Care and protection: parents and guardians

When child protection concerns are raised or there are reasons to suspect a child is at immediate risk of harm, caseworkers from the Department of Communities and Justice (DCJ or the Department) may investigate the concerns and take action under the Children and Young Persons (Care and Protection) Act 1998.  Caseworkers will often work with the family to address the child protection concerns first, but sometimes an application will be made to the Children’s Court for an order to alter the legal rights of parents to care for their children. 

If a child is removed from the care of the child’s parents or current  carer, the Department must make an application to the Children’s Court for a care order within three working days. 

Who is a party

The parties who have a right to appear in court include a representative of the Secretary of the Department of Communities and Justice, the child or young person, and each person who has parental responsibility for the child or young person. Any other person who has a genuine concern for the safety, welfare and wellbeing of the child or young person may apply to the Children’s Court to be joined as a party to the proceedings.

How to get legal help on the first day of court

Legal Aid NSW provides a duty lawyer scheme to help all parties and parents on the first day of court.  Duty lawyers can give you legal advice and represent you in court. Duty lawyers are either employed directly by Legal Aid or are private lawyers that are paid by Legal Aid.  

Legal Aid NSW will also arrange for a lawyer to represent the children involved in the case.   

If you would like further information about the legal help available to you or your child, you should check out our Legal Help page for parents, carers or guardians and children.  

Stages in care proceedings 

Care and protection cases are conducted with as little formality and legal technicality as the case permits.  For example, lawyers stay seated at the bar table instead of standing up when they speak and the judicial officer might ask the parents or the children questions directly.  However, it is useful to understand the steps that need to be taken before a final decision can be made.  

The main stages in the court process when a new application to the Children’s Court is made are:

Interim Stage – This is the first stage where the judicial officer must decide who has parental responsibility for your child in the short term. The person who has parental responsibility makes decisions about where a child lives, who a child lives with and has contact with, medical and health treatment and educational needs. 

Establishment Stage – This is the stage where the judicial officer must be satisfied that your child is in need of care and protection or was at the time they were removed from your care.  If the Children’s Court finds that the child was in need of care and protection, the case moves to the next stage. If the Children's Court does not make this finding, they may dismiss the application.

Placement Stage – This stage is where permanency planning for your child’s future takes place.  An assessment is undertaken by the Department as to whether it is safe for your child to return home and whether you are able to continue to keep your child safe  and meet their needs in the future.  The assessment and the proposed arrangements are set out in a document called a Care Plan.

The Care Plan should include the following:

• a brief overview of the history of the case,
• the needs of each child, including any medical, educational or cultural needs,
• who is proposed to have parental responsibility for the child such as a parent/s, family member, or the Minister for Families, Communities and Disability Services,
• and if it is proposed that someone other than the parents are to have parental responsibility for the child, the future arrangements for contact between the child and their parents, family members or other significant persons in the child’s life. 

Each party is given an opportunity to respond to the Care Plan and let the court know whether they agree or whether they have a different proposal.

Final Orders – This is the stage where the judicial officer considers each parties’ proposal and decides what should happen in the future to ensure the safety, welfare and wellbeing of your child. 

Sometimes all the parties agree with the  care plan, but the judicial officer will still review the plan and will only make orders if they too agree that the plan is in the best interests of your child.  If there is no agreement the case will go to hearing where the judicial officer will consider the proposal of each party and will make the decision.  

Alternative Dispute Resolution

There are a range of options to assist parties to agree on the best options for the care and protection of your child.  Find more information about alternative dispute resolution options.  

Guardian ad litem

The Children’s Court may appoint a Guardian ad litem (GAL) for a parent or adult that is a party to the proceedings. This can happen if the Court forms the view that the person is incapable of giving proper instructions to their legal representative.

The role of the GAL is to:

• Represent and protect the interests of the person
• Instruct the legal representative of the person so that they can participate in the court case
• Take into account the views, opinions, wishes and feelings as expressed by the person.

Appeals

If you are not satisfied with the order of the Children’s Court, you may appeal to the District Court against the order.  If the order was made by the President of the Children’s Court, the appeal is to be made to the Supreme Court. You should get legal advice if you are thinking about lodging an appeal. Registry staff at the Children’s Court cannot give you legal advice.