December 7, 2023 • 29 mins
In this episode, Legal Aid NSW family lawyers Sarah and Claudia will explain what’s new in Care and Protection in NSW including:
- Reforms that started on 15 November 2023 around ‘active efforts’ that need to be made by DCJ
- Changes that started in November 2022 around presumptions to remove children
- Changes to early intervention and early referral to legal advice through the Legal Assistance for Families Partnership Agreement (LAFPA)
- The Families is Culture report that led to the reforms.
Here are the links mentioned in the podcast:
Care and protection (nsw.gov.au)
Publications and resources (nsw.gov.au)
For legal help, please contact:
Aboriginal Legal Service (NSW/ACT) Limited (alsnswact.org.au) Transcript:
Disclaimer: This podcast is a general guide to the law. You should not rely on it as legal advice. We recommend that you talk to a lawyer about any particular situation. The information is correct at the time of publishing but it may change. For more information, start with our team at LawAccess NSW via webchat at www.legalaid.nsw.gov.au or on 1300 888 529.
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Episode Transcript
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Natalie (00:03):
Hi everyone. My name is Natalie. I'm from the Community
Legal Education team at LegalAid New South Wales. Welcome to
our law for community workerspodcast. Before we start, I
would like to acknowledge thetraditional custodians of the
land that we are recording ontoday. I am on the land of the
Gadigal people of the Eoranation, and I pay my respects to
(00:24):
elder's past and present andalso acknowledge Aboriginal
people as the first educators onthis land. Today, we're talking
about some recent changes tocare and protection law in New
South Wales, a really importanttopic for many community
workers, and one that we oftenget requests for. To tell us
(00:44):
about these changes. We'rejoined by two family lawyers,
Claudia and Sarah, welcome, canyou please introduce yourselves
to our audience over to youfirst Sarah.
Sarah (00:55):
Hi, everyone. My name is Sarah. I'm a solicitor with
legal aid in Newcastle. I'mbroadcasting to you today from
the lands of the Awabakal andWorrimi peoples.
Claudia (01:04):
Hi, my name is Claudia. I'm from the Newcastle family
litigation team. As part of thatteam, we work in care and
protection law, as well asfamily court matters and helping
parents reach parentingagreements. Today, I'm
broadcasting from the Eoranation on the lands of the
Gadigal people. Probably myfavourite aspect of the work
(01:26):
that we do is working with theclients and helping them to
resolve what are sometimescomplex and multifaceted issues
that they experience that arenot purely legal and are often
entwined with their socialcircumstances. So as part of
that we work closely withcommunity workers. And that is
(01:47):
something that I really enjoy aspart of the work as well.
Natalie (01:50):
Today, we're going to be talking about some recent
changes to care and protectionlaw. For those that are newer to
this area. Maybe first, can youstart by explaining what do we
mean by care and protection?
Claudia (02:03):
Yeah, absolutely. Natalie, this was something that
I was pretty uncertain aboutwhen I actually started as a
solicitor. So I think it'sreally important to get that
clear from the beginning. ChildProtection Law is about the laws
that deal with making sure thatchildren are safe and well cared
for it covers matters like whathappens when there are concerns
that children are at risk, aswell as the work that needs to
(02:24):
be done to keep children withinfamilies and safe. Um, it also
touches on when children shouldbe removed from their family and
how they'll be cared for if thathappens. And if possible, the
work that needs to be done tohave those children's returned
to their families. It's justimportant to note that each
state and territory has theirown child protection laws. In
New South Wales, our law is thechildren and young person's care
(02:47):
and protection act. And theagency that deals with care and
protection in New South Wales iscalled the Department of
Communities and justice and itsabbreviation is DCJ. Sometimes
it's referred to as DOCS, orFACS. And they're just previous
names that the department hasheld.
Natalie (03:01):
Thanks for pointing that out, Claudia. Because
sometimes we do get peoplelistening who live and work in
other states and territories. Sothe laws in there will be
different.
Claudia (03:11):
That's right, Natalie.
Natalie (03:12):
So what we're talking about today in this podcast is
what's new, and what's changedin care and protection law in
New South Wales. So can youplease start by explaining what
is new and I understand animportant date was the 15th of
November 2023. So what's changedfrom that date?
Claudia (03:32):
Absolutely, Natalie. So there has been quite significant
changes within the space. Andfrom the 15th of November, these
changes have taken effect. Soreforms to the care and
protection act, some of thesereforms, and probably the most
relevant ones for communityworkers is a provision about
active efforts. So I don't wantto get too bogged down in the
(03:55):
legalese of it all. But it's aprovision that holds the
department accountable to ensurethat active efforts are made
before proceedings are broughtto the court and to prevent
removal of children from theirfamilies. And also if they have
been removed active efforts ofworking with families to restore
children back to their families.There's some other amendments
(04:16):
too Sarah, if you want to speakto that.
Sarah (04:18):
Absolutely Claudia. So another important provision, and
one that commenced prettystraight away it was in November
2022. And something I foundthat's quite important for
clients when we've been workingwith them. It was in relation to
a presumption that applied tofamilies where children had been
removed previously. So sinceNovember of 2022, this
(04:40):
presumption, it's still relevantconsideration for the court. But
it no longer presumes that aparent is incapable of providing
appropriate care for theirchild. So what this does is
again, puts the onus back on theDepartment of Communities and
justice to show what caseworkthey're doing in relation to
each child, and not removingchildren on the presumption that
(05:04):
it simply happened in the past.
Natalie (05:05):
So Sarah, in the past, you would hear stories about
babies being removed fromhospital because a parent had
children removed in the past. Sothat doesn't happen anymore.
Sarah (05:16):
So the change is that the presumption is not showing that
parents are having to prove toDCJ that now they're in an
appropriate position to care forthat child. What it's doing is
it's sort of readjusting thecasework that DCJ should be
doing for that family to sort oftreat that pregnancy the same as
(05:37):
it's a first pregnancy. So thosefamilies should still be given
the same opportunities to bereferred for early intervention
services, and be supported witha view to family preservation.
Evidence of prior removal willstill be relevant for children's
court proceedings. But itdoesn't determine what the final
outcome should be in futureproceedings.
Natalie (06:00):
The family is culture review report was released back
in 2019. It was an independentreview of Aboriginal children in
out of home care. Can you talk alittle bit about that report, or
that review and what it wasseeking to find out?
Claudia (06:17):
I can speak to that Natalie, the families and
culture families is culturereview, and the subsequent
report was a really significantreport within the care and
protection space. And it'sreally been the impetus for a
lot of these reforms that we'retalking about today. So I think
it's a really good idea that wejust give you a brief overview
(06:38):
about it. So at the time, NewSouth Wales had and
unfortunately continues to havea disproportionate and
increasing number of Aboriginalchildren and young people in out
of home care. So in 2016, toexamine why the New South Wales
Government organised this familyis culture independent review,
(07:00):
which led to the report. So thereview looked at the individual
circumstances of 1153 Aboriginalchildren and young people who
entered out of homecare in NewSouth Wales between 1 July 2015
and 30 June 2016. So while thatwas the main focus, it also
looked more broadly at theimpact of case management
(07:23):
systems and policies within DCJ, and how these practices are
impacting Aboriginal children,young people and their families.
It also looked at the level ofinvolvement of children and
families, as well as aboriginalcommunities and the community
service sector in decisionmaking for Aboriginal children
(07:43):
and young people in out of homecare. So this report was
released in 2019. And it made126 systemic recommendations for
change. I think it was about 106of the recommendations. Were
recommendations that were DCJspecific. So there were other
recommendations for otherorganisations like the
Children's Court, Legal Aid,also, the judicial commission
(08:07):
and the office of the children'sguardian. So that included
legislative reform, and policyand practice change.
Natalie (08:15):
And those form recommendations apply to the
whole system, not just toAboriginal and Torres Strait
Islander children and youngpeople. Is that right?
Claudia (08:24):
That's, that's correct, Natalie, so that it's this
system change for the wholesystem for all families, but
there have been some specificreforms relating to Aboriginal
children specifically as well.
Natalie (08:37):
And are there any particular findings that really
stood out to you?
Claudia (08:40):
There are a lot of findings. Something Yeah, 126.
Yeah, 400 500 page report. But Ithink most relevant, and I'm
using the New South Walesgovernment, they categorise the
recommendations and the findingsinto five different categories.
And the fourth category isfindings in relation to services
(09:03):
and support. So it's probablythe most relevant for community
workers. And I think the mostrelevant is probably the focus
and the shift from having thatreactive, things have happened.
We need to remove children startproceedings, to more of a
proactive support for familieswithin the community, and a
(09:25):
greater focus on earlyintervention before removals. So
one of the findings was that alot of families they have a
whole wide array of issuesacross different areas, so
housing, drug issues, perhapsmental health issues, and what
they really need is holisticservice provision. And I think
(09:45):
the recommendation that led tothis was DC J specific. There
was a recommendation that DC Jlook into creating holistic
services for families, but Ithink community workers can kind
of take take that on as theirown recommendation in
coordinating with each other andspeaking to families to see what
(10:06):
other issues they might have andreferring them on, and staying
in touch with the other serviceproviders where possible,
because I find I don't know ifSarah comes across this a lot,
but a lot of my clients, theyget lost in the amount of people
that they're speaking to thereferrals that they've been
given. And it all gets a bitoverwhelming. So if the
community workers and serviceproviders can speak to one
(10:27):
another, kind of removes that,that aspect of just feeling like
you're being blown betweenpeople, but obviously through
LAFPA, which several will speakto later, there has been some
more recommendations that havebeen implemented by DC J. And
it's definitely being reflectedin the reforms that had recently
(10:48):
passed as well.
Natalie (10:49):
So you mentioned LAFPA, maybe we will go to that now. So
it stands for lots of acronymsin our work, that legal
assistance for familiesPartnership Agreement, or left
bar, did you want to explainwhat that is and how it's
changing the way things aredone?
Sarah (11:11):
Yeah, I can speak to that Natalie. So the LAFPA agreements
developed between threeorganisations, the Department of
Communities and justice,Aboriginal legal service and
Legal Aid New South Wales. It'slargely in response to a lot of
the recommendations under thefamily is culture report,
because like Claudia mentioned,you know, we all have a role to
play in actioning. Theserecommendations, but LAFPA
(11:32):
basically confirms a renewedintention to work more
collaboratively together andachieve better outcomes for
families who come into contactwith child protection services
in New South Wales. Theagreement is publicly available
through the Legal Aid website,and there'll be a link provided
in the show notes for any of youinterested to read it for
yourself. As a brief summary,though the agreement encompasses
(11:52):
four main objectives. Numberone, regular opportunities to
collaborate and communicate.Number two, to prioritise early
intervention work, three, toembed the electronic provision
of core applications into commonpractice. And for to give
precedence to alternativedispute resolution models. In
(12:12):
practical terms, though, howthis is really changing, the way
that we work is that it'sputting obligations on senior
staff across each of theorganisations to actively
participate in theseconversations, to help improve
some transparency aroundorganisational policies and
procedures. So I can't tell youhow many times I've found the
(12:33):
most difficult part of my job inthis space, is just not always
understanding how DCJ operates.For example, like I find it hard
to advocate for a clientsometimes without understanding
how their internal policieswork. So I'm unable to then
shift perhaps the view on thosepolicies or which model a family
(12:53):
is put into. So for example,whether they're supported for
restoration, or whether they'renot supported for restoration,
it's just not clear to ussometimes how those decisions
are made, who's approved forfunding and who gets denied.
Natalie (13:06):
I'm just gonna ask you, when you say restoration in the
care space, that means for achild to be returned to their
family, their parents.
Sarah (13:15):
Correct, so and that can either be to both parents or it
can be to either parentindependent of the other parent.
I can confirm things arebeginning to change for us
internally, but it is still along road ahead. And there's
still so much more to learn andimprove on I can confirm Legal
Aid has commenced LAFPA trainingfor all of it's staff, which has
continued throughout all of thisyear for staff to become
(13:38):
familiar with these newexpectations for DC J and for
our own organisations set outunder the agreement. As it
relates to families though theLAFPA agreement is changing the
way these organisations arehandling child protection
matters. So it's not meant to bejust business as usual, we
prioritise early interventionand alternative dispute
resolution. Families are then tobe provided with early and
(14:02):
regular referrals for legaladvice and assistance at various
critical points when dealingwith DCJ.
Natalie (14:08):
You mentioned before the role of community workers in
sort of supporting families andearly intervention, are there
any other things you thinkcommunity workers can play a
role in, in this area of careand protection law?
Sarah (14:23):
Yeah, absolutely. You know, I think they have quite an
important role, almost one ofthe most important roles in this
space, as it relates to bothchild safety but also as it
relates to early interventionwork with families. You know, we
all understand that manyfamilies, especially Aboriginal
families have great reason notto trust Child Protective
Services. And this means theymay not follow recommendations
(14:44):
to seek legal advice where theserecommendations are coming from
DCJ. So community workers, Ithink, have a vital role to play
in referring parents thatthey're working with to legal
aid for legal advice as early aspossible. If you're working with
a client and you know thatthey're in contact with DC J,
there's no harm in providingthem with our law access number,
(15:07):
which is 1300 888 529 andletting them know they can
access this service as early aspossible. And there are options
to children's court proceedings.
Natalie (15:18):
Thanks for that. And community workers can also refer
clients to the Aboriginal legalservice for advice on
1-800-765-767. The ALS helpsAboriginal and Torres Strait
Islander people across New SouthWales and the ACT.
Sarah (15:35):
There's also opportunities to identify and
refer families you might beworking with to receive
additional supports fromappropriate services. Again,
like Claudia mentioned, thatmight be in relation to poor
mental health, drug and alcoholmisuse, inadequate housing any
of those sorts of concerns forDC J. If you identify that a
(15:57):
parent might need support inthose areas, the more wraparound
services that can be involved,the more limited the need for DC
J to intervene. But of course,for community workers, a lot of
community workers do havemandatory reporting obligations.
So when anyone's concerned thata child or young person is at
(16:18):
risk can report their concernsto DC J through the Child
Protection helpline. And that's132111, community workers
providing services to childrenmust report any disclosures made
if they have reasonable groundsto suspect that children are at
risk of harm. Any reports thatare made to the Child Protection
hotline can of course beanonymous,
Natalie (16:39):
You mentioned that many community workers would be
mandatory reporters. Did youjust want to talk a little bit
about lawyers obligations aroundreporting?
Sarah (16:50):
Yeah for sure. So this may come as a surprise for some,
but lawyers don't actually havemandatory reporting obligations
at all. The reason for this, ofcourse, is that client
communications with theirlawyers are subject to strict
confidentiality and privilege.And this includes any
disclosures made about actual orsuspected child abuse. Depending
(17:11):
on perspective, I understandthis can be viewed as a negative
or a positive, especially wherewe might have such intimate
information about such matters.But the importance of
maintaining confidentiality,especially in this space, is
that it enables clients to beopen and frank in their
discussions about what areusually some very traumatic
family circumstances thatthey're experiencing. Of course,
(17:34):
as a lawyer engaged in thisspace, child safety is always
the first thing on my mind,because that's the priority set
out under the law. But withinthe solicitors conduct rules,
which we are also required tofollow is that I can't mislead
the court. So for example, if aparent I represent makes
disclosures to me about abusingchildren, or more often abusing
(17:56):
drugs and alcohol, I can'tmislead the court to believe my
client is not doing thosethings. And if they of course,
wanted me to do that, I wouldneed to withdraw from
representing them. So I hopethis answers that question makes
things a little clearer.
Natalie (18:12):
Thanks, Sarah. Sarah. Or, Claudia, can you please
explain a bit more about howwould these amendments work in
practice?
Claudia (18:20):
That's a really great question. And I think it would
be really useful for communityworkers to know how it would
work in practice and what theirrole can be in particular
scenarios. So we've pulled out ascenario from the family is
culture report. It is anonymizedand it is based on a true story.
And we can just read it out andthen perhaps go through and
(18:43):
point out some of the pointswhere these reforms will take
effect and things might haveplayed out a bit differently for
this family. So S was removed atbirth because of concerns about
her parents drug usehomelessness and concerns that a
father was violent towards hermother. However, prior to S's
birth and subsequent removal byFACS, as it was known then, did
not attempt any earlyintervention work with S's
(19:06):
parents despite concerns beingreported about the unborn baby,
and FACS being aware that S hadtwo older siblings who are
already in long term care.Although the file was allocated
to a caseworker for a shortperiod of time, it was closed on
the basis that S's parents couldnot be located. Although there
were limited records of theefforts that were made to locate
them approximately one weekbefore her birth S's parents
(19:29):
obtained stable housing. FurtherS's paternal grandmother and
aunt both indicated that theywere willing to help obtain
provisions for the baby and S'smother reported that she wished
to attend a drug and alcoholresidential rehabilitation
programme. Despite all this Swas removed at birth. FACS did
not complete an Aboriginalconsultation prior to her
removal, and did not involve herfamily in planning for her
(19:52):
future placement, as spentapproximately six months in the
care of an Aboriginal fostercarer. While efforts were made
to identify an appropriatefamily placement for her. So I
suppose looking at thatscenario, some of the standout
points are really at that earlyintervention stage, perhaps how
things would play out now, ifDCJ were working with this, this
(20:14):
family and particularly with themother, there would be some
early referral for legal advicethrough LAFPA. And I don't know
Sarah if that's a good time thatwe could discuss some of the
legal aid options that areavailable in terms of the advice
that we give an alternativeavenues to court.
Sarah (20:30):
Yeah for sure. So legal aid's, had a look at some of
their own policies andprocedures to see what sort of
early intervention support wecan provide for parents. So in
this scenario, for example, ifDC J had managed to get in
contact with S's parents firstand of course, that would fall
under the active efforts wheretheir DC j would be expected to
(20:52):
do more than just call onenumber that was on file and
close the file if no oneanswered, active efforts, of
course, would involve them goingto the last known address,
speaking to any known familymembers to try and locate those
parents, to then give them thatearly legal referral. Once
they're with us, there's acouple of things we would look
at doing depending on how longwe have, of course, until the
(21:16):
estimate delivery, and how earlywe're engaged with the parents.
So one of the first options wewould try is to write to DCJ on
the client's behalf. And thismight either be simply to
identify in writing what therisk concerns are alleged to be,
or may be about having DCJconfirm their position regarding
(21:36):
like an upcoming removal in thiscase where the child's yet to be
born. Legal Aid has alsodeveloped a procedure to allow
for these early interventionlawyer assisted mediations. So
for families to attend withcaseworkers and an independent
mediator with the assistance oflegal support on the spot. And
(21:57):
this was not previouslyavailable through legal aid. And
it's important, both familiesand the broader community are
aware that we're now doing this.So more families can be referred
to us to see what sort ofsupport we can provide. There
are a couple of options that wecan discuss with DCJ to consider
alternatives to makingChildren's Court applications,
which is of course removal, butbefore removal, what we would
(22:19):
look at temporary agreements. Sosay for example, there is the
availability to do what's calledtemporary care agreements with
DC J, they're time limited, butthey can allow time for a
parent, for example, to engagewith some mental health
counselling or, you know, dosome drug and alcohol
rehabilitation, if that's what'sneeded. And have, it may be that
(22:41):
someone else in the family istaking care of the child in that
time. But you have an assurancethat dcj won't remove in that
time provided the parentsstaying on their path. Other
alternatives, of course, thatcan be discussed is in
situations where, you know, weget quite a variety of things
that come through Children'sCourt, it's not always just that
(23:02):
classic case where a child isremoved, because of risk
concerns. Sometimes there'squite heartbreaking cases where
children, you know, they mighthave quite a high level of mixed
needs. And within the familystructure, that child can
sometimes pose quite a high riskto the other children within the
family. And those families alsoneed to work with DCJ. And
(23:23):
consider alternatives. It'snever easy, but there are,
unfortunately, somecircumstances where you know,
parents do or parents willdetermine that the best thing
they can do for their child isprovide alternative care
options. So in thosecircumstances, we can speak
about doing orders by agreementthrough the Children's Court
with DC j. So at thosemediations, we would discuss
(23:45):
what's called the care plan, andwhere a care plan can be agreed
between DC J. And both parentsthat have parental
responsibility for the childthat can actually be formalised
through the children's courtwithout having to go through the
formal removal process. And I dojust want to say one of the
biggest differences in in tryingto avoid children's court
(24:06):
proceedings, is that at thatstage, you can have findings
made against you in the court.And those things are quite hard
to come back from at a laterstage. So for example, you know,
if you want to look at appealinga decision or making a section
90 application, but if we canavoid those findings being made
(24:28):
in the children's court at anearly stage, we can I think,
more readily look at some ofthese alternative options that
would enable families to eitherstay together through
alternative care structures, or,you know, whatever circumstances
might be that suit that familymost.
Claudia (24:45):
That's right, and it's really exciting because these
provisions and alternatives havebeen available in the act for
quite a while. And the realityis that they haven't really been
used by DCG and thepractitioners, but now when they
bring an application at removalto the Children's Court DCJ are
(25:06):
gonna have to show that they'veconsidered these options. And
they've made these they've madeefforts and looked into whether
they would be viable and to givereasons as to why they weren't
viable in the circumstances. SoI think that's really exciting
to have some accountabilitythere as well.
Sarah (25:23):
Absolutely. I think if anything, it kind of makes it a
bit easier for us to do our jobsto throw it back on DCJ to say,
Well, look, what have you beendoing in line with these new
provisions? And why haven't theybeen done?
Claudia (25:36):
That's right. And bringing it back to this
scenario of S. Permitted DCJ,were able to get in contact with
the parents, they would have hadto be now some serious referrals
being made and follow up onthose referrals for for
assistance with housing,although that was eventually
resolved, as well as drug andalcohol rehabilitation
(25:59):
programmes, allowing mum sometime to do that programme. And
also some assistance and supportwith the domestic violence
issues. So referral to us andsome community workers there as
well.
Natalie (26:12):
With the case of S, would that also be any
difference now with the paternalgrandmother and aunt?
Sarah (26:19):
The difference here, I think under the new provisions
in the new legislation is thatall of those options should be
explored firsthand. So insteadof like, in essence case, that
she spent six months in out ofhome care, while efforts were
made to identify familyplacements, that should
absolutely be happening beforethe point of removal. So that
(26:43):
grandma, for example, in S'scase, or the paternal aunt, that
were willing to care for thechild could have been contacted
and plans developed for thechild to come into their care.
And whether that might bethrough like a temporary care
agreement that we spoke aboutearlier, because having those
family members agree to thetemporary care arrangements can
(27:03):
sometimes bridge that gap toallow parents to satisfy DCJ,
that the child should stay intheir care in the long term.
Natalie (27:11):
Sarah, do you have one key message for community
workers that you'd like to leaveus with today?
Sarah (27:17):
Yeah, I'd say don't give up. So things will never change.
If we just don't keep takingsteps toward a better child
protection system. We often justhear too much about the things
that go horribly wrong, or justas upsettingly there's so much
that goes wrong, we simply don'thear about. But the truth of it
is any step forward is betterthan a step back, it will be a
(27:39):
slow and hard walk towardimproving outcomes for families
in this space, but it isabsolutely worth it and
something that we all need tokeep, keep working hard towards.
Natalie (27:49):
Thank you for that. And a key message across all our law
for community workers podcast isabout identifying the issue and
knowing where to send theirclients or people they support
for legal help. I think todayhas been a really good way for
community workers to identifyissues if they're working with
(28:12):
families, how to identify ifthere is a care and protection
issue, and where should they besending people for legal advice.
You mentioned law access NewSouth Wales before and that
phone number 1300 888 529 andalso the ALS on 1-800-765-767.
(28:34):
There's also a page on the legalaid New South Wales website all
about LAFPA And there's a linkin the show notes for that, too.
Sarah (28:42):
Another link that we would like to provide for
community workers in the showlinks is toward our resources
page. So I think it's importantthat a lot of community workers
are aware that you can ordermany legal aid publications for
completely free online. Andthere's one in particular,
that's really important aroundthe care and protection, early
(29:03):
intervention space. The pamphletis called Is DCJ talking to you
about your kids? And it's just avery short pamphlet that goes
through some importantinformation for parents to know
and, and refers them on toreceive some legal advice,
including the law access numberas well. So in the shownotes,
you'll find the link for that.And of course, if anyone would
(29:24):
like to order these resources,to your organisation, please, we
encourage you to do so so youcan make more of these referrals
yourself.
Natalie (29:32):
Thanks, Sarah. That's really great to know. Thank you.
Claudia (29:36):
Thank you both. So much. Yeah, thanks so much. Bye.
Natalie (29:41):
Thanks again to our guests, and thank you for
listening. If you have anyfeedback or ideas for podcasts,
please contact us atcle@legalaid.nsw.gov.au
Hi everyone. My name is Natalie. I'm from the Community
Legal Education team at LegalAid New South Wales. Welcome to
our law for community workerspodcast. Before we start, I
would like to acknowledge thetraditional custodians of the
land that we are recording ontoday. I am on the land of the
Gadigal people of the Eoranation, and I pay my respects to
(00:24):
elder's past and present andalso acknowledge Aboriginal
people as the first educators onthis land. Today, we're talking
about some recent changes tocare and protection law in New
South Wales, a really importanttopic for many community
workers, and one that we oftenget requests for. To tell us
(00:44):
about these changes. We'rejoined by two family lawyers,
Claudia and Sarah, welcome, canyou please introduce yourselves
to our audience over to youfirst Sarah.
Sarah (00:55):
Hi, everyone. My name is Sarah. I'm a solicitor with
legal aid in Newcastle. I'mbroadcasting to you today from
the lands of the Awabakal andWorrimi peoples.
Claudia (01:04):
Hi, my name is Claudia. I'm from the Newcastle family
litigation team. As part of thatteam, we work in care and
protection law, as well asfamily court matters and helping
parents reach parentingagreements. Today, I'm
broadcasting from the Eoranation on the lands of the
Gadigal people. Probably myfavourite aspect of the work
(01:26):
that we do is working with theclients and helping them to
resolve what are sometimescomplex and multifaceted issues
that they experience that arenot purely legal and are often
entwined with their socialcircumstances. So as part of
that we work closely withcommunity workers. And that is
(01:47):
something that I really enjoy aspart of the work as well.
Natalie (01:50):
Today, we're going to be talking about some recent
changes to care and protectionlaw. For those that are newer to
this area. Maybe first, can youstart by explaining what do we
mean by care and protection?
Claudia (02:03):
Yeah, absolutely. Natalie, this was something that
I was pretty uncertain aboutwhen I actually started as a
solicitor. So I think it'sreally important to get that
clear from the beginning. ChildProtection Law is about the laws
that deal with making sure thatchildren are safe and well cared
for it covers matters like whathappens when there are concerns
that children are at risk, aswell as the work that needs to
(02:24):
be done to keep children withinfamilies and safe. Um, it also
touches on when children shouldbe removed from their family and
how they'll be cared for if thathappens. And if possible, the
work that needs to be done tohave those children's returned
to their families. It's justimportant to note that each
state and territory has theirown child protection laws. In
New South Wales, our law is thechildren and young person's care
(02:47):
and protection act. And theagency that deals with care and
protection in New South Wales iscalled the Department of
Communities and justice and itsabbreviation is DCJ. Sometimes
it's referred to as DOCS, orFACS. And they're just previous
names that the department hasheld.
Natalie (03:01):
Thanks for pointing that out, Claudia. Because
sometimes we do get peoplelistening who live and work in
other states and territories. Sothe laws in there will be
different.
Claudia (03:11):
That's right, Natalie.
Natalie (03:12):
So what we're talking about today in this podcast is
what's new, and what's changedin care and protection law in
New South Wales. So can youplease start by explaining what
is new and I understand animportant date was the 15th of
November 2023. So what's changedfrom that date?
Claudia (03:32):
Absolutely, Natalie. So there has been quite significant
changes within the space. Andfrom the 15th of November, these
changes have taken effect. Soreforms to the care and
protection act, some of thesereforms, and probably the most
relevant ones for communityworkers is a provision about
active efforts. So I don't wantto get too bogged down in the
(03:55):
legalese of it all. But it's aprovision that holds the
department accountable to ensurethat active efforts are made
before proceedings are broughtto the court and to prevent
removal of children from theirfamilies. And also if they have
been removed active efforts ofworking with families to restore
children back to their families.There's some other amendments
(04:16):
too Sarah, if you want to speakto that.
Sarah (04:18):
Absolutely Claudia. So another important provision, and
one that commenced prettystraight away it was in November
2022. And something I foundthat's quite important for
clients when we've been workingwith them. It was in relation to
a presumption that applied tofamilies where children had been
removed previously. So sinceNovember of 2022, this
(04:40):
presumption, it's still relevantconsideration for the court. But
it no longer presumes that aparent is incapable of providing
appropriate care for theirchild. So what this does is
again, puts the onus back on theDepartment of Communities and
justice to show what caseworkthey're doing in relation to
each child, and not removingchildren on the presumption that
(05:04):
it simply happened in the past.
Natalie (05:05):
So Sarah, in the past, you would hear stories about
babies being removed fromhospital because a parent had
children removed in the past. Sothat doesn't happen anymore.
Sarah (05:16):
So the change is that the presumption is not showing that
parents are having to prove toDCJ that now they're in an
appropriate position to care forthat child. What it's doing is
it's sort of readjusting thecasework that DCJ should be
doing for that family to sort oftreat that pregnancy the same as
(05:37):
it's a first pregnancy. So thosefamilies should still be given
the same opportunities to bereferred for early intervention
services, and be supported witha view to family preservation.
Evidence of prior removal willstill be relevant for children's
court proceedings. But itdoesn't determine what the final
outcome should be in futureproceedings.
Natalie (06:00):
The family is culture review report was released back
in 2019. It was an independentreview of Aboriginal children in
out of home care. Can you talk alittle bit about that report, or
that review and what it wasseeking to find out?
Claudia (06:17):
I can speak to that Natalie, the families and
culture families is culturereview, and the subsequent
report was a really significantreport within the care and
protection space. And it'sreally been the impetus for a
lot of these reforms that we'retalking about today. So I think
it's a really good idea that wejust give you a brief overview
(06:38):
about it. So at the time, NewSouth Wales had and
unfortunately continues to havea disproportionate and
increasing number of Aboriginalchildren and young people in out
of home care. So in 2016, toexamine why the New South Wales
Government organised this familyis culture independent review,
(07:00):
which led to the report. So thereview looked at the individual
circumstances of 1153 Aboriginalchildren and young people who
entered out of homecare in NewSouth Wales between 1 July 2015
and 30 June 2016. So while thatwas the main focus, it also
looked more broadly at theimpact of case management
(07:23):
systems and policies within DCJ, and how these practices are
impacting Aboriginal children,young people and their families.
It also looked at the level ofinvolvement of children and
families, as well as aboriginalcommunities and the community
service sector in decisionmaking for Aboriginal children
(07:43):
and young people in out of homecare. So this report was
released in 2019. And it made126 systemic recommendations for
change. I think it was about 106of the recommendations. Were
recommendations that were DCJspecific. So there were other
recommendations for otherorganisations like the
Children's Court, Legal Aid,also, the judicial commission
(08:07):
and the office of the children'sguardian. So that included
legislative reform, and policyand practice change.
Natalie (08:15):
And those form recommendations apply to the
whole system, not just toAboriginal and Torres Strait
Islander children and youngpeople. Is that right?
Claudia (08:24):
That's, that's correct, Natalie, so that it's this
system change for the wholesystem for all families, but
there have been some specificreforms relating to Aboriginal
children specifically as well.
Natalie (08:37):
And are there any particular findings that really
stood out to you?
Claudia (08:40):
There are a lot of findings. Something Yeah, 126.
Yeah, 400 500 page report. But Ithink most relevant, and I'm
using the New South Walesgovernment, they categorise the
recommendations and the findingsinto five different categories.
And the fourth category isfindings in relation to services
(09:03):
and support. So it's probablythe most relevant for community
workers. And I think the mostrelevant is probably the focus
and the shift from having thatreactive, things have happened.
We need to remove children startproceedings, to more of a
proactive support for familieswithin the community, and a
(09:25):
greater focus on earlyintervention before removals. So
one of the findings was that alot of families they have a
whole wide array of issuesacross different areas, so
housing, drug issues, perhapsmental health issues, and what
they really need is holisticservice provision. And I think
(09:45):
the recommendation that led tothis was DC J specific. There
was a recommendation that DC Jlook into creating holistic
services for families, but Ithink community workers can kind
of take take that on as theirown recommendation in
coordinating with each other andspeaking to families to see what
(10:06):
other issues they might have andreferring them on, and staying
in touch with the other serviceproviders where possible,
because I find I don't know ifSarah comes across this a lot,
but a lot of my clients, theyget lost in the amount of people
that they're speaking to thereferrals that they've been
given. And it all gets a bitoverwhelming. So if the
community workers and serviceproviders can speak to one
(10:27):
another, kind of removes that,that aspect of just feeling like
you're being blown betweenpeople, but obviously through
LAFPA, which several will speakto later, there has been some
more recommendations that havebeen implemented by DC J. And
it's definitely being reflectedin the reforms that had recently
(10:48):
passed as well.
Natalie (10:49):
So you mentioned LAFPA, maybe we will go to that now. So
it stands for lots of acronymsin our work, that legal
assistance for familiesPartnership Agreement, or left
bar, did you want to explainwhat that is and how it's
changing the way things aredone?
Sarah (11:11):
Yeah, I can speak to that Natalie. So the LAFPA agreements
developed between threeorganisations, the Department of
Communities and justice,Aboriginal legal service and
Legal Aid New South Wales. It'slargely in response to a lot of
the recommendations under thefamily is culture report,
because like Claudia mentioned,you know, we all have a role to
play in actioning. Theserecommendations, but LAFPA
(11:32):
basically confirms a renewedintention to work more
collaboratively together andachieve better outcomes for
families who come into contactwith child protection services
in New South Wales. Theagreement is publicly available
through the Legal Aid website,and there'll be a link provided
in the show notes for any of youinterested to read it for
yourself. As a brief summary,though the agreement encompasses
(11:52):
four main objectives. Numberone, regular opportunities to
collaborate and communicate.Number two, to prioritise early
intervention work, three, toembed the electronic provision
of core applications into commonpractice. And for to give
precedence to alternativedispute resolution models. In
(12:12):
practical terms, though, howthis is really changing, the way
that we work is that it'sputting obligations on senior
staff across each of theorganisations to actively
participate in theseconversations, to help improve
some transparency aroundorganisational policies and
procedures. So I can't tell youhow many times I've found the
(12:33):
most difficult part of my job inthis space, is just not always
understanding how DCJ operates.For example, like I find it hard
to advocate for a clientsometimes without understanding
how their internal policieswork. So I'm unable to then
shift perhaps the view on thosepolicies or which model a family
(12:53):
is put into. So for example,whether they're supported for
restoration, or whether they'renot supported for restoration,
it's just not clear to ussometimes how those decisions
are made, who's approved forfunding and who gets denied.
Natalie (13:06):
I'm just gonna ask you, when you say restoration in the
care space, that means for achild to be returned to their
family, their parents.
Sarah (13:15):
Correct, so and that can either be to both parents or it
can be to either parentindependent of the other parent.
I can confirm things arebeginning to change for us
internally, but it is still along road ahead. And there's
still so much more to learn andimprove on I can confirm Legal
Aid has commenced LAFPA trainingfor all of it's staff, which has
continued throughout all of thisyear for staff to become
(13:38):
familiar with these newexpectations for DC J and for
our own organisations set outunder the agreement. As it
relates to families though theLAFPA agreement is changing the
way these organisations arehandling child protection
matters. So it's not meant to bejust business as usual, we
prioritise early interventionand alternative dispute
resolution. Families are then tobe provided with early and
(14:02):
regular referrals for legaladvice and assistance at various
critical points when dealingwith DCJ.
Natalie (14:08):
You mentioned before the role of community workers in
sort of supporting families andearly intervention, are there
any other things you thinkcommunity workers can play a
role in, in this area of careand protection law?
Sarah (14:23):
Yeah, absolutely. You know, I think they have quite an
important role, almost one ofthe most important roles in this
space, as it relates to bothchild safety but also as it
relates to early interventionwork with families. You know, we
all understand that manyfamilies, especially Aboriginal
families have great reason notto trust Child Protective
Services. And this means theymay not follow recommendations
(14:44):
to seek legal advice where theserecommendations are coming from
DCJ. So community workers, Ithink, have a vital role to play
in referring parents thatthey're working with to legal
aid for legal advice as early aspossible. If you're working with
a client and you know thatthey're in contact with DC J,
there's no harm in providingthem with our law access number,
(15:07):
which is 1300 888 529 andletting them know they can
access this service as early aspossible. And there are options
to children's court proceedings.
Natalie (15:18):
Thanks for that. And community workers can also refer
clients to the Aboriginal legalservice for advice on
1-800-765-767. The ALS helpsAboriginal and Torres Strait
Islander people across New SouthWales and the ACT.
Sarah (15:35):
There's also opportunities to identify and
refer families you might beworking with to receive
additional supports fromappropriate services. Again,
like Claudia mentioned, thatmight be in relation to poor
mental health, drug and alcoholmisuse, inadequate housing any
of those sorts of concerns forDC J. If you identify that a
(15:57):
parent might need support inthose areas, the more wraparound
services that can be involved,the more limited the need for DC
J to intervene. But of course,for community workers, a lot of
community workers do havemandatory reporting obligations.
So when anyone's concerned thata child or young person is at
(16:18):
risk can report their concernsto DC J through the Child
Protection helpline. And that's132111, community workers
providing services to childrenmust report any disclosures made
if they have reasonable groundsto suspect that children are at
risk of harm. Any reports thatare made to the Child Protection
hotline can of course beanonymous,
Natalie (16:39):
You mentioned that many community workers would be
mandatory reporters. Did youjust want to talk a little bit
about lawyers obligations aroundreporting?
Sarah (16:50):
Yeah for sure. So this may come as a surprise for some,
but lawyers don't actually havemandatory reporting obligations
at all. The reason for this, ofcourse, is that client
communications with theirlawyers are subject to strict
confidentiality and privilege.And this includes any
disclosures made about actual orsuspected child abuse. Depending
(17:11):
on perspective, I understandthis can be viewed as a negative
or a positive, especially wherewe might have such intimate
information about such matters.But the importance of
maintaining confidentiality,especially in this space, is
that it enables clients to beopen and frank in their
discussions about what areusually some very traumatic
family circumstances thatthey're experiencing. Of course,
(17:34):
as a lawyer engaged in thisspace, child safety is always
the first thing on my mind,because that's the priority set
out under the law. But withinthe solicitors conduct rules,
which we are also required tofollow is that I can't mislead
the court. So for example, if aparent I represent makes
disclosures to me about abusingchildren, or more often abusing
(17:56):
drugs and alcohol, I can'tmislead the court to believe my
client is not doing thosethings. And if they of course,
wanted me to do that, I wouldneed to withdraw from
representing them. So I hopethis answers that question makes
things a little clearer.
Natalie (18:12):
Thanks, Sarah. Sarah. Or, Claudia, can you please
explain a bit more about howwould these amendments work in
practice?
Claudia (18:20):
That's a really great question. And I think it would
be really useful for communityworkers to know how it would
work in practice and what theirrole can be in particular
scenarios. So we've pulled out ascenario from the family is
culture report. It is anonymizedand it is based on a true story.
And we can just read it out andthen perhaps go through and
(18:43):
point out some of the pointswhere these reforms will take
effect and things might haveplayed out a bit differently for
this family. So S was removed atbirth because of concerns about
her parents drug usehomelessness and concerns that a
father was violent towards hermother. However, prior to S's
birth and subsequent removal byFACS, as it was known then, did
not attempt any earlyintervention work with S's
(19:06):
parents despite concerns beingreported about the unborn baby,
and FACS being aware that S hadtwo older siblings who are
already in long term care.Although the file was allocated
to a caseworker for a shortperiod of time, it was closed on
the basis that S's parents couldnot be located. Although there
were limited records of theefforts that were made to locate
them approximately one weekbefore her birth S's parents
(19:29):
obtained stable housing. FurtherS's paternal grandmother and
aunt both indicated that theywere willing to help obtain
provisions for the baby and S'smother reported that she wished
to attend a drug and alcoholresidential rehabilitation
programme. Despite all this Swas removed at birth. FACS did
not complete an Aboriginalconsultation prior to her
removal, and did not involve herfamily in planning for her
(19:52):
future placement, as spentapproximately six months in the
care of an Aboriginal fostercarer. While efforts were made
to identify an appropriatefamily placement for her. So I
suppose looking at thatscenario, some of the standout
points are really at that earlyintervention stage, perhaps how
things would play out now, ifDCJ were working with this, this
(20:14):
family and particularly with themother, there would be some
early referral for legal advicethrough LAFPA. And I don't know
Sarah if that's a good time thatwe could discuss some of the
legal aid options that areavailable in terms of the advice
that we give an alternativeavenues to court.
Sarah (20:30):
Yeah for sure. So legal aid's, had a look at some of
their own policies andprocedures to see what sort of
early intervention support wecan provide for parents. So in
this scenario, for example, ifDC J had managed to get in
contact with S's parents firstand of course, that would fall
under the active efforts wheretheir DC j would be expected to
(20:52):
do more than just call onenumber that was on file and
close the file if no oneanswered, active efforts, of
course, would involve them goingto the last known address,
speaking to any known familymembers to try and locate those
parents, to then give them thatearly legal referral. Once
they're with us, there's acouple of things we would look
at doing depending on how longwe have, of course, until the
(21:16):
estimate delivery, and how earlywe're engaged with the parents.
So one of the first options wewould try is to write to DCJ on
the client's behalf. And thismight either be simply to
identify in writing what therisk concerns are alleged to be,
or may be about having DCJconfirm their position regarding
(21:36):
like an upcoming removal in thiscase where the child's yet to be
born. Legal Aid has alsodeveloped a procedure to allow
for these early interventionlawyer assisted mediations. So
for families to attend withcaseworkers and an independent
mediator with the assistance oflegal support on the spot. And
(21:57):
this was not previouslyavailable through legal aid. And
it's important, both familiesand the broader community are
aware that we're now doing this.So more families can be referred
to us to see what sort ofsupport we can provide. There
are a couple of options that wecan discuss with DCJ to consider
alternatives to makingChildren's Court applications,
which is of course removal, butbefore removal, what we would
(22:19):
look at temporary agreements. Sosay for example, there is the
availability to do what's calledtemporary care agreements with
DC J, they're time limited, butthey can allow time for a
parent, for example, to engagewith some mental health
counselling or, you know, dosome drug and alcohol
rehabilitation, if that's what'sneeded. And have, it may be that
(22:41):
someone else in the family istaking care of the child in that
time. But you have an assurancethat dcj won't remove in that
time provided the parentsstaying on their path. Other
alternatives, of course, thatcan be discussed is in
situations where, you know, weget quite a variety of things
that come through Children'sCourt, it's not always just that
(23:02):
classic case where a child isremoved, because of risk
concerns. Sometimes there'squite heartbreaking cases where
children, you know, they mighthave quite a high level of mixed
needs. And within the familystructure, that child can
sometimes pose quite a high riskto the other children within the
family. And those families alsoneed to work with DCJ. And
(23:23):
consider alternatives. It'snever easy, but there are,
unfortunately, somecircumstances where you know,
parents do or parents willdetermine that the best thing
they can do for their child isprovide alternative care
options. So in thosecircumstances, we can speak
about doing orders by agreementthrough the Children's Court
with DC j. So at thosemediations, we would discuss
(23:45):
what's called the care plan, andwhere a care plan can be agreed
between DC J. And both parentsthat have parental
responsibility for the childthat can actually be formalised
through the children's courtwithout having to go through the
formal removal process. And I dojust want to say one of the
biggest differences in in tryingto avoid children's court
(24:06):
proceedings, is that at thatstage, you can have findings
made against you in the court.And those things are quite hard
to come back from at a laterstage. So for example, you know,
if you want to look at appealinga decision or making a section
90 application, but if we canavoid those findings being made
(24:28):
in the children's court at anearly stage, we can I think,
more readily look at some ofthese alternative options that
would enable families to eitherstay together through
alternative care structures, or,you know, whatever circumstances
might be that suit that familymost.
Claudia (24:45):
That's right, and it's really exciting because these
provisions and alternatives havebeen available in the act for
quite a while. And the realityis that they haven't really been
used by DCG and thepractitioners, but now when they
bring an application at removalto the Children's Court DCJ are
(25:06):
gonna have to show that they'veconsidered these options. And
they've made these they've madeefforts and looked into whether
they would be viable and to givereasons as to why they weren't
viable in the circumstances. SoI think that's really exciting
to have some accountabilitythere as well.
Sarah (25:23):
Absolutely. I think if anything, it kind of makes it a
bit easier for us to do our jobsto throw it back on DCJ to say,
Well, look, what have you beendoing in line with these new
provisions? And why haven't theybeen done?
Claudia (25:36):
That's right. And bringing it back to this
scenario of S. Permitted DCJ,were able to get in contact with
the parents, they would have hadto be now some serious referrals
being made and follow up onthose referrals for for
assistance with housing,although that was eventually
resolved, as well as drug andalcohol rehabilitation
(25:59):
programmes, allowing mum sometime to do that programme. And
also some assistance and supportwith the domestic violence
issues. So referral to us andsome community workers there as
well.
Natalie (26:12):
With the case of S, would that also be any
difference now with the paternalgrandmother and aunt?
Sarah (26:19):
The difference here, I think under the new provisions
in the new legislation is thatall of those options should be
explored firsthand. So insteadof like, in essence case, that
she spent six months in out ofhome care, while efforts were
made to identify familyplacements, that should
absolutely be happening beforethe point of removal. So that
(26:43):
grandma, for example, in S'scase, or the paternal aunt, that
were willing to care for thechild could have been contacted
and plans developed for thechild to come into their care.
And whether that might bethrough like a temporary care
agreement that we spoke aboutearlier, because having those
family members agree to thetemporary care arrangements can
(27:03):
sometimes bridge that gap toallow parents to satisfy DCJ,
that the child should stay intheir care in the long term.
Natalie (27:11):
Sarah, do you have one key message for community
workers that you'd like to leaveus with today?
Sarah (27:17):
Yeah, I'd say don't give up. So things will never change.
If we just don't keep takingsteps toward a better child
protection system. We often justhear too much about the things
that go horribly wrong, or justas upsettingly there's so much
that goes wrong, we simply don'thear about. But the truth of it
is any step forward is betterthan a step back, it will be a
(27:39):
slow and hard walk towardimproving outcomes for families
in this space, but it isabsolutely worth it and
something that we all need tokeep, keep working hard towards.
Natalie (27:49):
Thank you for that. And a key message across all our law
for community workers podcast isabout identifying the issue and
knowing where to send theirclients or people they support
for legal help. I think todayhas been a really good way for
community workers to identifyissues if they're working with
(28:12):
families, how to identify ifthere is a care and protection
issue, and where should they besending people for legal advice.
You mentioned law access NewSouth Wales before and that
phone number 1300 888 529 andalso the ALS on 1-800-765-767.
(28:34):
There's also a page on the legalaid New South Wales website all
about LAFPA And there's a linkin the show notes for that, too.
Sarah (28:42):
Another link that we would like to provide for
community workers in the showlinks is toward our resources
page. So I think it's importantthat a lot of community workers
are aware that you can ordermany legal aid publications for
completely free online. Andthere's one in particular,
that's really important aroundthe care and protection, early
(29:03):
intervention space. The pamphletis called Is DCJ talking to you
about your kids? And it's just avery short pamphlet that goes
through some importantinformation for parents to know
and, and refers them on toreceive some legal advice,
including the law access numberas well. So in the shownotes,
you'll find the link for that.And of course, if anyone would
(29:24):
like to order these resources,to your organisation, please, we
encourage you to do so so youcan make more of these referrals
yourself.
Natalie (29:32):
Thanks, Sarah. That's really great to know. Thank you.
Claudia (29:36):
Thank you both. So much. Yeah, thanks so much. Bye.
Natalie (29:41):
Thanks again to our guests, and thank you for
listening. If you have anyfeedback or ideas for podcasts,
please contact us atcle@legalaid.nsw.gov.au
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