11.

3 Care and Protection of Children

Monday, 6 June 2016

12:47 pm

The primary responsibility for parenting and for decisions about children's health,
schooling and cultural upbringing in Australia generally lies with parents; in some
cultures and in Indigenous communities children's kinship groups are also
influential and important.
The State also has an interest in children's development and in their capacity to
participate in and contribute to society. Ensuring the safety, welfare and wellbeing
of children is now generally accepted as a responsibility of the state.
State Intervention
When the family is not able to, or fails to provide adequate care and protection for
children, the State may intervene in various ways.
These include:
- Assessing and determining parents obligations to support children financially
and enforcing those obligations.
- Mandating school attendance for school aged children.
- Initiating investigations and court action to determine whether there is any
need to intervene to protect the child.
- (As a last resort) by removing children from the care of their parents.
UN Conventions on the Rights of the Child
In Australia, there is increasing recognition of State responsibility for children and
its duty of care towards them. This is explicit in the UN Convention on the Rights of
the Child and in recently revised child welfare legislation. By ratifying the
convention, Australia and other countries (not including the USA), have committed
to recognising and implementing the provisions of the Convention, in particular the
three P's:
- Provision
- Protection
- Participation
The main provisions of the Convention concern children's rights to:
- Grow up in a family environment
- Health Care
- Education
- Be protected from violence and exploitation
- Have the opportunity to express their views and influence decision making
that concerns them.

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Grow up in a family environment

Health Care
Education
Be protected from violence and exploitation
Have the opportunity to express their views and influence decision making
that concerns them.

The Convention formalises what children might expect from the State, while still
recognising the primacy of children's relationships with their parents and their
family.
Having ratified the convention, the Australian Government has an obligation to
implement the Convention and to report to the United Nations Committee on the
Rights of the Child on its compliance. The Australian Federal Government and state
governments have given only limited effect to incorporating the Convention into
local legislation. For example, the Family Law Act 1975 includes section 60CA
which states that:
- "in deciding whether to make a particular parenting order in relation to a
child, a court must regard the best interests of the child as the paramount
consideration."
This relates to Article 3 of the UN Convention (CROC)
Child Protection Law
The legislation that governs child protection in New South Wales is the NSW
Children and Young Persons ( Care and Protection) Act 1998, most of which came
into effect in December 2000.
Recent amendments came into effect in October 2014.
The Main object of the Act is to provide 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.' ( section 8(a)).
The Act goes on to specify that parents and those responsible for children's care
should be given 'appropriate assistance' to do so and that 'all institutions, services,
and facilities responsible for the care and protection of children 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'
(section 8 ( b) and ( c ) ).
Children and Protection Amendment Act 2014
The Child Protection Amendment Act 2014 amends the Children and Young Persons
(Care and Protection) Act 1998, the Adoption Act 2000 and the Child Protection

that foster their health, developmental needs, spirituality, self respect and dignity'
(section 8 ( b) and ( c ) ).
Children and Protection Amendment Act 2014
The Child Protection Amendment Act 2014 amends the Children and Young Persons
(Care and Protection) Act 1998, the Adoption Act 2000 and the Child Protection
(Working with Children) Act 2010. The media release from then Premier Barry
O'Farrell said that the purpose of the changes was to:
- Increase early interventions services
- Expand Parental Responsibility Contracts to support expectant mothers
- Introduce new court issued Parental Capacity orders
- Streamline open adoption to allow adopted children to maintain a
connection with their biological parents.
Permanent placement principles were added to the Children and Young Persons
(Care and Protection) Act 1998 in a new section 10A, which gives preference to a
child being adopted over them being placed under the parental responsibility of the
Minister. This applies only if the first and second preferred options of being
restored to their family or permanent guardianship of relative, kin or other suitable
person are not practicable.
For Aboriginal and Torres Strait Islander children, the principles apply differently -
with adoption being expressed as a 'last preference.'
Under NSW law, child abuse and neglect are dealt with as part of a broad category
of circumstances that require the need for consideration of outside intervention
where a child is perceived to be 'at risk of significant harm'. These circumstances
include where:
- the childs or young persons basic physical or psychological needs are not
being met or are at risk of not being met,
- 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,
- the child or young person has been, or is at risk of being, physically or
sexually abused or ill-treated,
- 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,
- 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,
- Where there are reasonable grounds to suspect an unborn child may be at
risk of significant harm after birth and the birth mother has not successfully

- 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,
- Where there are reasonable grounds to suspect an unborn child may be at
risk of significant harm after birth and the birth mother has not successfully
engaged with support services to eliminate or minimise that risk to the
lowest level reasonable practicable.
(from the Children and Young Persons (Care and Protection) Act 1998 section 23)
Reporting Abuse and Neglect: Who Makes Reports in NSW?
Anyone who has a concern that a child is at risk of significant harm can report their
concerns to the Child Protection Helpline (within FACS). Those who work with
children are mandatory reporters and must make a report to the Child Protection
Helpline but police, health workers, and teachers in government employ for
example, may do so through their workplace to a Child Well-being Unit.
Under NSW law, a mandatory reporter is any person who delivers health care,
welfare, education, children's services, residential services or law enforcement to
children under aged 16 as part of their work; including anyone who supervises such
work. A mandatory reporter with concerns that a child aged under 16 is 'at risk of
significant harm', is legally obliged to make a report. Reporters are legally protected
by non-disclosure of their identity and from legal action such as defamation as long
as their report is made in good faith. - (from the Children and Young Persons (Care
and Protection) Act 1998 section 29)
The main professional reporters of concerns about children at risk of significant
harm in NSW are:
- Police ( 19.2%)
- School teachers and personnel ( 17.7%)
- Social Workers ( 15.3%)
Responding to Child Abuse and Neglect
The people most commonly responsible for abusing and neglecting children are
their parents for reasons outlined above.
Statutory Intervention
When children are found to be at risk of significant harm and other measures such
as family support and other services cannot resolve the problems, further action is
needed. There are a number of options which involve proceedings before the
Children's Court and some, like parental responsibility contracts and alternative
parenting plans, which provide for some preliminary or diversionary processes.
1. Parental Responsibility Contract
- Under section 38A-E of the Children and Young Persons (Care and

needed. There are a number of options which involve proceedings before the
Children's Court and some, like parental responsibility contracts and alternative
parenting plans, which provide for some preliminary or diversionary processes.
1. Parental Responsibility Contract
- Under section 38A-E of the Children and Young Persons (Care and
Protection) Act 1998,
- Contract between parents and the Director General of Community Services,
registered with the Children's Court.
- May provide for the primary care giver to be treated and tested for drug and
alcohol issues, to attend counselling and parenting skill courses.
- Failure to meet the terms of the contract may result in a breach of contract
notice being filed with the Children's Court.
- Amendments to section 38A in 2014 made it parental responsibility apply to
expectant parents of an unborn child.
1. Alternative Parenting Plans
- A parent or young person may seek help from Community Services when a
young person's safety or well being is at risk.
- Community Services may then provide or arrange services which aim to
resolve the issue without the need for Court proceedings.
- If the issue is so serious that the young person can no longer live with their
parent, Community Services may help the family devise an 'Alternative
Parenting Plan' ( s. 116)
- It may cover matters such as parental responsibility, supervision, education,
contact etc. ( section 115)
- An Alternative Parenting Plan can be registered with the Children's Court,
making it legally binding.
1. Emergency Removal
- In some cases, there may be a need for emergency removal of children.
- Community Services or a Police Officer may enter and search premises, and
remove a child if there are reasonable grounds to believe that the child is at
immediate risk of serious harm, and a violence order would not be enough to
protect the child from risk. ( s43)
- In response, the Children's Court may make an Emergency Care and
Protection Order if satisfied that the child is at risk of serious harm.
The Children's Court
The Children's Court of New South Wales hears children's care and protection cases
(often referred to as 'care matters'). This court also deals with juvenile criminal law
cases.
HOT TIP:
Parental Responsibility is defined in the Children and Young Persons (Care and
Protection) Act 1998 as:
- 'all the duties, powers, responsibilities and authority by which, by law,

HOT TIP:
Parental Responsibility is defined in the Children and Young Persons (Care and
Protection) Act 1998 as:
- 'all the duties, powers, responsibilities and authority by which, by law,
parents have in relation to their children.'
Doing It Better
While there have been some significant advances over the past 30 years or so in
recognising the impact of child abuse and neglect, and in accepting some
communal responsibility for child protection and for the care of children who can
no longer live with their families, there are some very big challenges ahead.
There are three main areas where inroads can and need to be made:
1. Property Resourcing and Shared Responsibility
- In the last few years, there have been two new developments that emphasise
the need for a shared approach and better use of resources. One is national
and the other is NSW based.
- The National Framework for Protecting Australia's Children 2009-2020,
endorsed by the Council of Australian Governments in April 2009, outlines a
long term national approach to enhance the safety and well being of
Australia's children.
- The second state based development is the 'Keep Them Safe'
implementation, following an extensive inquiry into child protection services
and problems in NSW.
2. Participation in Decision Making
- There is increasing recognition of the importance of engaging with children
and their families in order to provide support and promote children's safety.
- Effective engagements enables a productive relationship to develop between
worker, the child and their family.
- Engagement is fundamental to working effectively in child wellbeing, as it can
increase the likelihood of realising sustainable, positive change in a child and
their family.
3. Aboriginal and Torres Strait Islander Children and Families
- The Children and Young Persons ( Care and Protection) Act 1998 makes
special provisions relating to ATSI children and families (sects 11-14). The
ATSI principles focus on self determination and on participation in decision
making ( sect 11-12).
- This includes the opportunity for families, kinship groups, representative
organisations and communities to participate in significant decisions that are
to be made about an individual child who is Aboriginal in relation to their
placement or child protection interventions.
- 'Protecting Aboriginal Children Together' (PACT) aims to develop new ways of

making ( sect 11-12).

- This includes the opportunity for families, kinship groups, representative
organisations and communities to participate in significant decisions that are
to be made about an individual child who is Aboriginal in relation to their
placement or child protection interventions.
- 'Protecting Aboriginal Children Together' (PACT) aims to develop new ways of
working with Aboriginal communities to provide services that suit the local
needs of Aboriginal Families and their communities.
Legal and Non Legal Responses
If there is evidence of family violence, the court may order that the childs contact
with the offending parent is restricted or that the contact takes place within a
controlled environment, such as with a social worker present. In this instance the
concept of shared parental responsibility does not apply.
In cases where there is evidence that family violence has
occurred, family dispute resolution may be inappropriate. The court
will hear cases that raise family violence issues quickly so that it can
take appropriate action to protect vulnerable family members.
The Family Court can order relevant state and territory agencies
to provide information regarding allegations of family violence.