Overview

Note:: All references to sections in this chapter are, unless otherwise stated, references to sections in the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). Where “child” is referred to herein, the reference also includes a “young person”.

[2-1000] Care and protection jurisdiction of the Children’s Court

Last reviewed: June 2024

Care and protection proceedings in the Children’s Court are governed substantively and procedurally by the Children and Young Persons (Care and Protection) Act 1998 (Care Act). The Care Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount: s 9(1). Decisions in care proceedings, at first instance and on appeal, are to be made consistently with the objects, provisions and principles provided for in the Care Act, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC).¹ The objects of the Care Act are set out in s 8 and principles for its administration are in ss 9, 9A, 10, 10A, 11, 12, 12A and 13.

The Act applies to children who ordinarily live in NSW, are present in NSW, have a sufficient connection to NSW, or are subject to an event or circumstances occurring in NSW that gives rise to a report, including those outside of NSW: s 4(1), (2). Section 4(3) provides a list of factors which may be considered in determining whether a child has a sufficient connection to NSW.

The special principles of self-determination and participation to be applied in matters regarding the care and protection of Aboriginal and Torres Strait Islander children are found in: ss 11, 12, 12A and 13. See further [2-1060] below. Issues relating to Aboriginal children need to be considered in each phase of judicial decision-making.

Where caseworkers, who act on behalf of the Secretary of the Department of Communities and Justice (DCJ), assess that it is no longer safe for a child or young person to remain living with one or both of their parents or their current carer, an application must be made to the Children’s Court for court orders to ensure the safety, welfare and wellbeing of the child or young person.

[2-1005] “Unacceptable risk” of harm test

Last reviewed: Feb 2024

In making determinations regarding removal, restoration, custody, placement and contact, the legal test to be applied is that of “unacceptable risk” of harm to the child(ren) concerned: M v M (1988) 166 CLR 69 at [25]; Re Tanya [2016] NSWSC 794 at [69]. A positive finding of an allegation of harm having been caused to a child should only be made where the court is so satisfied according to the relevant standard of proof, with due regard to the matters set out in Briginshaw v Briginshaw (1938) 60 CLR 336. An unexcluded possibility of past harm to a child is capable of supporting a conclusion that the child will be exposed to unacceptable risk in the future from the person concerned. When considering the issue of unacceptable risk, with a focus on the safety, welfare and wellbeing of the child, a finding of fact to the Briginshaw civil standard is not relevant: Isles & Nelissen [2022] FedCFamC1A 97 at [6].² Whether there is an “unacceptable risk” of harm to the child is to be assessed from the accumulation of factors proved: Johnson v Page [2007] FamCA 1235. The court must examine what the future might hold for the child, and if a risk exists, assess the seriousness of the risk and consider whether that risk might be satisfactorily managed or otherwise ameliorated.³

See further Local Court Bench Book at [40-000] Objects and principles of the Act.

[2-1010] Principle of active efforts

Last reviewed: Feb 2024

Relevant legislation: Care Act, ss 3, 9A, 63, 79AA(2)(c), 83(3A)(b), (5B)(b), 83A(2)(a), 266

For applications made on or from 15 November 2023, subject to the “paramountcy principle”, functions under the Act must be in accordance with the principle of active efforts: s 9A(1), (5); Sch 3 Pt 14 cl 57(2)(a).

This principle provides that DCJ must make active efforts to both prevent a child or young person entering out-of-home care s 9A(2)(a)) and for a child who has been removed, to make active efforts to restore the child to their parents or if that is not practicable or in the child’s best interest to be restored, to place the child with family, kin or community: s 9A(2)(b).

Under this principle, DCJ must ensure that active efforts are timely, practicable, thorough and culturally appropriate and purposeful and aimed at addressing the grounds on which the child or young person is considered to be in need of care and protection and conducted in partnership with the child or young person and the family kin and community of the child or young person, amongst other things, and can include providing, facilitating or assisting with access to support services and other resources — considering alternative ways of addressing the needs of the child, family, kin or community if appropriate services or resources do not exist or are not available: s 9A(3), (4).

DCJ has set out what “active efforts look like in practice”:⁴

involving families and support networks much earlier in the process, from assessment through to case closure
using family-led decision-making processes, including Aboriginal Family-Led Decision Making (AFLDM) to guide assessments, planning, and care and restoration decisions
informing families about their legal rights and supported to access independent legal advice at multiple stages throughout the involvement with the child protection system
using alternative options to removal including Parent Responsibility Contracts, Parent Capacity Orders, Temporary Care Arrangements and Alternative Dispute Resolution
referring families to relevant services, supporting their engagement, and monitoring their progress
timely restoration casework to prevent children from drifting in care and improve support for parents
ensuring children in care are supported to maintain connection to family and culture
making cultural plans for Aboriginal children. There are additional requirements for permanency plans, including evidence of compliance with the Aboriginal and Torres Strait Islander Child Placement Principle
ongoing support and monitoring of family time to ensure children in care maintain connections to their parents, siblings, and extended family and support network.

[2-1015] Evidence of active efforts etc

Last reviewed: Feb 2024

For applications made on or from 15 November 2023, s 63 Care Act mandates that in making a care application, DCJ must provide evidence to the court of:

(a): the active efforts made before the application was made and the reasons the active efforts were unsuccessful
(b): the alternatives to a care order considered before the application was made and the reasons the alternatives were not considered appropriate.

The active efforts made by DCJ must be made in accordance with the “principle of making active efforts” defined in s 9A (see [2-1010], above).

Underpinning this, and of particular importance, is the principle contained in s 9(2)(c) which provides:

In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

The Family is Culture review report⁵ (FiC Report) considered that Children’s Court magistrates are uniquely placed to scrutinise the pre-entry into care casework of DCJ caseworkers and made recommendations to that effect.⁶ It is important that DCJ provides sufficient information to the court about what prior alternative actions were considered and taken before children enter care. These include:

Parent responsibility contracts (PRC): ss 38A–38E. A PRC is an agreement between DCJ and a child’s parents that contains provisions to support the improvement of parenting skills of the primary care-givers and to encourage them to accept greater responsibility for the child. A PRC may make provision for attendance at a substance abuse centre, counselling, behavioural and financial management courses, and for the monitoring of compliance with the terms of the PRC. Note that a breach of a PRC does not give rise to a presumption that a child is in need of care and protection. The applicability of PRCs extends to expectant parents: s 38A(1)(b). See further at [17-5000] Child protection legislative reforms.
Parent capacity orders (PCO): ss 91A–91I. PCOs, defined in s 91A, can be made on application by DCJ or by the Children’s Court on its own initiative if it determines under s 90A that a prohibition order has been breached: s 91B. The court must be satisfied that there has been an identified deficiency in the parenting capacity of a parent or primary care-giver that has the potential to place the child or young person at risk of significant harm and it is reasonable and practicable to require the parent or primary care-giver to comply with the order. The court must be satisfied that the parent or primary care-giver is unlikely to attend or participate in the program, service or course or engage in the therapeutic service required by the order unless the order is made: s 91E(1). The Children’s Court can make a PCO by consent: s 91F. See further Local Court Bench Book at [40-180] Parent capacity orders.
Temporary care arrangements (TCA): ss 151–152. DCJ may make a TCA for a child that DCJ has care responsibility for if DCJ is of the opinion the child is in need of care and protection: s 151. An authorised carer looks after a child for a period of up to three months (with an option for the period to be extended by a further three months): s 152(1)(c). A temporary care arrangement can generally only be made with the consent of a parent of the child; and can only be made when a permanency plan involving restoration is in place or if the parents are incapable of consenting: s 151(3).
Dispute resolution conferences (DRC): s 65 provides that the Children’s Court may refer the application to a Children’s Registrar to be dealt with before or at any stage of the care application. The Children’s Registrar is to act as a conciliator between the parties or persons specified in s 86(1A)(b).
Family group conferences: Family group conferencing is a form of ADR promoted by DCJ to bring family members together with an impartial facilitator to make a plan for their child or young person. Section 65A of the Care Act empowers the Children’s Court to make an order that the parties to a care application participate in an alternative dispute resolution process (external ADR) in relation to the proceedings before the Court or any aspect of those proceedings. See further Children’s Court of NSW Practice Note No 3 “Alternative Dispute Resolution Procedures in the Children's Court”.

Section 63(5) provides that: “If the Children’s Court is not satisfied with the evidence provided by the Secretary under subsection (1), the Court must not take either of the following actions unless the Court is satisfied that taking the action is in the best interests of the safety, welfare and well-being of the child or young person—

(a): dismiss a care application in relation to the child or young person,
(b): discharge the child or young person from the care responsibility of the Secretary [emphasis added].”

Section 63 gives effect to Recommendation 54 of the FiC Report. This amendment applies to both Aboriginal and non-Aboriginal children and includes the above mechanism for the court to dismiss a decision about the care application until it is satisfied that DCJ had made active efforts.

[2-1020] Culture

Last reviewed: Feb 2024

The need to take account of culture is enshrined in the Children and Young Persons (Care and Protection) Act 1998 (Care Act). Subject to the paramount principle in s 9(1) of the Care Act, s 9(2)(b) provides that:

in all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

Where Aboriginal and Torres Strait Islander children and young people are involved in care applications and casework under the Act, including cultural planning, permanency planning and placement decisions, the five elements of the Secretariat of National Aboriginal and Islander Child Care (SNAICC) Aboriginal and Torres Strait Islander Children and Young Persons Principle (ACPP) must be applied: see below at [2-1060] and see also Family is Culture review report.⁷

The Winha-nga-nha List (commenced 4 September 2023) is a dedicated court list for Aboriginal and or Torres Strait Islander families involved in care and protection cases at Dubbo Children’s Court. The List was developed following a co-design process with Aboriginal community representatives and key stakeholders in response to Recommendation 125 of the Family is Culture review report. A factsheet is available here. See also [15-1000] NSW Youth Koori Court and Winha-nga-nha list, Dubbo

[2-1025] Family is Culture review report

Last reviewed: June 2024

The 2019 Family is Culture review report⁸ (FiC Report) to the NSW Government, chaired by Professor Megan Davis, is an independent review of Aboriginal children and young people in out-of-home-care (OOHC). The report made 125 recommendations to address why Aboriginal children and young people are disproportionately represented in OOHC in NSW. Several of those recommendations are directed to Children’s Court Magistrates in their decision-making in the care and protection jurisdiction. These include:

Recommendation 55: “The Children’s Court of NSW should update its internal judicial guidance to ensure Magistrates require the Department of Communities and Justice to provide information to the Court about what prior alternative actions were considered and taken before children entered care.”
Recommendation 80: “The Judicial Commission should, in conjunction with the President of the Children’s Court, develop educational materials for all judicial officers about the identification and de-identification of Aboriginal children in judicial proceedings.”
Recommendation 82: “The Judicial Commission should, in consultation with the Children’s Court of NSW and the NSW Child, Family and Community Peak Aboriginal Corporation (AbSec), design and implement an ongoing program of judicial education for Magistrates regarding the intent and elements of the Aboriginal Child Placement Principle, as well as how judicial decision-making may help to support their implementation.”
Recommendation 114: “The Judicial Commission should, in partnership with Aboriginal educators, provide opportunities for further education to Children’s Court of NSW Magistrates and staff regarding the research on intergenerational trauma, the effects of colonisation, domestic violence, poverty, substance abuse and mental health issues that may affect Aboriginal parents’ interactions with the Court.”

The Children’s Court continues to strive to meet the report’s other recommendations directed to it. In 2022, the Court published Practice Note 17 “Designated Agencies in Children's Court care proceedings” to allow magistrates to utilise powers under s 85 of the Care Act to direct service provision in restoration cases in line with Recommendation 115. The Court has also developed the Winha-nga-nha List (commenced 4 September 2023) in Dubbo in line with Recommendation 125. A third Youth Koori Court was established in Dubbo and commenced on 24 March 2023. See [15-1000] NSW Youth Koori Court and Winha-nga-nha list, Dubbo.

The government’s response in Family is Culture legislative recommendations: Consultation findings report,⁹ led to the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022, which partially commenced on 25 November 2022, with the remainder commencing on 15 November 2023.¹⁰

[2-1030] Care plans

Last reviewed: Feb 2024

Section 78(2) of the Care Act requires:

(a)

the allocation of parental responsibility between the Minister and the parents of the child or young person for the duration of a period for which the child or young person is removed from the care of the child or young person’s 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): the interim arrangements 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 the child or young person’s 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.

The Children and Young Persons (Care and Protection) Regulation 2022 sets out at Sch 3(1) further mandatory requirements:

(1)

In addition to the matters specified in the Act, section 78(2) a care plan must include the following—

(a)

the date the plan is made,

(b)

the method used to obtain the views of—

(i): the parents of the child or young person, and
(ii): the child or young person,

(c)

whether the persons who gave a view under (b) were spoken to separately or together,

(d)

for the agency or body with overall responsibility for coordinating the plan and the delivery of services to the child or young person and the child or young person’s family—

(i): the name of the agency or body and the relationship the agency or body has to the child or young person, and
(ii): the responsibilities of the agency or body under the plan, and
(iii): the initial date on which the agency or body must assess the progress of the plan and the frequency of subsequent assessments,

(e)

for each other person, agency or body participating in the plan—

(i): the name of the person, agency or body and the relationship the person, agency or body has to the child or young person, and
(ii): the responsibilities of the person, agency or body under the plan and the approximate period during which the responsibilities are to be carried out,

(f)

the resources required to provide the services that need to be provided to the child or young person and the availability of the resources,

(g)

the plans or arrangements to meet the education and training needs of the child or young person,

(h)

whether the contact arrangements for the child or young person may require an application for a contact order under the Act, section 86,

(i)

the indicators to be used to assess the success of the plan,

(j)

if restoration of the child or young person is to be considered at a later time—

(i): the goals to be achieved by the parents to facilitate restoration, having regard to the child or young person’s age and developmental needs, and
(ii): the approximate period during which the goals are to be achieved.

The Children and Young Persons (Care and Protection) Regulation 2022 sets out at Sch 3(2) matters to be included:

(1)

A care plan must contain the following information relevant to the circumstances of the child or young person—

(a)

the family structure and significant family and other relationships of the child or young person,

(b)

the relationship between the child or young person and the child or young person’s parents,

(c)

the history, development and experience of the child or young person,

(d)

the cultural and linguistic background and religion of the child or young person,

(e)

whether the child or young person is of Aboriginal or Torres Strait Islander descent and, if so, the communities the child or young person identifies with,

(f)

the principal language spoken in the family home of the child or young person,

(g)

issues of social, cultural, educational or economic significance in relation to the child or young person or the child or young person’s family,

(h)

the nature of the relationships between members of the child’s or young person’s family and the capacity of the parents to adapt or deal with circumstances affecting the family,

(i)

a disability of the child or young person,

(j)

the views of the following about the services that need to be provided to the child or young person and the child or young person’s family—

(i): if practicable—the child or young person,
(ii): the parents of the child or young person,
(iii): the Secretary,

(k)

if for paragraph (j)(i) the views of the child or young person were not obtained—the reasons the views of the child or young person were not obtained,

(l)

if for paragraph (j)(ii) the views of the parents of the child or young person could not be obtained—the reasons the views of the parents of the child or young person could not be obtained,

(m)

other matters the Secretary considers appropriate.

(2)

The care plan must be accompanied by a copy of a relevant report on the health, educational or social well-being of the child or young person that, in the opinion of the Secretary, should be considered by the Children’s Court.

(3)

The care plan must refer to the views of a person who has expressed disagreement with a provision of the plan.

The Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 inserted s 78(2A) into the Care Act (commenced 15 November 2023) to mandate additional requirements for a care plan made for an Aboriginal or Torres Strait Islander child or young person.

A care plan for an Aboriginal or Torres Strait Islander child or young person must include:

(a)

(i): the child’s or young person’s connection with their Aboriginal or Torres Strait Islander family and community
(ii): the child’s or young person’s Aboriginal or Torres Strait Islander identity

a cultural plan that sets out how the following will be maintained and developed—

The care plan must be developed in consultation with the child or young person, their parents family and kin and relevant Aboriginal and Torres Strait Islander organisations: s 78(2A)(b). The care plan must also address how the plan has complied with the ACPP (s 12A of the Care Act)) and the Aboriginal and Torres Strait Islander Placement Principles in s 13 of the Care Act: s 78(2A)(c).

[2-1035] Cultural care planning mandate

Last reviewed: Feb 2024

The purpose of DCJ’s cultural care planning mandate is “to acknowledge the continued trauma and impact of colonisation, racism and the forced removal of Aboriginal children”.¹¹ For every Aboriginal or Torres Strait Islander child and every child with a cultural and linguistically diverse background, including an asylum seeker, refugee and new migrant child, it aims to ensure that the DCJ work with the child or young person, their family and community to support them to meet a child’s cultural needs, maintain and enhance a child’s connection to family, country, community and culture (including language).¹²

[2-1040] Removal of child into care and protection

Last reviewed: Feb 2024

For commentary on the “establishment” phase under ss 71(1) and 72(1) of the Children and Young Persons (Care and Protection) Act 1998, see Local Court Bench Book at [40-060] The “establishment” phase. See further, Local Court Bench Book at [40-080] The “placement” or “welfare” phase.

[2-1060] Aboriginal and Torres Strait Islander principles

Last reviewed: Feb 2024

The Aboriginal and Torres Strait Islander principles are contained in Ch 2, Pt 2 of the Children and Young Persons (Care and Protection) Act 1998 (Care Act). These include s 11: that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children with as much self-determination as is possible and s 12 that provides for Aboriginal and Torres Strait Islander participation in decision-making.

Section 12A sets out the Aboriginal and Torres Strait Islander Children and Young Persons Principle (ACPP).¹³ The ACPP must be applied in care applications and casework under the Care Act, including cultural planning, permanency planning and placement decisions: s 12A. They also govern how Aboriginal and Torres Strait Islander family members, kinship groups, representative organisations, relevant Aboriginal Community Controlled Organisations and communities participate in decision-making under the Care Act: Family is Culture legislative recommendations: Consultation findings report.¹⁴

The Family is Culture review report¹⁵ notes that the ACPP is not simply a hierarchy of options for the physical placement of an Aboriginal child in OOHC. The ACPP is one broad principle made up of five elements aimed at enhancing and preserving Aboriginal children’s sense of identity, as well as their connection to their culture, heritage, family and community: s 12A(2).¹⁶

Proper implementation of the ACPP requires an acknowledgement that the cultural identity of an Aboriginal child is “intrinsic” to any assessment of what is in the child’s best interests: Secretary of the Department of Communities and Justice (DCJ) and Farmer [2019] NSWChC 5 at [116], [117].

Section 12A(2) of the Care Act, as amended by the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (the Amendment Act), sets out the five elements which make up the Aboriginal and Torres Strait Islander Children and Young Persons Principle:

(a): prevention
(b): partnership
(c): placement
(d): participation, and
(e): connection,

which apply to the administration of the Act, as relevant to the decision being made, in relation to Aboriginal and Torres Strait Islander children and young persons: s 12A(1), (3).

These are aimed at enhancing and preserving Aboriginal children’s sense of identity, as well as their connection to their culture, heritage, family and community: Second Reading Speech, Legislative Council, Children and Young Persons (Care and Protection) Amendment (Family is Culture) Bill 2022; Family is Culture review report.¹⁷

Particular principles regarding Aboriginal and Torres Strait Islander children and their special heritage are enunciated by s 13 and are reflected particularly in ss 78(2A), 78A(4) and 83A(3). Broadly speaking, these principles provide that if Aboriginal and Torres Strait Islander children are to be removed from their parents, they should be placed with (s 13(1)):

extended family or kinship group members or,
members of their community or, if that is not practicable
a member of another Aboriginal and Torres Strait Islander family residing nearby or, as a last resort
a suitable person(s) approved by DCJ after consultation with members of the extended family or kinship group and appropriate Aboriginal and Torres Strait Islander organisations: s 13(1).

Section 5 provides the relevant definitions in relation to the identification of Aboriginal and Torres Strait Islander children. The decision of Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83, although relating to the Adoption Act 2000, provides guidance in respect of the application of s 5. “There is no requirement in order … to be an Aboriginal child for the child to have a specified proportion of genetic inheritance” and “descent is different from race”: Hackett per Leeming JA at [53]; [86]; Adoption Act, s 4(1), (2).

If a child has one Aboriginal and Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the principles of the Care Act: s 13(4). Arrangements must be made to ensure the child has the opportunity for continuing contact with the other parents’ family, community and culture: s 13(5).

In determining placement, account is to be taken of the child’s expressed wishes and whether they identify as an Aboriginal and Torres Strait Islander person: s 13(2).

In relation to placement with non-Aboriginal and Torres Strait Islander persons, no final order allocating sole parental responsibility for an Aboriginal and Torres Strait Islander child to a non-Aboriginal and Torres Strait Islander person may be made except after extensive consultation and with the express approval of the Minister for Aboriginal Affairs and the Minister for Community Services: s 78A(4).

Further, if an Aboriginal and Torres Strait Islander child is placed with a non-Aboriginal and Torres Strait Islander carer, the following principles are to determine the choice of a carer (s 13(6)):

(a): subject to the child’s best interests, a fundamental objective is to be the reunion of the child with his/her family or Aboriginal and Torres Strait Islander community
(b): continuing contact must be ensured between the child and his/her Aboriginal and Torres Strait Islander family, community and culture.

The Aboriginal and Torres Strait Islander Child and Young Person Placement Principles (ATSICPP) under s 13 are an aspect of the important principle in s 9(2)(d) that a child’s cultural ties should be preserved when they are removed from their family. However, s 13(1) must not be blindly implemented without regard to the principle of paramountcy and the other objects and principles set out in ss 8 and 9: Re Victoria and Marcus [2010] CLN 2. In the exceptional case of Re Victoria and Marcus, the children were placed with carers who were not Aboriginal rather than their Aboriginal grandparents as the court found there was a real risk the grandparents would actively discourage the children from identifying with their Aboriginal cultural links, “contrary to the whole purpose and spirit of the Aboriginal Placement Principles set out in s 13(1)”: at [52].

The principles in s 13(1) do not apply to emergency placements to protect a child from serious risk of immediate harm, or to a placement of less than two weeks duration: s 13(7).

The cultural identity of Aboriginal and Torres Strait Islander children is not a peripheral consideration in the making of orders, nor is it something that exists in conflict with “best interests” — it is intrinsic to what is in their best interests.¹⁸

Sections 78A(4) and 83A(3) also have application: see below at [2-1080].

Note:: The definition of statutory out-of-home care means that the application of the ACPP is not just about court proceedings when having to provide a long-term placement proposal, but is applicable once an interim order is made or within two weeks of removal of a child from their parents.¹⁹

In relation to the development of cultural care plans (see s 78(2A)) when working with Aboriginal and Torres Strait Islander children and young people, judicial officers should ensure:

the minimum number of consultations have occurred and evidence is provided
that minimum supports are planned for within the cultural care plan
the child, family, kin and relevant extended family/community consulted and evidence provided as to their views.
the plan complies with the permanent placement principles, Aboriginal and Torres Strait Children and Young Persons Principle (s 12A)) and the placement principles for Aboriginal and Torres Strait Islander children and young persons set out in s 13.

[2-1065] Identification of Aboriginal children

Last reviewed: Feb 2024

The late identification, or the de-identification, of children by the Department of Communities and Justice can have consequences for planning and placement so, in cases where identification is an issue, the court will be assisted by timely evidence from the parties.

Section 5 of the Care Act defines an Aboriginal child or young person as “a child or young person descended from an Aboriginal”. An Aboriginal person is defined as having the same meaning as Aboriginal person has in s 4(1) of the Aboriginal Land Rights Act 1983 as follows:

(a): is a member of the Aboriginal race of Australia, and
(b): identifies as an Aboriginal person, and
(c): is accepted by the Aboriginal community as an Aboriginal person.

The Children’s Court may determine that a child or young person is Aboriginal for the purposes of the Care Act if the court is satisfied that the child or young person is of Aboriginal descent, notwithstanding the definition in the Aboriginal Land Rights Act: s 5(2) Care Act.

The legal test for who is an “Aboriginal child” was the subject of some uncertainty. In Fischer v Thompson (Anonymised) [2019] NSWSC 773, the court held that for a child to be an “Aboriginal child” for the purposes of the Adoption Act 2000, it was necessary to identify an ancestor of the child who was “a member of the Aboriginal race of Australia, and identified as an Aboriginal person, and was accepted by the Aboriginal community as an Aboriginal person.” However in Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83, the definition in Fisher was disapproved as being too narrow. The Court of Appeal held that a child is an Aboriginal child for the purposes of the Adoption Act in circumstances where evidence established that she or he was descended from the people who lived in Australia before British colonisation. Further, the court has a discretion under s 4(2) Adoption Act to determine that a child who qualifies as being of “of Aboriginal descent” is an “Aboriginal child” even if they or their forebear do not satisfy the three-limb definition in the Aboriginal Land Rights Act: at [57], [60], [82], [86].

The court in Hackett made clear that there is no requirement in order for a child to be Aboriginal for the child to have a specified proportion of genetic inheritance (at [53]), and also made it clear that descent is different from race: at [86].

Although the Hackett decision was specifically directed to s 4(2) of the Adoption Act, the definition of “Aboriginal” is found in s 4 of the Aboriginal Land Rights Act and referenced in s 5 of the Care Act and in s 4 of the Adoption Act.

See further [3-1000] Aboriginal and Torres Strait Islander placement principles for a list of relevant cases which have considered the principle.

[2-1070] Issues arising from de-identification of Aboriginal and Torres Strait Islander children

Last reviewed: Feb 2024

It is not unusual for Aboriginal families to be reluctant to self-identify to statutory child protection systems, given justified mistrust of these systems and their treatment of Aboriginal peoples.²⁰ As the Secretariat of National Aboriginal and Islander Child Care (SNAICC) has noted, “without correct and early cultural identification, Aboriginal and Torres Strait Islander children at all levels of child protection involvement are at risk of being deprived of culturally safe support, case planning and placements”.²¹

The Family is Culture review report ventilated concerns about the late identification of Aboriginal children and the de-identification of children resulting in the Aboriginal and Torres Strait Islander Children and Young Persons Principle (ACPP) not being applied to them.²² For example, failing to record a child’s Aboriginality will have a flow on effect in terms of cultural planning and casework for the child and will limit their connections to culture in OOHC.²³ The report recommended (Recommendation 80) that judicial officers receive educational materials about the identification and de-identification of Aboriginal children.²⁴ Recommendation 76 is directed to developing regulations about identifying and “de-identifying” children in contact with the child protection system as Aboriginal for inclusion in the Children and Young Persons (Care and Protection) Regulation 2022. To this end, the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 amended s 264 to insert s 264(1A)(b1) to allow for regulations to make provision for processes to be used when identifying children and young persons as Aboriginal or Torres Strait Islander persons for the purposes of administering the Care Act.

[2-1080] Permanency planning

Last reviewed: Feb 2024

Relevant legislation: ss 83, 83A, 84, 85A

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, has regard to the principles set out in s 9(2)(e) and (g), meets the needs of the child, and avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A. Permanency planning recognises that long-term security will be assisted by a permanent placement: s 78A(2). If DCJ assesses that there is a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan involving restoration and submit it to the Children’s Court for its consideration: s 83(2). If DCJ assesses that there is not a realistic possibility of restoration within a reasonable period, the Secretary 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: s 83(3).

From 15 November 2023, a permanency plan prepared under s 83(3) must include the following (s 83(3A)):

(a)

the reasons for the Secretary’s assessment that there is not a realistic possibility of restoration within a reasonable period, and

(b)

details of the active efforts the Secretary has made to—

(i): restore the child or young person to the child’s or young person’s parents, or
(ii): if restoration to the child’s or young person’s parents is not practicable or in the best interests of the child or young person— place the child or young person with family, kin or community.

The Children’s Court may, before deciding whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration within a reasonable period, direct DCJ to provide the Court with reasons for the assessment there is not a realistic possibility of restoration within a reasonable period and evidence of the active efforts DCJ has made to restore the child or place the child with family, kin or community if restoration is not practicable of in the child’s best interests: s 83(5B).

Pursuant to s 83(7), the Children’s Court must not make a final care order unless it expressly finds that “permanency planning for the child or young person has been appropriately and adequately addressed” and that prior to approving a permanency plan involving restoration, there is a realistic possibility of restoration within a reasonable period, having regard to the circumstances of the child or young person, and 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. As noted above, for placement of an Aboriginal or Torres Strait Island child with non-Aboriginal and Torres Strait Islander persons, no final order for adoption may be made except after consultation as specified and with the express approval of the Minister for Aboriginal Affairs and the Minister for Community Services: s 78A(4).

The Family is Culture review report²⁵ submitted that the Children’s Court of NSW is uniquely placed to actively supervise DCJ’s compliance with the ACPP.

[2-1085] Additional requirements for Aboriginal or Torres Strait Island child or young person: s 83A

Last reviewed: Feb 2024

From 15 November 2023, there are additional requirements about which the Children’s Court must make express findings before making a final care order in relation to an Aboriginal or Torres Strait Islander child or young person (Note after s 83(7); s 83A(3)). The Children’s Court must not make a final care order unless it expressly finds that the plan complies with the permanent placement principles, the ACPP (s 12A of the Care Act) and the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles (ATSICPP) (s 13 of the Care Act) : s 83A(3)(a). Further, the Court must expressly find that the plan includes a cultural plan that sets out how the child will maintain and develop connection with family, community and identity (s 83A(3)(b)); that has been developed in consultation with the child or young person, their parents, family and kin and relevant Aboriginal and Torres Strait Islander organisations: s 83A(3)(c).

The requirements set out in s 83A(3) are in addition to the requirements set out in s 83: s 83A(1).

[2-1090] Permanent placement principles — points to consider

Last reviewed: Feb 2024

Ensure there is a record that all placements options have been thoroughly explored and considered including:
- preservation or restoration to a child’s parent (within the meaning of s 83)
- guardianship with a relative, kin or other suitable person
- open adoption (except in the case of an Aboriginal or Torres Strait Islander child or young person)
ensure there is evidence as to how a decision was made that restoration is not realistic, what information was taken into account and who was consulted
ensure there is evidence of how the active efforts made to ensure the permanency plan for an Aboriginal or Torres Strait Islander child or young person addresses how the plan has complied with the Aboriginal and Torres Strait Islander Child Placement Principles
for an Aboriginal or Torres Strait Islander child or young person, a final care order must not be made unless the Children’s Court expressly finds the permanency plan complies with the matters set out in s 83A(3) in addition to the requirement in s 83.

[2-1120] Care plan template

Last reviewed: Feb 2024

This Care Plan template is in a downloadable zip file and produces an interactive pdf document for entering and recording a child’s care plan. See Care Plan template.

The template contains an option to display the Aboriginal and Torres Strait Islander cultural plan and the multicultural plan sections.

[2-1140] Operating a trauma-informed court

Last reviewed: Feb 2024

Although the traumatic histories of care-experienced children is often recognised, it appears the management of their problematic behaviour is often prioritised over a holistic understanding of their individual circumstances. Following the introduction of the NSW Therapeutic Care Framework in 2017, trauma-informed care (also referred to as therapeutic care) in the OOHC system has been accepted as best practice to avoid the criminalisation of children in care.²⁶ It is paramount that therapeutic care be culturally sensitive and responsive and recognises the trauma of separation. Therapeutic care must be holistic in its approach, address intergenerational trauma and promote healing.²⁷

The Youth Koori Court (YKC) has made some critical modifications and additions to the way in which the court operates as a trauma-informed court. At the heart of the YKC is the acknowledgement and respect offered to the Aboriginal and Torres Strait Islander people of Australia. The goals of the YKC include a desire to “increase Aboriginal community, including Aboriginal young people’s confidence, in the criminal justice system in NSW”. YKC goals also include reducing the rate of non-appearances by young Aboriginal offenders in the court process in NSW; reducing the rate of breaches of bail by Aboriginal young people in NSW; and increasing compliance with court orders by Aboriginal young people in NSW. See further [15-1000] Youth Koori Court.

[2-1160] Further reading

Last reviewed: Feb 2024

Aboriginal Legal Service (NSW/ACT) Ltd, “Understanding the Aboriginal and Torres Strait Islander child placement principles as a framework for best practice”, paper presented at the ACWA Conference on Cultural Identity in Aboriginal children in OOHC
M Allerton, “Apart from shortness, vegephobia and addiction to technology, how are children different?” at [18-2000]
M Allerton, “The relevance of attachment theory in care proceedings” at [18-1000]
F Arney et al, “Enhancing the implementation of the Aboriginal and Torres Strait Islander Child Placement Principle: Policy and practice considerations”, CFCA Paper No 34, 2015
M Davis, Family is Culture review report: Independent review of Aboriginal children in OOHC, 2019
Department of Communities and Justice, “New child protection laws”, 2023
S Duncombe, “The trauma-informed approach of the NSW Youth Koori Court” (2020) 32(3) JOB 21
V Edwige and P Gray, “Significance of Culture to wellbeing, healing and rehabilitation”, Report, 2021 (via the Bugmy Bar Book)
P Gray, “Beyond placement: realising the promise of the Aboriginal and Torres Strait Islander Child Placement Principle” (2021) 33 JOB 99
Intergenerational trauma resources published on JIRS
P Johnstone, “Care appeals from the Children’s Court” at [17-4000]
P Johnstone, “Child protection legislative reforms” at [17-5000]
P Johnstone, “Children’s Court: driving a paradigm shift” at [17-3000]
P Johnstone, “Children’s Court of NSW: 2019” at [2-4000]
P Johnstone, “Children’s Court update 2016” at [17-2000]
P Johnstone, “Children’s Court update 2019 (care and protection jurisdiction)” at [2-5000]
P Johnstone, “Children’s participation: a look towards the future” at [17-1000]
P Johnstone, “Expert clinical evidence in care proceedings” at [7-3000]
NSW Government, Family is Culture legislative recommendations: Discussion paper, April 2022
NSW Government, Family is Culture legislative recommendations: Consultation findings report, September 2022
B O’Neill, “Decolonising the mind: working with transgenerational trauma and First Nations people” (2019) 31(6) JOB 54
Piaget’s stages of cognitive development at [18-6000]
J Sackar, “Prioritising identity and culture for Aboriginal and Torres Strait Islander children”, paper presented at the NSW Child Protection Legal Conference, 4 February 2021, Sydney
SNAICC, “The Aboriginal and Torres Strait Islander Child Placement Principle: A guide to support implementation“, 2019
SNAICC, “Reviewing implementation of the Aboriginal and Torres Strait Islander Child Placement Principle”, 2020
SNAICC, “Understanding and applying the Aboriginal and Torres Strait Islander Child Placement Principle: a resource for legislation, policy and program development”, 2017.
SNAICC, Family matters report, 2023.

¹Re Tracey (2011) 80 NSWLR 261; Re Henry [2015] NSWCA 89 at [208]ff.

²The Isles & Nelissen decision has been followed in the Children’s Court: Department of Communities and Justice (DCJ) v Janet and Xing-fu [2022] NSWChC 7.

³See further P Johnstone, “Care appeals from the Children’s Court” at [17-4000].

⁴Department of Communities and Justice, “Family is Culture, New Laws” accessed 11/12/23.

⁵M Davis, Family is Culture review report: Independent review of Aboriginal children in OOHC, 2019, p 250, accessed 11/12/23.

⁶ibid, pp xxxiv; xlvi; 211.

⁷M Davis, Family is Culture review report: Independent review of Aboriginal children in OOHC, 2019, pp 247–251, accessed 11/12/23.

⁸M Davis, Family is Culture review report: Independent review of Aboriginal children in OOHC, 2019, accessed 11/12/23.

⁹DCJ, Family is Culture legislative recommendations: Consultation findings report, September 2022, accessed 11/12/23.

¹⁰LW 10 November 2023.

¹¹DCJ, “Identity and culture casework practice mandate: Case planning for culture”, 9 August 2021.

¹²ibid.

¹³Note, “ACPP” is used as an abbreviation in the FiC report and other “scholarly and grey” literature to refer to the principle set out in s 12A.

¹⁴DCJ, Family is Culture legislative recommendations: Consultation findings report, September 2022, p 23, accessed 11/12/23.

¹⁵M Davis, Family is Culture review report: Independent review of Aboriginal children in OOHC, 2019, pp 248–251, accessed 11/12/23.

¹⁶ibid p 250. See also, Second Reading Speech, Legislative Council, Children and Young Persons (Care and Protection) Amendment (Family is Culture) Bill 2022.

¹⁷ibid p 250. See also P Gray, “Beyond placement: realising the promise of the Aboriginal and Torres Strait Islander Child Placement Principle” (2021) 33 JOB 99.

¹⁸Aboriginal Legal Service (NSW/ACT) Ltd, “Understanding the Aboriginal and Torres Strait Islander child placement principles as a framework for best practice”, paper presented at the ACWA Conference on Cultural Identity in Aboriginal children in OOHC, 2020, p 3, accessed 11/12/23; P Gray, ibid.

¹⁹ibid, p 4.

²⁰NSW Government, DCJ,“ Aboriginal case management policy rules and practice guidance”, March 2019, p 6, accessed 11/12/23.

²¹M Davis, Family is Culture review report: Independent review of Aboriginal children in OOHC, 2019, p 258, accessed 11/12/23.

²²ibid pp 259–263.

²³ibid p 261.

²⁴ibid p 264.

²⁵M Davis, Family is culture review report: independent review of Aboriginal children in OOHC, 2019, accessed 11/12/23.

²⁶NSW Government, NSW Therapeutic Care Framework, March 2017, accessed 11/12/23.

²⁷A McGrath, A Gerard, E Colvin, “Care-experienced children and the criminal justice system” (2020) 600 Trends & Issues in crime and criminal justice, Australian Institute of Criminology, accessed 11/12/23.