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Changing care and protection legislation and court processes is a key theme to reforming the NSW child protection system, particularly focusing on reducing the overrepresentation of Aboriginal people in out-of-home care (OOHC).
In November 2022, the NSW Government passed the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Bill 2022, in response to Family is Culture recommendations proposing legislative reform.
As a result of this, amendments have been made to the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) and other legislation
The new laws seek to make the child protection system more equitable, accountable and responsive the children, families, and communities we serve, including:
Better and earlier engagement with children’s extended family and support networks and communities to support family preservation and restoration.
Timely support for children and families, ensuring they are assisted at an earlier stage.
Requirements for practitioners to take ‘active efforts’ to prevent children from entering out-of-home care and to restore children to family Application of the five elements of the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) in decisions involving Aboriginal children.
Active participation of children, families, and communities in important decision-making processes throughout their involvement with the child protection system.
The use of alternative options to removal.
Enhanced accountability, with annual reporting, on the implementation of new 'active efforts' provisions, by the Minister for Families and Communities
Applying the five elements of the ATSICPP when working with Aboriginal children and families (these are: prevention, partnership, placement, participation, connection).
The Children’s Court cannot presume that a child needs care and protection because their sibling has previously been removed and not restored to the parent.
The ability for Aboriginal community representatives to speak on behalf of a family in the Children’s Court.
The ability for the Children’s Court to require a caseworker, or NGO with case management responsibility, to attend court for a child in care who is involved in criminal proceedings.
There are new provisions that will come into effect on 15 November 2023. From this date, the Children’s Court will be able to request evidence of the ‘active efforts’ taken by practitioners to prevent removal and support restoration.
Active Efforts are specific actions or activities undertaken by casework practitioners and services to reduce the risk of removing children from their homes. They apply to all children and families involved with the statutory child protection system, emphasising a holistic approach to child welfare.
These actions aim to ensure children and young people can live safely with their families when staying at home is not possible and support the restoration of children to their families.
Involving families and support networks much earlier in the process, from assessment through to case closure.
Using family-led decision-making processes, including Aboriginal Family-Led Decision Making (AFLDM) to guide assessments, planning, and care and restoration decisions.
Informing Families about their legal rights and supported to access independent legal advice at multiple stages throughout the involvement with the child protection system.
using alternative options to removal including Parent Responsibility Contracts, Parent Capacity Orders, Temporary Care Arrangements and Alternative Dispute Resolution, when it is safe to do so
referring families to relevant services, supporting their engagement, and monitoring their progress
timely restoration casework to prevent children from drifting in care and improve support for parents
ensuring children in care are supported to maintain connection to family and culture.
Making cultural plans for Aboriginal children. There are additional requirements for permanency plans, including evidence of compliance with the Aboriginal and Torres Strait Islander Child Placement Principle.
Ongoing support and monitoring of family time to ensure children in care maintain connections to their parents, siblings, and extended family and support network.
If you have questions or need further information, you can email FamilyIsCulture@dcj.nsw.gov.au
Read the amendments to the sections of the Care Act.
23 Nov 2023