Part 2In this Act:care application means an application for a care order.
care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86.
care proceedings means proceedings under this Chapter.
61 Applications for care orders
(1) A care order may be made only on the application of the Director-General, except as provided by this Chapter.(1A) A care application must specify the particular care order sought and the grounds on which it is sought.(2) A care application must be accompanied by a written report specifying such information as may be prescribed for the purposes of this section by the rules made under the Children’s Court Act 1987.(2A) However, a written report is not required to accompany a care application if:(a) the application is for the rescission or variation of a care order under section 90, or(b) such a report has previously been provided to the Children’s Court in relation to the child or young person concerned.(3) The order sought may be varied:(a) without the leave of the Children’s Court at any time before a determination is made under section 72 in relation to the care application concerned, and(b) after such a determination is made—only with the leave of the Children’s Court.Note. Section 34 requires the Director-General to consider a variety of alternative means to provide for the safety, welfare and well-being of the child or young person before commencing proceedings in the Children’s Court.Section 71 sets out the various grounds that enable the making of a care order.
61A Applications for care orders by filing contract breach notices
(1) If the Director-General duly files a contract breach notice with the Children’s Court, the filing of the notice is an application for the care orders specified in the notice.(2) If a care application is made by filing a contract breach notice, references to a parent in the provisions of this Part relating to the making and determination of a care application in respect of a child or young person are to be read as including a reference to a primary care-giver for the child or young person who is a party to the parent responsibility contract concerned even if he or she is not a parent of the child or young person.(3) Accordingly, the Children’s Court may make the same kinds of orders in respect of such a primary care-giver for a child or young person as the Court may make in respect of a parent of the child or young person.(4) Sections 63 (Evidence of prior alternative action) and 64 (Notification of care applications) do not apply to a care application that is made by filing a contract breach notice.Note. Section 38E (3) requires the Director-General to notify the other parties to a parent responsibility contract and the children and young persons for whom they are primary care-givers that a contract breach notice has been filed with the Children’s Court.
A care order may be made as an interim order or a final order, except as provided by this Part.
63 Evidence of prior alternative action
(1) When making a care application, the Director-General must furnish details to the Children’s Court of:(a) the support and assistance provided for the safety, welfare and well-being of the child or young person, and(b) the alternatives to a care order that were considered before the application was made and the reasons why those alternatives were rejected.(2) The Children’s Court must not:(a) dismiss a care application in relation to a child or young person, or(b) discharge a child or young person who is in the care responsibility of the Director-General from that care responsibility,by reason only that the Children’s Court is of the opinion that an appropriate alternative action that could have been taken in relation to the child or young person was not considered or taken.(3) Subsection (2) does not prevent the Children’s Court from adjourning proceedings.
64 Notification of care applications
(1) Persons having parental responsibility
The Director-General is required to make reasonable efforts to notify the parents of a child or young person of the making of a care application by the Director-General in relation to the child or young person.(2) Children and young persons
The Director-General is required to notify a child or young person who is the subject of a care application of the making of the application.(3) A notification under subsection (2) is to be made in language and in a manner that the child or young person can understand having regard to his or her development and the circumstances.(4) Application for care order
In particular, the Director-General must, as soon as practicable after a care application is made in relation to a child or young person, cause a copy of the application, together with copies of all reports, supporting affidavits and other documentary evidence that accompanied the application, to be served on the parents of the child or young person who can reasonably be located, subject to section 64A.(5) The copy of the care application must be written and arranged in such a form that there is a reasonable likelihood that its contents will be understood by the person on whom it is served.(6) Effect of failure to comply with this section
Failure to comply with the requirements of this section in relation to a care application does not invalidate the application or any decision of the Children’s Court on the application.(7) Notification not to be given in certain circumstances
Despite the other provisions of this section, the Children’s Court may:(a) order the Director-General:(i) not to notify a child or young person of any application, or(ii) not to serve a copy of an application or any supporting documentary evidence on a particular parent of any child or young person, or(b) order a parent not to show an application or documents, or any particular information in the application or documents, to the parent’s child or young person and not to tell the child or young person about the application or document or any particular information in it.(8) The Children’s Court may make an order under subsection (7) only if the Children’s Court is of the opinion that:(a) the prejudicial effect of the child’s or young person’s being unaware of the application or information is outweighed by the psychological harm that is likely to be caused to the child or young person if the child or young person is notified or becomes aware of the application, or(b) it would otherwise be detrimental to the safety, welfare or well-being of the child or young person if that child or young person is notified or becomes aware of the application.Note. The participation of children and young persons in decisions made under or pursuant to this Act that have a significant impact on their life as referred to in section 10 requires information, if appropriate, about a care application to be provided to the child or young person.
64A Evidence in the form of a recording
(1) In this section, recording means:(a) an audio recording, or(b) a video recording, or(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.(2) If:(a) any evidence in support of a care application in relation to a child or young person comprises a recording, and(b) the Director-General considers it would be inappropriate for the parents of the child or young person to be given a copy of the recording,the Director-General may decline to cause a copy of the recording to be served on the parents under section 64 (4) and, instead, must serve a notice on the parents that complies with subsection (3).(3) The notice must:(a) be in writing, and(b) specify each recording proposed to be used in evidence, and(c) inform the parents that they, and their lawyer, are entitled to listen to or view the recording at a place nominated by the Director-General and at a mutually convenient time, and(d) identify the person responsible for arranging access to each recording.(4) The notice must be given to the parents, or their lawyer, at least 14 days before the care application is heard.(5) The parents, and their lawyer, are entitled to listen to or view each recording, on one or more occasions, before the care application is heard.(6) The Children’s Court may, on application of the parents of a child or young person the subject of a care application, direct the Director-General to cause a copy of any recording proposed to be used in evidence in the care application to be served on the parents.
65 Dispute resolution conferences
(1) After copies of the care application have been served in accordance with section 64, a Children’s Registrar of the Children’s Court is to arrange and conduct a dispute resolution conference between the parties, unless the Children’s Registrar is of the opinion that the holding of such a conference should be deferred until a later time in the proceedings.(1A) Despite subsection (1), a Children’s Registrar may dispense with the requirement for a dispute resolution conference between the parties if:(a) there has been a defended hearing in relation to an application for an assessment order under section 53, an interim care order under section 69, or a care order under section 70, and the Children’s Registrar considers that no useful purpose will be served by a dispute resolution conference, or(b) the parties consent to dispense with the dispute resolution conference, or(c) there are circumstances, identified by the Children’s Court Rules, in which the requirement for a dispute resolution conference may be dispensed with.(2) The purpose of a dispute resolution conference is to provide the parties with an opportunity to agree on action that should be taken in the best interests of the child or young person concerned.(2A) In conducting a dispute resolution conference, a Children’s Registrar is to act as a conciliator between the parties. In so doing:(a) the Children’s Registrar should seek to encourage the parties to agree on action that should be taken in relation to the child or young person concerned (including the formulation of final or interim orders that may be made by consent), or(b) if the parties cannot agree on the action to be taken in relation to the child or young person, the Children’s Registrar should encourage the parties:(i) to identify areas of agreement between the parties, and(ii) to identify issues in dispute between the parties, and(iii) to determine the best way of resolving any issues in dispute, including by referring the application to independent alternative dispute resolution, and(iv) if it is not appropriate to refer the application to independent alternative dispute resolution, to set a timetable for the hearing of the application by the Children’s Court.(3) A party may be legally represented at a dispute resolution conference.(4) A power conferred by this Act when exercised by a Children’s Registrar is taken to have been exercised by the Children’s Court.(5) The exercise by a Children’s Registrar of a power conferred by this Act (including this section) does not prevent the exercise of the power by the Children’s Court.
65A Referral of matters before the Court to ADR
(1) The Children’s Court may make an order that the parties to a care application attend an alternative dispute resolution service in relation to the proceedings before the Court or any aspect of those proceedings.(2) The Children’s Court may make an order under this section:(a) on its own initiative, or(b) on the application of a party to the proceedings.
66 Leave to withdraw care application
(1) A care application may be withdrawn by the person who made the application with the leave of the Children’s Court.(2) An application for leave to withdraw the care application must be accompanied by:(a) a statement that indicates how the issues that caused the application to be brought have been resolved, or(b) a care plan that specifies how those issues are proposed to be addressed.
67 Children’s Court order not limited by terms of care application
The making of a care application for a particular care order of the Children’s Court does not prevent the Children’s Court from making a care order different from, in addition to, or in substitution for, the order for which the application was made, provided all prerequisites to the making of the order are satisfied.
68 Leave to file further documentary evidence
(1) A party to proceedings may, with the leave of the Children’s Court, file further documentary evidence in connection with a care application.(2) In particular, if documentary evidence has been filed in proceedings and the Children’s Court subsequently determines under section 93 (3) that the rules of evidence, or specified rules of evidence, are to apply to the proceedings, the party that filed the documentary evidence may, with the leave of the Children’s Court and for the purpose of complying with the relevant rules, file further evidence or may withdraw all or part of the evidence filed and file alternative evidence.(3) Before granting leave under this section, the Court must be satisfied that the grant of leave will not result in undue delay in the matter being finalised.(4) Section 64 applies in respect of any further documentary evidence filed under this section in the same way as it applies to the making of the care application concerned.
(1) The Children’s Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined.(1A) The Children’s Court may make an interim care order prior to determining whether the child or young person is in need of care and protection, if the Court is satisfied that it is appropriate to do so.(2) The Director-General, in seeking an interim care order, has the onus of satisfying the Children’s Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility.Note. Section 49 makes provision for the care of children and young persons pending care proceedings.
The Children’s Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings.
70A Consideration of necessity for interim care order
An interim care order should not be made unless the Children’s Court has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings.Note. Sections 63 and 72 deal with the power of the Children’s Court to dismiss proceedings and section 94 deals with adjournments.
(1) The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following:(a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,(b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection,(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,(d) subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,(e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,(f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children’s Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service,(g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with,(h) section 171 (1) applies in respect of the child or young person,(i) in the case where the application for the order is made by filing a contract breach notice—any presumption arising from the operation of section 38E (4) that the child or young person is in need of care and protection has not been rebutted.(1A) If the Children’s Court makes a care order in relation to a reason not listed in subsection (1), the Court may only do so if the Director-General pleads the reason in the care application.(2) The Children’s Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of:(a) a parent’s or primary care-giver’s disability, or(b) poverty.(3) (Repealed)Note. The Children’s Court cannot make a care order in circumstances to which section 75 (2) applies.
71A Effect of conduct outside New South Wales
For the purposes of this Act, it does not matter whether the conduct constituting a reason for the purposes of section 71 occurred wholly or partly outside the State.
72 Determination as to care and protection
(1) A care order in relation to a child or young person may be made only if the Children’s Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection:(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).(2) If the Children’s Court is not so satisfied, it may make an order dismissing the application.
73 Order accepting undertakings
(1) If the Children’s Court, after inquiring into a care application in relation to a child or young person, is satisfied that the child or young person is in need of care and protection:(a) it may make an order accepting such undertakings (given by a responsible person for the child or young person) as it thinks fit with respect to the care and protection of the child or young person, or(b) it may make an order accepting such undertakings (given by the child or young person) as it thinks fit with respect to the child’s or young person’s conduct, or(c) it may make an order accepting undertakings under both paragraphs (a) and (b).(2) An undertaking referred to in this section:(a) is to be in writing signed by the person giving it, and(b) remains in force for such period (expiring on or before the day on which the child or young person attains the age of 18 years) as may be specified in the undertaking.(3) The Children’s Court is to cause a copy of an undertaking referred to in this section to be served on the person giving it.(4) The Director-General or a party to proceedings in which an order accepting an undertaking was made may notify the Children’s Court of an alleged breach of an undertaking.(5) The Children’s Court, on being notified of an alleged breach of an undertaking:(a) must give the parties an opportunity to be heard concerning the allegation, and(b) is to determine whether the undertaking has been breached, and(c) if it finds that the undertaking has been breached, make such orders as it considers appropriate in all the circumstances.(6) An application for further orders under this section is not a variation application under section 90 (Rescission and variation of care orders) and the Children’s Court may make any orders that it could have made when the order for undertakings was made.(7) In this section:responsible person for a child or young person means any of the following persons (other than the Director-General or the Minister):
(a) a person having parental responsibility or care responsibility for the child or young person,(b) a person who is the birth mother or birth father of the child or young person (whether or not the person has parental responsibility or care responsibility for the child or young person),(c) a person who is a primary care-giver for the child or young person (whether or not the person has parental responsibility or care responsibility for the child or young person).
74 Order for provision of support services
(1) The Children’s Court may make an order directing a person or organisation named in the order to provide support for that child or young person for such period (not exceeding 12 months) as is specified in the order.(2) The Children’s Court must not make an order under this section unless:(a) it gives notice of its intention to consider making the order to the person or organisation who would be required to provide support pursuant to such an order, and(b) the person or organisation is given an opportunity to appear and be heard by the Children’s Court before the Children’s Court makes such an order, and(c) the person or organisation consents to the making of the order, and(d) the views of the child or young person in relation to the proposed order have been taken into account.(3) The Director-General may be required to provide support pursuant to an order made under this section.Note. The parents of a child or young person cannot be compelled to accept the provision of support services, particularly if the services relate to the parents rather than to the child or young person.
75 Order to attend therapeutic or treatment program
(1) The Children’s Court may, subject to this section, make an order:(a) requiring a child of less than 14 years of age to attend a therapeutic program relating to sexually abusive behaviours, and(b) requiring the parents of a child to take whatever steps are necessary to enable a child to participate in a treatment program,in accordance with such terms as are specified in the order.(1A) An order under this section may be made only in respect of a child who has exhibited sexually abusive behaviour.(1B) The Children’s Court may, subject to this section, make an order requiring a parent of a child or young person:(a) to attend a therapeutic program relating to sexually abusive behaviours, or(b) to attend any other kind of therapeutic or treatment program,in accordance with such terms as are specified in the order.(2) An order cannot be made under this section if:(a) in the case of an order under subsection (1)—the child is or has been convicted in criminal proceedings arising from the same sexually abusive behaviours, or(b) in the case of an order under subsection (1B) (a)—the parent is or has been convicted in criminal proceedings arising from the same sexually abusive behaviours.(2A) A reference in this section to a therapeutic or treatment program includes a reference to a therapeutic or treatment program that requires a participant to reside at a particular location during the whole or part of the time when the program is being conducted.(3) An order cannot be made under this section unless the Children’s Court has been presented with and has considered the provisions of a treatment plan that outlines the therapeutic program or treatment program proposed for the child or parent (as the case may be).
(1) The Children’s Court may, after inquiry, make an order placing a child or young person in relation to whom a care application has been made under the supervision of the Director-General if it is satisfied that the child or young person is in need of care and protection.(2) In making an order under this section, the Children’s Court must specify:(a) the reason for the order, and(b) the purpose of the order, and(c) the length of the order.(3) The maximum period of supervision under an order under this section is 12 months.(4) The Children’s Court may require the presentation of:(a) a report before the end of the period of supervision that states:(i) the outcomes of the supervision, and(ii) whether the purposes of the supervision have been achieved, and(iii) whether there is a need for further supervision in order to protect the child or young person, and(iv) whether any other orders should be made to protect the child or young person, or(b) one or more reports during the period of supervision that describe the progress of the supervision,or reports under both paragraph (a) and paragraph (b).(5) A copy of a report, or part of a report, presented to the Children’s Court under subsection (4) and a copy of any medical or assessment report presented to the Children’s Court may be given by the Children’s Court to the legal representative of the child or young person to whom the report relates.(6) Despite subsection (3), the Children’s Court may, of its own motion or on the application of the Director-General, and after giving the parties an opportunity to be heard, extend the period of a supervision order for such further period, not exceeding 12 months, as it considers appropriate in all the circumstances.
77 Supervision of child or young person under a supervision order
(1) While a child or young person is subject to a supervision order:(a) the premises in which the child or young person resides are subject to inspection by the Director-General, and(b) the Director-General may meet and talk with the child or young person, and(c) the child or young person must:(i) accept the supervision of the Director-General, and(ii) obey all reasonable directions of the Director-General.(2) The Director-General may notify the Children’s Court of an alleged breach of a supervision order.(3) The Children’s Court, on being notified of an alleged breach of a supervision order:(a) must give the parties an opportunity to be heard concerning the allegation, and(b) is to determine whether the order has been breached, and(c) if it finds that the order has been breached, may make such orders as it considers appropriate in all the circumstances.(4) An application for further orders under this section is not a variation application under section 90 (Rescission and variation of care orders) and the Children’s Court may make any orders that it could have made when the order for supervision was made.
(1) If the Director-General applies to the Children’s Court for an order, not being an emergency protection order, for the removal of a child or young person from the care of his or her parents, the Director-General must present a care plan to the Children’s Court before final orders are made.(2) The care plan must make provision for the following:(a) the allocation of parental responsibility between the Minister and the parents of the child or young person for the duration of any period for which the child or young person is removed from the care of his or her parents,(b) the kind of placement proposed to be sought for the child or young person, including:(i) how it relates in general terms to permanency planning for the child or young person, and(ii) any interim arrangements that are proposed for the child or young person pending permanent placement and the timetable proposed for achieving a permanent placement,(c) the arrangements for contact between the child or young person and his or her parents, relatives, friends and other persons connected with the child or young person,(d) the agency designated to supervise the placement in out-of-home care,(e) the services that need to be provided to the child or young person.(3) The care plan is to be made as far as possible with the agreement of the parents of the child or young person concerned.(4) The care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children’s Court.(5) Other requirements and the form of a care plan under this section may be prescribed by the regulations.
(1) For the purposes of this Act, permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security and that:(a) has regard, in particular, to the principle set out in section 9 (2) (e), and(b) meets the needs of the child or young person, and(c) avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements.(2) Permanency planning recognises that long-term security will be assisted by a permanent placement.(2A) A permanency plan need not provide details as to the exact placement in the long-term of the child or young person concerned but must be sufficiently clear and particularised so as to provide the Children’s Court with a reasonably clear picture as to the way in which the child’s or young person’s needs, welfare and well-being will be met in the foreseeable future.(3) A permanency plan for an Aboriginal or Torres Strait Islander child or young person must address how the plan has complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13.(4) If a permanency plan indicates an intention to provide permanent placement through an order for sole parental responsibility or adoption of an Aboriginal or Torres Strait Islander child or young person with a non-Aboriginal or non-Torres Strait Islander person or persons, such an order should be made only:(a) if no suitable permanent placement can be found with an Aboriginal or Torres Strait Islander person or persons in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13, and(b) in consultation with the child or young person, where appropriate, and(c) in consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation and the local Aboriginal or Torres Strait Islander community, and(d) if the child or young person is able to be placed with a culturally appropriate family, and(e) with the approval of the Minister for Community Services and the Minister for Aboriginal Affairs.
79 Order allocating parental responsibility
(1) If the Children’s Court finds that a child or young person is in need of care and protection, it may:(a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:(i) to one parent to the exclusion of the other parent, or(ii) to one or both parents and to the Minister or another person or persons jointly, or(iii) to another suitable person or persons, or(b) make an order placing the child or young person under the parental responsibility of the Minister.(2) The specific aspects of parental responsibility that may be allocated by an order of the Children’s Court include, but are not limited to, the following:(a) the residence of the child or young person,(b) contact,(c) the education and training of the child or young person,(d) the religious upbringing of the child or young person,(e) the medical treatment of the child or young person.(3) The Children’s Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9 (2) (c) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.(4) The Children’s Court must not make an order allocating parental responsibility for a child or young person if the order would be inconsistent with any order in relation to the child or young person made by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children.(5) The Children’s Court may only make an order that allocates parental responsibility for a child or young person to a designated agency if the designated agency (or principal officer of the agency) is the person specified in an emergency care and protection order made under section 46 in respect of the child or young person.
80 Requirement to consider care plan
The Children’s Court must not make a final order:(a) for the removal of a child from the care and protection of his or her parents, or(b) for the allocation of parental responsibility in respect of the child,unless it has considered a care plan presented to it by the Director-General.
81 Parental responsibility of the Minister
(1) If the Children’s Court makes an order placing a child or young person under the parental responsibility of the Minister, the Children’s Court must determine:(a) which aspects (if any) of parental responsibility are to be the sole responsibility of persons other than the Minister, and(b) which aspects of parental responsibility are to be the sole responsibility of the Minister, and(c) which aspects (if any) of parental responsibility are to be exercised jointly by the Minister and other persons,and the Minister may exercise parental responsibility alone or together with another person or other persons accordingly.(2) If an order places a child or young person under the sole parental responsibility of the Minister, the Minister must, so far as is reasonably practicable, have regard to the views of the persons who had parental responsibility for the child or young person before the order was made while still recognising that the safety, welfare and well-being of the child or young person remains the paramount consideration.(3) If aspects of parental responsibility are to be exercised jointly by the Minister and another person, either the Minister or the other person may exercise those aspects but, if they disagree concerning their exercise, the disagreement is to be resolved by order of the Children’s Court.
82 Report on suitability of arrangements concerning parental responsibility
(1) The Children’s Court may, when making an order in any care proceedings (the relevant proceedings) allocating parental responsibility of a child or young person to a person (including the Minister) other than a parent, order a party to the relevant proceedings to prepare a written report concerning the suitability of the arrangements for the care and protection of the child or young person.(2) The report must:(a) be provided to the Children’s Court within 12 months or such earlier period as the Court may specify, and(b) include an assessment of progress in implementing the care plan, including progress towards the achievement of a permanent placement, and(c) unless the Court orders otherwise, be given to each of the other parties to the relevant proceedings.(3) If, after considering the report, the Children’s Court is not satisfied that proper arrangements have been made for the care and protection of the child or young person concerned, the Court is, within 30 days of receiving the report, to notify each party to the relevant proceedings inviting the party to make an application under section 90 in relation to the order. Any such application must be made within 30 days of the party being notified by the Court.(4) The Children’s Court cannot, however, rescind or vary the order, or make a new order allocating parental responsibility, on its own motion.(5) Subsection (3) does not limit the circumstances in which a party to the relevant proceedings may make an application under section 90.
83 Preparation of permanency plan
(1) If the Director-General applies to the Children’s Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Director-General must assess whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to:(a) the circumstances of the child or young person, and(b) the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.(2) If the Director-General assesses that there is a realistic possibility of restoration, the Director-General is to prepare a permanency plan involving restoration and submit it to the Children’s Court for its consideration.(3) If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children’s Court for its consideration.(4) In preparing a plan under subsection (3), the Director-General may consider whether adoption is the preferred option for the child or young person.(5) The Children’s Court is to decide whether to accept the assessment of the Director-General.(6) If the Children’s Court does not accept the Director-General’s assessment, it may direct the Director-General to prepare a different permanency plan.(7) The Children’s Court must not make a final care order unless it expressly finds:(a) that permanency planning for the child or young person has been appropriately and adequately addressed, and(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:(i) the circumstances of the child or young person, and(ii) the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.(7A) For the purposes of subsection (7) (a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so the Court, prior to final orders being made, can have a reasonably clear plan as to the child’s or young person’s needs and how those needs are going to be met.(8) A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children’s Court.(9) In this section, parent, in relation to the child or young person concerned, means:(a) if the child or young person has been adopted—the child’s or young person’s adoptive parent, or(b) if the child or young person has not been adopted—the child’s or young person’s birth parent.
84 Requirements of permanency plans involving restoration
(1) A permanency plan involving restoration is to include the following:(a) a description of the minimum outcomes the Director-General believes must be achieved before it would be safe for the child or young person to return to his or her parents,(b) details of the services the Department is able to provide, or arrange the provision of, to the child or young person or his or her family in order to facilitate restoration,(c) details of other services that the Children’s Court could request other government departments or funded non-government agencies to provide to the child or young person or his or her family in order to facilitate restoration,(d) a statement of the length of time during which restoration should be actively pursued.(2) In this section, parent, in relation to the child or young person concerned, means:(a) if the child or young person has been adopted—the child’s or young person’s adoptive parent, or(b) if the child or young person has not been adopted—the child’s or young person’s birth parent.
85 Provision of services to facilitate restoration
A government department or agency or a funded non-government agency that is requested by the Children’s Court to provide services to a child or young person or his or her family in order to facilitate restoration is to use its best endeavours to provide those services.
85A Review of permanency plans involving restoration
(1) A permanency plan involving restoration is to be reviewed by the designated agency responsible for the placement of the child or young person:(a) at the end of the length of time included in the permanency plan as the length of time during which restoration should be actively pursued, or(b) if a review is directed by the Children’s Guardian.(2) A permanency plan involving restoration is to be reviewed by the designated agency if it has not been reviewed under subsection (1) within 12 months after the last occasion on which it was considered by the Children’s Court.(3) A review is to determine:(a) whether the provisions of the permanency plan should be changed, particularly with respect to the length of time during which restoration should be actively pursued, and(b) whether other arrangements should be made for the permanent placement of the child or young person, and(c) whether the designated agency should recommend to the Director-General that an application for a care order be made or whether the designated agency should make an application for the rescission or variation of a care order.(4) Nothing in this section affects any obligation under section 150 to review the placement, and a review under section 150 may be taken to be a review for the purposes of this section also if the review under section 150 satisfies the requirements of this section.(5) The regulations may make provision for or with respect to a review under this section, including:(a) the qualifications of the person carrying out the review on behalf of the designated agency, and(b) the matters to be taken into consideration in carrying out the review, and(c) the release of reports prepared in relation to the review.
(1) If a child or young person is the subject of proceedings before the Children’s Court, the Children’s Court may, on application made by any party to the proceedings, do any one or more of the following:(a) make an order stipulating minimum requirements concerning the frequency and duration of contact between the child or young person and his or her parents, relatives or other persons of significance to the child or young person,(b) make an order that contact with a specified person be supervised,(c) make an order denying contact with a specified person if contact with that person is not in the best interests of the child or young person.(2) The Children’s Court may make an order that contact be supervised by the Director-General or a person employed in that part of the Department comprising those members of staff who are principally involved in the administration of this Act only with the Director-General’s or person’s consent.(3) An order of the kind referred to in subsection (1) (a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.(4) An order of the kind referred to in subsection (1) (b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact.
87 Making of orders that have a significant impact on persons
(1) The Children’s Court must not make an order that has a significant impact on a person who is not a party to proceedings before the Children’s Court unless the person has been given an opportunity to be heard on the matter of significant impact.(2) If the impact of the order is on a group of persons, such as a family, not all members of the group are to be given an opportunity to be heard but only a representative of the group approved by the Children’s Court.(3) The opportunity to be heard afforded by this section does not give the person who is heard the status or rights of a party to the proceedings.
The Children’s Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so.
89 Copies of final orders to be given to all parties
The Children’s Court is to take such action as is reasonably practicable to ensure that each party to an application receives a copy of a final order of the Children’s Court concerning the application.
90 Rescission and variation of care orders
(1) An application for the rescission or variation of a care order may be made with the leave of the Children’s Court.(1A) The Children’s Court may order a person who makes an application under this section to notify those persons whom the Children’s Court specifies of the making of the application.Note. Section 256A sets out the circumstances in which the Children’s Court may dispense with service.(2) The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.(2A) Before granting leave to vary or rescind the care order, the Children’s Court must take the following matters into consideration:(a) the nature of the application, and(b) the age of the child or young person, and(c) the length of time for which the child or young person has been in the care of the present carer, and(d) the plans for the child, and(e) whether the applicant has an arguable case, and(f) matters concerning the care and protection of the child or young person that are identified in:(i) a report under section 82, or(ii) a report that has been prepared in relation to a review directed by the Children’s Guardian under section 85A or in accordance with section 150.(3) An application may be made by:(a) the Director-General, or(b) (Repealed)(b1) the child or young person, or(c) a person having parental responsibility for the child or young person, or(d) a person from whom parental responsibility for the child or young person has been removed, or(e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person.(3A) If:(a) an application is made to the Children’s Court by a person or persons (other than the Director-General) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and(b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and(c) the Director-General is not a party to the proceedings,the applicant must notify the Director-General of the application, and the Director-General is entitled to be a party to the application.(4) The Children’s Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (3) (e) unless it considers the person to have a sufficient interest in the welfare of the child or young person.(5) If:(a) an application for variation of a care order is made or opposed by the Director-General, and(b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children’s Court,the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order.(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:(a) the age of the child or young person,(b) the wishes of the child or young person and the weight to be given to those wishes,(c) the length of time the child or young person has been in the care of the present caregivers,(d) the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.(7) If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so:(a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and(b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.(8) On the making of an order under subsection (7), the Children’s Court must cause notice of the order to be served on the Director-General.
The Children’s Court may, at any stage in care proceedings, make an order prohibiting any person, including a parent of a child or young person, in accordance with such terms as are specified in the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility.
(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.(7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.