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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Children and Young Persons (Care and
Protection) Amendment (Permanency
Planning) Bill 2001
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Children and Young Persons (Care and
Protection) Act 1998 No 157 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2001
New South Wales
Children and Young Persons (Care and
Protection) Amendment (Permanency
Planning) Bill 2001
Act No , 2001
An Act to amend the Children and Young Persons (Care and Protection) Act 1998
with respect to the long term welfare of children and young persons who are placed
in out-of-home care; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Children and Young Persons (Care and Protection)
Amendment (Permanency Planning) Act 2001.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Children and Young Persons (Care and Protection)
Act 1998 No 157
The Children and Young Persons (Care and Protection) Act 1998 is
amended as set out in Schedule 1.
Page 2
Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order:
permanency plan means a plan that makes provision with
respect to permanency planning.
permanency plan involving restoration--see section 84.
permanency planning--see section 78A.
permanent placement means a long-term placement following
the removal of a child or young person from the care of a
parent or parents pursuant to this Act which provides a safe,
nurturing and secure environment for the child or young person
and which may be achieved by:
(a) restoration to the care of a parent or parents, or
(b) placement with a member or members of the same
kinship group as the child or young person, or
(c) long-term placement with an authorised carer, or
(d) placement under an order for sole parental
responsibility under section 149, or
(e) placement under a parenting order under the Family
Law Act 1975 of the Commonwealth, or
(f) adoption.
[2] Section 3
Omit the definition of restoration plan.
[3] Section 9 What principles are to be applied in the administration of
this Act?
Insert "In particular, the safety, welfare and well-being of a child or young
person who has been removed from his or her parents are paramount over
the rights of the parents." at the end of section 9 (a).
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Schedule 1 Amendments
[4] Section 9 (f) and (g)
Omit section 9 (f). Insert instead:
(f) If a child or young person is placed in out-of-home
care, arrangements should be made, in a timely manner,
to ensure the provision of a safe, nurturing, stable and
secure environment, recognising the child or young
person's circumstances and that, the younger the age of
the child, the greater the need for early decisions to be
made in relation to a permanent placement.
(g) If a child or young person is placed in out-of-home care,
the child or young person is entitled to a safe, nurturing,
stable and secure environment. Unless it is contrary to
his or her best interests, and taking into account the
wishes of the child or young person, this will include
the retention by the child or young person of
relationships with people significant to the child or
young person, including parents, siblings, extended
family, peers, family friends and community.
[5] Section 70A
Insert after section 70:
70A Consideration of necessity for interim care order
An interim care order should not be made unless the Children's
Court has satisfied itself that the making of the order is
necessary, in the interests of the child or young person, and is
preferable to the making of a final order or an order dismissing
the proceedings.
Note. Sections 63 and 72 deal with the power of the Children's Court to
dismiss proceedings and section 94 deals with adjournments.
[6] Section 78 Care plans
Omit section 78 (2) (b). Insert instead:
(b) the kind of placement proposed to be sought for the
child or young person, including:
(i) how it relates to permanency planning for the
child or young person, and
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Amendments Schedule 1
(ii) any interim arrangements that are proposed for
the child or young person pending permanent
placement and the timetable proposed for
achieving a permanent placement,
[7] Section 78A
Insert after section 78:
78A Permanency planning
(1) For the purposes of this Act, permanency planning means the
making of a plan that aims to provide a child or young person
with a stable placement that offers long-term security and that:
(a) has regard, in particular, to the principle set out in
section 9 (f), and
(b) meets the needs of the child or young person, and
(c) avoids the instability and uncertainty arising through a
succession of different placements or temporary care
arrangements.
(2) Permanency planning recognises that long-term security will be
assisted by a permanent placement.
(3) A permanency plan for an Aboriginal or Torres Strait Islander
child or young person must address how the plan has complied
with the Aboriginal and Torres Strait Islander Child and Young
Person Placement Principles in section 13.
(4) If a permanency plan indicates an intention to provide
permanent placement through an order for sole parental
responsibility or adoption of an Aboriginal or Torres Strait
Islander child or young person with a non-Aboriginal or non-
Torres Strait Islander person or persons, such an order should
be made only:
(a) if no suitable permanent placement can be found with
an Aboriginal or Torres Strait Islander person or persons
in accordance with the Aboriginal and Torres Strait
Islander Child and Young Person Placement Principles
in section 13, and
(b) in consultation with the child or young person, where
appropriate, and
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Schedule 1 Amendments
(c) in consultation with a local, community-based and
relevant Aboriginal or Torres Strait Islander
organisation and the local Aboriginal or Torres Strait
Islander community, and
(d) if the child or young person is able to be placed with a
culturally appropriate family, and
(e) with the approval of the Minister for Community
Services and the Minister for Aboriginal Affairs.
[8] Section 81 Parental responsibility of the Minister
Insert "while still recognising that the safety, welfare and well-being of the
child or young person remains the paramount consideration" after "made"
in section 81 (2).
[9] Section 82 Monitoring by Children's Court of order concerning parental
responsibility
Insert after section 82 (1):
(1A) The report must include an assessment of progress in
implementing the care plan, including progress towards the
achievement of a permanent placement.
[10] Section 83
Omit the section. Insert instead:
83 Preparation of permanency plan
(1) If the Director-General applies to the Children's Court for a
care order (not being an emergency care and protection order)
for the removal of a child or young person, the Director-
General must assess whether there is a realistic possibility of
the child or young person being restored to his or her parents,
having regard to:
(a) the circumstances of the child or young person, and
(b) the evidence, if any, that the child or young person's
parents are likely to be able to satisfactorily address the
issues that have led to the removal of the child or young
person from their care.
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Amendments Schedule 1
(2) If the Director-General assesses that there is a realistic
possibility of restoration, the Director-General is to prepare a
permanency plan involving restoration and submit it to the
Children's Court for its consideration.
(3) If the Director-General assesses that there is not a realistic
possibility of restoration, the Director-General is to prepare a
permanency plan for another suitable long-term placement for
the child or young person and submit it to the Children's Court
for its consideration.
(4) In preparing a plan under subsection (3), the Director-General
may consider whether adoption is the preferred option for the
child or young person.
(5) The Children's Court is to decide whether to accept the
assessment of the Director-General.
(6) If the Children's Court does not accept the Director-General's
assessment, it may direct the Director-General to prepare a
different permanency plan.
(7) The Children's Court must not make a final care order unless
it expressly finds:
(a) that permanency planning for the child or young person
has been appropriately and adequately addressed, and
(b) that prior to approving a permanency plan involving
restoration there is a realistic possibility of restoration
having regard to:
(i) the circumstances of the child or young person,
and
(ii) the evidence, if any, that the child or young
person's parents are likely to be able to
satisfactorily address the issues that have led to
the removal of the child or young person from
their care.
(8) A permanency plan is only enforceable to the extent to which
its provisions are embodied in, or approved by, an order or
orders of the Children's Court.
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Schedule 1 Amendments
[11] Section 84 Requirements of permanency plans involving restoration
Omit "restoration plan".
Insert instead "permanency plan involving restoration".
[12] Section 85A
Insert after section 85:
85A Review of permanency plans involving restoration
(1) A permanency plan involving restoration is to be reviewed by
the designated agency responsible for the placement of the
child or young person:
(a) at the end of the length of time included in the
permanency plan as the length of time during which
restoration should be actively pursued, or
(b) if a review is directed by the Children's Guardian.
(2) A permanency plan involving restoration is to be reviewed by
the designated agency if it has not been reviewed under
subsection (1) within 12 months after the last occasion on
which it was considered by the Children's Court.
(3) A review is to determine:
(a) whether the provisions of the permanency plan should
be changed, particularly with respect to the length of
time during which restoration should be actively
pursued, and
(b) whether other arrangements should be made for the
permanent placement of the child or young person, and
(c) whether the designated agency should recommend to
the Director-General that an application for a care order
be made or whether the designated agency should make
an application for the rescission or variation of a care
order.
(4) Nothing in this section affects any obligation under section 150
to review the placement, and a review under section 150 may
be taken to be a review for the purposes of this section also if
the review under section 150 satisfies the requirements of this
section.
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Amendments Schedule 1
(5) The regulations may make provision for or with respect to a
review under this section, including:
(a) the qualifications of the person carrying out the review
on behalf of the designated agency, and
(b) the matters to be taken into consideration in carrying out
the review, and
(c) the release of reports prepared in relation to the review.
[13] Section 90 Rescission and variation of care orders
Omit section 90 (2). Insert instead:
(2) The Children's Court may grant leave if it appears that there
has been a significant change in any relevant circumstances
since the care order was made or last varied.
(2A) Before granting leave to vary or rescind the care order, the
Children's Court must take the following matters into
consideration:
(a) the nature of the application, and
(b) the age of the child or young person, and
(c) the length of time for which the child or young person
has been in the care of the present carer, and
(d) the plans for the child, and
(e) whether the applicant has an arguable case.
[14] Section 90 (3A)
Insert after section 90 (3):
(3A) If:
(a) an application is made to the Children's Court by a
person or persons (other than the Director-General) for
the rescission or variation of a care order (other than a
contact order) in relation to a child or young person, and
(b) the application seeks to change the parental
responsibility for the child or young person, or those
aspects of parental responsibility involved in having
care responsibility for the child or young person, and
Page 9
Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Schedule 1 Amendments
(c) the Director-General is not a party to the proceedings,
the applicant must notify the Director-General and the
Children's Guardian of the application, and the Director-
General and the Children's Guardian are entitled to be parties
to the application.
[15] Section 94 Expedition and adjournments
Insert "and to finalise decisions concerning the long-term placement of the
child or young person" after "family" in section 94 (1).
[16] Section 94 (4)
Omit the subsection. Insert instead:
(4) The Children's Court should avoid the granting of
adjournments to the maximum extent possible and must not
grant an adjournment unless it is of the opinion that:
(a) it is in the best interests of the child or young person to
do so, or
(b) there is some other cogent or substantial reason to do so.
[17] Section 135 What is "out-of-home care"?
Omit section 135 (1) (b). Insert instead:
(b) by a person, other than a parent of the child or young
person, and
[18] Section 135 (2)
Insert after section 135 (2) (a):
(a1) any care provided by a relative of a child or young
person unless:
(i) the Minister has parental responsibility for the
child or young person by virtue of an order of
the Children's Court, or
(ii) the child or young person is in the care of the
Director-General, or
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Amendments Schedule 1
[19] Section 149
Omit the section. Insert instead:
149 Order for sole parental responsibility
(1) An authorised carer who, for a continuous period of not less
than 2 years, has had the care of a child or young person, for
whom the Minister (either alone or with another person or
persons) has parental responsibility, may apply to the
Children's Court for an order awarding sole parental
responsibility for the child or young person to the authorised
carer, subject to this section.
(2) The application may be made by the authorised carer and the
authorised carer's partner, if the partner so consents, and an
order may be made accordingly.
(3) An application cannot be made by a person who has the
responsibility of an authorised carer solely in his or her capacity
as the principal officer of a designated agency.
(4) An application cannot be made without the consent of the
person or persons who had parental responsibility for the child
or young person immediately before parental responsibility was
allocated to the Minister. The Children's Court must be
satisfied that the consent has been properly given on an
informed basis.
(5) An application that relates to a child who is not less than 12
years of age, or a young person, and who is capable of giving
consent cannot be made without the consent of the child or
young person. A consent is to be given in such form and
manner as may be prescribed by the regulations.
(6) If an application relates to a child who is less than 12 years of
age, the principal officer of the relevant designated agency is to
give the child notice of the application.
(7) In making an order under this section for sole parental
responsibility, the Children's Court may make or vary a contact
order under section 86.
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Schedule 1 Amendments
149A Variation or rescission of order for sole parental responsibility
(1) An application for the variation or rescission of a sole parental
responsibility order under section 149 in respect of a child or
young person cannot be brought except with:
(a) the leave of the Children's Court, and
(b) the consent of the principal officer of the designated
agency that had last supervised the placement of the
child or young person.
(2) If:
(a) the principal officer of the designated agency that had
last supervised the placement of the child or young
person gives consent under subsection (1) (b), and
(b) the designated agency has provided support for the
placement,
the principal officer must provide the Children's Court with a
report concerning the placement together with such other
information as may be relevant to the application.
(3) Section 90 (6) applies to the determination of an application to
vary or rescind a sole parental responsibility order under
section 149 in respect of a child or young person in the same
way as it applies to the variation or rescission of a care order.
(4) This section does not limit or affect the making of an
application to the Children's Court by the Director-General
under section 45 or 61.
Note. Section 247 provides that nothing in this Act limits the jurisdiction
of the Supreme Court. Consequently, nothing in this section will limit that
jurisdiction.
(5) The regulations may make provision for or with respect to:
(a) the form and manner in which a consent is to be given
for the purposes of this section, and
(b) the form and contents of a report under subsection (2).
[20] Section 150 Review of placements effected by order of Children's Court
Omit "A review" from section 150 (2).
Insert instead "Except as provided by subsection (3A), a review".
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Amendments Schedule 1
[21] Section 150 (3A)
Insert after section 150 (3):
(3A) In the case of a child or young person who has been placed in
the care of a relative, reviews are to be conducted at intervals
prescribed by or in accordance with the regulations.
[22] Section 151 Making of temporary care arrangements
Omit "restoration plan" from section 151 (4).
Insert instead "permanency plan involving restoration".
[23] Section 155 Monitoring of children and young persons in voluntary
out-of-home care
Omit "restoration plan" from section 155 (2) (a) (i).
Insert instead "permanency plan involving restoration".
[24] Section 265 Review of Act
Omit section 265 (2). Insert instead:
(2) The review is to be undertaken as soon as possible after the
period of 4 years from the date of assent to the Children and
Young Persons (Care and Protection) Amendment
(Permanency Planning) Act 2001.
(2A) The review is to consider, in particular, the effects of the
provisions in this Act for permanency planning on Aboriginal
and Torres Strait Islander children and young persons.
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Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Bill 2001
Schedule 1 Amendments
[25] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Children and Young Persons (Care and Protection)
Amendment (Permanency Planning) Act 2001
Page 14
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