Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children and Young Persons (Care and Protection) Act 1998 No 157 An Act to provide for the care and protection of, and the provision of services to, children and young persons; and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act is the Children and Young Persons (Care and Protection) Act 1998. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— Aboriginal—see section 5. Aboriginal and Torres Strait Islander Children and Young Persons Principle—see section 12A(1). accredited adoption service provider has the same meaning as in the Adoption Act 2000. administrator, of the Guardian Ad Litem Panel, means— (a) the Secretary, or (b) the person prescribed by the regulations as the administrator of the Guardian Ad Litem Panel. alternative dispute resolution—see section 244A. authorised carer—see section 137. authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. authorised residential care worker—see section 137AA. care application—see section 60. care order—see section 60. care plan means a plan to meet the needs of a child or young person— (a) that is developed through agreement with the parents of the child or young person, or (b) that represents a set of proposals for consideration by the Children's Court. Note— A care plan is not enforceable except to the extent to which aspects of it are endorsed by an order of the Children's Court. care proceedings—see section 60. care responsibility means the authority to exercise the functions specified in section 157. carer applicant means a person who has applied to a designated agency to be authorised as an authorised carer and whose application has not been withdrawn or finally determined. child means a person who is under the age of 16 years. Children's Court means the Children's Court of New South Wales constituted by the Children's Court Act 1987. Children's Court Clinic means the Children's Court Clinic referred to in section 15B of the Children's Court Act 1987. Children's Guardian means the Children's Guardian appointed under section 115 of the Children's Guardian Act 2019. Children's Registrar means a Children's Registrar within the meaning of the Children's Court Act 1987. contact order—see section 86(1). contract breach notice—see section 38E. Department means the Department of Communities and Justice. designated agency has the same meaning as in the Children's Guardian Act 2019. direct legal representative—see section 99A(1). entity includes— (a) a person, and (b) an unincorporated body. exercise a function includes perform a duty. function includes— (a) a power, and (b) an authority, and (c) a duty. guardian—see section 79A. Guardian Ad Litem Panel means the panel constituted as the Guardian Ad Litem Panel by the administrator. guardianship order—see section 79A(2). high level identification information, in relation to a child or young person who is in the care responsibility of the Secretary (whether under a temporary care arrangement or otherwise) or who is in out-of-home care, means the following— (a) the surnames of the authorised carer of the child or young person and of any other person living in the household of the authorised carer, (b) the street address and locality of the authorised carer of the child or young person, (c) the telephone number of the authorised carer of the child or young person, (d) details of the employment or activities of the authorised carer of the child or young person that would be sufficient to identify the authorised carer, (e) the name of the school that the child or young person is attending, (f) any other type of information prescribed by the regulations. independent legal representative—see section 99A(2). kin of a child or young person means a person who shares a cultural, tribal or community connection with the child or young person that is recognised by that child or young person's family or community. legal representative means an Australian legal practitioner. non-court proceedings means any aspect of care proceedings that is not conducted before the Children's Court and includes, but is not limited to, the following— (a) any counselling, (b) any dispute resolution conference under section 65 or 91D, (c) any other alternative dispute resolution process. out-of-home care—see section 135. parent of a child or young person means a person having parental responsibility for the child or young person. parent capacity order—see section 91A. parent responsibility contract—see section 38A. parental responsibility, in relation to a child or young person, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. permanency plan means a plan that makes provision with respect to permanency planning. permanency plan involving restoration—see section 84. permanency planning—see section 78A. permanent placement—see section 10A(1). permanent placement principles—see section 10A(3). primary care-giver, in relation to a child or young person, means each person who is primarily responsible for the care and control, including the day-to-day care and control, of the child or young person (whether or not that person is the person with parental responsibility or care responsibility for the child or young person). principal officer—see section 5A. principle of active efforts—see section 9A. prohibition order—see section 90A(1). prospective guardian means a person whose suitability to have parental responsibility for a child or young person allocated to the person under a guardianship order is being considered (whether by the Secretary, a designated agency or the Children's Court) and who has agreed to an assessment of the person's suitability under section 79B(1A) (including as applied by section 38(4)). Registrar means the following— (a) a Children's Registrar within the meaning of the Children's Court Act 1987, (b) a Registrar of the Children's Court referred to in section 11 of that Act, (c) any authorised justice within the meaning of the Bail Act 2013. relative of a child or young person means any of the following— (a) a parent, step-parent, or spouse of a parent or step-parent, of the child or young person, (b) a grandparent, brother, sister, step-brother, step-sister, cousin, niece or nephew, uncle or aunt (whether by blood, marriage, affinity or adoption) of the child or young person, (c) a person who has parental responsibility for the child or young person (not being the Minister, the Secretary or a person who has parental responsibility other than in his or her personal capacity), (d) a person who has care responsibility for the child or young person under the Adoption Act 2000 (not being the Minister, the Secretary or a person who has care responsibility other than in his or her personal capacity), (e) in the case of a child or young person who is an Aboriginal or Torres Strait Islander—a person who is part of the extended family or kin of the child or young person. report means a report made under section 24, 25 or 27. rules means rules made under the Children's Court Act 1987. Secretary means the Secretary of the Department. Torres Strait Islander—see section 5. young person means a person who is aged 16 years or above but who is under the age of 18 years. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this section, spouse of a person means— (a) a person to whom the person is legally married (including a husband or wife of the person), or (b) the person's de facto partner, but if more than one person would so qualify as a spouse, means only the latest person to so qualify. Note— De facto partner is defined in section 21C of the Interpretation Act 1987. 4 Children and young persons to whom this Act applies (1) The functions conferred or imposed by this Act and the regulations may be exercised in respect of children and young persons— (a) who ordinarily live in New South Wales, or (b) who do not ordinarily live in New South Wales, but who— (i) are present in New South Wales, or (ii) have a sufficient connection to New South Wales, or (c) who are subject to an event or circumstances occurring in New South Wales that gives or give rise to a report. (2) This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit, including in relation to children and young persons who do not ordinarily live in, or who are not present in, New South Wales. (3) In determining whether a child or young person has a sufficient connection to New South Wales for subsection (1)(b)(ii), the following may be considered— (a) whether the child or young person is the subject of a care order under this Act, (b) whether members of the child or young person's family, kin or community live in New South Wales, (c) any time the child or young person spends in New South Wales, including under arrangements for contact, (d) whether the child or young person attends school or participates in other programs or services in New South Wales, (e) any plans for the child or young person to return to live in New South Wales, including plans for the child or young person to be restored to the child or young person's parents in New South Wales, (f) whether the particular matter could be dealt with by another court in another jurisdiction. 5 Meaning of "Aboriginal" and "Torres Strait Islander" (1) In this Act— Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983. Aboriginal child or young person means a child or young person descended from an Aboriginal and includes a child or young person who is the subject of a determination under subsection (2). Torres Strait Islander means a person who— (a) is descended from a Torres Strait Islander, and (b) identifies as a Torres Strait Islander, and (c) is accepted as a Torres Strait Islander by a Torres Strait Islander community. Torres Strait Islander child or young person means a child or young person descended from a Torres Strait Islander and includes a child or young person who is the subject of a determination under subsection (3). (2) Despite the definition of Aboriginal person in the Aboriginal Land Rights Act 1983, the Children's Court may determine that a child or young person is an Aboriginal for the purposes of this Act if the Children's Court is satisfied that the child or young person is of Aboriginal descent. (3) Despite the definition of Torres Strait Islander in subsection (1), the Children's Court may determine that a child or young person is a Torres Strait Islander for the purposes of this Act if the Children's Court is satisfied that the child or young person is of Torres Strait Islander descent. 5A Meaning of "principal officer" (1) In this Act, principal officer, in relation to a registered agency or a designated agency has the same meaning as in the Children's Guardian Act 2019. (2), (3) (Repealed) (4) Anything done by, or with the approval of, the principal officer of a designated agency or a registered agency in relation to out-of-home care is, for the purposes of this Act and the regulations, taken to be done by the designated agency or registered agency concerned. (5) Nothing in subsection (4) affects any personal liability of the principal officer. 6 Notes Notes and diagrams included in this Act are explanatory notes and do not form part of this Act. Chapter 2 Objects, principles and responsibilities Part 1 Objects and principles 7 What is the role of the objects and principles of this Act? The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law. 8 What are the objects of this Act? The objects of this Act are to provide— (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 9 Principles for administration of Act (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. (2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows— (a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. (b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person. (c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. (d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved. (e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. (g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person. 9A Principle of making "active efforts" (1) The Secretary must act in accordance with the principle of active efforts in exercising functions under this Act. (2) The principle of active efforts means— (a) in taking action to safeguard or promote the safety, welfare and well-being of a child or young person—making active efforts to prevent the child or young person from entering out-of-home care, and (b) for a child and young person who has been removed from the child's or young person's parents or family— (i) making active efforts to restore the child or young person to the child's or young person's parents, or (ii) for a child or young person for whom it is not practicable or in the child's or young person's best interests to be restored to the child's or young person's parents—to place the child or young person with family, kin or community. Note— See the permanent placement principles in section 10A and the placement principles for Aboriginal and Torres Strait Islander children and young persons in section 13. (3) Under the principle of active efforts, the Secretary must also ensure active efforts are— (a) timely, and (b) practicable, thorough and purposeful, and (c) aimed at addressing the grounds on which the child or young person is considered to be in need of care and protection, and (d) conducted, to the greatest extent possible, in partnership with the child or young person and the family, kin and community of the child or young person, and (e) culturally appropriate, and (f) otherwise in accordance with any requirements prescribed by the regulations. (4) Without limiting subsections (1)–(3), active efforts include— (a) providing, facilitating or assisting with access to support services and other resources, and (b) if appropriate services or resources do not exist or are not available—considering alternative ways of addressing the relevant needs of the child or young person and the family, kin or community of the child or young person, and (c) activities directed at finding and contacting the family, kin and community of the child or young person, and (d) the use of any of the following— (i) a parent responsibility contract, (ii) a parent capacity order, (iii) a temporary care arrangement under Chapter 8, Part 3, Division 1, (iv) alternative dispute resolution under section 37, and (e) another matter, activity or action prescribed by the regulations. (5) To avoid doubt, this section is subject to the requirement under section 9(1) that this Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. 10 The principle of participation (1) To ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life, the Secretary is responsible for providing the child or young person with the following— (a) adequate information, in a manner and language that he or she can understand, concerning the decisions to be made, the reasons for the Department's intervention, the ways in which the child or young person can participate in decision-making and any relevant complaint mechanisms, (b) the opportunity to express his or her views freely, according to his or her abilities, (c) any assistance that is necessary for the child or young person to express those views, (d) information as to how his or her views will be recorded and taken into account, (e) information about the outcome of any decision concerning the child or young person and a full explanation of the reasons for the decision, (f) an opportunity to respond to a decision made under this Act concerning the child or young person. (2) In the application of this principle, due regard must be had to the age and developmental capacity of the child or young person. (3) Decisions that are likely to have a significant impact on the life of a child or young person include, but are not limited to, the following— (a) plans for emergency or ongoing care, including placement, (b) the development of care plans concerning the child or young person, (c) Children's Court applications concerning the child or young person, (d) reviews of care plans concerning the child or young person, (e) provision of counselling or treatment services, (f) contact with family or others connected with the child or young person. 10A Permanent placement principles (1) In this Act— permanent placement means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person. (2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles. (3) The permanent placement principles are as follows— (a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship, (b) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is with a relative, kin or other suitable person in accordance with a guardianship order, (b1) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is placement with a suitable person or persons jointly in accordance with an order made under section 79(1)(f), with the support of the Secretary under section 153(1) or financial assistance of the Secretary under section 161(1), (c) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (b1), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted, (d) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b), (b1) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law, (e) if it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b), (b1) or (d), the last preference is for the child or young person to be adopted. Part 2 Aboriginal and Torres Strait Islander principles 11 Aboriginal and Torres Strait Islander self-determination (1) It is a principle to be applied in the administration of this Act that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young persons with as much self-determination as is possible. (2) To assist in the implementation of the principle in subsection (1), the Minister may negotiate and agree with Aboriginal and Torres Strait Islander people to the implementation of programs and strategies that promote self-determination. 12 Aboriginal and Torres Strait Islander participation in decision-making Aboriginal and Torres Strait Islander families, kinship groups, representative organisations and communities are to be given the opportunity, by means approved by the Minister, to participate in decisions made concerning the placement of their children and young persons and in other significant decisions made under this Act that concern their children and young persons. 12A Aboriginal and Torres Strait Islander Children and Young Persons Principle (1) This section sets out the Aboriginal and Torres Strait Islander Children and Young Persons Principle, which applies to the administration of this Act in relation to Aboriginal and Torres Strait Islander children and young persons. (2) The Aboriginal and Torres Strait Islander Children and Young Persons Principle consists of the following 5 elements— (a) prevention—recognising that a child or young person has a right to be brought up within the child's or young person's own family, community and culture, (b) partnership—recognising that Aboriginal and Torres Strait Islander community representatives should participate in the design and delivery of services for children and young persons and in individual decisions about children and young persons, (c) placement—recognising that, if a child is to be placed in out-of-home care, the child's placement is to be in accordance with the placement principles for Aboriginal and Torres Strait Islander children and young persons in section 13, (d) participation—recognising that a child or young person, and the child's or young person's parents and family members, should participate in decisions about the care and protection of the child or young person, (e) connection—recognising that a child or young person has a right to be supported to maintain connections to family, community, culture and country. (3) In making a decision under this Act in relation to a matter involving an Aboriginal or Torres Strait Islander child or young person, a decision maker must apply each of the elements of the Aboriginal and Torres Strait Islander Children and Young Persons Principle that are relevant to the decision being made. 13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles (1) The general order for placement Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care is to be placed with— (a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or (b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed—a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or (c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed—a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or (d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed—a suitable person approved by the Secretary after consultation with— (i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and (ii) such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person. Note— The placement principles set out in this section also apply to the making of guardianship orders in relation to Aboriginal and Torres Strait Islander children and young persons (see section 79A(3)(c)). (2) Relevance of self-identification and expressed wishes of child or young person In determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person. (3) Child or young person with parents from different Aboriginal or Torres Strait Islander communities If a child or young person has parents from different Aboriginal or Torres Strait Islander communities, the order for placement established by paragraphs (a), (b), (c) and (d) of subsection (1) applies, but the choice of a member or person referred to in those paragraphs is to be made so that the best interests of the child or young person will be served having regard to the principles of this Act. (4) Child or young person with one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent If a child or young person has one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act. (5) If a child or young person to whom subsection (4) applies— (a) is placed with a person who is not within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her Aboriginal or Torres Strait Islander family, community and culture, or (b) is placed with a person who is within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her non-Aboriginal and Torres Strait Islander family, community and culture. (6) Placement of child or young person in care of person who is not an Aboriginal or Torres Strait Islander The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander— (a) Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community. (b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture. These principles are subject to subsection (2). (7) Exceptions: emergency placements and placements of short duration Subsection (1) does not apply to— (a) an emergency placement made to protect