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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Child Protection Legislation Amendment
Bill 2013
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to amend the Children and Young Persons (Care and Protection) Act
1998 (the Principal Act), the Adoption Act 2000, the Child Protection (Working with Children)
Act 2012 and other legislation to implement miscellaneous reforms relating to the protection of
children and young persons that are intended to:
(a) promote good parenting and increase parental responsibility for children and young
persons, and
(b) achieve greater permanency for children and young persons in out-of-home care, and
(c) modernise and create a more responsive and child focused system, and
(d) improve the transparency and accountability of child protection services.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed
by proclamation.
b2013-119-19.d19
Child Protection Legislation Amendment Bill 2013 [NSW]
Explanatory note
Schedule 1 Amendment of Children and Young Persons
(Care and Protection) Act 1998 No 157
Promotion of good parenting and increase of parental responsibility for
children and young persons
Parent responsibility contracts
Schedule 1 [13]-[28] make a number of amendments to the Principal Act to expand the use, and
increase the effectiveness, of parent responsibility contracts. The amendments:
(a) amend sections 38A, 38B and 38E of the Principal Act to enable the Director-General of
the Department of Family and Community Services (the Director-General) to enter into a
parent responsibility contract with an expectant parent whose unborn child has been the
subject of a pre-natal report under section 25 of the Principal Act and that contains
provisions aimed at improving the parenting skills of the prospective parent and reducing
the likelihood that the child will be at risk of significant harm after birth, and
(b) amend section 38A (2) (e) of the Principal Act to extend the period during which a parent
responsibility contract may be in force from 6 to 12 months after it is registered with the
Children's Court, and
(c) omit section 38E (4) of the Principal Act to remove the automatic presumption that a child
or young person is in need of care and protection if a contract breach notice is filed in the
Children's Court.
Schedule 1 [9] and [38] are consequential amendments.
Parent capacity orders
Schedule 1 [65] inserts Part 3 (proposed sections 91A-91I) into Chapter 5 of the Principal Act to
enable the Children's Court to make a new form of order requiring a parent or primary care-giver
of a child or young person to attend or participate in a program, service or course or engage in
therapy or treatment aimed at building or enhancing his or her parenting skills (a parent capacity
order).
A parent capacity order will be able to be made on the application of the Director-General or on
the Children's Court's own initiative if it finds that a prohibition order has been breached under
proposed section 90A of the Principal Act. The Children's Court may require the Director-General
and the parent or primary care-giver concerned to attend a dispute resolution conference
conducted by a Children's Registrar so as to provide the parties with an opportunity to agree on
action that should be taken to build or enhance the parenting skills of the parent or primary
care-giver. The Children's Court may make a parent capacity order if it is satisfied there is an
identified deficiency in the parenting capacity of the parent or primary care-giver that has the
potential to place the child or young person at risk of significant harm, that it is reasonable and
practicable to require compliance with the order and that the parent or primary care-giver is
unlikely to engage in the required program, service, course, therapy or treatment unless the order
is made. The parties are able to make a parent capacity order by consent (proposed section 91F)
and may seek its variation or revocation. Parties may also appeal on a question of law against the
making of the order (proposed section 91I).
Schedule 1 [90] inserts Chapter 15A (proposed sections 244A-244C) into the Principal Act.
Proposed section 244A defines alternative dispute resolution so as to encompass the different
processes (such as family group conferencing) that may be used where the Act provides for use of
alternative dispute resolution. Proposed section 244B limits the admissibility in proceedings in
any court, tribunal or other body of anything said or done or any admission made during
alternative dispute resolution. Proposed section 244C limits the circumstances in which a person
who conducts or participates in alternative dispute resolution may disclose anything said or done
or any admission made during the alternative dispute resolution to another person.
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Child Protection Legislation Amendment Bill 2013 [NSW]
Explanatory note
Schedule 1 [2], [10]-[12], [30]-[36], [66], [68] and [70] make amendments that are consequential
on those made by Schedule 1 [65] and [90]. Schedule 1 [29] makes it clear that a parent capacity
order is not a care order for the purposes of the Principal Act.
Achievement of greater permanency for children and young persons in
out-of-home care
Permanent placement principles
Schedule 1 [5] and [6] amend sections 8 and 9, respectively, of the Principal Act and
Schedule 1 [7] inserts proposed section 10A into that Act to provide for recognition that the
primary means of providing for the safety, welfare and well-being of children and young persons
is by providing them with long-term, safe, nurturing, stable and secure environments through
permanent placement in accordance with permanent placement principles. Proposed
section 10A (3) sets out the preferred hierarchy for permanent placements. Under the principles,
the first preference is for a child or young person to be restored to the care of his or her parents,
the second is for guardianship of a relative, kin or other suitable person, the third is (except in the
case of Aboriginal and Torres Strait Islander children and young persons) for the child or young
person to be adopted and only after these options prove to be impracticable, or not in the best
interests of the child or young person, for the child or young person to be placed as a last
preference, under the parental responsibility of the Minister. In the case of an Aboriginal or Torres
Strait Islander child or young person, adoption is the last preference. The principles are intended
(subject to sections 8 and 9 of the Principal Act) to guide all actions and decisions made under the
Act regarding permanent placements. Schedule 1 [47] and [48] amend section 78A of the
Principal Act to require the permanent placement principles to be taken into account in the making
of permanency plans. Proposed section 79 (3) (Schedule 1 [49]) requires the Children's Court to
give particular consideration to the principles when making an order allocating parental
responsibility.
Schedule 1 [53] amends section 83 (4) so that the Director-General must consider whether
adoption is the preferred option for a child or young person in preparing a permanency plan for
the placement of a child or young person for whom there is no realistic possibility of restoration
to his or her parents.
Schedule 1 [1], [3],[4], [8], [54], [56] and [73] make consequential amendments to the Principal
Act.
Out-of-home care
Schedule 1 [55] substitutes section 83 (5) of, and inserts proposed section 83 (5A) into, the
Principal Act to require the Children's Court to make a decision about the feasibility of restoration
within specified time frames unless it decides to defer the decision in the best interests of the child
or young person.
Schedule 1 [80] substitutes section 153 (3) and inserts proposed section 153 (4) into the Principal
Act to provide that a child or young person cannot be placed in out-of-home care with a relative
or kin otherwise than by a court order for more than 2 years. Schedule 1 [79] is a consequential
amendment.
Schedule 1 [81] amends section 155 of the Principal Act so that a designated agency will not be
required to conduct a review under that section in relation to the out-of-home care arrangements
of a child or young person who is in supported out-of-home care of a relative or kin pursuant to a
court order in certain circumstances.
Allocation of parental responsibility and guardianship orders
Schedule 1 [49], [51] and [76]-[78] amend the Principal Act to clarify and enhance provisions of
the Act relating to the allocation of parental responsibility.
Sections 79 and 81 are merged to provide a clearer system for the allocation of parental
responsibility and provision is made for the making of guardianship orders by the Children's
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Child Protection Legislation Amendment Bill 2013 [NSW]
Explanatory note
Court allocating all aspects of parental responsibility for a child or young person in statutory
out-of-home care or supported out-of-home care or who it has found is in need of care and
protection to one or more persons, jointly, until the child reaches 18 years of age (proposed
sections 79A-79C).
The Children's Court may make such an order only if satisfied that there is no realistic possibility
of the child or young person being restored to his or her parents, that the child or young person
will be provided with a safe, nurturing, stable and secure environment, that, in the case of an
Aboriginal or Torres Strait Islander child or young person, the principles set out in section 13 of
the Principal Act are applied and that, if the child or young person is 12 or more years of age and
capable of giving consent, the child or young person has consented. Proposed section 79C makes
provision for financial assistance with respect to children and young persons who are the subject
of guardianship orders. Schedule 1 [94] includes savings and transitional provisions deeming
orders under section 79 (1) (a) (iii) to be guardianship orders and preserving arrangements for
financial assistance for such authorised carers. Schedule 2.5 amends the Guardianship Act 1987
to ensure there is no inconsistency between guardianship orders made under the Principal Act and
guardianship orders made under that Act. Schedule 1 [74] amends section 135 to make it clear
that a child or young person under a guardianship order is not in out-of-home care. Schedule 1
[40]-[43], [50], [52], [59] and [91] are consequential amendments.
Schedule 1 [76]-[78] repeal section 149 (which provides for the making of orders awarding sole
parental responsibility for children and young persons for whom the Minister has parental
responsibility to the authorised carers of the children or young persons in certain circumstances)
and sections 149AA and 149A.
Adoption of children in out-of-home care
The Bill makes a number of amendments to the Principal Act and the Adoption Act 2000 to
simplify the processes for the adoption of children and young persons in out-of-home care and
enable more expeditious permanent placement of children and young persons.
Schedule 1 [75] amends section 137 of the Principal Act to enable a regulatory framework to be
established for dual authorisation of authorised carers and prospective adoptive parents.
Schedule 1 [88] and [89] amend section 181 to confer functions on the Children's Guardian of
accrediting adoption service providers under the Adoption Act 2000 and monitoring the carrying
out of their responsibilities and those of the Director-General with respect to the provision of
adoption services under that Act.
Schedule 2.1 amends the Adoption Act 2000 as follows:
(a) to provide for the Children's Guardian to accredit non-government organisations to provide
adoption services and to monitor the carrying out of their responsibilities and those of the
Director-General with respect to adoption services under that Act (proposed section 12,
Schedule 2.1 [5]),
(b) to establish a framework that will enable organisations providing services in relation to both
out-of-home care and adoption to be accredited through a single process and to be subject
to integrated standards in accordance with the regulations (proposed section 13,
Schedule 2.1 [5]),
(c) by establishing a framework for simplified procedures to enable the authorised carers of a
child who is in out-of-home care to be invited to apply to adopt the child and to be assessed
as suitable to adopt the child (Schedule 2.1 [9]),
(d) to enable a birth parent who has not consented to the adoption of a child to be given the
opportunity to participate in the development of, and agree to, the adoption plan for the
child and to the review of such a plan (Schedule 2.1 [10]),
(e) to ensure that prospective adoptive parents cannot be assessed to be suitable to adopt a child
unless they (and adult persons residing with them) have a working with children check
clearance under the Child Protection (Working with Children) Act 2012 (Schedule 2.1 [8]).
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Child Protection Legislation Amendment Bill 2013 [NSW]
Explanatory note
Schedule 2.2 amends the Child Protection (Working with Children) Act 2012 to require
prospective adoptive parents and prospective guardians under proposed section 79A of the
Principal Act, and adults residing with them, to obtain a working with children check clearance of
the volunteer class in certain circumstances.
Modernise and provide a more child focused system
Supervision orders
Schedule 1 [44]-[46] amend section 76 of the Principal Act to enable the Children's Court to
make a supervision order under that section for a longer period than 12 months (but not exceeding
24 months) if it is satisfied of special circumstances warranting the making of an order of that
length and it is appropriate to do so.
Contact orders
Schedule 1 [57] and [58] amend section 86 of the Principal Act to provide for more flexibility
concerning the persons who may seek a contact order and for use of alternative dispute resolution
regarding contact arrangements. Schedule 1 [38] is a consequential amendment.
Schedule 1 [60] inserts proposed section 86 (6) into the Principal Act to limit the duration of initial
contact orders (where there is no realistic possibility of restoration of a child or young person to
his or her parents) to a maximum period of 12 months.
Schedule 1 [61] inserts proposed section 86A into the Principal Act to enable a contact order to
be varied in the light of a change in circumstances since the contact order was last made or varied
by agreement of the parties to the proceedings in which the contact order was made who are
affected by the variation.
Schedule 1 [62] amends section 90 of the Principal Act to require an applicant for rescission or
variation of a care order to notify affected parties (subject to any order of the Children's Court).
Prohibition orders
Schedule 1 [63] amends section 90A of the Principal Act to enable the Children's Court to make
prohibition orders during care proceedings prohibiting any persons, including persons who are not
parties to the proceedings, from doing anything that could be done by a parent in carrying out his
or her parental responsibility.
Schedule 1 [64] amends section 90A to enable parties to care proceedings in which a prohibition
order is made to notify the Children's Court of alleged breaches of the prohibition order and to
confer on the Children's Court powers to make orders if it determines a breach has occurred. The
powers conferred include power to make a parent capacity order under proposed Part 3 of
Chapter 5 (see Schedule 1 [65]).
Reporting requirements
Schedule 1 [71] and [72] amend section 122 of the Principal Act to clarify mandatory reporting
requirements under that section so that they will not apply to friends or relatives who provide
residential accommodation to a child living away from home without parental permission in
specified circumstances.
Special medical treatment
Schedule 1 [84]-[86] amend section 175 of the Principal Act to provide that the prescription of
drugs of addiction and treatment that does not comply with certain national health ethical
guidelines is special medical treatment under the Principal Act and to enable the grant of
exemptions in specified circumstances.
Schedule 1 [87] inserts proposed section 177A into the Principal Act to enable regulations to be
made for or with respect to the procedures to be followed by the designated agency having
supervisory responsibility for a child or young person in out-of-home care in authorising,
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Child Protection Legislation Amendment Bill 2013 [NSW]
Explanatory note
consenting to or monitoring the physical, psychological, psychiatric or other medical
examinations, treatment and control of the behaviour of the child or young person under Chapter 9
of the Principal Act.
Exchange of information
Schedule 1 [92] enables bodies and classes of bodies and organisations in addition to those
specified in section 248 (6) to be prescribed for the purpose of Chapter 16A of the Principal Act.
Chapter 16A provides for the exchange of information and co-ordination of services to children
and young persons by prescribed bodies, authorises them to exchange relevant information and
protects the confidentiality of information exchanged.
Improving transparency and accountability
Schedule 1 [67] amends section 105 of the Principal Act to make it clear that the provisions of
that section prohibiting the publication of names and identifying information concerning children
and young persons extend to publication on the internet.
Schedule 1 [83] inserts section 172A into the Principal Act to require the Director-General to
report to the Minister annually with respect to the deaths of children and young persons in
specified circumstances. The Minister is required to table a copy of the report in Parliament as
soon as practicable after it is made.
Miscellaneous
Schedule 1 [37] inserts section 67A to make it clear that the Children's Court may make
consecutive care orders.
Schedule 1 [69] amends section 116 to better reflect current practice with respect to notification
of applications for orders for alternative parenting plans.
Schedule 1 [82] amends section 161 to enable the regulations to prescribe additional
circumstances in which financial assistance may be provided under that section.
Schedule 1 [93] amends Schedule 3 to the Principal Act to enable the making of savings and
transitional regulations.
Schedule 2.3 repeals the uncommenced provisions of the Children Legislation Amendment (Wood
Inquiry Recommendations) Act 2009. Those provisions are superseded by the proposed
amendments described above relating to contact orders and alternative dispute resolution.
Page 6
First print
New South Wales
Child Protection Legislation Amendment
Bill 2013
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Children and Young Persons (Care and Protection)
Act 1998 No 157 3
Schedule 2 Amendment of other Acts and Regulation 28
b2013-119-19.d19
New South Wales
Child Protection Legislation Amendment
Bill 2013
No , 2013
A Bill for
An Act to make miscellaneous amendments to the Children and Young Persons (Care and
Protection) Act 1998; to make consequential and related amendments to the Adoption Act 2000
and the Child Protection (Working with Children) Act 2012 and other legislation; and for other
purposes.
Child Protection Legislation Amendment Bill 2013 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Child Protection Legislation Amendment Act 2013. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
Schedule 1 Amendment of Children and Young Persons 1
(Care and Protection) Act 1998 No 157 2
[1] Section 3 Definitions 3
Insert in alphabetical order: 4
alternative dispute resolution--see section 244A. 5
Children's Registrar means a Children's Registrar within the meaning of the 6
Children's Court Act 1987. 7
contact order--see section 86 (1). 8
guardianship order--see section 79A (2). 9
kin of a child or young person means a person who shares a cultural, tribal or 10
community connection with the child or young person that is recognised by 11
that child or young person's family or community. 12
parent capacity order--see section 91A. 13
permanent placement--see section 10A (1). 14
permanent placement principles--see section 10A (3). 15
prohibition order--see section 90A(1). 16
relative of a child or young person means any of the following: 17
(a) a parent, step-parent, or spouse of a parent or step-parent, of the child or 18
young person, 19
(b) a grandparent, brother, sister, step-brother, step-sister, cousin, niece or 20
nephew, uncle or aunt (whether by blood, marriage, affinity or 21
adoption) of the child or young person, 22
(c) a person who has parental responsibility for the child or young person 23
(not being the Minister, the Director-General or a person who has 24
parental responsibility other than in his or her personal capacity), 25
(d) a person who has care responsibility for the child or young person under 26
the Adoption Act 2000 (not being the Minister, the Director-General or 27
a person who has care responsibility other than in his or her personal 28
capacity), 29
(e) in the case of a child or young person who is an Aboriginal or Torres 30
Strait Islander--a person who is part of the extended family or kin of 31
the child or young person. 32
[2] Section 3, definition of "non-court proceedings" 33
Omit paragraphs (b) and (c) of the definition. Insert instead: 34
(b) any dispute resolution conference under section 65 or 91D, 35
(c) any other alternative dispute resolution process. 36
[3] Section 3 37
Omit the definition of permanent placement. 38
[4] Section 3 (2) 39
Insert at the end of section 3: 40
(2) In this section, spouse of a person means: 41
(a) the person's husband or wife, or 42
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(b) the person's de facto partner, 1
but if more than one person would so qualify as a spouse, means only the latest 2
person to so qualify. 3
Note. De facto partner is defined in section 21C of the Interpretation Act 1987. 4
[5] Section 8 What are the objects of this Act? 5
Insert after section 8 (a): 6
(a1) recognition that the primary means of providing for the safety, welfare 7
and well-being of children and young persons is by providing them with 8
long-term, safe, nurturing, stable and secure environments through 9
permanent placement in accordance with the permanent placement 10
principles, and 11
[6] Section 9 Principles for administration of Act 12
Insert after section 9 (2) (f): 13
(g) If a child or young person is placed in out-of-home care, the permanent 14
placement principles are to guide all actions and decisions made under 15
this Act (whether by legal or administrative process) regarding 16
permanent placement of the child or young person. 17
[7] Section 10A 18
Insert after section 10: 19
10A Permanent placement principles 20
(1) In this Act: 21
permanent placement means a long-term placement following the removal of 22
a child or young person from the care of a parent or parents pursuant to this 23
Act that provides a safe, nurturing, stable and secure environment for the child 24
or young person. 25
(2) Subject to the objects in section 8 and the principles in section 9, a child or 26
young person who needs permanent placement is to be placed in accordance 27
with the permanent placement principles. 28
(3) The permanent placement principles are as follows: 29
(a) if it is practicable and in the best interests of a child or young person, the 30
first preference for permanent placement of the child or young person is 31
for the child or young person to be restored to the care of his or her 32
parent (within the meaning of section 83) or parents so as to preserve 33
the family relationship, 34
(b) if it is not practicable or in the best interests of the child or young person 35
to be placed in accordance with paragraph (a), the second preference for 36
permanent placement of the child or young person is guardianship of a 37
relative, kin or other suitable person, 38
(c) if it is not practicable or in the best interests of the child or young person 39
to be placed in accordance with paragraph (a) or (b), the next preference 40
is (except in the case of an Aboriginal or Torres Strait Islander child or 41
young person) for the child or young person to be adopted, 42
(d) if it is not practicable or in the best interests of the child or young person 43
to be placed in accordance with paragraph (a), (b) or (c), the last 44
preference is for the child or young person to be placed under the 45
parental responsibility of the Minister under this Act or any other law, 46
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(e) if it is not practicable or in the best interests of an Aboriginal or Torres 1
Strait Islander child or young person to be placed in accordance with 2
paragraph (a), (b) or (d), the last preference is for the child or young 3
person to be adopted. 4
[8] Section 13 Aboriginal and Torres Strait Islander Child and Young Person Placement 5
Principles 6
Insert at the end of section 13 (1): 7
Note. The placement principles set out in this section also apply to the making of 8
guardianship orders in relation to Aboriginal and Torres Strait Islander children and 9
young persons (see section 79A (3) (c)). 10
[9] Section 25 Pre-natal reports 11
Omit "the expectant mother" and "her child" from paragraph (a) of the note to the section. 12
Insert instead "an expectant parent" and "the parent's child", respectively. 13
[10] Section 37 Alternative dispute resolution by Director-General 14
Omit "services" from section 37 (1). Insert instead "processes". 15
[11] Section 37 (3) 16
Omit the subsection. 17
[12] Section 37, note 18
Omit "counselling and". 19
[13] Section 38A Parent responsibility contracts 20
Omit section 38A (1). Insert instead: 21
(1) A parent responsibility contract is either or both of the following: 22
(a) an agreement between the Director-General and one or more primary 23
care-givers for a child or young person that contains provisions aimed 24
at improving the parenting skills of the primary care-givers and 25
encouraging them to accept greater responsibility for the child or young 26
person, 27
(b) an agreement between the Director-General and either or both expectant 28
parents whose unborn child is the subject of a pre-natal report under 29
section 25 that contains provisions aimed at improving the parenting 30
skills of the prospective parent and reducing the likelihood that the child 31
will be at risk of significant harm after birth. 32
[14] Section 38A (2) (b) 33
Insert "or each expectant parent" after "care-giver". 34
[15] Section 38A (2) (e) 35
Omit the paragraph. Insert instead: 36
(e) specify the period (not exceeding 12 months) during which the contract 37
will (unless varied under section 38B) be in force, commencing on the 38
date on which the agreement is registered with the Children's Court, and 39
[16] Section 38A (2) (f) 40
Omit "a primary care-giver". Insert instead "a party to the contract". 41
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[17] Section 38A (3) 1
Omit "12 months". Insert instead "18 months". 2
[18] Section 38A (5) (a)-(c) 3
Omit "the primary care-giver" wherever occurring. Insert "party to the contract". 4
[19] Section 38A (5) (e) 5
Omit "the primary care-givers". Insert instead "any party to the contract". 6
[20] Section 38A (11) 7
Insert after section 38A (10): 8
(11) The period for which the parent responsibility contract has effect may be 9
specified by reference to a fixed or ascertainable period or by reference to the 10
occurrence of a specified future event. 11
[21] Section 38B Amendment of parent responsibility contracts 12
Insert "beyond 12 months" after "force" in section 38B (1). 13
[22] Section 38B (3) 14
Insert "or for the period as varied by agreement under this section" after "duration". 15
[23] Section 38E Contract breach notices 16
Omit "a primary care-giver for a child or young person who is" from section 38E (1) (a). 17
[24] Section 38E (1) (b) 18
Omit "the primary care-giver". Insert instead "any party to the contract". 19
[25] Section 38E (2) (a) 20
Omit "the primary care-giver for a child or young person". 21
Insert instead "the party to the contract". 22
[26] Section 38E (2) (b) and (c) 23
Omit "the primary care-giver" wherever occurring. 24
Insert instead "the party to the contract". 25
[27] Section 38E (3) (a) 26
Omit "primary care-giver who is a". 27
[28] Section 38E (4) 28
Omit the subsection. 29
[29] Section 60 Definitions 30
Insert "but does not include a parent capacity order" after "section 86" in the definition of 31
care order. 32
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[30] Section 65 Dispute resolution conferences 1
Omit section 65 (1) and (1A). Insert instead: 2
(1) If it considers it appropriate, the Children's Court may, before or at any stage 3
during the hearing of a care application, refer the application to a Children's 4
Registrar to be dealt with under this section. 5
(1A) The Children's Registrar is to arrange and conduct a dispute resolution 6
conference between the parties to the care application. 7
[31] Section 65 (2A) 8
Insert "or persons specified in section 86 (1A) (b)" after "parties" wherever occurring. 9
[32] Section 65 (2A) (b) (iii) 10
Omit ", including by referring the application to independent alternative dispute 11
resolution". 12
[33] Section 65 (2A) (b) (iv) 13
Omit "if it is not appropriate to refer the application to independent alternative dispute 14
resolution,". 15
[34] Section 65 (3) 16
Insert "or person specified in section 86 (1A) (b)" after "party". 17
[35] Section 65 (4) and (5) 18
Omit the subsections. 19
[36] Section 65A Referral of matters before the Court to ADR 20
Omit "attend an alternative dispute resolution service" from section 65A (1). 21
Insert instead "participate in an alternative dispute resolution process". 22
[37] Section 67A 23
Insert after section 67: 24
67A Consecutive care orders 25
(1) A care order has effect for the period specified in the order commencing on the 26
date on which the Children's Court makes the order (or a later date specified 27
in the order). 28
(2) The period may be specified by reference to the occurrence of a future event 29
described in the order. 30
(3) Without limiting subsection (2), the Children's Court may specify that a care 31
order is to take effect at the end of the period for which another care order has 32
effect. 33
[38] Section 71 Grounds for care orders 34
Omit section 71 (1) (i). 35
[39] Section 71 (3) 36
Insert after section 71 (2): 37
(3) This section does not apply to or in respect of a contact order made under 38
section 86 (1A) (b). 39
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[40] Section 73 Order accepting undertakings 1
Insert "(other than an application for a guardianship order)" after "person" where firstly 2
occurring in section 73 (1). 3
[41] Section 74 Order for provision of support services 4
Omit "that child or young person" from section 74 (1). 5
Insert instead "a child or young person (other than a child or young person the subject of an 6
application for a guardianship order)". 7
[42] Section 75 Order to attend therapeutic treatment 8
Insert after section 75 (3): 9
(4) An order cannot be made under this section in proceedings in relation to an 10
application for a guardianship order. 11
[43] Section 76 Order for supervision 12
Insert "(other than an application for a guardianship order)" after "application" in 13
section 76 (1). 14
[44] Section 76 (3A) 15
Insert after section 76 (3): 16
(3A) Despite subsection (3), the Children's Court may specify a maximum period 17
of supervision that is longer than 12 months (but that does not exceed 18
24 months) if the Children's Court is satisfied that there are special 19
circumstances that warrant the making of an order of that length and that it is 20
appropriate to do so. 21
[45] Section 76 (6) 22
Omit "not exceeding 12 months". 23
Insert instead "that together with the period specified under subsection (3) or (3A) does not 24
exceed 24 months in total". 25
[46] Section 76 (7) 26
Insert after section 76 (6): 27
(7) The Children's Court may, of its own motion or on application by the 28
Director-General, and after giving the parties an opportunity to be heard, 29
revoke an order before the end of the period of supervision specified under 30
subsection (3A) at any time after the expiration of the first 12 months of that 31
period if it considers that there is no longer need for supervision in order to 32
protect the child or young person. 33
[47] Section 78A Permanency planning 34
Omit "principle set out in section 9 (2) (e)" from section 78A (1) (a). 35
Insert instead "principles set out in section 9 (2) (e) and (g)". 36
[48] Section 78A (4) 37
Omit "sole parental responsibility or". 38
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Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[49] Sections 79-79C 1
Omit section 79. Insert instead: 2
79 Order (other than guardianship order) allocating parental responsibility 3
(1) The Children's Court may make an order under this section allocating all 4
aspects of parental responsibility, or one or more specific aspects of parental 5
responsibility, for a child or young person who it finds is in need of care and 6
protection for a period specified in the order: 7
(a) to one parent to the exclusion of the other, or to both parents jointly, or 8
(b) solely to the Minister, or 9
(c) to one or both parents and to the Minister jointly, or 10
(d) to one or both parents and to another person or persons jointly, or 11
(e) to the Minister and another suitable person or persons jointly, or 12
(f) to a suitable person or persons jointly. 13
(2) The specific aspects of parental responsibility that may be allocated by an 14
order of the Children's Court under subsection (1) include, but are not limited 15
to, the following: 16
(a) the residence of the child or young person, 17
(b) contact, 18
(c) the education and training of the child or young person, 19
(d) the religious and cultural upbringing of the child or young person, 20
(e) the medical and dental treatment of the child or young person. 21
(3) The Children's Court must not make an order allocating parental 22
responsibility unless it has given particular consideration to the permanent 23
placement principles and is satisfied that the order is in the best interests of the 24
child or young person. 25
(4) Without limiting subsection (3), the Children's Court must not make an order 26
under this section if, taking into account the permanent placement principles, 27
it would be more appropriate to make a guardianship order than an order under 28
this section. 29
(5) The Children's Court must not make an order allocating parental 30
responsibility for a child or young person if the order would be inconsistent 31
with: 32
(a) any order made with respect to the child or young person by the 33
Supreme Court in the exercise of its jurisdiction with respect to the 34
custody and guardianship of children, or 35
(b) a guardianship order with respect to the young person made by the 36
Guardianship Tribunal. 37
(6) If an order allocates all aspects of parental responsibility for a child or young 38
person to the Minister, the Minister must, so far as is reasonably practicable, 39
have regard to the views of the persons who had parental responsibility for the 40
child or young person before the order was made while still recognising that 41
the safety, welfare and well-being of the child or young person remains the 42
paramount consideration. 43
(7) If aspects of parental responsibility are allocated jointly between the Minister 44
and another person or persons, either the Minister or the other person may 45
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Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
exercise those aspects but, if they disagree concerning their exercise, the 1
disagreement is to be resolved by order of the Children's Court. 2
(8) The Children's Court must not make an order allocating parental 3
responsibility jointly between two or more persons unless it is satisfied that the 4
persons can work together co-operatively in the best interests of the child or 5
young person. 6
79A Allocation of parental responsibility by guardianship order 7
(1) In this Act: 8
guardian means a person who has been allocated all aspects of parental 9
responsibility for a child or young person until the child or young person 10
reaches 18 years of age by a guardianship order made under this section. 11
prospective guardian means the person to whom it is proposed to allocate 12
parental responsibility for a child or young person under a guardianship order. 13
(2) An order may be made by the Children's Court allocating to a suitable person 14
all aspects of parental responsibility for a child or young person who is in 15
statutory out-of-home care or supported out-of home care or who it finds is in 16
need of care and protection until the child or young person reaches 18 years of 17
age (a guardianship order). 18
(3) The Children's Court must not make a guardianship order unless it is satisfied 19
that: 20
(a) there is no realistic possibility of restoration of the child or young 21
person to his or her parents, and 22
(b) that the prospective guardian will provide a safe, nurturing, stable and 23
secure environment for the child or young person and will continue to 24
do so in the future, and 25
(c) if the child or young person is an Aboriginal or Torres Strait Islander 26
child or young person--permanent placement of the child or young 27
person under the guardianship order is in accordance with the 28
Aboriginal and Torres Strait Islander Child and Young Person 29
Placement Principles that apply to placement of such a child or young 30
person in statutory out-of-home care under section 13, and 31
(d) if the child or young person is 12 or more years of age and capable of 32
giving consent--the consent of the child or young person is given in the 33
form and manner prescribed by the regulations. 34
(4) A guardianship order may allocate parental responsibility jointly to more than 35
one person. 36
(5) The Children's Court must not make a guardianship order with respect to a 37
child or young person if the order would be inconsistent with: 38
(a) any order made with respect to the child or young person by the 39
Supreme Court in the exercise of its jurisdiction with respect to the 40
custody and guardianship of children, or 41
(b) a guardianship order with respect to the young person made by the 42
Guardianship Tribunal. 43
(6) A guardianship order remains in force (unless sooner varied or rescinded 44
under section 90) until the child or young person concerned reaches 18 years 45
of age. 46
(7) A guardianship order may only be made as a final order. 47
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Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
79B Applications for guardianship orders 1
(1) Despite section 61 (1), an application for a guardianship order may be made 2
by the following: 3
(a) the Director-General, 4
(b) with the written consent of the Director-General--the designated 5
agency responsible for supervising the placement of the child or young 6
person, 7
(c) with the written consent of the Director-General--a person who is an 8
authorised carer or who has been assessed, in accordance with the 9
regulations, by the Director-General or designated agency in relation to 10
a child or young person to be a suitable person to be allocated all aspects 11
of parental responsibility for the child or young person. 12
(2) The Children's Court may order an applicant for a guardianship order to notify 13
those persons specified by the Children's Court of the making of the 14
application. 15
Note. Section 256A sets out the circumstances in which the Children's Court may 16
dispense with service. 17
(3) Subject to any order the Children's Court may make, the applicant for a 18
guardianship order is to make reasonable efforts to notify each parent of the 19
child or young person of the making of the application for the order. 20
(4) Each parent must be given a reasonable opportunity to obtain independent 21
legal advice about the application and is entitled to be heard at the hearing of 22
the matter. 23
(5) Without limiting section 90 (1A), an applicant for variation or rescission of a 24
guardianship order made in respect of a child or young person must notify the 25
principal officer of the designated agency that was supervising the placement 26
of the child or young person in out-of-home care immediately before the 27
guardianship order was made of the making of the application. 28
(6) Without limiting subsection (2), an applicant for a guardianship order other 29
than the Director-General is to notify the Director-General of the making of 30
the application for the order on the day the application is filed and the 31
Director-General is entitled to be a party to the proceedings. 32
(7) An application cannot be made under subsection (1) (c) by a person who is an 33
authorised carer solely in his or her capacity as the principal officer of a 34
designated agency. 35
(8) Subject to any order the Children's Court may make, an applicant for a 36
guardianship order must present the following to the Children's Court before 37
the order is made: 38
(a) copies of any written consent required to be given in relation to the 39
applicant by subsection (1), 40
(b) a care plan prepared by the applicant, 41
(c) a copy of any report on the health, educational or social well-being of 42
the child or young person that is available to the applicant and that is 43
relevant to the care plan. 44
(9) Without limiting the information that must be contained in a care plan, it must 45
contain information about the following: 46
(a) the residence of the child or young person, 47
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(b) if the Children's Court has made any contact order under section 86 in 1
relation to contact of the child or young person with his or her parents, 2
relatives, friends or other persons--the arrangements for contact, 3
(c) the education and training of the child or young person, 4
(d) the religious upbringing of the child or young person, 5
(e) the health care of the child or young person, 6
(f) the resources required to provide any services that need to be provided 7
to the child or young person and the availability of those resources, 8
(g) any views the child or young person has expressed about any aspect of 9
the care plan. 10
(10) Other requirements and the form of care plan under this section may be 11
prescribed by the regulations. 12
(11) The care plan is only enforceable to the extent to which its provisions are 13
embodied in or approved by orders of the Children's Court. 14
(12) In this section: 15
care plan means a plan to meet the needs of a child or young person that 16
represents a set of proposals to be considered by the Children's Court. 17
79C Financial assistance for children and young persons in respect of whom 18
guardianship orders are made 19
(1) The Director-General may, after the making of the guardianship order, 20
continue to provide financial assistance to the guardian of a child or young 21
person who, immediately before the guardianship order was made, was being 22
provided with financial assistance in respect of the child or young person 23
under section 161 as if (for this purpose only) the child or young person were 24
still in out-of-home care. 25
(2) The Director-General may grant financial assistance to the guardian of a child 26
or young person in respect of whom a guardianship order is made who was not 27
being provided with financial assistance under section 161 before the 28
guardianship order was made: 29
(a) if the Director-General considers it is appropriate to provide the 30
financial assistance for the purpose of achieving the objects of the Act, 31
or 32
(b) in such other circumstance as may be prescribed by the regulations. 33
(3) Without limiting subsection (2), financial assistance may take the form of a 34
grant, an allowance or a refund of expenditure, or any other form of financial 35
assistance that the Director-General may approve generally, or in a particular 36
case or class of cases. 37
(4) A guardian who is provided with financial assistance under this section must 38
make an annual report to the Director-General (in the form required by the 39
Director-General) concerning such matters as may be required by the 40
Director-General relating to the provision of that financial assistance. 41
[50] Section 80 Requirement to consider care plan 42
Insert "or, in the case of an application for a guardianship order, by the applicant for the 43
order" after "Director-General". 44
[51] Section 81 Parental responsibility of the Minister 45
Omit the section. 46
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Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[52] Section 82 Report on suitability of arrangements concerning parental responsibility 1
Insert "other than a guardianship order" after "order" where firstly occurring in 2
section 82 (1). 3
[53] Section 83 Preparation of permanency plan 4
Omit "may" from section 83 (4). Insert instead "must". 5
[54] Section 83 (4) 6
Insert at the end of the subsection: 7
Note. See section 10A (3) (e) in relation to adoption of Aboriginal and Torres Strait 8
Islander children and young persons. 9
[55] Section 83 (5) and (5A) 10
Omit section 83 (5). Insert instead: 11
(5) The Children's Court is to decide whether to accept the Director-General's 12
assessment of whether or not there is a realistic possibility of restoration: 13
(a) in the case of a child who is less than 2 years of age on the date the 14
Children's Court makes an interim order allocating parental 15
responsibility for the child to a person other than a parent--within 16
6 months after the Children's Court makes the interim order, and 17
(b) in the case of a child or young person who is 2 or more years of age on 18
the date the Children's Court makes an interim order allocating parental 19
responsibility for the child or young person to a person other than a 20
parent--within 12 months after the Children's Court makes the interim 21
order. 22
(5A) However, the Children's Court may, having regard to the circumstances of the 23
case and if it considers it appropriate and in the best interests of the child or 24
young person, decide, after the end of the applicable period referred to in 25
subsection (5), whether or not there is a realistic possibility of restoration. 26
[56] Section 83 (9) 27
Omit the subsection. Insert instead: 28
(9) In this section, parent, in relation to the child or young person concerned, 29
means: 30
(a) the child's or young person's birth parent, or 31
(b) if the child or young person has been adopted--the child's or young 32
person's adoptive parent. 33
[57] Section 86 Contact orders 34
Omit section 86 (1). Insert instead: 35
(1) An order may be made by the Children's Court doing any one or more of the 36
following: 37
(a) stipulating minimum requirements concerning the frequency and 38
duration of contact between a child or young person and his or her 39
parents, relatives or other persons of significance to the child or young 40
person, 41
(b) requiring contact with a specified person to be supervised, 42
(c) denying contact with a specified person if contact with that person is not 43
in the best interests of the child or young person. 44
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Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[58] Section 86 (1A)-(1F) 1
Insert after section 86 (1): 2
(1A) A contact order may be made by the Children's Court: 3
(a) on application made by any party to proceedings before the Children's 4
Court with respect to a child or young person, or 5
(b) with leave of the Children's Court--on application made by any of the 6
following persons who were parties to care proceedings with respect to 7
a child or young person: 8
(i) the Director-General, 9
(ii) the child or young person, 10
(iii) a person having parental responsibility for the child or young 11
person, 12
(iv) a person from whom parental responsibility for the child or 13
young person has been removed, 14
(v) any person who considers himself or herself to have a sufficient 15
interest in the welfare of the child or young person, or 16
(c) with leave of the Children's Court--on application made by any person 17
who considers himself or herself to have a sufficient interest in the 18
welfare of the child or young person. 19
(1B) The Children's Court may grant leave under subsection (1A) (b) or (c) if it 20
appears to the Court that there has been a significant change in any relevant 21
circumstances since a final order was made in the proceedings. 22
(1C) The Children's Court is not required to hear or determine an application made 23
to it with respect to a child or young person by a person referred to in 24
subsection (1A) (c) unless it considers the person to have a sufficient interest 25
in the welfare of the child or young person. 26
(1D) Before granting leave under subsection (1A) (b) or (c), the Children's Court: 27
(a) must take into consideration whether the applicant for the contact order 28
and persons to whom the contact order applies have attempted, or been 29
ordered by the Children's Court to try, to reach an agreement about 30
contact arrangements by participating in alternative dispute resolution, 31
and 32
(b) may order the applicant and those persons to attend a dispute resolution 33
conference conducted by a Children's Registrar under section 65 or 34
alternative dispute resolution process under section 65A. 35
(1E) Subject to any order the Children's Court may make, an applicant for a contact 36
order under subsection (1A) (b) who was a party to care proceedings must 37
notify other persons who were parties to the proceedings of the making of the 38
application. 39
Note. Section 256A sets out the circumstances in which the Children's Court may 40
dispense with the requirement to give notice. 41
(1F) A contact order made under subsection (1A) (b) on application of a person 42
who was a party to proceedings in which an earlier contact order was made that 43
has expired may be made in the same or different terms to the expired order. 44
[59] Section 86 (2) 45
Insert "and must not be made in relation to contact with a child or young person who is the 46
subject of a guardianship order" after "consent". 47
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Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[60] Section 86 (5)-(7) 1
Insert after section 86 (4): 2
(5) A contact order made under this section has effect for the period specified in 3
the order, unless the order is varied or rescinded under section 86A or 90. 4
(6) Despite subsection (5), if the Children's Court decides (whether by acceptance 5
of the Director-General's assessment under section 83 or otherwise) that there 6
is no realistic possibility of restoration of a child or young person to his or her 7
parent, the maximum period that may be specified in a contact order made 8
under subsection (1A) concerning the child or young person is 12 months. 9
(7) Subsection (6) does not apply to a contact order made on the application of a 10
former party to proceedings in which an earlier contact order was made that 11
has expired. 12
[61] Section 86A 13
Insert after section 86: 14
86A Variation of contact orders by agreement 15
(1) A contact variation agreement is an agreement to vary the terms of a contact 16
order in the light of a change in any relevant circumstances since the contact 17
order was made or last varied. 18
(2) A contact variation agreement must: 19
(a) be in writing, and 20
(b) be signed and dated by those parties to the proceedings in which the 21
contact order was made who are affected by the variation and, if the 22
contact variation agreement is made less than 12 months after the 23
contact order was made, the legal representative of the child or young 24
person, and 25
(c) be registered with the Children's Court by those parties within 28 days 26
after the date on which the agreement was signed. 27
(3) The contact variation agreement is taken to be registered with the Children's 28
Court when filed with the registry of the Court without the need for any order 29
or other action by the Court. 30
(4) The contact variation agreement takes effect only if (and when) it is registered. 31
(5) The contact variation agreement has effect from the date of registration until 32
the end of the period specified in the variation agreement. 33
(6) Nothing in this section prevents the variation of a contact order under 34
section 90. 35
[62] Section 90 Rescission and variation of care orders 36
Omit section 90 (1A). Insert instead: 37
(1A) Subject to any order the Children's Court may make, a person who makes an 38
application under this section must give notice of the application to the persons 39
who were parties to the proceedings in which the care order was made. 40
Note. Section 256A sets out the circumstances in which the Children's Court may 41
dispense with the requirement to give notice. 42
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[63] Section 90A Prohibition orders 1
Omit "order prohibiting any person, including a parent of a child or young person". 2
Insert instead "order (a prohibition order) prohibiting any person, including a parent of a 3
child or young person or any person who is not a party to the care proceedings". 4
[64] Section 90A (2)-(4) 5
Insert at the end of section 90A: 6
(2) A party to care proceedings during which a prohibition order is made may 7
notify the Children's Court of an alleged breach of the prohibition order. 8
(3) The Children's Court, on being notified of an alleged breach of a prohibition 9
order: 10
(a) must give notice of its intention to consider the alleged breach to the 11
person alleged to have breached the prohibition order, and 12
(b) must give that person an opportunity to be heard concerning the 13
allegation before it determines whether or not the order has been 14
breached, and 15
(c) is to determine whether or not the order has been breached, and 16
(d) if it determines that the order has been breached--may make such 17
orders (including a parent capacity order) as it considers appropriate in 18
all the circumstances. 19
(4) The person who is alleged to have breached the prohibition order is entitled to 20
be heard, and may be legally represented, at the hearing of the matter. 21
[65] Chapter 5, Part 3 22
Insert after section 91: 23
Part 3 Parent capacity orders 24
91A Interpretation 25
In this Part: 26
parent, in relation to a child or young person, means the following: 27
(a) the child's or young person's birth parent, 28
(b) if the child or young person has been adopted--the child's or young 29
person's adoptive parent. 30
parent capacity order means an order requiring a parent or primary care-giver 31
of a child or young person to attend or participate in a program, service or 32
course or engage in therapy or treatment aimed at building or enhancing his or 33
her parenting skills. 34
91B When parent capacity orders may be made 35
A parent capacity order may be made in relation to a parent or primary 36
care-giver of a child or young person by the Children's Court: 37
(a) on the application of the Director-General, or 38
(b) on the Children's Court's own initiative if it determines under 39
section 90A that a prohibition order has been breached by the parent or 40
primary care-giver. 41
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Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
91C Applications for parent capacity orders 1
(1) The Director-General is to cause a copy of an application made under 2
section 91B (a) to be served on the parent or primary care-giver in relation to 3
whom the order is sought to be made as soon as is reasonably practicable after 4
the application is filed. 5
(2) The copy of the application must be written and arranged in such a form that 6
there is a reasonable likelihood that its contents will be understood by the 7
person on whom it is served. 8
91D Dispute resolution conferences 9
(1) If it considers it appropriate, the Children's Court may, before or at any stage 10
during the hearing of an application by the Director-General for a parent 11
capacity order, or after it finds a prohibition order has been breached in 12
proceedings under section 90A, refer the matter to a Children's Registrar to be 13
dealt with under this section. 14
(2) The Children's Registrar is to arrange and conduct a dispute resolution 15
conference between the Director-General and the parent or primary care-giver 16
in relation to whom the order is sought (the parties). 17
(3) The purpose of a dispute resolution conference is to provide the parties with 18
an opportunity to agree on action that should be taken to build or enhance the 19
parenting skills of the parent or primary care-giver. 20
(4) In conducting a dispute resolution conference, a Children's Registrar is to act 21
as a conciliator between the parties. In so doing: 22
(a) the Children's Registrar should seek to encourage the parties to agree 23
on action that should be taken (including the formulation of an order 24
that may be made by consent under section 91F), or 25
(b) if the parties cannot agree on the action to be taken, the Children's 26
Registrar should encourage the parties: 27
(i) to identify areas of agreement between the parties, and 28
(ii) to identify issues in dispute between the parties, and 29
(iii) to determine the best way of resolving any issues in dispute, and 30
(iv) to set a timetable for the hearing of the matter by the Children's 31
Court. 32
(5) A party may be legally represented at a dispute resolution conference. 33
91E Making of parent capacity orders 34
(1) The Children's Court may make a parent capacity order in relation to a parent 35
or primary care-giver of a child or young person (including a parent or primary 36
care-giver found to have breached a prohibition order under section 90A) if it 37
is satisfied that: 38
(a) there is an identified deficiency in the parenting capacity of the parent 39
or primary care-giver that has the potential to place the child or young 40
person at risk of significant harm and it is reasonable and practicable to 41
require the parent or primary care-giver to comply with the order, and 42
(b) the parent or primary care-giver is unlikely to attend or participate in the 43
program, service or course or engage in the therapy or treatment 44
required by the order unless the order is made. 45
(2) A parent capacity order may be made whether or not a care application or care 46
order has been made and at any stage in care proceedings. 47
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Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
91F Orders made by consent 1
(1) The Children's Court may, with the consent of the Director-General and the 2
parent or primary care-giver who will be subject to a parent capacity order, 3
make that order by giving effect to the terms of an agreement reached between 4
the Director-General and the parent or primary care-giver concerning his or 5
her attendance or participation in a program, service or course or engagement 6
in therapy or treatment aimed at building or enhancing his or her parenting 7
skills (a consent order). 8
(2) A consent order may be made following the conclusion of a dispute resolution 9
conference or at any stage of proceedings on an application for a parent 10
capacity order. 11
(3) A consent order may be made by the Children's Court if it considers it 12
reasonable and practicable to do so and that the terms of the order are 13
appropriate in the circumstances. 14
(4) The functions conferred on the Children's Court by this section in relation to 15
an application made under section 91B (a) may be exercised by a Children's 16
Registrar. 17
Note. See section 93A (Powers exercised by Children's Registrar). 18
91G Duration of parent capacity orders 19
(1) A parent capacity order has effect for the period specified in the order, unless 20
the order is varied or revoked under section 91H. 21
(2) The period for which a parent capacity order has effect may be specified by 22
reference to a fixed or ascertainable period or by reference to the occurrence 23
of a specified future event. 24
91H Variation or revocation of parent capacity order 25
(1) The Children's Court may at any time vary or revoke a parent capacity order 26
(including a parent capacity order made after a breach of a prohibition order) 27
on application by: 28
(a) the Director-General, or 29
(b) the parent or primary care-giver to whom it relates. 30
(2) The Children's Court may vary or revoke a parent capacity order if the Court 31
is satisfied there has been a significant change in any relevant circumstances 32
since the order was made or last varied. 33
(3) Subject to any order the Children's Court may make, a person who makes an 34
application under this section must notify other persons who were parties to 35
the proceedings for the making of the parent capacity order of the making of 36
the application. 37
Note. Section 256A sets out the circumstances in which the Children's Court may 38
dispense with the requirement to give notice. 39
(4) The Children's Court must, before varying or revoking a parent capacity order 40
under this section: 41
(a) allow all parties a reasonable opportunity to be heard on the matter, and 42
(b) have regard to the factors that the Children's Court is required to have 43
regard to under section 91E in considering whether or not to make a 44
parent capacity order and in considering the terms of a parent capacity 45
order. 46
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
91I Right of appeal 1
(1) A party to proceedings under this Part who is dissatisfied with a parent 2
capacity order of the Children's Court (including a parent capacity order made 3
under section 90A) may, in accordance with the rules of the District Court, 4
appeal to the District Court on a question of law. 5
(2) The District Court is to hear and determine the appeal and make such order as 6
it thinks appropriate by reason of its decision, including, without limiting the 7
Court's power to make such orders, an order confirming, varying or setting 8
aside the decision of the Children's Court. 9
(3) Subject to any interlocutory order made by the District Court, an appeal does 10
not affect the operation of the order appealed against or prevent the taking of 11
action to implement that order. 12
(4) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal 13
under this section in the same way as they apply to and in respect of the hearing 14
of a care application under that Chapter. 15
[66] Section 93A 16
Insert after section 93: 17
93A Powers exercised by Children's Registrar 18
(1) A power conferred by this Act when exercised by a Children's Registrar is 19
taken to have been exercised by the Children's Court. 20
(2) The exercise by a Children's Registrar of a power conferred by this Act does 21
not prevent the exercise of the power by the Children's Court. 22
(3) No matter or thing done or omitted to be done by a Children's Registrar under 23
section 65, 91D or 244C subjects the Children's Registrar to any action, 24
liability, claim or demand if the matter or thing was done in good faith for the 25
purposes of that section. 26
[67] Section 105 Publication of names and identifying information 27
Insert after section 105 (1A): 28
(1B) This section applies to the publication or broadcast of a child or young 29
person's name to the public, or a section of the public, by publication in a 30
newspaper or periodical publication, by radio or television broadcast or other 31
electronic broadcast, by the internet, or by any other means of dissemination. 32
(1C) The publication of information to a website that provides the opportunity for, 33
or facilitates or enables, dissemination of information to the public or a section 34
of the public (whether or not the particular publication results in the 35
dissemination of information to the public or a section of the public) 36
constitutes the publication of information to the public or a section of the 37
public for the purposes of this section. 38
[68] Section 114 Alternative dispute resolution 39
Insert "alternative" after "any form of" in section 114 (2). 40
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[69] Section 116 Application for order for alternative parenting plan 1
Omit section 116 (4). Insert instead: 2
(4) Subject to any order the Children's Court may make, a person who makes an 3
application under this section must notify the other persons referred to in 4
subsection (1) of the making of the application. 5
Note. Section 256A sets out the circumstances in which the Children's Court may 6
dispense with the requirement to give notice. 7
[70] Section 117 Adjournment 8
Omit "mediation". Insert instead "alternative dispute resolution". 9
[71] Section 122 Mandatory reporting of child who lives away from home without parental 10
permission 11
Insert "(other than an excluded person)" after "A person". 12
[72] Section 122 (2) 13
Insert at the end of section 122: 14
(2) In this section: 15
excluded person means a person who: 16
(a) is a friend or relative of the child who maintains both a close personal 17
relationship with the child through frequent personal contact and a 18
personal interest in the child's welfare, and 19
(b) does not provide support to the child wholly or substantially on a 20
commercial basis. 21
[73] Section 135 Definition and types of "out-of-home care" 22
Insert "or kin" after "relative" in section 135 (3) (b). 23
[74] Section 135 (3) (b1) 24
Insert after section 135 (3) (b): 25
(b1) any care of a child or young person provided by a person who has 26
parental responsibility for the child or young person under a 27
guardianship order, or 28
[75] Section 137 Authorised carers 29
Insert at the end of section 137 (1) (c): 30
, or 31
(d) subject to the regulations, a person who is assessed to be suitable to be 32
approved to adopt a child under section 45 of the Adoption Act 2000. 33
[76] Section 149 Order for sole parental responsibility 34
Omit the section. 35
[77] Section 149AA Care plan and other relevant information to be presented before order 36
made under section 149 37
Omit the section. 38
[78] Section 149A Variation or rescission of order for sole parental responsibility 39
Omit the section. 40
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[79] Section 153 Operation of other arrangements 1
Insert "(other than a child or young person referred to in subsection (3))" after "person" 2
where firstly occurring in section 153 (2). 3
[80] Section 153 (3) and (4) 4
Omit section 153 (3). Insert instead: 5
(3) A child or young person who has been placed in out-of home care with a 6
relative or kin otherwise than by a court ordered placement under an 7
arrangement under this section supported by the Director-General must not 8
remain in the out-of-home care provided under the arrangement for more than 9
2 years. 10
(4) In this section: 11
court ordered placement means the placement of a child or young person with 12
a relative or kin of the person who has been allocated all aspects of parental 13
responsibility for the child or young person by virtue of an order of the 14
Children's Court or a parenting order in favour of the relative or kin under the 15
Family Law Act 1975 of the Commonwealth. 16
[81] Section 155 Review of supported out-of-home care arrangements 17
Insert after section 155 (3): 18
(3A) Subsection (1) does not require the designated agency having supervisory 19
responsibility for a child or young person who is in a court ordered placement 20
(within the meaning of section 153), and in respect of whom supported 21
out-of-home care is provided, to conduct an annual review if a review of the 22
placement of the child or young person conducted under another provision of 23
this Act has determined that the placement is safe and secure. 24
(3B) The authorised carer of a child or young person determined to be in a safe or 25
secure placement as referred to in subsection (3A) must submit a 26
self-assessment report to the designated agency having supervisory 27
responsibility for the child or young person at least once in every period of 28
12 months after the child or young person is placed in supported out-of-home 29
care. 30
(3C) The self-assessment report is to address such matters as may be required by the 31
designated agency (including verification that the child or young person 32
resides with the authorised carer and of the need for on-going provision of 33
support). 34
[82] Section 161 Financial assistance for children and young persons in out-of-home care 35
Insert at the end of section 161 (4) (b): 36
, or 37
(c) in other circumstances prescribed by the regulations. 38
[83] Section 172A 39
Insert after section 172: 40
172A Director-General to report annually on deaths of children and young persons 41
(1) The Director -General must make a written report to the Minister every year 42
on the reportable deaths known to the Director-General that occurred during 43
the previous calendar year. 44
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(2) In this section: 1
reportable death means the death of any child or young person: 2
(a) who was the subject of a risk of significant harm report made during the 3
period of 3 years immediately preceding the death of the child, or 4
(b) who was a sibling of a child or young person who was the subject of a 5
risk of significant harm report made during the period of 3 years 6
immediately preceding the death of the sibling, or 7
(c) for whom the Minister has parental responsibility under this Act, or 8
(d) who is in statutory out-of-home care or supported out-of-home care, or 9
(e) for whom the Director-General or a designated agency has care 10
responsibility under section 49, or 11
(f) who is the subject of a sole parental responsibility order made under 12
section 149 (as in force immediately before its repeal by the Child 13
Protection Legislation Amendment Act 2013). 14
risk of significant harm report means a report given to the Director-General 15
under this Act that, in the assessment of the Director-General, indicates that a 16
child or young person is at risk of significant harm (within the meaning of 17
Part 2 of Chapter 3). 18
Note. See section 23 (Child or young person at risk of significant harm). 19
(3) A report under this section must include the following: 20
(a) the number of reportable deaths that occurred during the calendar year 21
to which the report relates, 22
(b) the general circumstances of each of those reportable deaths, if known, 23
(c) details relating to the implementation of any Departmental practice 24
changes in response to, or resulting from, those reportable deaths. 25
(4) A report under this section is to be made to the Minister as soon as practicable 26
after the end of the calendar year to which the report relates. 27
(5) The Minister is to cause a copy of the report made to the Minister under this 28
section to be tabled in each House of Parliament as soon as practicable after 29
the report is made to the Minister. 30
[84] Section 175 Special medical treatment 31
Insert at the end of section 175 (2) (c): 32
, or 33
(d) the Director-General, in the case of special medical treatment described 34
in paragraph (c1) of the definition of special medical treatment in 35
subsection (5), grants an exemption under subsection (4A). 36
[85] Section 175 (4A) and (4B) 37
Insert after section 175 (4): 38
(4A) The Director-General may, by order in writing, grant an exemption (either 39
generally or in a particular case) in relation to the administration of a drug 40
referred to in paragraph (c1) of the definition of special medical treatment in 41
subsection (5) on the written request of the Director-General of the Ministry 42
of Health. 43
Note. A copy of the general exemption issued by the Director-General can be 44
accessed at the following website: 45
www.community.nsw.gov.au/about us/legislation.html. 46
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(4B) If the Director-General of the Ministry of Health makes a written request 1
under subsection (4A) for an exemption in relation to the administration of a 2
particular drug to a particular child and does not receive notification of the 3
decision of the Director-General of the Department within 21 days after the 4
making of the request, the exemption is taken to have been granted on the 5
expiration of the 21-day period. 6
[86] Section 175 (5), definition of "special medical treatment" 7
Insert after paragraph (c) of the definition: 8
(c1) any medical treatment that involves the administration of a drug of 9
addiction within the meaning of the Poisons and Therapeutic Goods Act 10
1966 over a period or periods totalling more than 10 days in any period 11
of 30 days, or 12
Note. A drug of addiction is a substance specified in Schedule Eight of the 13
Poisons List proclaimed under the Poisons and Therapeutic Goods Act 1966. 14
The Poisons List adopts by reference, with certain modifications, 15
Schedules 1-8 of the Poisons Standard under the Therapeutic Goods Act 1989 16
of the Commonwealth. See also the Poisons List information available at 17
www.health.nsw.gov.au/resources/publichealth/pharmaceutical/poisons_list__pdf.asp. 18
(c2) any medical treatment that involves an experimental procedure that 19
does not conform to the document entitled National Statement on 20
Ethical Conduct in Human Research 2007 published by the National 21
Health and Medical Research Council in 2007 and updated in 2013, or 22
Note. A copy of the National Statement on Ethical Conduct in Human Research 23
2007 can be found at www.nhmrc.gov.au/guidelines/publications/e72. 24
[87] Chapter 9, Part 3 25
Insert after section 177: 26
Part 3 Miscellaneous 27
177A Regulations 28
(1) The regulations may make provision for or with respect to the procedures to 29
be followed by the designated agency having supervisory responsibility for a 30
child or young person in out-of-home care in authorising, consenting to or 31
monitoring the physical, psychological, psychiatric or other medical 32
examinations, treatment and control of the behaviour of the child or young 33
person under this Chapter. 34
(2) Without limiting subsection (1), the regulations may require a designated 35
agency to carry out such procedures in accordance with any publicly available 36
guidelines that may be prescribed by the regulations. 37
[88] Section 181 Principal functions of Children's Guardian 38
Insert "the carrying out of" after "monitor" wherever occurring in section 181 (1) (e) 39
and (f). 40
[89] Section 181 (1) (k) 41
Insert after section 181 (1) (j): 42
(k) to accredit adoption service providers under the Adoption Act 2000 and 43
to monitor the carrying out of the responsibilities with respect to the 44
provision of adoption services under that Act and the regulations of 45
those providers and the Director-General. 46
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[90] Chapter 15A 1
Insert after section 244: 2
Chapter 15A Alternative dispute resolution 3
244A Interpretation 4
In this Act: 5
alternative dispute resolution means any process (other than a process 6
involving a judicial determination) conducted under this Act in which an 7
impartial person assists persons in dispute to resolve issues between them, and 8
includes (without limitation) the following: 9
(a) alternative dispute resolution conducted under section 37, 10
(b) a dispute resolution conference conducted under section 65, 11
(c) alternative dispute resolution conducted under section 65A, 12
(d) a dispute resolution conference conducted under section 91D, 13
(e) alternative dispute resolution conducted under section 114. 14
244B Protection of information disclosed in alternative dispute resolution 15
(1) Evidence of anything said or of any admission made in the course of 16
alternative dispute resolution is not admissible in any proceedings before any 17
court, tribunal or body. 18
(2) Evidence of the conduct of any party in the course of alternative dispute 19
resolution is not admissible in any proceedings before any court, tribunal or 20
body. 21
(3) A document prepared for the purposes of, or in the course of, or as a result of, 22
alternative dispute resolution is not admissible in evidence in any proceedings 23
before any court, tribunal or body. 24
(4) Subsections (1)-(3) do not apply with respect to any evidence or document: 25
(a) if the persons participating in, or identified during, the alternative 26
dispute resolution and in the case of a document, all persons identified 27
in the document, consent to the admission of the evidence or document, 28
or 29
(b) in proceedings instituted with respect to any act or omission in 30
connection with which a disclosure has been made under 31
section 244C (2) (b) or (c), (3) or (4). 32
244C Confidentiality of information disclosed in alternative dispute resolution 33
(1) A person who conducts or participates in any alternative dispute resolution 34
process must not disclose anything said or done or any admission made during 35
the process to any other person, except as permitted by subsections (2)-(4). 36
(2) A person conducting alternative dispute resolution may disclose information 37
obtained in connection with the alternative dispute resolution only in any one 38
or more of the following circumstances: 39
(a) with the consent of the person from whom the information was 40
obtained, 41
(b) if there are reasonable grounds to believe that the disclosure is 42
necessary to prevent or minimise the danger of injury to any person or 43
damage to any property, 44
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(c) if, as a result of obtaining the information, the person conducting 1
alternative dispute resolution has reasonable grounds to suspect that a 2
child or young person is at risk of significant harm within the meaning 3
of Part 2 of Chapter 3, 4
Note. See section 23. 5
(d) in accordance with a requirement imposed by or under a law of the State 6
(other than a requirement imposed by a subpoena or other compulsory 7
process) or the Commonwealth. 8
(3) A person participating in alternative dispute resolution may disclose 9
information obtained in connection with the administration or execution of 10
this Chapter only if there are reasonable grounds to believe that the disclosure 11
is necessary to prevent or minimise the danger of injury to any person or 12
damage to any property. 13
(4) Any person conducting or participating in alternative dispute resolution may 14
disclose information obtained in connection with the alternative dispute 15
resolution if the disclosure is reasonably required for the purpose of referring 16
any person conducting the alternative dispute resolution or a legal practitioner 17
participating in the alternative dispute resolution to an appropriate body for 18
any professional misconduct alleged to have been committed in connection 19
with the alternative dispute resolution. 20
[91] Section 245 21
Insert after section 245 (1) (k): 22
(l) a decision of the Director-General or a designated agency as to the 23
suitability of a person to be a guardian. 24
[92] Section 245B Interpretation 25
Omit section 245B (1). Insert instead: 26
(1) In this Chapter: 27
prescribed body means: 28
(a) any body or organisation specified in section 248 (6) or that is 29
prescribed by the regulations for the purposes of that section, or 30
(b) any other body or class of bodies (including an unincorporated body or 31
bodies) or organisation prescribed by the regulations for the purposes of 32
this section. 33
[93] Schedule 3 Savings, transitional and other provisions 34
Omit clause 1 (1). Insert instead: 35
(1) The regulations may contain provisions of a savings or transitional nature 36
consequent on the enactment of this Act or any Act that amends this Act. 37
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[94] Schedule 3, Part 10: 1
Insert after clause 30: 2
Part 10 Provisions consequent on enactment of Child 3
Protection Legislation Amendment Act 2013 4
31 Definition 5
In this Part: 6
amending Act means the Child Protection Legislation Amendment Act 2013. 7
32 Parent responsibility contracts 8
(1) An amendment made to sections 38A-38E by the amending Act extends 9
(except as provided by subclause (2)) to a parent responsibility contract that is 10
in force immediately before the commencement of the amendment. 11
(2) Section 38E (4) as in force immediately before its repeal by the amending Act 12
continues to apply to and in respect of a parent responsibility contract that is 13
in force immediately before that repeal unless its terms are varied under 14
sections 38A-38E as amended by the amending Act. 15
33 Contact orders 16
(1) An application may be made under section 86 (1A), as inserted by the 17
amending Act, by a party to proceedings commenced (irrespective of whether 18
or not finally determined) before the commencement of the insertion. 19
(2) Section 86A, as inserted by the amending Act, extends to the variation of a 20
contact order made before that insertion. 21
34 Orders for sole parental responsibility 22
An order that is in force under section 149 of the Act (as in force immediately 23
before its repeal by the amending Act) allocating sole parental responsibility 24
to an authorised carer (or to the authorised carer and his or her partner) 25
continues to have effect, on the repeal, as if that section were still in force. 26
35 Other orders allocating parental responsibility 27
(1) An order that is in force under section 79 (1) (a) (iii) of the Act (immediately 28
before the substitution of that subparagraph by the amending Act) allocating 29
all aspects of parental responsibility for a child or young person at a place other 30
than the usual home of the child or young person to a relative or kin of the child 31
or young person until the child or young person reaches 18 years of age (the 32
original order) is taken, on the commencement of section 79A, to be a 33
guardianship order allocating all aspects of parental responsibility for the child 34
or young person to that authorised person and his or her spouse. 35
(2) Despite section 135 (3) (b1) (as inserted by the amending Act), a relative or 36
kin of a child or young person who, immediately before being taken to have 37
parental responsibility for a child or young person under a guardianship order 38
by the operation of subclause (1), was being provided with financial assistance 39
under section 161 may (subject to subclause (3) and the regulations) continue 40
to be provided financial assistance under that section as if the child or young 41
person were still in out-of-home care for the purposes of this Act. 42
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(3) A person who is provided with financial assistance in accordance with 1
subclause (2) must make an annual report to the Director-General (in the form 2
required by the Director-General) concerning such matters as may be required 3
by the Director-General relating to the provision of that financial assistance. 4
36 Existing supported out-of -home care arrangements 5
Except as provided by clause 34, a provision of Chapter 8 that applied to or in 6
respect of the placement of a child or young person in supported out-of-home 7
care before the provision was amended by the amending Act continues to 8
apply to and in respect of that placement as if the provision had not been 9
amended. 10
37 Parent capacity orders 11
Section 91B (b), as inserted by the amending Act, extends to a prohibition 12
order breached before the insertion. 13
38 Alternative dispute resolution 14
Chapter 15A, as inserted by the amending Act, does not apply to or in respect 15
of alternative dispute resolution conducted before the commencement of that 16
Chapter under section 37, 65 or 114. 17
39 Preparation of permanency plan 18
Section 83 (4), as amended by the amending Act, extends to a plan prepared, 19
but that has not been submitted to the Children's Court in accordance with 20
section 83 (3), before the commencement of the amendment. 21
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 2 Amendment of other Acts and Regulation
Schedule 2 Amendment of other Acts and Regulation 1
2.1 Adoption Act 2000 No 75 2
[1] Section 10 Adoption services to be provided by or on behalf of Director-General 3
Omit ", and may accredit others to provide," from section 10 (1). 4
[2] Section 10 (2) (e) 5
Omit the paragraph. 6
[3] Section 11 Unauthorised arrangements for adoption 7
Omit section 11 (1) (b). Insert instead: 8
(b) an organisation accredited by the Children's Guardian in accordance 9
with the regulations as an adoption service provider that may provide 10
the service. 11
[4] Section 11 (2) 12
Omit "under Part 2". Insert instead "in accordance with the regulations". 13
[5] Chapter 3, Part 2 14
Omit the Part. Insert instead: 15
Part 2 Accreditation of adoption service providers 16
12 Accreditation and review of adoption service providers 17
(1) A charitable or non-profit organisation may apply to the Children's Guardian 18
for accreditation as an adoption service provider that may provide adoption 19
services specified by the Children's Guardian. 20
(2) The Children's Guardian is to monitor the carrying out of the responsibilities 21
with respect to the provision of adoption services under this Act and the 22
regulations of the Director -General and accredited adoption service providers. 23
13 Accreditation criteria 24
(1) On the recommendation of the Children's Guardian, the Minister may, from 25
time to time by order published in the Gazette, approve standards and other 26
criteria for use in determining: 27
(a) whether to grant an application for accreditation as an accredited 28
adoption service provider, and 29
(b) the period for which accreditation is to be granted. 30
(2) Standards and criteria may be approved under subsection (1) in respect of a 31
class or classes of applicants. 32
(3) Without limiting subsection (1), the criteria approved under that subsection are 33
to be integrated, to the greatest extent practicable, with the criteria for 34
accreditation of a designated agency under the Children and Young Persons 35
(Care and Protection) Act 1998. 36
(4) Failure to comply with subsection (3) does not affect the validity of any 37
decision of the Children's Guardian to accredit or not to accredit an applicant. 38
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 2 Amendment of other Acts and Regulation
[6] Chapter 4, Part 3, heading 1
Insert "other than authorised carers" after "parents". 2
[7] Section 41 3
Omit the section. Insert instead: 4
41 Application of Part 5
This Part applies to the assessment of the suitability, and selection, of 6
prospective adoptive parents of a child other than step parents or relatives or 7
authorised carers. 8
Note. Part 3A of this Chapter provides for prospective adoptive parents who are 9
authorised carers. 10
[8] Section 45 Assessment of suitability, and selection, of adoptive parents 11
Omit section 45 (2). Insert instead: 12
(2) The Director-General or appropriate principal officer must not assess a person 13
as suitable to be approved to adopt a child unless the person and every adult 14
person who resides with the person has a working with children check 15
clearance that is in force under the Child Protection (Working with Children) 16
Act 2012 or is exempted by the regulations under that Act from the 17
requirement to hold such a clearance. 18
[9] Chapter 4, Part 3A 19
Insert after section 45B: 20
Part 3A Selection of authorised carers as adoptive parents 21
45C Application of Part 22
This Part applies to the assessment of the suitability, and selection, of 23
prospective adoptive parents who are authorised carers (within the meaning of 24
section 137 (1) (b) of the Children and Young Persons (Care and Protection) 25
Act 1998) of a child who is in out-of-home care. 26
45D Application to adopt 27
The Director-General may, in accordance with the regulations, invite an 28
authorised carer of a child who is in out-of-home care to submit an application 29
to adopt the child. 30
45E Form of application 31
An application to adopt a child under this Part is to be made in accordance with 32
the regulations. 33
45F Assessment of suitability, and selection, of adoptive parents 34
The regulations may make provision for or with respect to the assessment of 35
the suitability of authorised carers of children to be approved and selected to 36
adopt the children under this Act. 37
45G Background information about prospective adoptive parents to be made 38
available to birth parents 39
(1) If an application to adopt a child is made by an authorised carer, background 40
information relating to the authorised carer that is obtained by the 41
Director-General or principal officer in connection with the application is, at 42
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 2 Amendment of other Acts and Regulation
the request of the birth parents of the child, to be provided to the birth parents 1
before any adoption order may be made in relation to that child. 2
(2) In this section, background information relating to an authorised carer 3
includes information about the carer's social and cultural background, 4
religious beliefs, domestic relationship and living arrangements, but does not 5
include any information that identifies the carer. 6
45H Consideration of wishes of parents consenting to adoption 7
(1) A general consent of the parent of a child to the adoption of the child, as 8
referred to in section 53, may express the wishes of the parent as to the 9
preferred background, beliefs or domestic relationship of any prospective 10
adoptive parents of the child. 11
(2) Nothing in the Anti-Discrimination Act 1977 prevents the Director-General or 12
a principal officer of an adoption service provider from identifying 13
(consistently with the best interests of the child) prospective adoptive parents 14
who reflect those wishes in the adoption selection process under this Part. 15
[10] Section 46 What is an adoption plan? 16
Insert after section 46 (2): 17
(2A) A birth parent who has not consented to the adoption of a child (a 18
non-consenting birth parent) is, as far as possible, to be given the opportunity 19
to participate in the development of, and agree to, an adoption plan in relation 20
to the child. 21
(2B) A non-consenting birth parent who agrees to an adoption plan is, for the 22
purposes of sections 47, 48, 50, 51 and 90, to be treated as if the 23
non-consenting birth parent were a party to the adoption of the child. 24
[11] Section 193 (1) (a)-(d) 25
Omit the paragraphs. 26
[12] Section 208 Regulations 27
Insert "or the Children's Guardian" after "Director-General" in section 208 (2) (b). 28
[13] Section 208 (2) (d) and (e) 29
Insert after section 208 (2) (c): 30
(d) the accreditation of organisations as adoption service providers and the 31
provision of adoption services by such providers, 32
(e) the appointment of principal officers of accredited adoption service 33
providers. 34
[14] Schedule 3 Savings, transitional and other provisions 35
Insert after clause 24: 36
Part 7 Provisions consequent on enactment of Child 37
Protection Legislation Amendment Act 2013 38
25 Definition 39
In this Part: 40
amending Act means the Child Protection Legislation Amendment Act 2013. 41
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 2 Amendment of other Acts and Regulation
26 Existing accreditation and applications for accreditation 1
(1) An organisation that, immediately before the substitution of Part 2 of 2
Chapter 3 by the amending Act, was accredited as an adoption service 3
provider under that Part is taken on that substitution to have been accredited 4
under that Part as substituted for the period and subject to the conditions to 5
which it was subject before the substitution. 6
(2) An application for accreditation made by an organisation under Part 2 of 7
Chapter 3 before its substitution by the amending Act and not finally dealt with 8
before that substitution is to continue to be dealt with as if the Part had not been 9
substituted unless the applicant elects to have the application dealt with under 10
the Part as substituted. 11
[15] Dictionary 12
Omit the definition of accreditation notice. 13
[16] Dictionary, definition of "accredited adoption service provider" 14
Omit "under Chapter 3". 15
[17] Dictionary 16
Insert in alphabetical order: 17
Children's Guardian means the Children's Guardian appointed under section 178 of the 18
Children and Young Persons (Care and Protection) Act 1998. 19
out-of-home care has the same meaning as it has in the Children and Young Persons (Care 20
and Protection) Act 1998. 21
[18] Dictionary, definition of "principal officer" 22
Omit the definition. Insert instead: 23
principal officer of an accredited adoption service provider means the person 24
who has the overall supervision of the provision by the accredited adoption 25
service provider of adoption services. 26
2.2 Child Protection (Working with Children) Act 2012 No 51 27
[1] Sections 11 and 11A 28
Omit section 11. Insert instead: 29
11 Prospective adoptive parents and adults residing with them 30
(1) This section applies to: 31
(a) a person who has submitted an application under the Adoption Act 2000
to adopt a child that has not been finally dealt with by the making of or 32
33
refusal to make an adoption order (a prospective adoptive parent), and 34
(b) each adult person who is residing at the home of that prospective 35
adoptive parent during the period beginning when the application is 36
made and ending when it is finally dealt with (an adult resident). 37
(2) A person to whom this section applies must apply to the Children's Guardian 38
for a working with children check clearance of the volunteer class unless: 39
(a) the person holds a clearance of any class that is in force, or 40
(b) a current application for a clearance has been made by the person, or 41
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Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 2 Amendment of other Acts and Regulation
(c) the person is exempted by the regulations from the requirement to hold 1
a clearance. 2
(3) For the purposes of the application of this Act (other than section 9) to a 3
prospective adoptive parent or adult resident, the relevant decision-maker in 4
relation to the prospective adoptive parent is to be treated as the employer of 5
the prospective adoptive parent and adult resident. 6
(4) In this section: 7
accredited adoption service provider has the same meaning as it has in the 8
Adoption Act 2000. 9
relevant decision-maker in relation to a prospective adoptive parent means: 10
(a) if the prospective adoptive parent has made an application to adopt a 11
child to the Director-General of the Department of Family and 12
Community Services--the Director-General, or 13
(b) if the prospective adoptive parent has made an application to adopt a 14
child to an accredited adoption service provider--the principal officer 15
of the service provider. 16
11A Prospective guardians and adults residing with them 17
(1) This section applies to: 18
(a) a prospective guardian within the meaning of section 79A of the 19
Children and Young Persons (Care and Protection) Act 1998, and 20
(b) each adult person who is residing at the home of that prospective 21
guardian during the period beginning when the application under that 22
section for a guardianship order relating to that prospective guardian is 23
made under that section and ending when it is finally dealt with (an 24
adult resident). 25
(2) A person to whom this section applies must apply to the Children's Guardian 26
for a working with children check clearance of the volunteer class unless: 27
(a) the person holds a clearance of any class that is in force, or 28
(b) a current application for a clearance has been made by the person, or 29
(c) the person is exempted by the regulations from the requirement to hold 30
a clearance. 31
(3) For the purposes of the application of this Act (other than section 9) to a 32
prospective guardian or adult resident, the relevant decision-maker in relation 33
to the prospective guardian is to be treated as the employer of the prospective 34
guardian and adult resident. 35
(4) In this section: 36
relevant decision-maker in relation to a prospective guardian means: 37
(a) if the application for the guardianship order was made by the 38
Director-General of the Department of Family and Community 39
Services--the Director-General, or 40
(b) in the case of such an application made by any other person or body-- 41
the principal officer of the designated agency responsible for assessing 42
the prospective guardian to be a suitable person to be allocated all 43
aspects of parental responsibility for a child or young person. 44
Page 32
Child Protection Legislation Amendment Bill 2013 [NSW]
Schedule 2 Amendment of other Acts and Regulation
[2] Schedule 3 Savings, transitional and other provisions 1
Insert after clause 7: 2
Part 3 Provision consequent on enactment of Child 3
Protection Legislation Amendment Act 2013 4
8 Potential adoptive parents 5
Section 11, as substituted by the Child Protection Legislation Amendment Act 6
2013 applies to and in respect of an application to adopt that has been made 7
but not finally dealt with by the making of or refusal to make an adoption order 8
before the commencement of this clause. 9
2.3 Children Legislation Amendment (Wood Inquiry Recommendations) 10
Act 2009 No 13 11
Repeal the Act. 12
2.4 Children's Court Regulation 2009 13
Clause 5 Appeals etc under Children and Young Persons (Care and Protection) Act 14
1998 15
Insert after clause 5 (1) (a): 16
(a1) section 91I (Right of appeal), 17
2.5 Guardianship Act 1987 No 257 18
Section 15 Restrictions on Tribunal's power to make guardianship orders 19
Insert at the end of section 15 (1) (b): 20
, or 21
(c) in the case of a person who is the subject of an order made by the 22
Children's Court in the exercise of its jurisdiction under section 79A of 23
the Children and Young Persons (Care and Protection) Act 1998-- 24
unless the Children's Court consents to the making of the order. 25
Page 33
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