SCB LEGAL
Our care and protection lawyers have experience in matters involving the Department of Communities and Justice (previously known as FaCS – Family and Community Services and DoCS – Department of Community Services).
These include:
The law that relates to the care and protection of children is the Children and Young Persons (Care and Protection) Act (otherwise known as the Care and Protection Act).
This care and protection law was established to determine if any child in Australia under 18 years old is at risk of serious harm where they live, with one or both parents, or a carer.
When calls are received by the Department relating to concerns about child abuse or neglect, the trained staff make a decision about whether there is cause to investigate. Where the Department believes they have reason to investigate, this results in a caseworker meeting with the parents and depending on the child’s age, speaking with the child at their home or school. The caseworker will then conduct a risk assessment.
After completing the assessment, an initial decision is made about whether the child is at serious risk or not. If the caseworker determines that a child is at immediate and significant risk of harm, the child will be removed from the home and the matter goes to the Children’s Court to be heard. That is where a decision is then made about whether the child is able to return to their home or stay in out-of-home care.
If it is determined that there is no immediate risk of serious harm but they determine that the parent/s or carer needs support, then services or programs will be offered to help the parent/s or carer fulfil their responsibility to effectively care for their children and provide a safe environment.
If a caseworker has visited your home, you may wish to seek legal advice to learn more from a care and protection lawyer about what you need to know about this process.
If your child has been removed from your care, the hearing in the Children’s Court is usually within a few days depending on whether an Application has been made.
To be heard in the Children’s Court, the Department will have filed one of the following:
1. An Application for Emergency Care & Protection Orders
Where an application for Emergency Care & Protection Orders has been filed, this is because the Department believe the child is at risk of serious harm.
This is a temporary care measure for up to 14 days however this may be extended by another 14 days. If no formal application is made by the Department within 28 days, then the Emergency Care & Protection Order will expire and the child returns to the parent’s care. This however, is very rare and an Application for Care Orders will generally be filed prior to the Order expiring.
2. An Application for Care Orders
Where an Application for Care Orders is to be made, the Department has 3 working days to file the application with the Children’s Court. There are a few steps in this process however, the Children’s Court aims to deal with these matters as quickly as possible.
There are three main steps in the process known as ‘Interim Orders’, ‘Establishment’ and ‘Placement’. The Department will aim to:
3. An Application to Vary or Rescind Care Orders
If you believe you have made a significant change in your circumstances and addressed the child protection concerns, you can make an application to the Court seeking to change the Orders. Once the application has been filed with the Court, the documents need to be served on the Department and other people that were part of the original proceedings.
Once served, the Department and other parties are given the opportunity to provide a formal statement called an Affidavit to address your documents and explain whether they agree that there has been a significant change in circumstances.
Whilst it is generally the parents that make these applications, the Department may make this application to the Court if there has been a significant change in circumstances. For example, if your child has self-placed with you and the Department agree it is safe for them to remain living with you, they may make an application to overturn the original Final Orders.
The Department may also make an application if the child has been living with a carer for a long period of time and they believe the carer should have the power to make all decisions about the child. This is known as a Guardianship Order. If this occurs, the parents must be notified and provided with the documents and given the opportunity to provide their views.
You will then be issued a date to appear in the Children’s Court.
The very first appearance at Children’s Court is called a ‘mention’. This is normally a very quick appearance and often involves the Court making Interim Orders giving the Department to power to make all major decisions about your child.
At this Court event, the Children’s Court will direct the Department to lodge more evidence (in the form of an Affidavit) and a Summary of Property Plan (“SoPP”). A SoPP sets out the child protection concerns and the tasks required to be completed by the parents if they are to get their children back.
The parents will also have the opportunity to provide their responses to the allegations before the next Court date.
On the next Court date, the Court will need to determine whether the Department needed to intervene at the time the children were removed. If the parents agree that the children were in need of care and protection at the time they were removed, the case may be “Established”. If the parents do not agree to this, there will need to be a Hearing about whether there was a need for the Department to intervene.
There will be a few more Court dates after this where the Department and parents will lodge some more evidence. During this time, the parents will have the opportunity to engage in the tasks set out in the SoPP.
In some cases, there may need to be an assessment about whether the children should be restored to their parent/s. This assessment may be arranged by DCJ or it may be Court-Ordered.
DCJ will need to prepare Care Plans which will set out all of the risks, whether they believe the children should be returned to their parent/s care, any medical, health or other developmental issues for the child and the proposed long-term living and care arrangements for the child.
Sometimes it may be necessary to attend a Dispute Resolution Conference (“DRC”) which is similar to a mediation.
Where there is an agreement about the Final Orders that should be made by the Children’s Court, this is known as Orders ‘by Consent’ which is typically only agreed to upon consultation with your care and protection lawyer.
If everyone cannot agree to the Final Orders that should be made, the matter may need to go to a Hearing and the Children’s Court Magistrate will need to decide whether the children can go back home and if not, where they should live and the long-term arrangements that should be made.
The following people have a right to attend your Court Case:
If other people who have concerns about your child’s safety and wellbeing want to be in attendance and participate in the Court case, they must apply to the Children’s Court to be a party to the case, and permission to attend and participate may or may not be granted. You may also wish to bring a support person with you to Court. The Court will need to be informed of this and the other people involved have the option to object to this.
The Children’s Court is able to make one or a variety of Orders in relation to the care and protection of a child. Where appropriate, the Court aims to involve your child or children in the proceedings so their opinions can be heard by all involved. This does not mean that the children are to attend Court but that they are given their own legal representative who can obtain the child’s views and wishes. For children under 12 years of age, the Court appoints an Independent Legal Representative (ILR).
Depending on the age of your child, this person may meet the children and speak to them about their wants and needs. The ILR is not, however, bound by the child’s views and will form their own view about what Orders should be made. For children 12 years and older, they are given a Direct Legal Representative (DLR).
This means that the child will tell the DLR what they want to happen and the DLR must listen to them and tell the Court. Just like a parent may have a lawyer who must follow their instructions, the DLR must also do the same.
Where possible, the terms of the Care Orders are to be made by agreement with the parents and/or carer involved in the proceedings.
Those Orders may include:
The Children’s Court can make one or several of these Orders all at the same time. These Orders, if agreed upon between all parties to the proceedings, can be made ‘by Consent’. Then this culminates in a Care Plan that is made in consultation with the child’s parents or a current carer.
If you do not reach an agreement, then a decision about Final Orders will be made on a separate occasion by a judicial officer.
When your children are removed from your care, it can be an extremely emotional and traumatic experience. Let our care and protection lawyers attend to your legal matters, so that you can focus on doing what needs to be done to get your children back.
We can assist you in getting your children back even if final Orders have been made for your children to live with someone else. We may be able to file an application to vary or rescind the Orders that are in place.
To determine what may be possible for you, book an appointment with one of our experienced care and protection lawyers to discuss your circumstances and to determine what avenues are available to you to resume the care of your children.
Reach out to our care and protection lawyers for an in-person, online or telephone consultation. We help clients across greater Sydney.
