Court Lawyers NSW

Under the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Director-General of the Department of Human Services is required to provide services and facilities relevant to the welfare of children and young persons. This will often, in specific cases, include taking action to intervene where a child is considered to be at risk of “significant harm”, or “in need of care and protection.”

Section 43 of the Act permits removal of a child without court orders, where the Director-General or a police officer is satisfied the child is at immediate risk of serious harm, and if the making of an apprehended violence order would not be sufficient to protect the child.

However, in most other cases it is necessary for the Director-General to obtain appropriate orders from the Children’s Court, such as orders allocating parental responsibility. Even where section 43 is employed, the Director-General must, no later than 72 hours after the child’s removal, make a care application in the Court, and must also explain to the Court why the removal was considered to be necessary.

If a child is at risk of serious harm, the Court can make an order under section 46 for the emergency care and protection of the child. Such an order may have effect for up to 14 days, and can be extended for a further 14 days, but no longer.

However, the more usual approach, in less urgent situations, is an application under section 61 for a care order, which will typically seek an interim care order pursuant to section 69, and a final care order pursuant to section 79. The interim order may be granted when the case is first called in the Court, so long as the Court is satisfied that it is not in the best interests of the safety, welfare and well-being of the child for him or her to remain with his parents or other persons having parental responsibility, and that an interim order is necessary (s70A).

A final care order, unless supported by all parties to the proceeding, will not usually be made until after a hearing about the matter. The grounds for care orders are set out in section 71 of the Act, and include situations where there is no parent available to care for a child, or where a child is at risk of physical or sexual abuse or ill-treatment, or where his or her needs are not being met by the parents or primary care-givers. The full list of grounds is quite comprehensive, and the Court is also able to consider other grounds besides those specified in the Act. Before making a final order for removal of a child, or allocation of parental responsibility, the Court must also consider a care plan presented to it by the Director-General.

Having made a care order (interim or final), the Court may then, if necessary, make an order under section 48 for removal of the child from specified premises. This provision is sometimes necessary where caseworkers cannot get access to the relevant premises, in order to take the child into care. However, the Director-General or a police officer may also be able to obtain a warrant under section 233 where a child is at risk of serious harm, or where the Minister has issued an order under section 232. In addition, section 235 of the Act allows entry to premises, without warrant, in some circumstances.

To assist the making of temporary or permanent arrangements for care of a child or young person, the child or young person, or a parent or other person having care of the child or young person, may give undertakings to the Children‘s Court. Section 73 authorises the Court to accept such undertakings. Section 73(4) then permits the Director-General or another party to the proceedings to notify the Children’s Court of an alleged breach of an undertaking, which is effectively an application for the Court to make “such orders as it considers appropriate” where the breach is confirmed. However, a notification under section 73(4) is not equivalent to an application under section 90 of the Act, so section 73(4) cannot be used to vary or rescind a care order.

Section 90 provides jurisdiction for the Court to consider an application for recision or variation of a care order, subject to the Court giving leave for the application to be made. Leave may be granted where there has been a “significant change in any relevant circumstances since the care order was made or last varied.” In determining a substantive application under section 90, where the existing orders allocate parental responsibility to the Minister, the Court must consider all of the matters specified in section 90(6).

The Children’s Court may also make orders regarding contact, under section 86 of the Act. Such orders typically specify a minimum frequency and duration of contact, and the Court may also direct that contact with a particular person is to be supervised, or may ban a particular person from having contact.

Section 36 requires the Director-General to have regard to the stated “principles of intervention”, when determining the appropriate response to a report concerning a child at risk of harm. The Director-General is also required to consider using alternative dispute resolution services to intervene at an early stage, or where the use of such services may reduce the likelihood that a care application will need to be made.

Appeals against orders of the Children’s Court may be brought in the District Court, or, in some cases, in the Supreme Court of NSW.

If you have any questions, please do not hesitate to contact our Family Law Team.


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