New South Wales: 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who has applied to a designated agency to be authorised as an authorised carer and whose application has not been withdrawn or finally determined.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 a child or young person from serious risk of immediate harm, or (b) a placement for a duration of less than 2 weeks. (8) Where an emergency placement is made to protect an Aboriginal or Torres Strait Islander child or young person from serious risk of immediate harm, the Secretary must consult with the appropriate Aboriginal or Torres Strait Islander community as soon as practicable after the safety of the child or young person has been secured. Note— In the course of any consultation under this Part, the Secretary must have regard to the right of Aboriginal or Torres Strait Islander children and young persons and their families to confidentiality. 14 Records relating to Aboriginals and Torres Strait Islanders (1) All records made within the Department relating to the placement in statutory or supported out-of-home care of Aboriginal and Torres Strait Islander children and young persons are to be kept permanently. (2) If an Aboriginal or Torres Strait Islander child or young person has been placed in statutory or supported out-of-home care— (a) the child or young person, and (b) a birth or adoptive parent of the child or young person, and (c) a person authorised in writing by the child, young person or parent, is entitled to have access, in accordance with the regulations, to all records kept by the Department that relate to the placement. (3) (Repealed) (4) Subsection (2) does not confer a right or entitlement to information that is subject to Chapter 8 of the Adoption Act 2000. (5) The regulations may make provision for or with respect to the keeping of and access to records to which this section applies. Part 3 Roles of the Minister and Secretary 15 General role of the Minister The Minister is to promote a partnership approach between the government, non-government agencies, families, corporations, business agencies and the community in taking responsibility for and dealing with children and young persons who are in need of care and protection under this Act. 16 General role of the Secretary (1) Principal role The Secretary is to provide services and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of this Act. Note— This role may include— • providing assistance to children and young persons • involving children and young persons and their families in processes that affect them and making services and information available to them • consistent with the care and protection of children and young persons, promoting the raising of children and young persons within families • supporting communities involved in the care and protection of children and young persons • regularly reviewing action • implementing procedures to assess the suitability of people having contact with children and young persons • undertaking or encouraging research, education or training. (2) Interagency procedures and protocols The Secretary is to promote the development of procedures and protocols with government departments and agencies and the community sector that promote the care and protection of children and young persons and to ensure that these procedures and protocols are implemented and regularly reviewed. (3) The objects of the procedures and protocols referred to in subsection (2) are— (a) to promote the development of co-ordinated strategies for the care and protection of children and young persons and for the provision of support services directed towards strengthening and supporting families (including the provision of prioritised access to support services to children and young persons at risk of significant harm and to their families), and (b) to co-ordinate the provision of services for assisting young persons leaving statutory out-of-home care, and (c) to co-ordinate the early provision of alternative dispute resolution processes for children and young persons at risk of significant harm and their families who wish to participate in those processes. Note— Section 37(1A) requires the Secretary, on determining that a child or young person is at risk of significant harm, to offer these processes to the family of the child or young person (subject to certain exceptions) before seeking care orders. 17 Secretary's request for services from other agencies (1) In deciding what action should be taken to promote and safeguard the safety, welfare and well-being of a child or young person, the Secretary may request a government department or agency, or a non-government agency in receipt of government funding, to provide services to the child or young person or to his or her family. (2) Without limiting the generality of subsection (1), the Secretary may request a government department or agency, or a non-government agency in receipt of government funding, to provide prioritised access to services to a child or young person who is at risk of significant harm and to his or her family. 18 Obligation to co-operate (1) The government department or agency, or the non-government agency, must use its best endeavours to comply with a request made to it under section 17 if it is consistent with its own responsibilities and does not unduly prejudice the discharge of its functions. (2) Subsection (1) does not, in the case of a non-government agency in receipt of government funding, limit any obligation imposed on the agency in accordance with the agreement under which it receives that funding. (3) To avoid doubt, a reference in subsection (1) to the responsibilities and functions of a department or agency includes, in the case of its provision of health services— (a) its responsibilities under the Medicare Principles and Commitments (adopted under section 68 of the Health Services Act 1997) in the provision of public hospital services, and (b) its functions in clinical decision-making. 19 Interagency co-operation and exchange of information The provisions of this Part do not limit the operation of Chapter 16A or section 248. Chapter 3 Requests for assistance and reports Part 1 Requests for assistance 20 Request for assistance by child or young person A child or young person may seek assistance from the Secretary. 21 Request for assistance by parent of child or young person or by funded non-government agency (1) A parent of a child or young person may seek assistance from the Secretary in order to obtain services that will enable the child or young person to remain in, or return to, the care of his or her family. (2) Without limiting subsection (1), a non-government agency in receipt of government funding may, on behalf of a child or young person in respect of whom the agency provides services in accordance with the agreement under which it receives that funding, seek assistance from the Secretary in order to obtain other services for the child or young person. Note— Under section 113, a parent, child or young person, or any other person may also ask the Secretary for assistance— (a) if there is a serious or persistent conflict between the parents and the child or young person of such a nature that the safety, welfare or well-being of the child or young person is in jeopardy, or (b) if the parents are unable to provide adequate supervision for the child or young person to such an extent that the safety, welfare or well-being of the child or young person is in jeopardy. Requests for assistance in these circumstances are dealt with in accordance with Part 1 of Chapter 7. 22 Secretary's response to requests for assistance (1) If a person or non-government agency seeks assistance from the Secretary under this Part (whether or not a child or young person is suspected of being in need of care and protection), the Secretary must— (a) provide whatever advice or material assistance, or make such referral, as the Secretary considers necessary, or (b) take whatever other action the Secretary considers necessary, to safeguard or promote the safety, welfare and well-being of the child or young person. (2) Subsection (1) does not, however, require the Secretary to take any action other than assessing the request for assistance. Note— The Secretary, in responding to a request for assistance, can provide services or arrange for other government departments and agencies, or community organisations, to provide services to assist children, young persons and their families. If the Secretary determines that a child or young person is at risk of significant harm, the Secretary must offer alternative dispute resolution processes to the family of the child or young person (subject to certain exceptions) before seeking care orders. The Secretary may request government departments or agencies, or non-government agencies in receipt of government funding, to provide prioritised access to services to children or young persons who are at risk of significant harm and to their families. The Department may also play a role in referring people to services provided under Commonwealth legislation, such as Family Court counselling and access to maintenance entitlements or other benefits. Part 2 Reports 23 Child or young person at risk of significant harm (1) For the purposes of this Part and Part 3, a child or young person is at risk of significant harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent, of any one or more of the following circumstances— (a) the child's or young person's basic physical or psychological needs are not being met or are at risk of not being met, (b) the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive necessary medical care, (b1) in the case of a child or young person who is required to attend school in accordance with the Education Act 1990—the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive an education in accordance with that Act, (c) the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated, (d) the child or young person is living in a household where there have been incidents of domestic violence and, as a consequence, the child or young person is at risk of serious physical or psychological harm, (e) a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm, (f) the child was the subject of a pre-natal report under section 25 and the birth mother of the child did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical, the risk factors that gave rise to the report. Note— Physical or sexual abuse may include an assault and can exist despite the fact that consent has been given. (2) Any such circumstances may relate to a single act or omission or to a series of acts or omissions. Note— See also section 154(2)(a) for another circumstance in which a child or young person is taken to be at risk of significant harm. 24 Report concerning child or young person at risk of significant harm A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Secretary. 25 Pre-natal reports A person who has reasonable grounds to suspect, before the birth of a child, that the child may be at risk of significant harm after his or her birth may make a report to the Secretary. Note— The intentions of this section are— (a) to allow assistance and support to be provided to an expectant parent to reduce the likelihood that the parent's child, when born, will need to be placed in out-of-home care, and (b) to provide early information that a child who is not yet born may be at risk of significant harm subsequent to his or her birth, and (c) in conjunction with section 23(f) and section 27, to provide for mandatory reporting if there are reasonable grounds to believe that the child is at risk of significant harm subsequent to his or her birth. 26 Anonymity A report under section 24 or 25 may be made anonymously. 27 Mandatory reporting (1) This section applies to— (a) a person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children, and (b) a person who holds a management position in an organisation the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children, and (c) a person in religious ministry, or a person providing religion-based activities to children, and (d) a registered psychologist providing a professional service as a psychologist. (2) If— (a) a person to whom this section applies has reasonable grounds to suspect that a child is at risk of significant harm, and (b) those grounds arise during the course of or from the person's work or role specified in subsection (1), it is the duty of the person to report, as soon as practicable, to the Secretary the name, or a description, of the child and the grounds for suspecting that the child is at risk of significant harm. (3) A person to whom this section applies satisfies his or her obligations under subsection (2) in relation to two or more children that constitute a particular class of children if the person reports that class of children to the Secretary together with— (a) a description that is sufficient to identify all the children who constitute the class, and (b) the grounds for suspecting that the children of that class are at risk of significant harm. (4) In this section— children's services means either or both of the following (subject to the regulations)— (a) an education and care service within the meaning of the Children (Education and Care Services) National Law (NSW), (b) a State regulated education and care service within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011. 27A Alternative reporting arrangements (1) In this section— assessment officer, in relation to a relevant agency, means a person appointed or designated by the head of the agency as an assessment officer of the agency for the purposes of an arrangement under this section. head of a relevant agency means— (a) (subject to paragraph (b)) the person who is the chief executive officer, or who exercises the functions of chief executive officer, of the agency, or (b) the person prescribed by the regulations. relevant agency means any of the following— (a) the NSW Health Service (including the Health Executive Service referred to in section 121B of the Health Services Act 1997), (b) the NSW Police Force, (c) the Teaching Service, (d) the Ministry of Health, (e) the Department of Education, (f) the TAFE Commission, (g) the Department of Communities and Justice, (h) any other agency or organisation prescribed by the regulations for the purposes of this section. (2) The Secretary and the head of a relevant agency may enter into an arrangement under which a person (the staff member) who— (a) is employed in or engaged by the relevant agency, and (b) is a person to whom section 27 applies, may, in accordance with the terms of the arrangement, refer to an assessment officer of the agency any matter that the staff member would otherwise be required to report to the Secretary under that section. (3) If the staff member refers such a matter to an assessment officer under any such arrangement, the assessment officer is, in accordance with the assessment guidelines issued by the Secretary for the purposes of this section, to assess whether the matter should be reported to the Secretary under section 27. (4) If, in accordance with the assessment guidelines, the matter is assessed as a matter that should be reported to the Secretary under section 27, the assessment officer or the staff member is, as soon as practicable after the assessment, to report the matter to the Secretary under that section. Any such requirement applies in relation to the assessment officer as though the officer was a person to whom section 27 applies. (5) If, in accordance with the assessment guidelines, the matter is assessed as a matter that should not be reported to the Secretary under section 27, the assessment officer or the staff member may, if the officer or staff member has concerns for the well-being of the child to whom the matter relates, make such referral or take such action as the officer or staff member considers necessary or appropriate (or as is reasonably available) to safeguard or promote the safety, welfare and well-being of the child. (6) If a matter is referred to an assessment officer in accordance with an arrangement under this section, the staff member making the referral is taken to have satisfied his or her obligations under section 27 in relation to the matter concerned. (7) Sections 29 and 29AA apply in relation to a referral that is made to an assessment officer under this section in the same way as they apply to a report to which those sections apply. For that purpose, a reference in section 29 or 29AA to the making of a report includes a reference to the referral of a matter to an assessment officer in accordance with an arrangement under this section. (8) A certificate purporting to be signed by an assessment officer that a document relating to a child is a referral that has been made to the assessment officer under this section is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a referral. (9) The following provisions apply in relation to the appointment or designation of assessment officers for the purposes of this section— (a) more than one person may be appointed or designated as an assessment officer in relation to a relevant agency, (b) any such appointment or designation may (without limitation) be made by reference to the holder of a specified position or to a specified class of persons, (c) a person may be appointed or designated as an assessment officer in relation to a relevant agency even though the person is employed in or engaged by another agency. (10) The regulations may extend the operation of this section, with such exclusions and modifications as may be prescribed by the regulations, to any person (or a class of persons) who is a person (or class of persons) to whom section 27 applies but who is or are not employed in or engaged by a relevant agency. (11) For avoidance of doubt, the head of the NSW Health Service or the Health Executive Service is, for the purposes of this section, the Secretary of the Ministry of Health. (12) A staff member of a relevant agency may, in accordance with the terms of an arrangement under this section, refer any of the following matters to an assessment officer of the agency— (a) a matter relating to a young person that the staff member would otherwise report to the Secretary under section 24, (b) a matter relating to an unborn child that the staff member would otherwise report to the Secretary under section 25. 28 Record of reports and subsequent action The Secretary must keep a record of— (a) any report made to the Secretary, and (b) any action taken as a direct consequence of the report that has a significant effect on the child or young person to whom the report relates. 29 Protection of persons who make reports or provide certain information (1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons— (a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) no liability for defamation is incurred because of the report, and (c) the making of the report does not constitute a ground for civil or criminal liability against the person making the report, and (d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings)— (i) care proceedings in the Children's Court, (ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth, (iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal, (iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013, (v) proceedings under the Coroners Act 2009, and (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with— (i) the consent of the person who made the report, or (ii) the leave of a court or other body before which proceedings relating to the report are conducted, and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person. (1A) A certificate purporting to be signed by the Secretary that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report. (2) A court or other body cannot grant leave under subsection (1)(f)(ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice. (3) A court or other body that grants leave under subsection (1)(f)(ii)— (a) must state the reasons why leave is granted, and (b) must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed. (3A) The protections given by this section to a person who makes a report apply to— (a) any person who provided information on the basis of which the report was made, in good faith, to the person, and (b) any person who otherwise was in good faith concerned in making such a report or causing such a report to be made, in the same way as they apply in respect of the person who actually made the report. (4) Subsection (1)(f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report. (4A) Subsection (1)(f) also does not prevent the disclosure to a law enforcement agency of the identity of the person who made the report (the reporter), or information from which the identity of the reporter could be deduced, if— (a) the identity of the reporter, or the information, is disclosed in connection with the investigation of a serious offence or reportable conduct alleged to have been committed or done against a child or young person, and (b) the disclosure is necessary for the purposes of safeguarding or promoting the safety, welfare and well-being of any child or young person (whether or not the victim of the alleged offence). (4B) However, subsection (4A) does not apply unless— (a) a senior officer of the law enforcement agency to which the disclosure is made has, before the disclosure is made, certified in writing that obtaining the reporter's consent would prejudice the investigation of the serious offence or reportable conduct concerned, or (b) the person or body that makes the disclosure has, before making the disclosure, certified in writing that it is impractical to obtain the consent of the reporter. (4C) The person or body that discloses to a law enforcement agency the identity of the reporter, or the information from which the identity of the reporter could be deduced, is required to notify the reporter of the disclosure unless— (a) it is not reasonably practicable in the circumstances to do so, or (b) the law enforcement agency to which the disclosure is made has advised the person or body that notifying the reporter would prejudice the investigation of the serious offence or reportable conduct concerned. (5) (Repealed) (6) In this section— court includes a court exercising federal jurisdiction. law enforcement agency means any of the following— (a) the NSW Police Force, (b) the Australian Federal Police, (c) the police force of another State or Territory, (d) a person or body prescribed by the regulations for the purposes of this definition. report includes a report under sections 24, 25, 27, 120, 121 and 122. reportable conduct means— (a) reportable conduct within the meaning of Part 4 of the Children's Guardian Act 2019 or conduct referred to in clause 2 of Schedule 1 to the Child Protection (Working with Children) Act 2012, or (b) conduct occurring elsewhere than in New South Wales that, if occurring in New South Wales, would be reportable conduct under paragraph (a). senior officer means— (a) in relation to the NSW Police Force—a commissioned police officer within the meaning of the Police Act 1990, or (b) in relation to any other law enforcement agency—a person (or class of persons) prescribed by the regulations as a senior officer of the agency. serious offence means— (a) a serious indictable offence within the meaning of the Crimes Act 1900, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence under paragraph (a). Note— It is an offence under section 254 for a person to disclose any information obtained in connection with the administration or execution of this Act, except in certain circumstances. The maximum penalty is 10 penalty units (currently $1,100) or imprisonment for up to 12 months, or both. 29AAA Protection of persons who make reports or provide information to particular institutions (1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to an institution engaging in child-related work about a child or young person that the person making the report reasonably suspects is at risk of significant harm in the institution— (a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) no liability for defamation is incurred because of the report, and (c) the making of the report does not constitute a ground for civil or criminal liability against the person making the report. (2) The protections given by this section to a person who makes a report apply to— (a) a person who provided information on the basis of which the report was made in good faith to the institution, and (b) a person who otherwise was in good faith concerned in making such a report or causing such a report to be made, in the same way as they apply in respect of the person who actually made the report. Note— It is an offence under section 254 for a person to disclose any information obtained in connection with the administration or execution of this Act, except in certain circumstances. The maximum penalty is 10 penalty units (currently $1,100) or imprisonment for up to 12 months, or both. 29AA Special provision relating to Royal Commissions (1) Despite section 17 of the Royal Commissions Act 1923, that section does not authorise or compel the disclosure to a Royal Commission of the identity of a person who made a report to which section 29 applies, or information from which the identity of that person could be deduced, except with— (a) the consent of the person who made the report, or (b) the leave of a person who is a commissioner within the meaning of Division 2 of Part 2 of the Royal Commissions Act 1923. (2) A commissioner cannot grant leave under this section unless the commissioner is satisfied that the report or information concerned is of significant importance to the inquiry. (3) The protection given by this section to a person who made a report (a reporter) applies to— (a) any person who provided information to the reporter on the basis of which the report was made, and (b) any person who otherwise was concerned in making such a report or causing such a report to be made, in the same way as it applies in respect of the reporter. 29AB Protection against retribution (1) A person must not take, or threaten to take, detrimental action in respect of a person acting in good faith, who makes, or proposes to make, a report under this Part. Maximum penalty—50 penalty units or imprisonment for 12 months, or both. (2) For subsection (1), a report is not made in good faith if— (a) the report was made or proposed in bad faith, or (b) a material allegation was known by the person giving the report to be false. (3) In this section— detrimental action means action causing, comprising or involving any of the following— (a) injury, damage or loss, (b) intimidation or harassment, (c) discrimination, disadvantage or adverse treatment in relation to employment, (d) dismissal from, or prejudice in, employment, (e) prejudice in the provision of a service, (f) disciplinary proceedings. 29A Person who makes report is not prevented from helping child or young person For avoidance of doub