Child Protection (NSW)

In New South Wales, child protection matters are investigated by the Department of Communities and Justice (DCJ) and governed by the Children and Young Persons (Care and Protection) Act 1998. This page deals with the principles and procedures for dealing with child protection matters in New South Wales.

Purposes of child protection

The child protection system exists so that families receive the support they need to raise children safety and to ensure that children are protected from harm. The objects of the Act are set out in section 8 and include to ensure that children and young people receive the care and protection necessary for their safety, wellbeing and welfare and to ensure that appropriate assistance is given to parents to perform their child-rearing responsibilities in a safe and nurturing environment.

Children at risk

When the Department considers that a child is at risk of significant harm, it will investigate the situation and may intervene.

Intervention may take the form of:

• preparing a care plan and providing support to the family
• preparing a care plan and applying to the Children’s Court for a short-term or long-term order
• urgently removing the child (if there are very serious risks of imminent harm).   

Under section 23 of the Act, a child may be found to be at risk of significant harm for a range of reasons. The reasons include:

• that their physical or psychological needs are not being met
• that they are not receiving the education or medical care they nee
• because they are being abused or ill treated
• that they have been exposed to family violence; or
• because a parent behaves in a way that is harmful to them.  

Care plans

If the Department has concerns that a child is at risk, it may prepare a care plan setting out the steps that need to be taken to ensure the safety and wellbeing of the child. The care plan will be developed collaboratively between the family and DCJ and will make it clear who is responsible for taking each step. If the child is Aboriginal, the care plan will be developed with consideration to ensuring that their cultural ties are preserved.  

Child protection orders

If DCJ does not consider that a child can be adequately protected from harm while in the care of their family, it may apply to the Children’s Court for an order.

The court has the power to make an emergency care and protection order, which places the child in the care of the Department for up to 14 days where a child is at risk of serious harm.

The court also has the power to make a care order if it is satisfied that the child is in need of care and protection. The care order that is made and the conditions that attach to it will be based on the court’s assessment of what is in the child’s best interests. A care order may be made on a long-term or short-term basis.

Grounds for care orders

Under section 71 of the Act, a care order may be made on the basis that a young person is in need of care and protection for any reasons including:

• there is no parent available to care for them
• the parents acknowledge that they have serious difficulties caring for the child
• the child has been physically or sexually abused or ill treated
• the child’s physical, psychological or educational needs are not being met
• the child is suffering serious developmental or impairment or psychological harm because of the environment where they are living.

Parental responsibility

Parental responsibility is the power and duty to make long-term decisions about a child such as where they live, where they go to school and what major medical interventions they receive.

A care order may allocate all or some aspects of parental responsibility for a child to a parent, to the Minister for Communities and Justice, or to a suitable person. A care order may specify that parental responsibility be shared between two or more persons – for example, between the Minister and one or both parents.

A care order that gives all aspects of parental responsibility to the person with whom a child is living in out-of-home care is known as a guardianship order.  A guardianship order remains in force until the child turns 18 and will only be made where there is no prospect of restoring the child to their parents.

Opposing an application

When DCJ applies for an order, the application is served on the child’s parents or guardians. A party may file a response to an application, which may indicate consent to the order being sought, or opposition to it.

If an application is opposed, there will be discussions between parties and the matter may resolve as a result of negotiations. If it does not resolve, it will be listed for a contested hearing.

At a child protection hearing, the court will hear evidence and submissions from all parties. It will consider the child’s present and past circumstances, their family constellation, any risks of harm that exist, the child’s present and future needs and what is in the child’s best interests.

The court will then make a decision as to whether the child is in need of care and protection, what order is needed and what conditions to impose.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.