This article was written by Samira Ashkar - Senior Associate - Sydney

Samira holds a Bachelor of Laws and a Bachelor of Science (Psychology) from the University of Wollongong. She also has a Masters of Dispute Resolution from the University of Technology Sydney and has completed a Graduate Diploma in Legal Practice. Samira is admitted as a solicitor in New South Wales but is also highly experienced in Australian federal law areas...

Care and Protection of Children (NSW)


In New South Wales, care and protection of children matters are dealt with in the Children’s Court. The Children’s Court may make short term or long term protection orders in respect of a child when satisfied the child is at risk of harm. The legislation that deals with care and protection matters in the Children’s Court is the Children and Young Persons (Care and Protection) Act 1998 (NSW).

When is an application made?

An application can be made for a child protection order by the Department of Community Services if it believes that children are at risk of harm from which their parents are unable or unwilling to protect them. 

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

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

The Children’s Court can make orders in regard to:

  • Parental Responsibility
  • Contact
  • Prohibiting an act by a person
  • Supervision
  • Undertakings
  • Treatment or Therapeutic Programs
  • Support Services

Child legal representatives

Child legal representatives are always appointed in care and protection matters. Their role is to advocate for what is in the child’s best interests. More than one child legal representative will be appointed if there is a child under the age of 10 and another child over the age of 10. 

When a child is under the age of 10, the child legal representative assists the court in promoting what is best for the child but does not necessarily put forward the child’s views. When a child is over the age of 10, the child legal representative should put the child’s views to the court and to each of the parties in a clear and concise manner. 

Child protection procedure

There are several phases in care and protection proceedings that will now be discussed:

Emergency Care and Protection

An Emergency Care and Protection Order (ECPO) can be made to remove children from their parents or carers. In making an application for an EPO, Family and Community Services (FACS) must explain to the court why the removal is necessary.

An ECPO can only last 14 days. Usually once an ECPO is granted an application is made to the court or some arrangements are made in consultation with FACS.

Establishment phase

If a matter is established by consent, a finding is made that the children require care or protection at the time they are removed. Once a finding is made, a consultation process with FACS can occur so that discussions can be made about developing a Care plan for the children.

If a parent does not consent to establishment, their matter needs to be listed for an establishment hearing. This is a hearing where a Magistrate will determine on the evidence whether it is established that the children require care or protection.

Interim Orders

In some urgent cases, interim orders need to be made for the care and protection of a child or children. Interim Orders remain in force until final orders are made. Interim orders may relate to contact between children and parents, as well as reports being prepared. 

Assessment orders

An Assessment Order will assess the child’s physical, psychological, psychiatric and other needs as well as a person’s capacity to exercise parental responsibility. Parties may also be required or encouraged to participate in courses, counselling 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 

A care plan must be submitted to the court by the Department of Community Services before any final orders are made.

The care plan will include:

  1. Long term goals for the child’s care
  2. Who will have parental responsibility for the child
  3. Contact arrangements between the child and each of the parents, other siblings and family members.
  4. Other support services.

 Preliminary Conferences

A preliminary conference is usually held once a care plan has been developed. This gives parties an opportunity to talk to FACS about what the best long-term arrangements are for the care of the children. 

Hearing

If parties cannot come to an agreement, the matter will be listed for a hearing. A hearing may involve witnesses giving evidence. This may include departmental staff and members of the family. Alternatively, hearings can be conducted by a Magistrate who hears submissions only and no oral evidence is given.

If the court is persuaded that the children are at risk and that an order is necessary, it will make the appropriate orders and outline them to all parties. 

If a party is unsatisfied with the decision, there are avenues for appeal. Strict time limits apply to lodging an appeal against a court decision so if you are considering doing this, please seek legal advice as soon as possible. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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