility be shared between different parties (eg the minister and a parent/relative).
The court may allocate specific aspects of parental responsibility, such as:
- place of residence
- education and training
- religious upbringing
- medical treatment of the child or young person (section 79).
Essentially, a person who is allocated parental responsibility for a child has the right to make decisions about the child’s life, including day-to-day care and longer-term issues, to the extent specified in the court order and under the supervision of a designated agency (Community Services or a non-government organisation (NGO)).
Parental responsibility can also be allocated by a guardianship order. A guardian is defined as a person who has been allocated all aspects of parental responsibility until the child or young person turns 18. A guardianship order may allocate parental responsibility jointly to more than one person. Those with guardianship are not supervised by a designated agency.
The court can make a guardianship order only if it is satisfied that there is no realistic possibility that children can be restored to their parents and provided with a safe, nurturing, stable and secure environment until the child is 18 years. If the child is over 12 years of age and capable of giving consent, then their consent is also required (section 79A (3)).
Aspects of parental responsibility allocated to the Minister for Community Services are, in practice, exercised by the Minister's or Director-General's delegate who is usually a Departmental officer but may also be staff of an NGO such as Barnardos. (Keep Them Safefactsheet No. 6: Family referral services).
Before the Children’s Court makes final orders for the removal of a child or young person from his or her parent, or for the allocation of parental responsibility for the child, the court must have considered a care plan for the child or young person and whether or not there is a realistic possibility of the child returning to his or her parent/s. That care plan may provide information about:
- the residence of the child or young person
- any contact order made under section 86 and arrangements for contact with parents, relatives, friends or other people
- education and training
- religious upbringing
- health care
- resources needed and available to provide services to the child
- any views expressed by the child about their care plan.
Any party to a proceeding relating to a child or young person before the Children's Court may apply for a contact order or may be given leave to apply after the proceedings, subject to the Court considering the person has a sufficient interest in the child's welfare. The contact order will be made for a specified time period, unless the order is rescinded or varied.
Where the Children's Court decides there is no realistic possibility of restoring the child to their parent(s), the maximum period that can be specified in an initial contact order is 12 months. Where contact is agreed without the need for a court decision, then it can be for any period of time.
Parent capacity orders
Parent capacity orders require a parent or primary caregiver to participate in a program course or service or attend therapy or treatment aimed at building or enhancing parenting skills (sections 91A-91I). These orders can be made where there is an identified deficiency in the parenting capacity that has the potential to place the child at risk of significant harm, and where it is reasonable and practicable to require the caregiver to comply with the order and they would not participate without an order. Orders may also be made by consent and may be made as part of the dispute resolution process. Parent capacity orders have effect for a specified period or until a specified future event. The Children's Court can refer the matter to the Children's Registrar at any stage, to arrange and conduct a dispute resolution conference. The Children's Registrar acts as a conciliator between the parent or primary caregiver and the Secretary. The Children's Court can revoke or vary a parent capacity order if there has been a significant change in relevant circumstances since the order was made or last varied (section 91H). Appeals against parent capacity orders (on a question of law only) are heard by the District Court.
Hot Tip: Permanent Placement Principles
The changes to the Children and Young Persons (Care and Protection) Act 1998which came into effect on 29 October 2014 introduced ‘permanent placement principles’ which must guide decisions regarding the out-of-home care of a child or young person. Permanent placement means the long-term placement after a child or young person is removed from the care of a parent or parents, that provides a safe, nurturing, stable and secure environment for the child or young person. The principles set out an order of preference for the permanent placement, provided that it is practicable and in the best interests of the child or young person (section 10A):
- the first preference is for the child or young person to be restored to their parent(s) care
- the second preference is for the guardianship of the child or young person with a relative, kin or other suitable person (a guardian is allocated all aspects of parental responsibility until the young person turns 18)
- the third preference is for adoption (exceptfor Aboriginal and Torres Strait Islander children
- the last preference is for a child or young personto be placed under the parental responsibility of the Minister
- For an Aboriginal and Torres Strait Islander child or young person the last preference is for adoption.
Variations and appeals
Once a final order has been made, an application to vary or rescind (cancel or overturn) an existing care order can be made only with the leave of the Children’s Court. An application may be made by Community Services, the child or young person, a person who has or who previously had parental responsibility for the child or young person, or any person who has sufficient interest in the welfare of the child or young person. (For further information see the Family and Community Services guide, Varying or rescinding a Children’s Court order by a funded agency, parent, or other interested party.) The Court will grant ‘leave’ (permission) only if it appears that there has been a ‘significant change’ in circumstances since the order was made or last varied (section 90). This is to prevent unnecessary applications that cause uncertainty and instability in children’s lives. If the Court grants leave, the parties will be required to file evidence and attend a hearing at the Children’s Court.
If the Court determines that there has been a relevant and significant change in circumstances, the Court may change or rescind the Care Order, but only if satisfied that it is appropriate to do so in the child’s interests.
A party (for example, the parents) can also challenge a decision or final orders made by the Children’s Court by appealing to the District Court of NSW (section 91). The District Court can consider the evidence already heard in the Children’s Court, as well as any new evidence. The District Court may confirm, overturn or vary the orders made by the Children’s Court. The District Court’s final decision will be taken as the decision of the Children’s Court.
Hot Tip: Family referral services
Family referral services (FRS) were set up following the Special Inquiry into Child Protection Services as part of the Keep Them Safe implementation of the inquiry’s recommendations. They are intended to link vulnerable children, young people, and families with appropriate available support services in their local area. Government agencies, non-government organisations, and the private sector (e.g. general practitioners, childcare workers) can refer families to FRS where statutory intervention is not needed. Families may also self-refer. Referrals are to a range of local support services – such as, case management, housing, childcare, supported playgroup, drug and alcohol/mental health services, youth services, home visiting, family support, parenting education, and respite care. An early evaluation found generally positive results.