This section provides important information to disability advocates and workers, or those supporting a parent with intellectual disability who:
- is likely to come to the notice of Community Services (for example, through antenatal screening)
- has been reported to Community Services
- is a party in care proceedings before the NSW Children’s Court
- has children that are subject to care orders
Each state in Australia has different laws about child protection, so this information applies only to NSW.Introduction to Care and Protection
A number of changes were made to the Act in 2014. The amended Act has yet to come into effect. When it does, this website will be updated to reflect the changes.
The law contains Guiding Principles that guide those making decisions under the Act. These include:
- The paramount consideration is always the safety, welfare and development of the child.
- In deciding whether to take action to protect a child from harm, the course taken should be the least intrusive intervention in the life of the child and their family.
- If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment.
- The child or young person should also retain relationships with significant people, including birth or adoptive parents, siblings, extended family, peers, family friends and community, as long as this is in the child’s best interests and what the child or young person wants.
Risk of Significant Harm
Under Section 30 of the Act, Community Services, within the NSW Department for Family and Community Services, has the authority to make investigations and assessments as considered necessary to determine whether or not a child or young person is “at risk of significant harm.”
At risk of significant harm is defined in the Act and means the following:
- The child’s basic physical or psychological needs are not being met or are at risk of not being met.
- The parents or other caregivers have not arranged and are unable or unwilling to arrange for the child to receive necessary medical care.
- Where a child is required to attend school and the caregivers have not arranged, and are unable or unwilling to arrange, for the child to receive an education in accordance with the Act.
- The child has been, or is at risk of being physically or sexually abused or ill-treated.
- The child is living in a household where there have been incidents of domestic violence and as such, the child is at risk of serious physical or psychological harm.
- A parent or other caregiver has behaved in such a way towards the child that the child has suffered or is at risk of suffering serious psychological harm.
- The child was the subject of a pre-natal report under Section 25 of the Act and the birth mother of the child did not engage successfully with support services to eliminate, or minimise the risk factors that gave rise to the report.
Risk of Significant Harm Checklist
Investigating Significant Risk of Harm
The Act gives Community Service workers very wide powers of investigation. When Community Services receives information about a child who is at risk of significant harm, a decision will be made about how to assess or investigate the report. The matter will be referred from the Community Services Helpline to the family’s local Community Services Centre where a further decision is made about the allocation of the case to the child protection team.
Where a serious crime against a child has been alleged, the investigation will be carried out by the Joint Investigative Response Team (JIRT, comprising Community Services, NSW Police and NSW Health).
In order to find out if a child is safe and their needs are being met, a Community Services caseworker will contact the parent by phone or undertake a home visit.
All parents feel scared or even angry when they know they are under investigation by Community Services. Parents with intellectual disability feel particularly “behind the eight ball”. They find it difficult to speak up. Many parents report feeling tricked into saying things or that their words are “twisted” or misinterpreted.
Tip: The best advice that you can give a parent is to stay calm and cooperate with Community Service workers. Advise the parent it is best to let the workers enter the home and see the child. The parent should ask the workers to show identification and ask the workers to write down their names and contact details. A parent has a right to have a support person present during any interview – preferably this should be a worker or advocate. If the parent decides to be supported by a family member or friend, advise them to make sure that person is someone who is able to listen and remain calm. Caution the parent; explain that one worker will be writing everything they say down. Tell the parent to be honest but careful about how much they say. If the parent is feeling overwhelmed or upset they have a right to ask for a break from interview.
Sometimes a caseworker may speak to the child first and parents or carers may not be aware of this. Caseworkers are allowed to do this under the Act.
The caseworker may also need to talk to teachers, child care workers, doctors, family members, family friends, counsellors and other people who are close to the child or responsible for their welfare.
Under Section 248 of the Act, Community Services can request information from a range of sources including government departments such as Health NSW, NSW Police, The Department of Education, Centrelink and Medicare.
Information can also be requested from private bodies, such as private health services, daycare and medical centres. This means Community Services can access health and other records without the parent’s knowledge. They can also access information about anyone connected to the parent who has contact, or is involved, with a child or young person – for example, a parent’s boyfriend or relative.
After Initial Contact
Most initial investigations take about a month, however sometimes Community Services will take longer to make an assessment. These investigations will be done by workers within the Community Services Child Protection team. After assessment the family’s case may be:
- referred to Brighter Futures Program
- referred to Strengthening Families teams – case management team within the local Community Services Centre with a focus of intervention, or
- remain with the Child Protection team in Community Services
The level of action taken by Community Services will be in keeping with Community Services’ assessment of the level of risk of harm to the child’s safety, welfare and wellbeing.
Tips to engage with Community Services:
- Contact the Community Services worker and let them know how you are involved with the parent
- Suggest a safety planning meeting. Attend this meeting with the parent
- Encourage the parent to engage with the Department and take every opportunity to address the concerns raised
- Help the parent see the connection between working with services and keeping his or her child
Options Before Court
If considered safe, and in the child’s best interests, Community Services will attempt to work with the family. Court action should be a last resort.
There are a number of alternative options that can be considered and implemented by Community Services prior to court proceedings being initiated.
Community Services asks a parent to agree to a set of promises known as ‘voluntary undertakings’. These are promises to do certain things or refrain from doing certain things.
Voluntary undertakings have no legal status but they can be used down the track in court to show that Community Services tried to get the parents to change or comply – referred to as Evidence of Prior Alternative Action.
Voluntary Care Plans and Parental Responsibility Contract
Voluntary Care Plans and Parental Responsibility Contracts are dealt with under Section 38 of the Act. These are detailed plans drawn up between Community Services following consultations with the family and support services. The plan should detail, in concrete terms, what steps the parents are to take and what supports are to be put in place. The plan should also outline the performance outcomes expected by Community Services. For example, the parent will ensure the child attends daycare from 9am to 3pm on specified days. In the case of non-attendance, the parent must produce a doctor’s certificate.
These differ from voluntary undertakings in that they are registered or filed with the Children’s Court. If the parent breaches this plan or contract, ramifications are more serious if or when care proceedings commence. A breach of this contract can lead to a care application being made in the Children’s Court.
Section 38 states that the parent should seek independent advice prior to signing a care plan or parental responsibility contract.
Tips for working with Community Services:
- Remind the parent that if they go to a meeting at Community Services they should not sign any documents until they have sought independent legal advice.
- If you are supporting a parent at meetings with Community Services, remind workers that the parent has a right to seek independent advice before signing a plan or contract.
- Parents with intellectual disability can seek free legal advice about plans and contracts through IDRS . Contact 1300 665 908 or (02) 9265 6333.
Temporary Care Arrangements
Community Services and parents can enter into an agreement for a child to go to an authorised carer temporarily without the matter having to go to the Court. Temporary care arrangements can only be made for three months and then renewed for another three months, making six months in total. Temporary care arrangements are usually only made in circumstances where Community Services are confident that:
- Placement prevention programs or in-home support cannot be utilised to keep the parent and child together
- Placing the child in out-of-home care is in the child’s best interest
- The child will be able to be restored to his or her parent within six months, and
- Such arrangements will not be repeatedly required
During this period Community Services negotiate contact arrangements between the parent and child.
Tips for Working with Community Services:
- Before requesting or agreeing to a temporary care arrangement the parent should seek independent legal advice.
- The parent needs to be aware that even though this arrangement is voluntary, contact with his or her child will need to be negotiated. Community Services may also stipulate that contact is supervised.
- Restoration will not just happen because the parent says “I want my child home now”.
- Community Services will have to be confident that the parent has regained capacity to care for the child and that it is in the child’s best interests to return to the parent.
During a temporary care arrangement, Community Services may decide that restoration is not in the child’s best interest and make a care application to the court.
Parent Capacity Orders
Parent Capacity Orders (PCOs) were introduced in October 2014 as part of a raft of changes to the Care and Protection Act. A PCO sets out what actions a parent or primary caregiver needs to do to build or enhance their parenting capacity. For example, a parent may be required to attend or participate in a program, service, course, therapy or treatment. A PCO is applied for when Community Services thinks that the parent or primary care giver will not undertake the required action without having a PCO in place.
PCOs are an early intervention strategy as they can be applied for prior to proceedings, as a stand-alone order.
The Court may refer the parties to a dispute resolution conference so that agreement is reached about the terms of the PCO.
Removing a Child
Community Services can remove and assume care of a child if they are satisfied, on reasonable grounds that the child is at immediate risk of serious harm.
Note: Section 71(2)(a) of the Act states that the Children’s Court cannot conclude that the basic needs of a child are likely not to be met only because of a parent or primary caregiver’s disability.
A parent may or not be aware that removal of their child is a possibility. Either way, when it happens, it is traumatic and distressing for the parent and all others involved.
If you have been supporting the parent, Community Services will hopefully inform you of their intentions to meet with the parent and ask you to be present to support the parent. They may not necessarily disclose to you their intention to remove the child.
Removal of a Child from the Family Home
If the child is to be removed from the family home, it is quite likely that the Community Services workers will go to the home with police officers. The workers will hand the parent an information sheet and tell the parent they are assuming care of the child. They will ask the parent to pack some clothes and belongings for the child. They leave the home promptly, leaving you with the parent.
Assumption of Care of a Newborn
For a parent with intellectual disability it is not uncommon for assumption of care to occur within hours of giving birth, particularly if there has been a prenatal report and they have other children in out-of-home care.
Each hospital has different protocols but the most common practice is that the parent will be seen by the hospital social worker. He or she may (or may not) give prior warning to the parent that Community Services is coming to the hospital to interview the parent.
It is not uncommon for the parent to be interviewed separately. If the baby is well, he or she will be kept with the mother in her room on the ward until Community Services interviews the parent. If the baby has health concerns or the hospital staff feels they cannot provide an adequate level of supervision of the parent and baby, the baby will be transferred post birth to the special care nursery. The nursery is secure, visitors are restricted and the unit provides a higher level of monitoring.
Tips for Supporting A Parent At The Hospital:
- If you suspect the parent will be interviewed by Community Services post birth, it is important to contact the hospital social worker and the local Community Service Centre to ask that they inform you when the interview will take place, so you can be there to support the parent.
- If you are the hospital social worker you may wish to refer the parent to a disability advocacy service during the pregnancy in anticipation that the parent will need an advocate.
Following the assumption of care of a newborn, the baby is usually moved to the nursery. Community Services will negotiate with the hospital a visiting schedule for the parent while the baby remains in hospital.
Time to Leave the Hospital
Leaving hospital without one’s baby is traumatic. In NSW hospitals there are no standard protocols around this, so practices differ across the State. The following are some good practice guidelines developed by the IDRS Parents Project based on first-hand experience:
Tips for Supporting a Parent to Say Goodbye
- Discharge of a newborn assumed into care needs to be done with respect and sensitivity. Whatever one’s views about the birth parent’s capacity, it is important to respect the loss and grief the parent is experiencing. Leaving the hospital without their baby will remain with the parent and have implications for their mental health.
- The parent should be forewarned about when their baby is to be discharged. Whenever possible they should know the day before. Meet with the parent and discuss the discharge plan.
- Take some photos of the parent with the baby. Print these photos and place them in a memory book to give to the parent the next day. The parent may also like a hand or foot print of their baby.
- Some parents may request to have their baby christened by the hospital chaplain.
- If there are no safety or health issues immediate family should be provided with the opportunity to visit the baby, take photos and/or participate in the christening or naming ceremony.
- If the mother is to be discharged at the same time as the baby ensure that she has been given information and understands what to do about milk flow and post-discharge health advice.
- On the day of discharge the parent should be allowed to bath and dress the baby in an outfit they have chosen. Some hospitals will allow the mother to keep the baby’s hospital nightie as it carries the baby’s scent.
- In NSW all babies receive a Blue Book recording health checks and developmental milestones. The Blue Book is of emotional significance to the relinquishing parent – it is their proof their baby exists. Handing this book over is often very distressing for the relinquishing parent. In such cases, if possible, two Blue Books should be created with the original copy going with the baby and a photocopy given to the birth parents. Similarly duplicates of the crib card and ankle ID bracelets should be provided.
- Community Services should provide a time they are coming to collect the baby, so there are no traumatic scenes and the need for security staff. It is best for the parent to say goodbye to their baby and leave the hospital one hour before this happens.
- As the time to leave draws close, inform the parent of how long they have (for example, 15 minutes) and encourage them to say their goodbyes. If there are no safety concerns the parent should be allowed to take their baby to a quiet room and have some privacy.
- When it is time, encourage the parent to say a final goodbye and leave the hospital with their support person.
- Community Services should be contacted to say the baby is ready to leave the hospital.
It is important that you listen to what the caseworkers are asking of the parent. The parent may be confused and distressed and might not be able to hear what is being said. Sometimes a parent will respond angrily and lash out.
- Stay safe – position yourself strategically so you are not accidentally hit. If you have an opportunity beforehand, assess whether the parent is someone who responds well to physical touch or space. Respond accordingly – give the parent a hug or suggest that they come for walk out in the fresh air.
- Retrieve any paperwork the caseworkers may give the parent.
- Talk in a calm voice to the parent. Provide the parent with clear instructions about what they need to do at this point (for example: “[Parent’s name] you and I need to pack a bag for [child’s name]”).
- Enable the caseworkers to leave. Where the removal is happening in the community the caseworkers will be keen to remove the child and themselves from the situation as quickly as possible. Now is not the time to engage the caseworkers in discussion. They will probably not be in a position to answer a lot of questions that you or the parent may wish to ask. For example: where the child is going, when the parent will see the child next, what day will the matter be before the Court?
- After the child has been removed, stay with the parent allowing them time to debrief. Just let them talk. Acknowledge their pain. Now is not the time to try and correct their views about, for example, the unfairness.
- After a while shift the conversation, helping the parent to think about what they need to do over the next few hours and days. It can help at this point to get them to physically move and do an activity – engage them in the physical activity of making a cup of tea or coffee or even pouring themselves a glass of water. This distraction or shift in activity will help them to transition into a different emotional space – to focus on the here and now.
- Before leaving the parent, ensure they are safe. Explore with the parent whether there is someone they can call to be with them at home or whether they can go to someone’s home. Help them initiate this call.
- If they prefer to be on their own, leave them an after-hours number or the number of Life Line (Phone: 13 11 14).
- If you have good reason to suspect the parent may self-harm, or if the parent is expressing suicidal thoughts, contact the local mental health crisis team or take the parent to the nearest hospital emergency department for assessment.
- Lastly, ensure you are okay. Supporting a parent through such an experience is emotionally challenging even for experienced workers. Debrief with your line manager or a colleague immediately.
Care matters are heard in closed courts. This means only court officers, lawyers and parents are allowed into the court room when their case is being heard. Anyone else must be approved by the magistrate.
The parent’s lawyer can ask the magistrate to allow the parent to have a support person, a relative, advocate or worker, present in the court room. The child, who is subject to the care proceedings, does not attend the proceedings. If the child is over 12 years of age and is able to give instructions to his or her lawyer, they may request to attend.
In Sydney, Newcastle, Central Coast and Illawarra, there are dedicated Children’s Courts. In other areas of NSW care proceedings are heard in NSW local courts on specific days in a court room set aside for care matters. You can visit the Children’s Court of NSW to locate the court in your area.
Security for a Parent who may be Venerable
Many women/mothers with intellectual disability are vulnerable to exploitative and violent relationships and can, as a result, lose custody of their children. Child removal can be the impetus for the mother to disclose abuse or seek help. However, the mother may be fearful (or unable) to initiate this because her partner controls any engagement she has with outsiders.
When supporting mothers with intellectual disability involved in care matters, ensure that you are able to have time alone with them without their partner being present. Make it clear that you are there to support her.
Sometimes a mother will be fearful about coming into contact with the father of the child at the court house. If this is the case, contact the court registrar before the Court dates to arrange for the mother to have a safe means to enter and leave the court as well as a safe place to wait. Where the father of the child is incarcerated and is included in the care proceedings via Audio Visual Link, the mother may be scared about him seeing her. In these circumstances, the mother’s lawyer can arrange with the court officer for the mother to sit out of view.
Preparing a Parent for Court
Before each court date check with the parent if they have been given any new documents. Offer to read through these with them. Usually the day before the parent goes to court for the first time the Community Services workers will serve them with a bundle of documents including the care application and initiating report.
These documents outline the grounds for removal. These documents are often wordy and beyond the reading ability of a parent with mild to borderline cognitive functioning. Parents with intellectual disability often become very distressed on receiving these documents because they often feel ashamed and frustrated that they cannot read them.
Tips For Preparing For Court:
- If you suspect a parent has a literacy difficulty, ask Community Services to serve the papers on the parent in your presence.
- Alternatively, ask the parent to contact you as soon as they get the papers so you can go through the documents with them.
- At the start of care proceedings get the parent an expanding file to store their court documents.
- Make sure the parent has a diary in which they can write appointments, court dates and record critical incidents and questions.
- If you envisage you will be sitting around with a parent take an iPad. It can be a useful and engaging tool to facilitate conversation and do investigation about programs, resources and information.
Care proceedings on average take close to 12 months to finalise. There will be a series of court dates that the parents will be required to attend. Before each court date, assist the parent to ring his or her lawyer to check if there are any new documents, and to find out if there is anything that the parent needs to obtain before court, or something you should discuss or prepare with the parent.
Unless told otherwise by the lawyer or Community Services, the parent should turn up at court at 9:30 am. Each time the parent goes to court they should bring all their paperwork. On arrival seek out the parent’s lawyer.
Talk to the parent about what to wear to court. They should wear smart causal clothes and dress neatly and modestly. Men/fathers should wear a collared shirt and closed shoes.
They are likely to be there for several hours. On some occasions, they will be waiting nearly all day. Prepare the parent for the wait and advise them to bring a drink, snacks and something to listen to or read.
Finding a Solicitor
Before the Matter goes to Court
If the parent thinks, or has been told, by Community Services that their child may be removed, they should seek legal advice as soon as possible. The lawyer may be able to advocate on their behalf before the matter goes to court. In some cases, this may avoid the child being removed.
If the child is removed, the efforts made by the lawyer and any services prior to removal may be evidence in the court proceedings, for example, that the parent was trying to work with Community Services.
We can provide legal advice and assistance to parents with intellectual disability who are pregnant and/or at risk of having their children removed.
For information about getting a solicitor, please read – Fact Sheet: If your child has been taken away and you need a lawyer.
Once the Matter is in Court
Once Community Services files a care application, the court registry informs Legal Aid and requests duty lawyers to be available to represent the parents and the child when the matter is listed before the court. These lawyers may be Legal Aid solicitors or private practitioners approved and listed on the Care and Protection panel. A mother and a father are appointed separate legal representatives. This is to ensure there is no conflict of interest and each parent can give their own instructions. If a parent meets Legal Aid’s eligibility criteria his or her legal costs will be covered by a grant of Legal Aid.
Tips To Get Legal Aid:
On the first day of court the parent will need to fill out a Legal Aid grant form. It is helpful if, on the first day at court, they bring with them a recent bank statement and proof of Centrelink payment to attach to his or her Legal Aid application.
The parent’s solicitor is there to provide advice and represent the views of the parent. The solicitor will:
- act for the parent in proceedings before the Children’s Court
- tell parents about what might happen in court, including about their chances of getting their child back
- assist them through the court process by telling the parent what happened in court
Most of the information the solicitor gives to the court will be in writing. The court rules govern when a solicitor can talk in court or ask questions. This means that the solicitor may need to wait for the right time before they can tell the court about the parent’s views in detail, which may be some time into the proceedings.
Sometimes parents can feel frustrated that their solicitor is not advocating hard enough or failing to tell the magistrate about things the parent thinks are important. As a worker or advocate, it is important to explain to the parent about the court process and how the solicitor has to operate within that process.
A Tip For Dealing With Solicitors:
If a parent is becoming frustrated by their solicitor it may be helpful to organise a face to face meeting with the solicitor to talk about the parent’s frustration.
Sometimes the advice a solicitor gives the parent can be hard to hear. The solicitor may also give them ideas about what they can do to show the court that they can care for their child and keep them safe. A solicitor cannot promise that a parent will get their child back. The Magistrate makes that decision.
What can a Parent Expect from his or her Solicitor?
Not every solicitor is the same and there may be some differences in how each solicitor runs a matter. Regardless of the solicitor, it is important:
- The parent knows how and when to contact their solicitor.
- The parent knows when they need to be at court, or how to find this information.
- If their solicitor can’t talk to the parent straight away, they return the parent’s calls.
- The solicitor listens to the parent.
- The solicitor uses words the parent understands, and answers their questions if they are confused.
- The solicitor is honest, even if that is hard to hear. They try to be honest without judging or criticising the parent.
- The solicitor explains why the court has decided the child needs to be in care.
- The solicitor checks with the parent before they tell the court what the parent thinks, and will not say the parent agrees with something if they do not.
- The solicitor asks what the parent wants to say in affidavits (written statements) to the court, prepares these affidavits with the parent and will make sure the parent understands what the court is being told.
- The solicitor explains to the parent his or her options.
- Even if the solicitor advises the parent that they don’t have a good chance of achieving what they want, they will continue the case in court if that is what the parent wants, and there is an option to do so.
- The solicitor tells the parent about options for contact with their child, and tells the court what they want.
A parent can change their solicitor. Just because a parent is represented by the duty solicitor on the first day of the proceedings, does not mean he or she has to stay with that solicitor.
The Legal Aid grant is attached to the parent. If they want to change their solicitor they can, and the Legal Aid grant is transferred across to the new solicitor. Parents can change their solicitor if they are not happy with the way their solicitor is doing their job. It is usually not a good idea for parents to represent themselves.
The parent needs to find a new solicitor and explain that they want them to represent them instead of their old solicitor. A new solicitor may not give the parent different advice. Parents may find a new solicitor by talking to other parents who have gone through the Children’s Court and were happy with their solicitor.
They could also contact their local Legal Aid office and ask them for suggestions about finding a new solicitor. Visit the Legal Aid website to find the nearest Legal Aid office or for more advice on how to change solicitors.
Your Role when Working with Solicitors
Interpreting and facilitating communication
Solicitors representing parents in care and protection matters may have little experience or only rudimentary understanding of working with people with intellectual disability. You can assist the solicitor in understanding the parent. You know how the parent best understands information. You will know when the parent is becoming frustrated, will need a break or perhaps is agreeing with a proposal in order to please or conceal their lack of comprehension.
Solicitors do this work regularly and can take certain processes for granted and be oblivious that these processes and especially the language used, can be confusing or nonsensical to parents and others who do not spend much time doing this type of work. People with intellectual disability tend to acquiesce or conceal what they don’t understand. As an advocate and support worker you can model for the parent how to ask for clarification and ask questions.
Helping the parent get the evidence the solicitor needs
Solicitors in this jurisdiction expect parents, if they are to have their children returned to their care, to collect documents and be proactive in addressing the issues that led to them coming before the court.
Many parents with intellectual disability cannot do this without support. A disability advocate or worker can play a critical role in assisting a parent and his or her solicitor put a favourable case to the court.
Keeping the parent on track
Care proceedings can take a year to finalise. All parents in these proceedings, but particularly parents with intellectual disability, find the process taxing and may find it hard to stay on track emotionally and mentally. Solicitors in this jurisdiction are time poor and are not equipped to provide parents with the emotional support they need. You play an important role nurturing and encouraging the parent to hang in there.
Acting as a go-between
In this jurisdiction solicitors can only speak with the other legal representatives in the case. The parent’s solicitor cannot talk directly to the Community Services workers about an issue bothering the parent. The solicitor cannot attend case meetings or interviews initiated by Community Services with the parent during the course of the case proceedings. Disability advocates and workers can attend these meetings and interviews, and in doing so, can ensure that the parent participates in a way that does not compromise their case.
Getting the parent to where they need to be
Solicitors rely on the parent turning up for court and attending meetings. Sometimes parents are expected to attend appointments in places that are unfamiliar, for example medical consultations and assessments. As an advocate and support worker, you play a vital role in helping the parent get to where they need to go, on time and appropriately prepared. Moreover you can spend the time that the solicitor does not have, to get the parent to where they need to be in relation to decisions they need to make and the instructions they will need to give their solicitor.
Legal confidentiality and privilege versus mandatory reporting
Lawyers have strict obligations not to disclose information which is confidential to a client. See the Australian Solicitors Conduct Rules (ASCR). Certain communications between a lawyer and client are even protected from disclosure in court proceedings unless the client consents to disclosure, because a client has ‘legal professional privilege’. Basically this means that a parent can generally tell his or her lawyer information and be assured that this information will be kept confidential.
You as an advocate or support worker do not share that privilege. In fact you may be a mandatory reporter. This means you are required by law to report to Community Services any child that you have reasonable grounds to suspect is at risk of significant harm. The risk of significant harm must be identified during the course of your work. It is important to confirm this with your agency. If you are, you need to disclose this to the parent at the beginning of the relationship and alert the parent’s solicitor to this fact. For this reason, a solicitor may wish to speak with the parent without you being present in order to ensure the parent can feel free to disclose sensitive information about their parenting or parenting context. If you are sitting in on an interview between a parent and his or her solicitor and the parent is talking about circumstances or events to do with the allegations of significant risk of harm to his or her child, and you suspect the parent may divulge new and sensitive information, it is best to excuse yourself from the interview.
A guardian ad litem is appointed by the court to safeguard and represent a person during their legal case. Under the Act, the court may appoint a guardian ad litem if they believe that the parent is incapable of giving instructions to their lawyer.
Once a guardian ad litem is appointed, the guardian ad litem, not the parent, instructs the parent’s lawyer based on their view of what is in the parent’s interests. The parent loses their direct voice in court proceedings about their child. Having a voice in court proceedings that affect a person is a basic human right, so a guardian ad litem should only be appointed as a last resort.
Intellectual disability is listed as one circumstance where a guardian ad litem may be appointed. However, this does not mean that every parent with intellectual disability should have a guardian ad litem. Most parents with intellectual disability are able to instruct a lawyer, provided care is taken by the lawyer to communicate with the parent in an appropriate way or with the assistance of a support person or advocate.
If you are concerned that a guardian ad litem has been, or may be, appointed for a parent, contact our team for advice.
Community Services initiate court proceedings by filing an application for a care order in the NSW Children’s Court. These proceedings are referred to as care proceedings or care matters.
After a child is removed or assumed into care, Community Services has three to five working days to file a care application with the NSW Children’s Court. The matter is usually listed for mention the next day if it is a specialist Children’s Court, or the next day if there is a care and protection listing in the local court.
First Mention or Return Date
Children’s Court proceedings begin by Community Services filing an application with the NSW Children’s Court. Once this has happened, the court allocates a first mention or return date. This is the first day the parent/s will have to go to court. Unless they have arranged a lawyer in advance, the parent will be helped by a duty lawyer on this day.
The main decision that will be made on the first day in court is who should have the temporary power to make decisions about the children involved until the case finishes. This is called ‘interim parental responsibility’. Interim parental responsibility will be frequently given to the Minister.
A number of directions will be given by the magistrate on this day, including:
- A date within 14 days by which Community Services, who will be referred to as the Director General, must file a proposed plan for the child (known as stage 2 documents).
- A date for the other parties, including parents, to respond to the material filed by Community Services. This will usually be within 24 days. Parents will respond to the material in an affidavit. This is a written document given to the court. Their lawyer will help them prepare their affidavit, and may require your assistance in supporting the person through the process.
- A date to come back to court, maximum of 28 days.
Please note: The parent will have to return to court for a number of other mentions – see section on Mentions for more information.
The next time the parent goes back to court, they will have to say whether they agree to establishment.
Establishment is a finding that the child was in need of care and protection at the time Community Services became involved with the family.
If the parent agrees to establishment, the matter moves onto the next stage, known as the placement phase. A parent can agree to establishment on a ‘without admissions’ basis. This means that they agree the child was in need of care and protection without accepting that the evidence given by Community Services is true.
If a parent does not agree to establishment, there will be a hearing on whether the child needed care and protection at the time that Community Services got involved with the family. The magistrate will give a hearing date – see section on Hearings.
This phase of the care proceedings is about making decisions about the future care of the children. Community Services will set out their view of what should happen to the children in a Care Plan.
As part of this process, Community Services will consider whether there is a realistic possibility of the child returning to a parent’s care and what they believe needs to happen before this can occur. As part of the child protection reforms introduced in 2014, the Children’s Court must decide whether to accept the Community Services view on realistic possibility of restoration within prescribed time frames:
For a child less than two years of age – the Court must decide if there is a realistic possibility of restoration to a parent within six months of an interim order being made that gives parental responsibility to a person other than a parent.
For a child two years of age or older – the Court must decide if there is a realistic possibility of restoration to a parent within 12 months of an interim order being made that gives parental responsibility to a person other than a parent.
If Community Services believe that there is no realistic possibility of the child being returned to a parent they will suggest where the child can live, usually, but not always, until the child is 18 years old. This will be done in accordance with the permanent placement principles set out in the Act. According to these principles, the first preference for permanent placement of a child or young person is with a parent. However, if this is not possible the placement preferences for a child or young person are, in order:
- guardianship of a relative, kin or other suitable person
- adoption (except if the child or young person is Aboriginal or Torres Strait Islander)
- under the parental responsibility of the Minister
- adoption (if the child or young person is Aboriginal or Torres Strait Islander).
In making their Care Plan, Community Services may ask for an assessment of the parent. A parent can also seek an assessment of their parenting capacity. An assessment may be sought at other times during the proceedings – see section on Children’s Court Clinic Assessments.
Drafting a care plan will involve Care Plan meetings, for further information see section on Care Plan Meetings.
At any point during the placement proceedings, the magistrate will give the parties the opportunity to sort things out through Alternative Dispute Resolution (ADR). This is when everyone sits down to talk about the case outside of the courtroom – see the section on ADR. Parties often attempt ADR after Community Services has presented the Care Plan to the court.
If the parties cannot reach an agreement on what should happen to the children, the court will hold a hearing. The parent will have to attend and may have to give evidence at the hearing – see section on Hearings.
The magistrate will make the final decision, known as final orders, about what should happen to the child. They may approve Community Service’s Care Plan, or they may not agree with the Care Plan and order community services to write a new one based on their decision – see section on Final Orders.
In addition to the first day in court, there are a number of times a parent will have to go to court for what are known as mentions. A mention is when the parent’s lawyer and other lawyers report in to the court to let the court know what all parties have agreed upon, how they wish to proceed, and identify any materials they may want to subpoena or tender to the court as evidence.
For parents, going to court for mentions can seem a waste of time i.e. “just the lawyers talking”. It is important for a parent to turn up on these occasions, unless told otherwise by the magistrate to his or her lawyer, because:
- On the day, the parent’s lawyer will often have to get instructions from the parent about how to proceed.
- Turning up shows the magistrate the parent is committed to the child’s best interest.
Parents with intellectual disability can find waiting particularly difficult. Many parents become impatient and some are very anxious about going into the courtroom. This can be exacerbated by the uncertainty of what may be asked of them, or fear that they may not be able to understand what is happening in the courtroom.
A Tip For Waiting At Court:
If a parent has a tendency to become very anxious or eager to leave the courthouse let his or her lawyer know. While it is not always possible, the lawyer can seek to get the matter up before the magistrate more promptly. If the parent needs to go for a walk outside go with them but do not go more than five minutes away. Leave your mobile number with the lawyer so you can return promptly.
Alternative Dispute Resolution (ADR)
ADR is a structured meeting, often referred to as a conference, where all parties and their legal representative come together, outside of the formality of the courtroom. The purpose of the ADR is to provide a safe environment in which all parties can engage in open and frank discussion about the case without this prejudicing the proceedings. In other words, the information shared at an ADR is confidential and cannot be raised in a court hearing. Currently there are two forms of ADR used in the Children’s Court:
- Dispute Resolution Conferences (DRCs) are facilitated by a Children’s Court registrar and held in a meeting room at the Children’s Court.
- Mediations are chaired by an independent authorised mediator away from the courthouse, for example in Legal Aid rooms.
DRCs and mediations have the same purpose – to enable open and frank discussion with the aim of finding shared ground and progressing the case, in the best interest of the children.
Who attends the ADR?
- The parents
- Their solicitors
- The Community Services caseworker and his or her manager
- The solicitor acting for Community Services
- The independent child’s solicitor
With prior permission from the court, the NSW Children’s Court Clinic clinician or an expert witness who may have prepared an assessment report submitted to the court may be invited to participate in and ADR.
On request, and at the discretion of the Children’s Court registrar or mediator, with reasonable notice, the following persons may also attend the ADR:
- A support person
- A family member
- An elder from the family’s indigenous community
- An advocate and/or interpreter where a party requires such assistance to communicate effectively
- A person who is, or is proposing to be, a carer for the child under an order of the court
Supporting a parent through ADR – Before the ADR
- Schedule a preparation meeting with the parent. Beforehand you may want to talk with the parent’s solicitor to find out what he or she may think will be raised at the ADR.
- Explain the purpose of the ADR, who will be present and what will be discussed. It may be good to sit down with the parent and watch the DVD “Alternative Dispute Resolution in the Children’s Court” produced by the NSW Attorney General & Justice.
- Reassure the parent that if the process becomes overwhelming they can ask for a break. Negotiate with the parent how they might let you know they need a break or are confused.
- Sit down with the parent beforehand and explore:
- statements they might like to make. For example, how they are feeling and their hopes for their child and their family
- issues they may want to discuss, and
- questions they may want to ask.
- Write notes on the above and bring them to the ADR.
Supporting a parent through ADR – on the day of the ADR
- Meet up with the parent ahead of the scheduled time for the ADR.
- Meet up with the parent and their solicitor. The purpose of this meeting is to assist the parent to let their solicitor know before the ADR key points the parent wants raised in the ADR.
- Go over the key points from your preparation meeting.
- Go over self-care strategies. For example: ways the parent will manage his or her nervousness, what to do if they are feeling upset and how to signal if he or she needs a break.
- At the start of the ADR, the court registrar or mediator will approach all participants to sign a form agreeing to keep information discussed at the ADR confidential. You may need to assist the parent read this form.
Your role in the ADR
Your attendance at the ADR must be approved by the court registrar or mediator. The court registrar or mediator will ask other attendees whether or not they are happy for you to attend.
You will not generally be asked questions directly about your views. If the parent asks for your help to express his or her view, focus on what the parent has told you that they think or want. Avoid telling the parent what they should be saying.
Your role is to:
- Help the parent feel confident about expressing his or her views and assisting them to refer to their prepared notes when necessary.
- Interpret or break down questions directed to the parent that may be confusing or incomprehensible.
- Interpret or clarify a response a parent may make that is misinterpreted by other participants unfamiliar with the parent’s communication style or limitations.
- Alert the parent’s solicitor that the parent needs to talk privately or does not understand what is being said during the ADR.
- Alert participants, and particularly the court registrar or mediator, if the parent is being excluded or falling behind in the conversation, feeling confused or needs a break.
- Help the parent understand and discern the options presented in the ADR.
- Help the parent make decisions during the ADR.
How long do ADRs take?
This is very dependent on the issues to be discussed and decisions to be made. It will also depend on the number of breaks the parent may need. It is good to allow two to three hours for the ADR.
Children’s Court Clinic Assessment
Sometimes the court will ask for an independent clinical assessment of the parent’s parenting capacity and/or an assessment of the child’s needs. The parent’s solicitor will discuss the pros and cons of the parent undergoing such an assessment. Ultimately the parent can consent or not consent to an assessment.
An assessment order is normally requested at the beginning of the placement stage and is done to assist the court in deciding whether or not there is a realistic possibly of restoration, and what may be in the child’s best interests long term. It may also be used by Community Services to inform their Care Plan. A Children’s Court Clinic assessment requires the court to make an assessment order. The order outlines the scope of the assessment in the form of a set of questions formulated and agreed to by consensus of the parties in the proceedings. These questions are approved by the magistrate and an order is made.
Once the order is made, it goes to the NSW Children’s Court Clinic. The NSW Children’s Clinic is part of the Sydney Children’s Hospital network. The clinic has authorised clinicians across NSW who are able to undertake assessments. The court can request the clinic direct the assessment to a specific clinician, however the appointment of the clinician is at the discretion of the Children’s Court Clinic.
The parent, and his or her solicitor, may choose to have their own assessments undertaken by a professional outside of the Children’s Court Clinic. The results of this type of assessment are tendered by the parent’s solicitor to the court as evidence. These assessments are funded by the parents. The parent’s solicitor may submit an application to Legal Aid for a grant to cover some or all of the cost of the assessment. Legal Aid will only grant this funding in very limited situations.
The benefit of these assessments is that, having read the assessment report, the parent and his or her solicitor can decide whether or not the report should be tendered as evidence.
The problem with these assessment reports is that, even though the person undertaking the assessment will be a professional and comply with the NSW Code of Conduct for Expert Witnesses, their evidence may not be viewed by the court as being as objective as an assessment sought through the NSW Children’s Court Clinic.
Supporting a Parent through a Children’s Court Clinic Assessment
Once an assessment order is made it may take three to four weeks before the parent is contacted by the clinician. Before the assessment happens it will be helpful to go through the assessment questions with the parent so that they can understand the types of assessments the clinician may undertake and the questions they may be asked. The assessment may be arranged to take place at the clinician’s office, the local Community Service Centre or the parent’s home.
When the appointment dates are set, make sure the parent knows the importance of keeping these appointments. Talk to them about how they are going to get to the appointment and whether they need help with transport. Suggest to them that it is good not to plan other things for the day the assessment is scheduled.
In some cases the assessment will involve observing the parent engage with his or her child at a contact visit. When in a stressful situation, or when in the company of a stranger or person they see as having authority, parents with intellectual disability can withdraw and be less likely to be themselves. They can come across as being flat and non-participatory.
Talk with the parent about:
- The importance of focusing on their child and interacting as normally as possible with his or her child during the assessment.
- The type of activities the parent might do with his or her child during the observed contact.
- What the clinician may be looking to observe the parent do or say when interacting with his or her child.
- How the parent may respond to his or her child’s behaviours, be attentive to dangers and supervise his or her child.
What if a parent wants me to be present during the assessment?
This is something you would need to negotiate with the clinician. Sometimes, particularly if the parent has communication difficulties it can be helpful to talk to the clinician about what works best for the parent.
Some clinicians will be happy to have an advocate sit in on the initial assessment session or part of the session to assist the parent to understand what the assessment will entail, and to facilitate the parent’s comfort and engagement with the clinician.
Care Plan Meetings
What is a Care Plan?
During the placement stage of the care proceedings the court asks Community Services to submit a Care Plan. The Care Plan is a lengthy document that outlines Community Services views about:
- whether or not there is a realistic possibility of the child returning to live with one or both parents (restoration)
- what would be the plan for restoration if that is proposed
- what would be the plan if restoration is not proposed, outlining:
- where and with whom the child will live
- the contact the child would have with his or her birth parents and significant others
- how the child’s needs would be met in the proposed placement.
Supporting a Parent during the Development of the Care Plan
Community Services are expected to involve the birth parents in the development of the Care Plan. This normally involves Community Services inviting the birth parents to a case meeting at the local Community Services Centre. Often this meeting is convened after the Care Plan has been written by the caseworker and the casework manager, and the Care Plan is due to be filed in the Court. You may not get a lot of notice about this meeting.
Tips On How To Have Input Into The Care Plan:
- When you go to court, record the dates set down for filing and serving of the Care Plan.
- A week before the date for filing of the Care Plan, ring the caseworker and ask when they propose to meet with the parent about the Care Plan.
- Once a parent has been given the Care Plan, read through it with them and help them to make an appointment with his or her solicitor to talk over the Care Plan.
While the matter is before the court, a parent should attend any meetings and interviews with an advocate or support person. It is important that the parent understands that anything they say will be recorded. If there is something asked that they do not understand, they are best to ask for clarification rather than making up an answer. If the parent feels angry or worried about the questions being asked, they should ask for a break rather than say something that may be included in an affidavit and presented to the court.
The meeting about the Care Plan can be hard for parents because this might the first time they hear Community Services say that they are not recommending restoration. It will also outline how often Community Services think the parent should get to see his or her child after final orders are made.
Before the meeting starts, remind the parent to listen to what Community Services is saying and not argue or respond angrily. Remind the parent that this is only Community Service’s view. The parent will get a chance to put his or her views to the court and that ultimately the court will decide the outcome.
The best way for a parent to make their views known about the Care Plan is by doing an affidavit with his or her solicitor. Community Services will ask the parent to sign the Care Plan at the end of the meeting. We recommend that parents do not sign the Care Plan until they have gone through it with his or her solicitor.
Going to Hearing
A hearing is when all parties get to put their evidence before the magistrate so that the magistrate can make a decision. In care proceedings parties are encouraged to come to consensus outside the courtroom. This is why the solicitors do a lot of talking between themselves in order to find common ground, that is, to see what concessions parties are prepared to make. The case can go to hearing at various stages of the Care Proceeding Process – see flowchart below.
This may be:
- At Establishment: where a party may not agree that the child was in need of care and protection at the time they were removed.
- During the Placement Phase: where a party does not agree that there is no realistic possibility of restoration, where a party does not agree on the placement plan put before the court, or does not agree with the contact arrangements being proposed.
There are two ways hearings can proceed:
- On the papers and submissions only. The magistrate makes his or her finding by reading all the papers filed and served to the court, and by taking submissions from the solicitors (this is where each solicitor sums up the parent’s position). In these hearings no witnesses are called.
- Where witnesses are called and cross examined. People who can be called as witnesses are those that have filed affidavits to the court, written reports or had their notes or files subpoenaed.
Preparing a parent to attend a hearing
What to wear: plan with the parent what they are going to wear. The parent should be well groomed and smartly dressed in clothing that is comfortable, modest and tidy.
What to take: It is likely to be a long day. Talk to the parent about ensuring they bring something to eat and drink, or put money aside to purchase some lunch. If your funding allows, you may want to have money on you to buy the parent a cup of coffee or lunch.
How to behave in court – it is helpful to talk with the parent about court etiquette and rules:
- Make sure the parent has eaten, had something to drink and visits the bathroom before going into the courtroom. It is not appropriate for the parent to be going in and out of the courtroom during proceedings.
- Before going into the courtroom ensure mobile phones are turned off or are on silent.
- On entering the courtroom, when the magistrate is sitting, the parent and you should bow and then sit.
- When you and the parent are already in the court and the magistrate then enters, everyone including the parent should stand and only sit when the magistrate sits.
- The parent will sit in the front row usually on the right hand side behind his or her solicitor. You can sit beside them.
- The parent, as a party in the proceedings, will sit through the whole hearing.
- Other witnesses – for example, an expert witness or a support worker or relative – may only come into the hearing when called to give evidence. It is up to the magistrate to decide if that person can stay in the court while other witnesses give evidence.
- Talking in the court is frowned upon. If the parent wishes to tell you something, they should whisper or talk quietly behind a closed hand. You can help the parent by writing notes or helping them write notes to his or her solicitor. If the parent needs to get his or her solicitor’s attention, it is best to just tap them on the shoulder or pass a note.
- The parent may take a bottle of water into the courtroom but no other drinks. Food is not to be consumed in the courtroom.
- Remind the parent that the magistrate will be watching how they behave.
- It is important that a parent does not speak out or react overtly (for example: laugh, tut, sigh or swear) to something that is said in the proceedings. They should also not intimidate or make faces at anyone in the courtroom.
Being in the witness box: Being in the witness box is nerve-racking for everyone. For people with intellectual disability it can be enough for them to want to back out of the proceedings altogether!
- Preparation can help.
- Make a time for you, the parent and his or her solicitor to sit down and work out the things the parent may be questioned on.
- Practice answering these questions by doing role plays.
- Commonly a parent will be asked what they learnt when they did a course or what they gained from counselling. It is not good enough to just say “I did the course” or “I learnt heaps”. The court will be more impressed if the parent can expand on their answer. The parent may be aided by having this written down in dot point to take into the courtroom.
- You may wish to contact the court registrar to see if you can take the parent into the court room prior to the hearing date just to experience sitting in the witness box.
- Explain to the parent that they will be given a choice to make an affirmation or take an oath. It is best for the parent to decide this beforehand so that is just one less thing they have to worry about on the day.
- Some magistrates, who know a parent is vulnerable, may permit an advocate or support person to sit near them in the witness box. Your role is to just be there for emotional support. Resist the urge to jump in and try to explain a question or answer a question on behalf of the parent as this will not be tolerated. If you think the parent is under duress or is tiring and needs an adjournment, you can highlight this to the parent’s solicitor or to the magistrate.
- At the completion of a hearing the magistrate will hand down his or her findings to the issue being contested. Depending on time and the complexity of the evidence, the magistrate may not make his or her findings on the same day as the hearing and the parent may need to come back to court to hear the magistrate findings.
Final Orders mark the end of care proceedings. This may happen on the same day a hearing is completed or be set down for a separate court date. At this appearance, a parent will hear the magistrate give a summary of the case, the findings and decisions/outcomes. After these are made, the care proceedings are complete.
Supporting a parent on the day of final orders
A parent’s solicitor will usually have an idea of what orders the Magistrate will make and will discuss these with the parent. In other words, usually a parent will be going into the court knowing the outcome. In saying this, hearing the Magistrate say the words: “there is no realistic possibility of restoration …and the Minister of Community Services is to have parental responsibility until the age of 18 years” always elicits a response of acute grief in the birth parents. As a support person, be prepared for this.
- Take tissues and maybe have a bottle of water on hand.
- If the parent has the potential to emotionally erupt, it is helpful to forewarn the parent. Explain what they are to hear will be difficult and work out a safety plan. For example, if they feel they are going to explode to grab your hand and you will walk them outside.
- Sometimes a parent may want to argue or plead with the magistrate. This is not appropriate.
- Sometimes a parent may turn up with a letter they have written to the court and ask the magistrate to read it. It is best they show this to their solicitor and get advice. Depending on the content of the letter and the magistrate, the parent’s solicitor may tender the letter to the court. However it will not change an outcome, nor is it encouraged.
- Once final orders are made it is best to get the parent out of the court room promptly; a change of context, even the foyer, will help de-escalate the possibility of the parent behaving in a way they regret later.
- The parent’s solicitor will come and explain what the magistrate said and advise the parent what to do next. This is usually the end of the parent’s dealing with his or her solicitor.
- Every parent is different and will need to do different things at this point. Some may need to debrief and will appreciate going for a cup of coffee. Some will just want to have time alone or be with their partner. Some may let their anger out on you and their solicitor. If the latter is the case, don’t take it personally and ensure your own safety.
- Before leaving the parent it is important to check out what they plan to do and if they are safe. If you have concerns that they may self-harm give them some numbers to call. For example Lifeline or their local mental health team. If the parent is known to the local mental health team or if you think they may get called, you may want to ring and give them some background about why they may be particularly vulnerable at this time.
- Supporting a parent through the making of final orders is emotionally stressful. Ensure that, as an advocate or support person, you look after yourself. Arrange to undertake a debrief with a supervisor.
Supporting parents after final orders
Care proceedings can consume a fair amount of a parent’s time and energy. They have contact visits to attend each week; court dates to plan for and programs to attend.
Once final orders are made, the parent is likely to experience a new sense of loss. The reality that his or her child may not be returning home may result in the parent being unsettled or unsure how to move ahead. This is a hard time and sometimes there is little you can do as a support worker apart from being a listening ear.
Some helpful interventions include:
- Refer a parent for general counselling or specific grief and loss counselling.
- There are very few support groups suitable for involuntarily relinquishing parents. CatholicCare in Sydney runs a group program called ‘My Kids and Me’. This 7-week course is for parents whose children are in out-of-home care. The Washhouse has also piloted a group called ‘Parents on the Outside’. This is a 12-week support group for mothers with intellectual disability whose children are in care. For more information on these programs and other services for parents see Services for Parents.
- Help the parent put together a journal for his or her child including things they want them to know about them and their family of origin, and what they wish for their child as they grow up. The parent can continually add to the journal. When the time is right, they can share it with their child.
- Help the parent explore community activities or employment programs.
- If the parent needs case management services to make this significant life transition you may consider making a referral to Family and Community Services – Ageing, Disability and Home Care (ADHC).
- Help the parent reorganise his or her home and decide what to do with his or her child’s belongings.
- If a parent is in public housing they may require assistance to relocate and/or downsize.
Mothers with intellectual disability are particularly susceptible to becoming pregnant within two years of final orders. An evaluation of parents supported by IDRS over a two year period found that 32% were pregnant within two years of having a previous child removed and placed in out-of-home care.
There are two widely held assumptions as to why this is the case: It is assumed that “these mothers lack insight into their lack of capacity to care for a child” and alternatively, “they endeavour to replace the child removed”.
An evaluation of the 32% of the mothers who were pregnant within two years of having a previous child removed and placed in out-of-home care highlighted that in the vast majority of cases “the post-removal subsequent pregnancy” was unintentional. The pregnancy was usually the result of the emotional and sexual vulnerability of these mothers’ following the removal of their children and the lack of access to family planning counselling.
Talk with and support the parent to access family planning advice and counselling – visit Family Planning NSW.
Further Court Proceedings
While final orders are final, there are some legal avenues still open to parents.
- If a parent disagrees with the decision of the Children’s Court then they are able to appeal to the District Court.
- Any such appeal is required to be made within 28 days.
- If a parent wants to appeal, it is important they seek legal advice as to their prospects of success.
Tips About Appeals:
- Some parents want to appeal final orders because they do not want to be seen to be “giving up on their child”. It can also be part of their way of handling loss and grief.
- If a parent is demanding an appeal straight after final orders have been made, it is best to suggest they take a few days to let things settle down before making a time to see a lawyer.
Section 90 Application
Most parents involved in care proceedings will soon hear about Section 90 Applications. Section 90 of the Act outlines how a care matter can be revisited by the court.
Basically, Section 90 enables anyone who has a genuine interest in a child to bring a matter back to court to have the care matter re-opened, and the court’s original orders revoked or varied. Section 90 enables a birth parent, who has made significant changes in his or her life and circumstances, to request the court to review whether or not there is a realistic possibility of his or her child being restored into their care.
Often parents will hold on to a Section 90 application as their chance to have their child restored. The most important thing to know about making a Section 90 application is that the parent needs to be able to show that there are now significant and sustainable changes in his or her circumstances.
Tips For Section 90 Applications:
There are two windows of opportunity to apply for a Section 90:
- post final orders (usually 12-18 months afterwards), or
- if Community Services is making a Section 90 application – that is to have the orders changed. This may be the case if the child’s placement has broken down and they want to have parental responsibility changed.
If a parent states that it is their intent in the future, or they now want to apply for a Section 90:
- Suggest the parent seeks legal advice. A lawyer will look at the previous court documents to identify the issues cited by the court as to why it was found that there was no realistic possibility of restoration.
- The parent will have to have addressed these issues and show that the changes made are sustainable.
Legal Aid is not automatically granted for section 90 applications. Legal Aid will only approve a grant of aid if there is, on the papers, a good chance of the case succeeding. Even if the parent can get a lawyer to take on his or her case the lawyer has to apply to the court to be granted leave to put forward a Section 90 application. The court does not automatically grant leave for a Section 90. The court has to be convinced that it is in the child’s best interest.
Following the final order, usually at least two years on, a decision may be made for the child to be adopted by his or her carers. Even when birth parents are very happy with the care arrangements for their child they may find the idea of their child being adopted very difficult and this may exacerbate loss and grief issues.
Can a child be adopted without the knowledge or consent of his or her birth parent?
In NSW the consent of the birth parents and the Minister of Family and Community Services is required when:
- the child is under 12 years of age, or
- the child (age 12-18) has been in the care of the prospective adoptive parents for less than two years, or
- the child (age 12-18) is deemed to not have sufficient maturity to give consent.
A child aged 12 years or over is deemed to have sufficient maturity to give his or her own consent. The Supreme Court can make orders dispensing with the consent of the birth parents in certain circumstances.
These circumstances are when:
- the birth parent cannot be found or identified, or
- the birth parent is physically or mentally incapable of consenting, or
- adoption is deemed to be in the best interests, and promote the welfare and security, of the child.
Birth parents have a right to object to their child being adopted. In such cases they must be given formal written notice of the adoption application being lodged with the Supreme Court.
If you are working with a parent who is in this situation they should seek legal advice. If eligible they will be granted Legal Aid for legal representation in order to appear at court and oppose the making of an adoption order.
A major concern for birth parents about adoption is that they may lose all contact with their child. Adoption applications should contain an ‘adoption plan’. An adoption plan is an agreement about post-adoption contact between the birth parents and the child, the carers, and about how the child’s knowledge of their culture and identity will be supported.
Adoption plans are negotiated to suit the needs and best interests of the child, and take into account the history of contact between the child and birth parents. Birth parents should actively contribute to this plan. This may happen through mediation. There are various types of adoption contact including the exchange of photographs, letters, emails, telephone contact, and ongoing face-to-face meetings.
When the application for adoption is being prepared, the adoption plan is signed by all the parties to the adoption. Adoption plans are filed at the court as part of the application for an adoption order. The advantage for birth parents in signing the adoption plan can be that if later on there is disagreement between the parties about whether the agreements in the plan are being followed, the birth parent (as can any other party to the plan) can ask Community Services to help review the adoption plan. If one party is still unhappy, an application may be made to the Supreme Court to review the adoption plan.
Supporting a parent with contact visits
Contact arrangements between the parent and child will be set down by the court at the beginning of care proceedings and then again at the time of final orders. As of October 2014, final orders will set out contact arrangements for 12 months only. Following this, contact will be negotiated with caseworkers. Any disputes about contact arrangements can be resolved in the Children’s Court. This will require parties to participate in a dispute resolution conference.
During care proceedings a parent’s commitment to, and behaviour at, contact visits will be taken into account by Community Services in forming their position.
While care proceedings are in progress, contact will occur anywhere between 1 to 3 times a week depending on the age of the child, where they are in care and the resources of the agency supervising the contact. After final orders are made contact will be reduced.
Usually the contact is gradually cut back. For example, from weekly to fortnightly to monthly to second monthly. Unless the child is in a kinship placement the contact is likely to be at best once a month.
Tips For Contact Visits:
- Does the parent know how to get to the contact centre?
- Do they need help being there on time?
- Do they need a reminder call on the day of contact?
- If they have a smartphone, download a trip planner or print out schedules for them.
Advise parents it is not a good idea to want to see his or her caseworker at Community Services before or during contact. It is best to request appointments with the caseworker at separate times.
People with intellectual disability often have difficulty distinguishing who they should speak to about issues. Remind the parent that the contact worker is there to observe. The contact worker is not there to be his or her friend. Remind the parent to be polite but not to confide in or get into discussions with the contact worker about things to do with their life or family or the court case.
- Plan the contact visit with the parent.
- Draw up a schedule – if the contact is for one hour divide the time into activities.
- Discuss with the parent age-appropriate activities, appropriate snacks to pack and problem-solving behaviours that the parent may find difficult.
- Help the parent put together a contact box (a plastic carry box you can buy from a $2 dollar shop is ideal). Fill this box with age appropriate toys, games or activities.
- Colouring in and craft things can be cheap, fun and something a parent can help a child to do.
- Suggest to the parent not to take too many things and to change toys and activities regularly.
Contact is a time for the parent to spend with his or her child.
The child will be brought to contact with a contact worker. These workers are contracted by Community Services or a non-government out-of-home care agency to transport the child and supervise contact. This contact worker will observe contact and take notes. These notes may be submitted to the court.
Initially contact will take place in a room at a local Community Services Centre. If parents are committed to contact, act appropriately and demonstrate they can be attentive to the safety of their child, visits may be moved to a park (weather permitting) or a shopping centre.
Working out what to do during contact can be problematic for parents. You can help the parent by drawing up a structure for the contact time.
Early intervention and placement prevention
The following services can assist families to reduce the likelihood of children being removed and placed in out-of-home care.
The services listed in this section, and the section below ‘services addressing specific issues’ often have limited places and may have long waiting lists.
Community Services may be able to assist a child or family to access a particular service. Section 17 of the Care and Protection Act gives Community Services the power to request a government department or agency, or a non-government agency in receipt of government funding to provide services to a child and/or their family.
Family Support Services
Family Support Services provide a range of services to families. Since July 2011 the scope within which Family Support Services work has changed. Some services may provide advocacy and support services to parents where there is Children’s Court involvement, particularly if the family has previously been an active client of the service. For more information visit www.fams.asn.au
The Brighter Futures Program provides targeted support to vulnerable families. Referrals can be made through Community Services or a community organisation. Ultimately, Community Services will determine if a family can access support services through Brighter Futures. Participation in the program is voluntary. For more information, visit the Brighter Futures Program website.
Provides parenting education information to parents and carers of children aged 0-18 years. The site includes a list of parenting programs and their locations and parenting events. For a discussion on parenting programs for parents with intellectual disability see the section below: parenting courses for parents with intellectual disability.
Support for parents with babies and young children
Offers a number of different services to families with babies and young children including outreach, day stay, residential care, long day care and parenting programs. There is also the 24hr Parent Help Line 9787 0855.
Works with children and their parents from birth to 5 years of age. Their services cover parenting support and advice, antenatal support and education, services to alleviate parental depression and anxiety and managing toddler behaviour. They offer residential, day and outreach services.
Restoration and Preservation Programs
Family service provision in New South Wales is currently undergoing major changes. Since July 2011 restoration programs only accept referrals from, or approved by, Community Services. Generally this means families cannot use participation in these services to demonstrate reasonable prospects of the child being able to return to live with one or both of their parents.
However, solicitors can advocate that families should be referred to such services as part of a permanency plan involving restoration once it is established that there are realistic prospects for restoration. The follow programs can facilitate restoration and preservation.
Aboriginal Intensive Family Based Services (IFBS)
IFBS provide intensive home based services for Aboriginal families including where children in out-of-home care are returning to live with one of both of their parents. Currently IFBS services have been developed or are proposed in Casino, Kempsey, Redfern, Dapto, Bourke, Campbelltown, Mt Druitt, Wyong, Wagga Wagga and Clarence Valley. Intervention is provided intensively for three months. Referrals can only be made through the local Community Services Centre. For more information, visit the IFBS website
Intensive Family Preservation (IFP) and Intensive Family Support (IFP)
IFP and IFS provide intensive family services where there is a risk of out of home care placement. Children who have been restored from out-of-home care can be considered for IFS or IFP where there is still a risk of harm. Referrals can only be made by the local Community Services Centre.
Burnside’s Newpin Program works with families where the children are in the NSW foster care system and a restoration plan is already in place or may become viable.
Restoration and Prevention Programis available to families where children are in out-of-home care and restoration is viable or for families where children were previously in out-of-home care.
These programs are provided to families who have had children placed in out-of-home care or who are currently in care as a result of significant and often cumulative factors.
Programs for Parents with Children in Out-Of-Home Care
Various agencies run short term education groups for parents whose children are in care. Although some don’t target parents with intellectual disability, these groups will often be flexible enough to engage parents with intellectual disability. Limited resources mean groups may only run once or twice each year, so check when the next group will be run before suggesting this option to parents.
Agencies with group programs for parents of children in care
Speak to a GP to arrange Medicare subsidised mental health services including counselling and sessions with psychologists and psychiatrists.
Family and Community Services (FACS) is an agency within Department of Family and Community Service. Historically it has provided services for people with disability including case management and funds non-government organisations to provide services for people with disability. People with intellectual disability may be eligible for case management services from ADHC, or from community services funded by ADHC. Services that work with parents are limited, but may be available in some areas. Note however that the National Disability Insurance Scheme will eventually replace direct ADHC services in NSW.
People with disability in NSW may now be able to start accessing disability services through the National Disability Insurance Scheme (NDIS). To find out whether NDIS can assist, contact 1800 800 110 or visit the NDIS website.
The contact points below can be used to refer a client to FACS or to get information and referral to other non-government disability services.
For the ADHC contact in each region visit FACS website.
Ability Links provides people in the Hunter region with a locally based first point of contact to support people to access supports and services in their local communities. Contact: (02) 4905 0700 or visit www.vinnies.org.au.
When accessing Ability Links for Aboriginal clients contact the Barkuma Neighbourhood Centre (02) 4937 1094 or email email@example.com.
Violence Against Women Confidential Hotline – Assistance and referral for people affected by domestic violence. Contact: 1800 200 526
Immigrant Women’s Speakout
Provides advocacy for women from culturally and linguistically diverse backgrounds who are escaping domestic violence, with a particular focus on women with related immigration issues. Contact: (02) 9635 8022 or visit www.speakout.org.au.
Drugs and Alcohol
Alcohol and Drug Information Service (ADIS) – information about drug and alcohol treatment services. Contact: 1800 422 599 or (02) 9361 8000
Credit Debt Hotline – referrals for financial counselling. Contact: 1800 808 488
Homeless Persons Information Service – referrals to emergency accommodation. Contact: 1800 234 566 or (02) 9265 9087
Women’s Information and Referral Service – referrals to emergency accommodation and other services for women. Contact: 1800 817 227
Tenants’ Union Hotline – advice and information on tenants’ rights. Contact: (02)9251 6590
IDRS provides legal advice and assistance to people with intellectual disability. Contact: (02) 9318-0144
LawAccess NSW is a telephone service that provides legal information, referrals and in some cases, advice for people who have a legal problem in NSW. Contact: 1300888529
Personal Helpers and Mentors (PHAMS) is a federal government funded program providing increased opportunities for recovery for people whose lives are severely affected by mental illness. A person does not need a formal clinical diagnosis of severe mental illness to access the service. PHAMS services are able to support people with other significant disabilities, but their primary area needing support must relate to mental illness. Some PHAMS programs work specifically with Aboriginal clients.
Mental Health Information and Referral Service provide advice, information and referral about mental health. Contact: 1300 794991.
Headspace is for young people experiencing mental health issues.
CatholicCare – Catherine Villa Accommodation Units – Supported accommodation and living/baby skills development for young women under 25 years of age who are pregnant or parents.
Contact: (02) 9837 2095. Visit website – https://ccss.org.au/
Red Cross – The Young Parents Program – Offers a three-phased accommodation, support and education program for young women who are pregnant or have a child, are homeless and require intensive support. Contact: (02) 8383 7501
YWCA – Hunter region (only) – InspYre Young Mother’s Mentoring Program.
Contact: (02) 4929 2954
YWCA Shoalhaven – Mum, dad, baby parenting toolkit for young parents in Shoalhaven NSW. Visit website – https://www.ywcansw.com.au/
Parenting courses for parents with intellectual disability
Research suggests that the best ways to help parents with intellectual disability to develop skills in basic childcare, managing behaviour and parent-child interaction are by:
- Providing services in the home.
- Focusing on skills.
- Using teaching methods such as modelling, practice, feedback, praise and tangible rewards.
- Breaking complex child care tasks into simple steps to be taught individually.
Currently in NSW there are no parenting programs widely available for parents with intellectual disability. Parenting programs generally focus on behaviour management and relationships building. They do not generally address factors contributing to neglect, but may address factors associated with physical abuse, such as alternatives to physical punishment.
Group programs such as Triple P and Tuning into Kids are widely available in metropolitan areas. While these programs may focus on skill development, parents may have difficulty identifying skills without opportunities to see them modelled in their home, and tasks may be too complex for parents with intellectual disability to grasp readily.
Although Triple P has been widely used with families from low socio-economic environments, it has not been evaluated in relation to parents with intellectual disability. Parents with intellectual disability who complete parenting programs may be disadvantaged when assessed or cross-examined unless they are able to identify skills that they have learnt from the program. The primary benefit of attendance at mainstream parenting programs may be showing effort and a commitment to engage in services.
Visit Resourcing Parents for a list of parenting programs and their locations.