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Care and Protection matters
Role of the Children's Court in Care and Protection Proceedings
Children's Court proceedings in care and protection cases are conducted under the Children's Court Act 1987 and the Children and Young Persons (Care and Protection) Act 1998.
There are currently 13 Children’s Magistrates (including the President, Judge Marien) presiding in 7 specialist Children’s Courts in NSW (5 in the Sydney metropolitan area and 1 each in the Newcastle and Wollongong areas). There are also 5 Children’s Registrars appointed under the Act to assist in the administration of matters before the Children’s Court. In regional/rural NSW, Children’s Courts sit in the Local Court and are presided over by the Local Court Magistrate or a Children’s Magistrate from Sydney.
The proceedings are conducted with as little formality and legal technicality as the case permits. Proceedings are not conducted in an adversarial manner. The Children’s Court takes all measures practicable to ensure that a child or young person has every opportunity to be heard and participate in proceedings and that the proceedings, decisions or rulings are understood by the child or young person.
The court is able to make a variety of orders with respect to the care and protection of a child or young person. These include:
- interim care orders;
- orders for supervision;
- orders allocating parental responsibility for a child or young person;
- orders prohibiting an act by a person with parental responsibility;
- contact orders;
- orders for the provision of support services; and
- orders to attend therapeutic or treatment program.
Time Standards
The Court recognises it is important for care proceedings to be finalised with minimum delay. Accordingly the court aims to finalise 90% of care matters should be finalised within 9 months of commencement and 100% of care matters should be finalised within 12 months of commencement.
Children's Court Clinic
The Children's Court Clinic was established as a result of the Children and Young Persons (Care and Protection) Act 1998 to provide clinical assessment of children, young people and their families and provide reports to Court. These reports represent independent, expert assessments and are used at court to assist the Children's Magistrates in their decision making.
Guardians ad Litem Programme
The Children’s Court can appoint a guardian ad litem (GAL) for a child or young person or parent of a child of you person when there are special circumstances to warrant the appointment. Circumstances that may warrant the appointment of a GAL include where a child, young person or parent has 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
- to 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.
GAL Update - October 2009
This program has recently been brought under the administration of the Department of Justice and Attorney General. The information previously contained in the practice and procedure handbook is being updated and will be published shortly. For enquiries regarding the GAL scheme contact Bernhard Ripperger, Legal Services Branch.
Care Circuits
Following the recommendation of the Report of the Special Commission of Inquiry into Child Protection Services in New South Wales, the Court has committed to making more specialist Children's Magistrates available to hear more complex contested care and protection cases. To this end the President of the Children's Court has allocated care circuits in rural and regional areas of New South Wales for 2010.
Notwithstanding the recent appointment of additional Children's Magistrates it is not anticipated that all care and protection cases will be able to be dealt with by a specialist Children’s Magistrate and due to the small or changeable volume of care matters in some locations it may not be practicable to schedule specific sittings in some areas of the State. However, assistance can be provided on a case by case basis to areas not covered by the scheduled sittings. A protocol is already in place for Local Court Magistrates to seek assistance from the Children’s Court where the particular circumstances of the case justifies the use of a specialist Children’s Magistrates or the Local Court is unable to deal with the matter under the Children's Court established time standards for care and protection cases.
Care and protection proceedings filed in rural and regional courts will ordinarily be case managed by the local Magistrate, and as far as possible given priority when listing.
Legislation & Caselaw
Practice and Procedure
Children's Law News
- Children's Law News (2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011)
- Children's Law News Cumulative Case Index (word version)
- Children's Law News Article Index
- Children's Law News (References and Headnotes) - updated February 2007
Contact Guidelines
Contact Guidelines (2011)
Aboriginal Care Circles
Aboriginal Care Circles aim to encourage more culturally appropriate decision making for Aboriginal children and families involved in care and protection cases in the Children's Court. Care Circles provide an alternative process for resolving issues relating to the future care of Aboriginal children and young persons by incorporating the participation of respected Aboriginal elders and community members in the decision making process. Care Circles are available in Nowra and Lismore. Detailed Guidelines have been developed to explain how the process works. Further information can be obtained from the Care Circles project officer through the relevant Local Court.
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