Community Service workers have very wide powers to investigate information they have about a child being at risk of significant harm. The best advice you can give a family member who is under investigation by Community Services is:
- Stay calm and cooperate with Community Service workers.
- Let the workers enter the home and see the child.
- Ask the workers to show identification and ask the workers to write down their names and contact details.
- Be honest, but careful, about how much they say to the Community Service workers. One of the workers will be writing down everything that your family member says and this information will be put into their file. If the matter goes to court, this information will be given to the court.
- Ask for a break from the interview if they are feeling overwhelmed or upset.
For more information on Community Services’ investigation powers click here.
The Right to a Support Person
Your family member has a right to have a support person present during any interview or meeting with Community Service workers.
Community Services’ policy states parents can participate in decision making by having a support person accompany them to any meetings or conferences.
If you can remain calm and listen attentively, you may volunteer to be the support person. You may want to take your own notes of what is said during the interview. A disability advocacy service may be able to provide a support person for your family member. A support person can attend meetings and court dates with them.
Community Services Want to Speak to Me
As part of their investigations, Community Service workers can speak to anyone connected to the child including family members, teachers, child care workers, doctors, family friends and counsellors. Community Service workers can ask you anything they think is necessary to determine if a child or young person is at risk of significant harm.
You may be asked questions about the child, or the child’s parents or carers, on a whole range of things including the parent/carer’s history, relationships and/or health. Community Service workers also have the power to access information about you without telling you or asking your permission. For example, they may access your police, medical and/or immigration records. See further details on Community Service’s investigation powers.
Tips for Communicating with Community Services
Meetings with Community Services can be stressful for all family members involved.
When speaking to Community Service workers it is advisable to stay calm and be polite. Listen to what they have to say and try to respond without swearing and being aggressive.
Remember, at no point during any investigation is Community Services on trial.
If you feel you, or a family member, have been treated poorly or in a discriminatory manner by Community Service workers there are avenues for addressing this within Community Services or by making a complaint to the NSW Ombudsman, Privacy NSW or the Anti-Discrimination Board of NSW. To find out more about Community Service’s complaints process click here.
Care and protection matters are heard in the Children’s Court. There are a number of stages in a care and protection matter and it can take up to 12 months to be finalised. See this Care Proceedings Process.
For more information on what happens during a care and protection matters visit the section on our website for Disability Advocates and Workers.
Can I go into the courtroom with my family member?
The Children’s Court is a closed court. This means that members of the public are not allowed inside the courtroom without permission of the judge or magistrate.
Family members who are not parties in the case cannot enter the courtroom unless they are the parent’s support person.
Parents are encouraged to bring a support person to court. This may be a support worker, counsellor, case worker, family member or friend. You may volunteer for this role or need to find a support worker for your family member.
On the day, the parent’s lawyer will let the judge or magistrate know who is in courtroom supporting the parent.
Section 102 of the Children and Young Persons (Care and Protection) Act (NSW) 1998 says that the judge or magistrate will allow the support person to be in the courtroom unless there is a very good reason why they should not be there. It is rare for the judge or magistrate to say that the chosen support person is not allowed in the courtroom.
What does a support person do in the courtroom?
- You can sit next to your family member and support them while they are in the courtroom.
- You can help the parent to stay calm.
- You can help the parent understand what is going on in the courtroom.
- You may be allowed to be an interpreter for the parent if they do not speak or understand much English.
- You must do anything the magistrate or judge asks you to do.
- You cannot tell the parent’s lawyer what to do or say.
- You cannot speak for the parent.
Can family members become parties in the case?
Parents are automatically parties in the legal case. Other family members may have a position they want the court to hear and can ask to join the case.
Once you have been joined as a party to the case, you will be able to give evidence and examine and cross examine witnesses. All family members will need to ask permission to join the case, even if the child has been living with them.
The court will only let you join the case if they think that you have a genuine concern for the safety, welfare and well-being of the child and that you bring a unique voice to the proceedings. The court will also consider any delay that may occur if you join the case.
How do I become a party in the case?
You have to ask the court for permission to join the case. If you are thinking of joining a case it is recommended that you get independent legal advice from a lawyer who has expertise in care and protection law. You can see a private lawyer, or you may be eligible for Legal Aid.
For a referral to a private lawyer, or for information about whether you are eligible for Legal Aid, call LawAccess NSW on 1300 888 529 or visit the Legal Aid website.
Making an application to become a party to a case
- If you are making the application yourself, you will need to go to court on the day the matter is listed and let the magistrate know who you are and that you would like to be joined as a party to the case.
- You will be given time to file your application with the court.
- You need to contact the court to ask them which form to complete and for instructions on how to lodge it.
- You will need to attach an affidavit to your application. A blank affidavit (form 35) can be found on the Children’s Court website here. In the affidavit you will need to give details of:
- Your relationship with the child/ren
- What you think should happen to the children in the short term and long term
- You will have to give the court and other parties copies of these documents by a set date.
- You will be given a date to return to court. On this date, the magistrate will say whether they give permission for you to become a party to the case.
You may find out that a guardian ad litem has been appointed for your family member while the matter is in court. A guardian ad litem is a substitute decision maker.
Once a guardian ad litem is appointed, your family member loses their direct voice in court proceedings about their child. The guardian ad litem, not the parent, tells the parent’s lawyer what to do, based on their view of what is in the parent’s interests. Having a voice in court proceedings that affect you is a basic human right, so a guardian ad litem should only be appointed as a last resort.
A guardian ad litem will be appointed when the court believes that a parent is incapable of telling their lawyer what they want them to do. While intellectual disability is listed as one circumstance where a guardian ad litem may be appointed, this does not mean that every parent with intellectual disability should have a guardian ad litem.
In fact, 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. See more information on guardian ad litem.
If you are concerned that a guardian ad litem has been appointed for your family member you may consider seeking legal advice or contact a disability advocacy service.
For legal advice: Contact IDRS, LawAccess or a private solicitor. Or you can download a List of Care Partners’ here.
A note on parental responsibility
The magistrate or judge will decide who will have ‘parental responsibility’ for the child while the case is in court. The person with parental responsibility will make decisions about the child’s well-being during this time.
The court may give parental responsibility to the Minister for Family and Community Services or to another suitable person, including a family member. If you are given parental responsibility you can decide that the child will live with you.
The court may give parental responsibility for the child to the Minister for Family and Community Services, and then Community Services may decide that the child should live with you or another family member while the case is in court.
If Community Services is given parental responsibility and you want the child to live with you, let the Community Service worker know as soon as possible.
During the court case
A care and protection case in the Children’s Court can take up to 12 months to finalise. The first thing the court will do is decide where the child will live while the case is in court. If you want the child to come and live with you during this time you should let Community Services know as soon as possible. In deciding whether this is a good idea, Community Service workers will come and look at your house. They will want to make sure it is a good, safe place for the child to live. Community Services will do this even if the child is already living with you under an informal arrangement.
Long term care
If Community Services thinks that a child cannot live with their parent/s, they will look at other long term care options for the child. This may be until the child is 18 years old. Family members are a preferred option if they can provide a good, safe home for a child.
You should let the Community Service workers know as soon as possible if you want to be considered as a long term carer for a child. The workers will need to assess you and your home to decide if they think the child should be placed with you.
If Community Services thinks that it is a good idea to place the child with you, they will write this in the Care Plan. A Care Plan sets out Community Services’ recommendations for the child’s future. It sets out where the child will live and how much contact they will have with people in their lives e.g. parents and extended family.
You can apply to be a respite carer for a child in out-of-home care. This means the child will be in your care for short periods of time only e.g. school holidays or weekends. Respite care gives the child’s carer occasional breaks from caring for the child. You will need to be assessed for respite care. Let the Community Service worker know as soon as possible if you want to be considered as a respite carer for a child in out-of-home care.
Children in out-of-home care may benefit from having contact with their extended family members. Contact can include face-to-face visits, telephone conversations, email messages, exchanging letters, gifts or photos. Contact may be supervised or unsupervised.
Arranging contact with a child in out-of-home care
Decisions about contact will be made by Community Services, as part of the child’s case plan, or by a Children’s Court contact order. A case plan sets out ways to meet the child’s needs e.g. health, education and how to keep a child connected with their family and community. Case plans are made at case meetings and reviewed and updated regularly. You should speak to a Community Service worker about having contact with a child in out-of-home care.
Things to discuss with the worker include:
- The amount of time you currently spend with the child e.g. babysitting, phone calls.
- The amount of time you would like to have with the child while they are in care. You may be able to spend time with the child for a few hours, overnight, on weekends or during school holidays.
Contact arrangements must be approved by Community Services so it is important that they are planned in advance with the Community Service worker. A foster carer cannot allow a child to leave their care without approval.
If you are unhappy with a contact decision you can speak to the Community Service worker, their supervisor or the manager of the Community Services Centre to ask them to review the decision.
If the issue cannot be resolved, you can make a complaint to the Community Services Complaints Unit. If you remain unhappy with the decision you can complain to the NSW Ombudsman.
See our contact list of disability services that provide information, referral, support, advocacy or case management.
Your family member may need to find services to:
- Reduce the likelihood that children will be removed
- Address specific issues leading to child protection concerns
- Help with restoration and family preservation
Your family member may also be looking for parenting programs or programs for parents whose children are in out-of-home care. See our list of useful services for parents.