F I N - N S W
FAMILY INCLUSION NETWORK NSW
Advice Leaflet 9: A guide for parents: Understanding the Children's Court process
1. If a child is removed from parental care by the Department of Family and Community Services, Community Services division then the division must make prompt application to the NSW Children's Court for an Emergency Care and Protection Order (ECPO).
2. This application has to be made at the first available opportunity, but no later 3 woking days of the Children's Court.
3. If a child is removed from parental care the parents need to go to Legal Aid immediately and make an application for a Legal Aid grant.
Two tests apply when seeking a Legal Aid grant the first is the 'financial test' and the second is a 'merit test'. Parents on Centrelink benefits and who do not have private resources normally pass the financial test. Parents are also likely to pass the merit test for this stage of the proceedings.
If parents pass the two tests Legal Aid may immediately allocate a Legal Aid lawyer who will act for them in court.
3. Alternatively, parents may be able to use the Children's Court duty lawyer on the day of the ECPO application. This may be a Legal Aid lawyer or a private lawyer who is a member of the Children's Court duty roster.
4. If the duty lawyer is a private lawyer they may be able to represent the parents in Court. Under these circumstances the lawyer will ask the parents to fill out a Legal Aid application and the lawyer will submit it on the parents behalf to Legal Aid in order to get a grant to cover the cost of his/her fees.
5. If parents has significant private resources they will fail the Legal Aid financial test and they will need to hire a private lawyer and pay the lawyer to act for them.
6. It is unwise for parents to go to the Children's Court without legal representation. Parents can do this and act on their own behalf. This is likely to disadvantage them as they are unlikely to be familiar with Children's Court proceedings and the Children and Young Persons (Care and Protection) Act 1998.
7. When possible it is advisable to use the services of a lawyer who is a NSW Law Society accredited Children's Law specialist. This is because children's law specialists are familiar with the working of the Department of the Department of Family and Community Services the Children's Court and the Children and Young Persons (Care and Protection) Act 1998. A generalist lawyer may not have this knowledge.
8. When parents obtain the services of a lawyer it is advisable for them to listen to her/his advice. But it is also worth remembering that a lawyer has to act on the parents instructions. If the parents do not think the lawyer is acting in keeping with their instructions they can dismiss her/him. This is a radical step not to be taken lightly and probably not before the parents have secured the services of a new lawyer.
9. Should your instructions be considered unworkable in the lawyer's view they can withdraw from the case. Under these circumstances the lawyer has to inform the Children's Court that they are no longer acting on the parent's behalf. In addition, if a lawyer withdraws from a case or is dismissed they are obligated to hand over to the new lawyer all the case papers.
10. Once an application for an ECPO has been made to the Children's Court the Court will appoint a lawyer for the child. This happens in two ways.
A child under the age of 12 years is presumed to be incapable of giving instruction to a lawyer. Under these circumstances a lawyer will use her/his judgement as to what is in the child's 'best interests'.
A child over the age of 12 years, in comparison, is presumed to be capable of giving proper instructions. Under these circumstances the lawyer has to present to the Children's Court the child 's view as to what is in their 'best interests'.
11. To support the application for an ECPO the Department caseworker will have written an affidavit/report which outlines the circumstances that the Department think constitute a 'serious risk of harm' to your child.
12. At the same time as an application is made for an ECPO the parent's lawyer can file an affidavit on the parents behalf in which the parents say why the Department's view is incorrect. What the parents are doing when they do this is disputing what the caseworker has said in her/his affidavit/report.
13. At the point of application for an ECPO parents are often asked to consent to the establishment of the case and to acknowledge that there are grounds for the legal proceedings Parents can instruct a lawyer not to consent on their behalf and and to argue against the establishment of the case. A Children's Court Magistrate may on the basis of the evidence provided by the Department of Family and Community Services, Community Services division still allow the case to be established.
14. If for the case is established the Magistrate will issue an 'Interim Care Order' (ICO). A date will also be set for the case to be 'mentioned' often before a Registrar rather than a Magistrate. This is so that the Children's Court can track the progress of the case. There may be more than one mention across a number of weeks.
15. If an ICO is made the lawyer should also ask the Magistrate to make a Contact Order (CO). A CO specifies how often and for how long the parents can see their child each week while the court case is proceeding. Without an order contact between the parents and child will be at the discretion of the Department of Family and Community Services.
16. The Department of Family and Community Services, Community Services division or the parent's lawyer on their instruction can apply for a Children's Court Clinic (CCC) assessment of the parents parenting capacity to be undertaken. This assessment is done for the Children's Court by a clinician (social worker or psychologist) and not by the Department of Family and Community Services. Assessments generally take about 6 weeks to complete. Once completed the assessment goes firstly to the Children's Court magistrate for reading. Once the magistrate has seen the report it becomes a court document and she/he will release the document to the parent's lawyer and the Department of Human Services.
17. As the case progresses the Department of Family and Community Services may make an application to the Children's Court magistate for the issue of subpoenas. These may cover both parents' health records. police records, education records and similar documents. The parent's lawyer can make similar applications and this can include the Department of Family and Community Services files that relate to this case.
18. While the case proceeds a Children's Court magistrate or registrar may order all parties to attend a Dispute Resolution Conference (DRC). An DRC conference is made up of the Departmental caseworker and their manager, the parents with their lawyer and the children's lawyer. The conference is chaired by a Registrar. The purpose of the conference is to see if an agreed position can be reached as to the future of the children. The conference is confidential and what is said in the conference can not be used at a later date in the Children's Court.
19. It is at a DRC conference that the Department of Family and Community Services, Community Services division is likely to give a first indication as to whether they think 'restoration of the children to parental care' is a possibility or whether the Department intends to seek an order from the Chidren's Court for the children to be placed under the 'parental responsibiliy of the Minster until the chidren are 18 years of age'.
20. When restoration is considered a Care Plan must be filed with the Children's Court. The case will then go to a hearing and a short term order will be made. The order will specify the time period for the gradual restoration of the children to parental care i.e. 2 years. In addition the parents may be asked to sign an undertaking i.e no use of alcohol that will be part of the order. Before parents agree to this type of order they should seek the advice of a lawyer.This is because if parents breach an undertaking it will give the Department of Family and Community Services reason to return to the Children's Court and seek an order for parental responsibility to be made in favour of the Minister.
21. If an agreement is not reached at a DRC dates for a full court hearing will be set. There is a long wait for a hearing. In the meantime the ICO that is in place will be continued.
22. If a date is set for a hearing a date will also be set for the filing with the Children's Court of a Department of Family and Community Services Care Plan. The Care Plan indicates what the Department proposes should be put in place, other than restoration, to safeguard the child's future.
Before filing a Care Plan the Department of Family and Community Services must hold a meeting with parents to tell them what the Department proposes. Parents may also be asked to sign a copy of the Care Plan to signify that they agree with it. Parents should not sign this document without first of all seeking their lawyer's advice.
23. Before a hearing parents have the opportunity to file further material disputing the Department's position as set out in the Care Plan.
24. At a full Children's Court hearing the parent's lawyer will be able to cross examine the Departmental caseworker, the casework manager and the clinician who undertook a Children's Court Clinic assessment.
25. At a hearing the Children's Court magistrate may find in favour of the Department of Family and Community Services and make an order for 'parental responsibility' for a child to be with the Minister until the child is 18 years of age. If this is the outcome of the case the Department may agree to a Contact Order specifying the extent of the contact that parents will be allowed with their child. It is typically four times per year for 2 hours on each occasion. At some point in 2012 the Children's Court may cease to have the power to make Contact Orders once a hearing has been concluded. Contact after that point will then be at the discretion of the Department.
26. It is possible to appeal to the District Court against formal orders made by the Children's Court.
An alternative process
27. An alternative process that may be used by the Department of Family and Community Services that leaves children in parental care is for parents to be asked to sign a 'Parental Responsibility Contract' (PRC)'. A contract of this type is aimed at improving the parenting skills of the parents and encoraging them to accept greater responsibility fot their children. Parents need to seek the advice of a lawyer before signing this type of contract.
28. A PRC which is a written document that is signed by the parents must be filed with the Children's Court registry. The contract cannot exceed 6 months. A contract will specify the circumstances that will authorise the Department of Human Services to file a contract breach notice with the Children's Court. When they do this they must inform the Children's Court registry.
29. If a PRC breach or termination noitice is filed the Department of Family and Community Services may remove a child from parental care and proceed to make an application for an ECPO to the Children's Court. The breach notice supports the presumption that the child is in need of care and protection unless the parents rebut this presumption. Rebuttal means that the parents must prove that the children are not in need of care and protection.
Final note
Children's Court matters are in the civil jurisdiction. The rules of evidence do not apply in the Children's Court although a magistatre on application can rule otherwise. A judgment in a civil jurisdiction is made - on the balance of probabilities.
This is different from the criminal jurisdiction where stringent rules of evidence apply and the judgment standard is - beyond reasonable doubt.
You can read all about these processes in detail by obtaining a copy of the NSW Children and Young Persons (Care and Protection) Act 1998.