Care and Protection Law

A 'conflict of interest' is when a law practice cannot represent both sides in a case. By law, we owe a duty of loyalty to clients to act in their best interests. We cannot do this if we act for the 'other side' in a current matter or if we have represented the other party previously. It would mean that the lawyers representing each of the parties could access evidence, and use that information against the other party. 

When someone requests legal assistance from our legal practices, one of the first things we do is check for 'conflict of interest'.

Child protection is meant to be about keeping children safe and determining whether a child is in need of care or protection.

Child protection proceedings are usually brought under state and territory laws. They are almost always initiated by a child protection agency.

Child Protection Agencies are Government Departments that have the responsibility for the safety and well-being of children. They assist in protecting a child from abuse or further harm, which may mean removing the child from their home.

In NSW, the child protection agency is found within the NSW Government Department of Communities and Justice (previously known as FACS and DoCS).

In the ACT, the child protection agency is found within the Office for Children, Youth and Family Support in the ACT Government Department of Disability, Housing and Community Services.

Child Protection Agencies provide for the safety and well-being of children in NSW and ACT. The agencies talk with families, make judgements about whether a child is safe and well and whether a parent is a fit parent.

If the Child Protection Agency believes a child is not safe, or may not be safe into the future, they create a Care Application, which seeks the removal of a child.

Care applications can be brought before the Children’s Court for children under the age of 16. Orders can be made until a child is 18 years of age.

Care and Protection matters normally involve the NSW Department of Communities and Justice or the ACT Office for Children, Youth and Family Support. These Government Departments provide for the safety and well-being of children in NSW and ACT.

The Children’s Court makes the final decision about the removal of children.

They do this after learning about the child and their environment by talking to the Child Protection Agency, the Child’s lawyer (appointed by the court] and the ALS Care and Protection lawyer.

In NSW, the Children’s Court makes orders about the care and protection of a child.

Those orders can include:

●  interim care orders
●  orders for supervision
●  orders allocating parental responsibility for a child or young person
●  orders prohibiting an act by a person with parental responsibility
●  contact orders for the provision of support services
●  orders to attend therapeutic or treatment programs
●  Out-of-home care - which means a child is under the parental responsibility of the Minister for Community Services and includes kinship care, foster care, group homes or homelessness (drift in care)

The Aboriginal and Torres Strait Islander Child Placement Principle states the preferred order of placement for an Aboriginal and Torres Strait Islander child who has been removed from their birth family. The principle has been endorsed in legislation or policy in all Australian states and territories.

The preferred order is for the child to be placed with:

●  the child’s extended family;
●  the child’s Aboriginal community; or
●  other Aboriginal people

Only if an appropriate placement cannot be found from the three groups can an Aboriginal or Torres Strait Islander child be placed with a non-Aboriginal carer (Lock, 1997).

The principle provides an important acknowledgement that previous policies caused suffering to Aboriginal and Torres Strait Islander peoples and reflects the right of Aboriginal people to raise their children and retain them in their communities (Lock, 1997).

Children placed in one of the three preferred options are described as having been placed in accordance with the principle.

Care and Protection law matters are different from Family law matters. Family laws are the same all over Australia, whilst Care and Protection laws vary between States and Territories.

Aboriginal children are being taken away from their families at a rate faster than at any time during the Stolen Generation.

Today, one in six Aboriginal children are in State care and the number of Aboriginal children in out-of-home care is nine times higher than the rate for non-Aboriginal children. 

Aboriginal children make up 24% of all children in out-of-home care. Aboriginal children taken from their homes are the most vulnerable children in our society.

Young people who have been in out-of-home care are heavily over-represented in the population of child homelessness and those engaged in the juvenile justice system.

The younger a child experiences a period of juvenile justice supervision, the more likely they are to re-enter juvenile justice supervision during subsequent years (AIHW 2007).

Young people tend to remain in custody because they are homeless and government departments do not provide the support requested by the Court.

Aboriginal young people are more likely to be referred to court at a younger age than non-Aboriginal young people.

An Aboriginal young person who appears before a NSW court between 10-14 years of age is 60% more likely to end up in prison when they are 18-22 years old. Aboriginal juveniles on supervised orders who have had a care and protection order have close to 100% chance of progressing to the adult corrections system (Criminology Research Council 2002).

More than two-thirds of young people who receive a control order from the NSW Children’s Court are convicted of a further offence within two years of their custodial order. Within NSW, 48% of the budget of the Department of Juvenile Justice is spent keeping juvenile offenders in custody (Criminology Research Council 2009/10, NSW Department of Juvenile Justice, personal communication 2009).

Childhood homelessness, being in out-of-home care and/or juvenile justice systems are strong predictors of adult homelessness (Anglicare 2008).