When concerns have been raised about the care and protection of a child or young person under the age of 18 years the Children's Court has jurisdiction to make court orders to ensure their safety, welfare and well-being.
The Department of Family and Community Services (FaCS) is the main NSW government agency responsible for implementing the laws to keep children safe from harm under the
Children and Young Persons (Care and Protection) Act 1998.
FaCS will often work with families to ensure that a child’s safety, welfare and well-being is protected. However, in some circumstances FaCs will need to apply to the Children’s Court for a court order for example, where they believe that a child or young person should no longer live with one or both of their parents.
This ensures that an independent assessment of the facts of the case are made by a judicial officer before any final decision is made.
Care and protection cases are commenced by filing an application at a Children’s Court registry. The proceedings are then listed before a Children's Court. All parties should be served with the application, related documentation and a notice of listing advising them when and where the matter is listed before the court.
The parties who have a right to appear in a care and protection case include the a representative of the Director General of FACS, the child or young person, and each person having parental responsibility for the child or young person. Any other person who has a genuine concern for the safety, welfare and wellbeing of the child or young person may apply to the Children’s Court to be joined as a party to the proceedings.
Care and protection cases are often adjourned to enable the parties to gather information and prepare documentation to assist the Children’s Court in determining what action is in the best interests of the child or young person. It is common for matters to be adjourned for parties to issue subpoenas, for parties to attend a dispute resolution conference and/or for assessments to be conducted.
If at any stage during the proceedings, everyone agrees on what final care orders should be made to protect the safety, welfare and well-being of the child or young person, then final care orders can be made “by consent” provided the judicial officer also agrees that the orders are in the best interests of the child or young person. This will be the end of the case. If no agreement can be reached, the matter may need to be heard and determined by a magistrate.
Care and protection matters are conducted with as little formality and legal technicality as the case permits. In these cases, the standard of proof is based on the balance of probabilities.
The Children’s Court takes all measures practicable, taking into account the age and developmental capacity of the child or young person, to ensure that the child or young person has every opportunity to be heard and participate in proceedings, and that the proceedings, decisions or rulings are understood by everyone involved in the case.
The most common types of applications filed in the care and protection jurisdiction are:
The court is able to make a variety of orders with respect to the care and protection of a child or young person. Some of the most common orders made include:
The Children’s Court can make one or several of these orders all at the same time.
Children's Court Clinic's role is to undertake independent clinical assessments of children and the capacity of parents and other to carry out parental responsibility to assist the Children’s Court to make decisions in care and protection cases.
The Children’s Court may appoint a
guardian ad litem (GAL) for a child or young person when there are special circumstances to warrant the appointment such as where the child or young person has special needs because of their age, disability or illness. The Children’s Court may also appoint a GAL for either one or both parents if it is of the opinion that the parent or parents are incapable of giving proper instructions to his, her or their legal representative.
The role of the GAL is to:
A party who is not satisfied with the order of the Children’s Court, may appeal to the District Court against the order. You should obtain
legal assistance if you are thinking about lodging an appeal. Registry staff at the Children’s Court cannot give you legal advice.