The Care and Protection Act

The Care and Protection Act

The Care and Protection Act

In New South Wales, the Care and Protection Act (CAPA) helps protect children when they are at risk of harm from domestic violence, abuse or parents who cannot adequately care for their children. The legislation forms the foundation for the Department of Family and Community Service operations.

Find out more about the Care and Protection Act, its principles and objectives, and the child protection procedure and process.

Let’s take a closer look.

What Is The Care And Protection Act?

The Department of Family and Community Services operates under the legislation contained in the Care and Protection Act 1998. The Act provides the provision of services, care and protection for children and young persons. The wellbeing of the child must be the paramount consideration.

The core objectives of the act state that:

  • Children should have long term nurturing, safe, stable and secure environments.
  • People working with children must provide an environment free from violence and exploitation. Their services must foster their developmental needs, health, spirituality, dignity and respect.
  • Parents and responsible persons must be provided adequate assistance to help with their child rearing responsibilities to help provide a nurturing and safe environment for the child or young person.

The Main Principles of the Care and Protection Act

  • The wellbeing, safety and care of children are paramount.
  • Young people should be allowed to freely express their views, and appropriate consideration should be given to the child’s views and opinions.
  • The child’s culture, religion, sexuality, language and disability must be considered.
  • Intervention that is the least intrusive is preferred.
  • Preservation of language, cultural ties, and identity should be preserved as much as possible.
  • Any out of home care decisions must be made quickly.
  • Significant relationships with the child or young person must be maintained when in their best interest.
  • Any out of home care for children or young persons must abide by permanent placement principles.
  • When placing Aboriginal or Torres Strait Islander children, their parents can participate in the placement decisions. They will likely be placed within their community with extended family or kinship groups.

What Constitutes Risk Of Significant Harm

When there are concerns for a child’s safety, wellbeing or welfare and fears that they may face significant harm, legislation states that they may be removed from the care of their parents. There are several circumstances which may prompt this action, including the following:

  • The child’s physical or psychological needs are not being met.
  • Medical care is not provided.
  • The parents are unable or unwilling to arrange for an education for their child.
  • The child has been physically or sexually abused, ill treated or is at risk. 
  • The child lives in a household with domestic violence and is at risk of severe physical harm.
  • Caregivers or parents behave in a way that has caused the children psychological harm.

Reporting Children At Risk

In Australia, people working with children or young people in health care, education, welfare, law enforcement, residential or children’s services must report suspected neglect or child abuse to the authorities. 

Mandatory reporting legislation contained in section 27 of the Care and Protection Act explains the process for reporting and what constitutes neglect or abuse, as well as decision making tools to determine whether the matter should be reported to FACS.

Reporting children at risk and early intervention helps to protect children from further harm caused by abusive parents and volatile home environments. Legislation contained in the CYPA states the people who notify their child protection concerns to FACS will be offered protection, and their identity will not be disclosed unless law enforcement agencies make a request.

Who Responds To Alerts?

Several agencies respond to alerts regarding children or young persons at risk of harm. They are Family and Community Services (FACS), non government organisations, the police department and Joint Investigative Response Teams (JIRT).

Family and Community Services (FACS) key role is to keep young people and children safe from abuse and neglect. They also provide support to vulnerable families. They investigate notifications of abuse and determine what action needs to occur.

The department also funds various non government organisations to help provide support, prevention and early intervention tools to children, families and carers. They support out of home care services to children and assist with proceedings in the Children’s court. FACs are experts in dealing with vulnerable children and young people who have experienced abuse or neglect.

Members of the police force are mandatory reporters as they respond to domestic violence reports regularly. They know the child protection requirements, ROSH thresholds, and when a report may be necessary.

The Joint Investigative Response Teams comprises people from FACS, police, and New South Wales health professionals. The teams are dispatched to investigate reports when a criminal offence may have been committed. They are trained to undertake investigations in a child friendly and minimally invasive manner.

Dedicated Aboriginal JIRT staff are available to assist with Aboriginal claims to ensure the enquiries are respectful when dealing with Aboriginal clients.

What Is The Importance Of Early Legal Assistance When Dealing With Child Protection Matters?

Obtaining legal assistance helps enable families to learn their rights and responsibilities, which can significantly assist them when navigating the child protection system. 

Ideally, keeping families together and avoiding permanent child removal is the ultimate goal. Unfortunately, many parents do not obtain early legal advice or counselling to explore the options that may have prevented their child’s removal.

There are several benefits to early intervention and legal advice when dealing with child protection matters, such as:

  • Parents will understand their rights when approached by FACS and their responsibilities.
  • They understand the safety concerns that led family and community services to make contact.
  • Encourage parents to utilise support services.
  • Become aware of the importance of child focused positive engagement and action.
  • Understand the consequences of not addressing the child’s safety.
  • Use family and community services tools such as family group conferencing and action plans to avoid Children’s court.
  • Advise legal options regarding applications to the court.

Obtaining advice from a legal team can result in a more effective result than dealing directly with family and community services, as the negative perception of FACS may prevent the parents from being receptive to the information provided.

Obtaining independent legal advice can help parents explore all options to avoid permanent child removal.

When Is An Application Made?

The Department of Community Services can make a child protection order when they believe a child is at risk of harm and their parents are unwilling or unable to offer them protection.

There must be reasonable grounds before an application can be made to remove a child from their parents or carer. Some of the circumstances that may result in the removal of a child include:

  • The belief that the child was at risk of serious harm
  • The risk is immediate
  • Other less intrusive actions will not reduce the risk of harm

What Is The Child Protection Procedure?

Several steps occur when commencing child care and protection proceedings, and the first step is always to ensure that the child is removed from an environment where they are at risk of serious harm; in these circumstances, an Emergency Care and Protection Order (ECPO) may be made to the court.

Emergency Care and Protection

An ECPO is made when children or young persons need to be removed from their parents. Family and Community Services must provide adequate information to the court about why the removal is necessary.

The order is only valid for 14 days, and subsequent arrangements are made with FACS.

Establishment Phase

When the children are removed, if it is established that they require care or protection, the parents can consult FACS to develop a care plan for the children.

If the parents do not consent to establishment, the matter will be listed for an establishment hearing. At this hearing, the magistrate will decide whether the children require care or protection based on the evidence.

Interim Orders

In emergencies, interim orders can be made, which remain in force until more permanent orders are created. The temporary orders are made for the care and protection of the child and may include information regarding contact between the child and their parents and pending reports.

Assessment Orders

An assessment order looks at the child’s psychological, physical and psychiatric needs and the parent’s capacity to exercise parental responsibility effectively. These orders may also include requests for parties to participate in counselling, courses or drug and alcohol testing to prove to the court that they can resume care for their children without posing any risk. 

Care Plan

Before final orders can be made, a care plan must be submitted to the court. The Department of Community Services will create the plan, which must include the following:

  • Long term goals for the care of the child
  • Parental Responsibility 
  • Contact arrangements between the child and parents and other siblings
  • Support services

Preliminary Conferences

A preliminary conference is an opportunity to discuss the best long term arrangements for the care of the child and discussion of the care plan with FACS.

Hearing

When both parties can not agree, there will be a hearing, which may involve witnesses providing evidence or a magistrate hearing submissions only. If the court decides that orders are necessary, they will outline the details to both parties. 

If either party is unsatisfied, they may appeal against the court’s decision, and strict time limits apply.

Orders

Several different types of orders can be made in the Children’s Court, including; care orders, guardianship orders, parent capacity orders and contact orders.

Care Orders

The legislation contained in the Care and Protection Act sets the grounds on which an application can be made. The court will make an order if they are satisfied that the child or young person requires care and protection. It could be due to the death of a parent, abuse, or basic needs not being met by their parents or the primary caregiver.

A care plan must be included with the orders and address the following:

  • Parental responsibility
  • Contact with the child
  • Prohibiting an act, such as unsupervised contact
  • Supervision
  • Undertakings
  • Programs such as treatments or therapy
  • Support services

Guardianship Orders

Guardianship orders are made for a child or young person in out of home care who needs care and protection until they are 18.

FACS, government agencies or primary caregivers can apply for a guardianship order only when there is no possibility of the child or young person returning to their parents. The prospective children’s guardian must be able to provide a safe, stable, nurturing environment on an ongoing basis.

Parent Capacity Orders

When there is a significant deficiency in the parenting capacity, which may harm the child or young person, it may be necessary for the court to make this order.

The parent capacity order requires the parent to participate in a program or course or receive treatment to enhance their parenting skills. 

Contact Orders

Contact orders made in the Children’s Court contain the details regarding contact between a child or young person and their parents, family members or other persons of significance. It may include the frequency, duration and minimum requirements regarding contact, whether supervision is required and implications if the order is not adhered to.

Courts

Several New South Wales courts deal with children at risk of harm. 

NSW Children’s Court

NSW Supreme Court

Federal Circuit Court

Family Court of Australia

The NSW Children’s Court has specialised magistrates dedicated to dealing with children. They cover a range of matters, from the care and protection of children, AVOs, criminal cases, and schooling orders for children and young people under 18.

Children’s court sessions are closed to the public and enable witnesses to use remote facilities to provide evidence in a safe space separate from the courtroom.

In accordance with its wardship jurisdiction, the New South Wales Supreme Court may intervene in Children’s Court matters in exceptional circumstances.

FACS can intervene in any family law proceedings in circumstances where they are concerned for the wellbeing and safety of a child. There are specific protocols and procedures that the NSW Federal Circuit and Family Court must adhere to and share with the FACS.

Summary

In New South Wales, the Care and Protection Act (CAPA) helps protect children at risk of harm. The Act provides the provision of services, care and protection for children and young persons.

The Department of Family and Community Services operates under the legislation contained in the Care and Protection Act. It helps to ensure that children’s wellbeing, safety and care are the primary focus.

Reporting children at risk and early intervention helps to protect children and young persons from further harm caused by abusive parents and volatile home environments. There must be reasonable grounds before an application can be made to remove a child from their parents or carer.

Ideally, keeping families together and avoiding permanent child removal is the ultimate goal. Unfortunately, many parents do not obtain early legal advice or counselling to explore the options that may prevent their child’s removal.

FAQs

1. What Powers Do FACS Have?

Family and Community Services (FACS) key role is to keep young people and children safe from abuse and neglect. They also provide support to vulnerable families. They investigate abuse notifications through mandatory reporting services and determine what action needs to occur. They can apply for emergency care and protection orders through the Children’s Court and, when required, remove children from their parents.

FACS consult with parents to develop care plans for their children and offer support through service providers in accordance with the legislation stated in the Care and Protection Act.

FACS can intervene in any family law proceedings in circumstances where they are concerned for the wellbeing and safety of a child.

2. What Is The Main Purpose Of The Child Care And Protection Act?

In New South Wales, the Care and Protection Act (CAPA) helps protect children when they are at risk of harm from domestic violence, abuse or parents who cannot adequately care for their children. 

The Act provides the provision of services, care and protection for children and young persons, with the wellbeing of the child of paramount consideration. 

The Act states that children or young persons should have long term nurturing, safe, stable and secure environments free from violence or exploitation.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with The Care and Protection Act or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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