What is Care and Protection law?
Unlike private law proceedings under the Commonwealth Family Law Act, care proceedings are cases taken out by the NSW child protection authority Family and Community Services (‘FACS’) in the NSW Children’s Court.
FACS has the power to commence court proceedings if they believe that a child is ‘in need of care and protection’ or at ‘risk of serious harm’. The Children and Young Persons (Care and Protection) Act NSW (‘The Care Act’) lists all the grounds for finding that a child is in need of care and protection. If the court determines that a child is in need of care and protection, the court can then make final care orders. Care orders can change legal responsibility for children (known as ‘parental responsibility’) away from a parent, or both parents, and allocate it to the State or to another suitable person, such as a close relative.
The court can make other types of care orders that do not involve changing parental responsibility. These can include an order for a child to be supervised, orders for a child to have contact with another person, and undertakings from persons involved with the child concerned.
The court can also make interim care orders even before it determines that a child is in need of care and protection.
FACS has the power to remove children without a warrant if the child is considered to be at ‘risk of serious harm’. If FACS exercises this power the matter must be heard before a court within days of the removal.
Who can be involved in care proceedings?
In care proceedings, FACS and the biological parents of the child are parties to the proceedings. The child will also be represented by a separate lawyer. The lawyer for the child is known as an Independent Legal Representative (‘ILR’) for a child under 12, or a Direct Legal Representative (‘DLR’) for a child aged 12 or over. An ILR will act in the child’s best interests while a DLR will follow the child’s instructions much the same way as a lawyer will follow the instructions of an adult client.
Other persons with a ‘genuine interest’ in the child can apply to have ‘rights of appearance’ to fully participate in the case. If granted, a party with rights of appearance can be legally represented, can file evidence, make submissions at court, and cross-examine other witnesses to the case at hearings.
Often close relatives of a child (or other persons who know the child well, such as a step-parent or close family friend) will wish to have rights of appearance in a Care and Protection matter. Hosking & Gosling Legal takes instructions to act in such cases. An application must be made to the court for rights of appearance with evidence filed in support.
A person who does not have rights of appearance, but who will be significantly impacted by care orders about the child, will have the right to be heard in care proceedings but in a more limited capacity than a person with rights of appearance.
How are cases decided?
The Magistrate hearing a care proceeding will decide the case based upon the paramount consideration being the safety, welfare, and wellbeing of the child concerned. In other words, the court will ask what is best for the child, even if this conflicts with what parents or other parties may want or think is the best thing to do.
What happens in the case?
When a care proceeding goes to court, the Magistrate will usually make some interim orders setting up temporary arrangements for where the child lives and who the child can see. The parties to the case are able to make submissions to the court about what those interim arrangements should be. Sometimes as the case progresses, the parties can ask the court to reconsider the temporary arrangements if circumstances change in a significant way.
All the parties are given the opportunity to file evidence and issue subpoenas for records concerning the child and the child’s caregivers.
The Magistrate will then decide if the child is in need of care and protection. There are many reasons a child can be found to be in need of care and protection. These include:
- No parent is available to care for the child;
- The parents acknowledge they are struggling to care for the child;
- The child has been or is at risk of sexual abuse, physical abuse, or ill treatment;
- The child’s basic physical, psychological, or educational needs are not being met; and/or
- The child is at risk of serious psychological harm due to their living arrangements.
If the Magistrate finds that a child is not in need of care and protection, the case will be dismissed. However, this is an extremely rare event in Care and Protection cases.
If the Magistrate finds that a child is in need of care and protection, the case will continue, and the court will decide what final care orders should be made.
At this stage the parties seeking to care for the child (such as parents, relatives, or step-parents) may apply to be assessed by an expert as to their suitability to care for the child. This assessment can be carried out by an independent expert through the Children’s Court Clinic (at no cost) or by a privately funded parenting capacity expert.
At the end of this process FACS must present to the court a Care Plan and Permanency Plan for the child which sets out information including:
- Whether they think the child can be restored to a biological parent (in cases where the child has been removed);
- The proposed care orders;
- The proposed living arrangements for the child; and
- The proposed contact arrangements for the child with significant persons in the child’s life.
If the parties agree to the Care Plan, Permanency Plan, and the proposed care orders – and the court is satisfied they are best for the child – then the case can be concluded with final orders by consent.
If there is no agreement, then the parties are usually sent to a Dispute Resolution Conference (‘DRC’) where the court Registrar and the parties are to attempt to reach an agreement about the child. The DRC is confidential and what happens cannot be used later in court. This is intended to enable the parties to have frank discussions without causing prejudice to their case if an agreement is not reached.
If after the DRC there is still no agreement, then the case will be listed for a final hearing before a Magistrate. At this hearing, the parties and other witnesses will have their affidavits tendered into evidence, and the witnesses can be cross-examined about their evidence.
At the end of the hearing, the Magistrate will make final orders and give reasons for the decision made. In doing so, the Magistrate considering which orders are best for the child. The Magistrate will decide to accept or reject the FACS assessment as to whether the child can be restored to the parent(s). Further, the Magistrate will also consider whether there are proper long-term arrangements made for where the child will live and other matters such as contact for the child with family members (this is known as the Permanency Plan).
Can there be an appeal?
A party dissatisfied with the final orders made in care proceedings has the right to appeal to the District Court for a rehearing of the case.
The Supreme Court also has powers to hear child protection cases in limited circumstances under its parens patriae jurisdiction.
Hosking & Gosling Legal is able to provide advice about these options and whether they are appropriate in your circumstances.
Can final orders be changed?
The Care Act provides that final care orders can be varied or rescinded. If there is a significant change in relevant circumstances some time into the future, then a person can apply to the Children’s Court to reopen the case. If leave is given to reopen the case by the court, that party can then run a new case seeking to change or dismiss the previous final care orders. The court can also make new interim orders while the new case is running.
Other legal issues
Hosking & Gosling Legal can provide legal advice on all other aspects of Care and Protection law. This includes:
- Applications for parental responsibility or contact orders;
- Advice about adoption
- Advice in relation to the powers of FACS (such as removals of children and ordering medical examinations); and
- Assisting people to apply for reviews of decisions made by FACS through the NSW Civil and Administrative Tribunal.
