What happens when child protection becomes involved with your family?

Most parents want the same thing for their kids – to be safe, healthy and well cared for. Sometimes, however, concerns are raised about a child’s welfare and child protection services might become involved to see whether a child needs additional support or protection. 

This can be confronting, of course. And if it happens, it’s natural to have questions about what the process involves, what your rights are and what could happen next. Understanding how care and protection proceedings work can help reduce some of the uncertainty and allow you to make informed decisions throughout the process.  

When can child protection authorities become involved?

Child protection authorities don’t usually become involved with a family simply because someone questions parenting decisions or because a family is experiencing some difficulties. Generally, the Department of Community Services and Justice (DCJ) only commence court proceedings if there are concerns that a child is at risk of significant harm and their parents or carers are unable or unwilling to adequately protect them. 

Before deciding to bring a case, DCJ will usually assess information that it’s received about the child and family. This information could come from a range of sources, for example, teachers, doctors, police, health professionals, family members or other people who have concerns about the child’s safety or wellbeing. 

DCJ may then conduct inquiries, speak with family members and gather information to determine whether they need to file an application with the court. 

If DCJ does believe a child is at risk (despite available support or less intrusive measures), it may apply to the Children’s Court for orders to protect the child.

Who deals with child protection matters?

When concerns are raised about a child’s safety or wellbeing, the Children’s Court of New South Wales may become involved. The court’s role is not to punish parents or carers. Instead, its job is to determine what arrangements are needed to keep a child safe and support their welfare, both now and into the future.

Under the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court has the power to make a range of orders if it is satisfied that a child is at risk of harm. Depending on the circumstances, these orders might be temporary while a family works through issues, or they may be longer-term arrangements designed to provide ongoing stability for the child. 

What actions can the court take in child protection matters?

The Court’s role is to protect children, so its focus will always be on ensuring the child’s safety, welfare and wellbeing. To do this, they may make orders about:

• Parental responsibility
• Contact between children and family members
• Preventing a person from carrying out a particular act
• Supervision arrangements
• Undertakings and agreements made to the court
• Treatment or therapeutic programs
• Support services for children and families

The specific orders made will depend on the circumstances of each case, but the court’s overriding consideration is always what is in the best interests of the child.

Can a child be removed from their parents?

One of the most common questions we get when it comes to child protection matters is whether a child can be removed from the care of their parents. The answer is yes. 

The removal of a child from their carer or parent can be ordered by the court if there are reasonable grounds to believe that:

• the child is at immediate risk of serious harm
• the risk is immediate; and
• less intrusive actions are insufficient to reduce the risk of harm.

The court will always consider what’s in the best interests of the child in making all its decisions, including whether removal is required under the circumstances. 

Who represents the child?

In any care and protection proceedings, the Court will appoint a legal representative for the child. These legal representatives fall into two broad categories.

• Independent Legal Representative. For children 11 years or younger (generally under 12), the Court usually appoints an Independent Legal Representative. 

This lawyer acts on a best-interests basis. They help the Court decide what arrangements are most likely to keep the child safe and support their wellbeing. They will consider the child’s views where appropriate, but aren’t required to follow those views if they believe a different outcome is better for the child.

• Direct Legal Representative. For children 12 years and older, the Court usually appoints a Direct Legal Representative. This lawyer takes instructions from the child and puts the child’s views and wishes to the Court and other parties, helping to ensure older children have a voice in decisions that affect their future.

Where a case involves children of different ages, the Court may appoint more than one legal representative so that each child’s circumstances and views are properly presented. 

What happens after child protection proceedings begin?

Every case is different, but care and protection proceedings generally follow a similar process and go through several phases:

Emergency Care and Protection

In some urgent situations, DCJ may apply for a temporary Emergency Care and Protection Order (ECPO). This allows a child to be removed from their parents or carers where there are serious concerns about their immediate safety. 

An ECPO can only remain in force for a limited period (up to 14 days with a permitted extension of up to 28 days in total) while the matter is brought before the Children’s Court. DCJ must also explain to the court why the removal is necessary.

Establishment phase

One of the first questions the Children’s Court must determine is whether the child is in need of care and protection.

If the parties agree that the child requires care and protection, the matter may be established by consent. Once this finding is made, discussions can begin with DCJ about developing a care plan that sets out the proposed long-term arrangements for the child.

If a parent or carer does not agree that the child requires care and protection, the matter may proceed to an establishment hearing. At this hearing, a Magistrate will consider the evidence and decide whether the child is in need of care and protection under the law.

Interim Orders

In some urgent cases, the Children’s Court may make interim orders for the care and protection of a child or children. These temporary orders remain in place until final orders are made. 

Interim orders can deal with issues such as where the child lives, contact arrangements with parents and family members and whether reports or assessments need to be prepared for the court. 

Assessment orders

The court may order assessments in order to better understand a child’s needs and a parent’s or carer’s ability to safely care for them. These assessments might look at a child’s physical, psychological or emotional needs, as well as a person’s capacity to exercise parental responsibility. 

Parents and carers may also be encouraged or required to participate in parenting courses, counselling, treatment programs or alcohol and drug testing to persuade the court they are capable of and in a position to resume caring for the child without posing any future risks of harm. 

Care plan 

Before the court makes final orders, DCJ will generally prepare a care plan for the child’s future. The care plan sets out any proposed long-term arrangements, including:

• The long-term goals for the child’s care and wellbeing
• Who will have parental responsibility for the child
• Contact arrangements between the child and each of the parents, other siblings and other family members 
• And support services that may be required

DCJ doesn’t prepare the care plan alone. The plan is usually informed by information gathered throughout the proceedings, including assessments, reports, discussions with parents and carers and, where appropriate, the views of the child. 

While DCJ proposes the plan, the Children’s Court ultimately decides whether the arrangements are in the child’s best interests and will consider this care plan before making any final decisions about the child’s future. 

Preliminary Conferences

Once a care plan has been prepared, the parties concerned in the matter will often attend a preliminary conference. This gives parents, carers, DCJ and other relevant parties the chance to discuss the proposed arrangements. They can also explore whether an agreement can be reached without the need for a contested hearing. 

Hearing

However, if the parties can’t reach an agreement, the matter may proceed to a hearing before the Children’s Court. Depending on the circumstances, witnesses may be called to give evidence, including DCJ staff and members of the family. In some cases, the court might also determine the matter just based on written material and legal submissions, and no parties or witnesses will need to attend at all.

If the court is satisfied that the child is in need of care and protection, it may make the order that it believes is appropriate to keep that child safe and well. 

Appeals

If a party disagrees with the decision, they have the right to lodge an appeal. Strict time limits apply to appeals, so it’s important to get legal advice as soon as possible if you are considering challenging a decision of the children’s court. 

Reach out for support

Having child protection services involved with your family can be confronting. But there is help available to you. Reach out to our team, who are on hand to guide and advise you in any matter that’s going before the Children’s Court or in helping you through any process initiated by DCJ. 

Our team are kind, compassionate experts who are ready to support you whether you’ve just been contacted by DCJ for the first time, or whether you’re already deep into the procedures. Get in touch today.