CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998

New South Wales Consolidated Acts

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CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998

- As at 3 November 2009
- Act 157 of 1998

TABLE OF PROVISIONS

Long Title

CHAPTER 1 - PRELIMINARY

1. Name of Act
2. Commencement
3. Definitions
4. Children and young persons to whom this Act applies
5. Meaning of “Aboriginal” and “Torres Strait Islander”
6. Notes

CHAPTER 2 - OBJECTS, PRINCIPLES AND RESPONSIBILITIES

PART 1 - OBJECTS AND PRINCIPLES

7. What is the role of the objects and principles of this Act?
8. What are the objects of this Act?
9. What principles are to be applied in the administration of this Act?
10. The principle of participation

PART 2 - ABORIGINAL AND TORRES STRAIT ISLANDER PRINCIPLES

11. Aboriginal and Torres Strait Islander self-determination
12. Aboriginal and Torres Strait Islander participation in decision-making
13. Aboriginal and Torres Strait Islander Child and Young Person Placement Principles
14. Records relating to Aboriginals and Torres Strait Islanders

PART 3 - ROLES OF THE MINISTER AND DIRECTOR-GENERAL

15. General role of the Minister
16. General role of the Director-General
17. Director-General’s request for services from other agencies
18. Obligation to co-operate
19. Interagency co-operation and exchange of information

CHAPTER 3 - REQUESTS FOR ASSISTANCE AND REPORTS
Note

PART 1 - REQUESTS FOR ASSISTANCE

20. Request for assistance by child or young person
21. Request for assistance from parent of child or young person
22. Director-General’s response to requests for assistance and reports

PART 2 - REPORTS

23. Child or young person at risk of harm
24. Report concerning child or young person at risk of harm
25. Pre-natal reports
26. Anonymity
27. Mandatory reporting
28. Records of reports and subsequent action
29. Protection of persons who make reports or provide certain information
29A. Person who makes report is not prevented from helping child or young person

PART 3 - INVESTIGATIONS AND ASSESSMENT

30. Director-General’s investigations and assessment
31. Matters for consideration
32. Initial identification-Aboriginals and Torres Strait Islanders
33. Investigation if allegation made against staff of Department

CHAPTER 4 - CHILDREN AND YOUNG PERSONS IN NEED OF CARE AND PROTECTION

PART 1 - ACTION TAKEN BY DIRECTOR-GENERAL

34. Taking of action by Director-General
35. Decision against taking action
36. Principles of intervention

PART 2 - USE OF ALTERNATIVE DISPUTE RESOLUTION

37. Alternative dispute resolution

PART 3 - CARE PLANS AND PARENT RESPONSIBILITY CONTRACTS

Division 1 - Care plans

38. Development and enforcement of care plans

Division 2 - Parent responsibility contracts

38A. Parent responsibility contracts
38B. Amendment of parent responsibility contracts
38C. Termination of parent responsibility contracts
38D. Effect of parent responsibility contract
38E. Contract breach notices

Division 3 - Registration of care plans and parent responsibility contracts

38F. When registration occurs
38G. Registration does not make care plans and parent responsibility contracts court documents

PART 4 - MISCELLANEOUS

39. Action for removal of child or young person or exercise of other functions
40. Application for certain orders
41. Temporary care arrangements
42. Sexually abusive behaviour by certain children and young persons

CHAPTER 5 - CHILDREN’S COURT PROCEEDINGS

PART 1 - EMERGENCY PROTECTION AND ASSESSMENT

Division 1 - Emergency removal

43. Removal of children and young persons without warrant
44. Director-General may assume care responsibility of child or young person in hospital or other premises
45. Prompt application to Children’s Court for care order

Division 2 - Emergency care and protection orders

46. Emergency care and protection orders
47. (Repealed)

Division 3 - Other removal authorised by the Children’s Court

48. Removal of child or young person pursuant to order of Children’s Court

Division 4 - Who has care responsibility?

49. Care of child or young person pending care proceedings
50. Discharge of child or young person from Director-General’s care responsibility

Division 5 - What information must be given following removal?
Note

51. Duty of Director-General to give information to certain persons

Division 6 - Examination and assessment orders

52. Definition of “assessment order”
53. Making of assessment orders
54. Assessment of person’s capacity for parental responsibility
55. Application for order
56. Matters for consideration in making an assessment order
57. Information concerning assessment
58. Role of Children’s Court Clinic
59. Evidentiary status of assessment report

PART 2 - CARE APPLICATIONS

60. Definitions
61. Applications for care orders
61A. Applications for care orders by filing contract breach notices
62. Interim and final orders
63. Evidence of prior alternative action
64. Notification of care applications
64A. Evidence in the form of a recording
65. Preliminary conferences
66. Leave to withdraw care application
67. Children’s Court order not limited by terms of care application
68. Leave to file further documentary evidence
69. Interim care orders
70. Other interim orders
70A. Consideration of necessity for interim care order
71. Grounds for care orders
71A. Effect of conduct outside New South Wales
72. Determination as to care and protection
73. Order accepting undertakings
74. Order for provision of support services
75. Order to attend therapeutic or treatment program
76. Order for supervision
77. Supervision of child or young person under a supervision order
78. Care plans
78A. Permanency planning
79. Order allocating parental responsibility
80. Requirement to consider care plan
81. Parental responsibility of the Minister
82. Monitoring by Children’s Court of order concerning parental responsibility
83. Preparation of permanency plan
84. Requirements of permanency plans involving restoration
85. Provision of services to facilitate restoration
85A. Review of permanency plans involving restoration
86. Contact orders
87. Making of orders that have a significant impact on persons
88. Costs
89. Copies of final orders to be given to all parties
90. Rescission and variation of care orders
90A. Order prohibiting action
91. Appeals

CHAPTER 6 - CHILDREN’S COURT PROCEDURE

PART 1 - GENERAL

92. Proceedings to which this Chapter applies
93. General nature of proceedings
94. Expedition and adjournments
95. Court to explain proceedings to children and young persons
96. Attendance of child or young person, parents and others
97. Effect of failure of attendance
98. Right of appearance
99. Appointment of legal representative by Children’s Court
99A. Legal representative to act as independent legal representative or direct legal representative
99B. Child under 12 presumed incapable of giving proper instructions
99C. Child 12 or older and young person presumed capable of giving proper instructions
99D. Role of a legal representative
100. Guardian ad litem-child or young person
101. Guardian ad litem and amicus curiae-parents of child or young person
102. Support persons
103. Views of siblings
104. Exclusion of child or young person from proceedings
104A. Exclusion of particular persons from proceedings
104B. Exclusion of general public from proceedings
104C. Entitlement of media to hear proceedings
105. Publication of names and identifying information
106. Admissibility of certain statements
106A. Admissibility of certain other evidence
107. Examination and cross-examination of witnesses
108. Proceedings unaffected by pending criminal proceedings

PART 2 - ATTENDANCE OF WITNESSES AND OTHERS AND PRODUCTION OF DOCUMENTS

Division 1 - Preliminary

109. Definitions

Division 2 - Compelling attendance at proceedings

109A. Form and service of care proceedings attendance notice
109B. Issue of arrest warrant to compel attendance at proceedings

Division 3 - Subpoenas for attendance of witnesses to give evidence and produce documents

109C. Issue of subpoenas
109D. Time for service of subpoenas
109E. Conduct money
109F. Limits on obligations under subpoenas
109G. Production by non-party
109H. Subpoena may be set aside
109I. Inspection of subpoenaed documents and things
109J. Action that may be taken if person does not comply with subpoena
109K. Action that may be taken if person refuses to give evidence

Division 4 - Arrest warrants

109L. When arrest warrants may be issued
109M. Form of arrest warrant
109N. Duration of arrest warrants
109O. Persons who may execute arrest warrant
109P. Procedure after arrest
109Q. Revocation of warrants

Division 5 - Warrants of commitment

109R. Form of warrants of commitment
109S. Procedure for taking person to correctional centre, detention centre or other place of security
109T. Defects in warrants of commitment

Division 6 - Bail

109U. Application of Bail Act 1978
109V. Review of bail decisions

Division 7 - General

109W. Warrants
109X. Rules relating to subpoenas

CHAPTER 7 - SUPPORT FOR CHILDREN AND YOUNG PERSONS IN CRISIS

PART 1 - SERIOUS OR PERSISTENT CONFLICT

110. What are the objects of this Part?
111. When does this Part apply?
112. What principle is to be applied in the administration of this Part?
113. Request for assistance
114. Alternative dispute resolution
115. Alternative parenting plan
116. Application for order for alternative parenting plan
117. Adjournment
118. Court orders
119. Registration of certain alternative parenting plans

PART 2 - HOMELESSNESS

120. Homelessness of children
121. Homelessness of young persons
122. Mandatory reporting of child who lives away from home without parental permission

PART 3 - COMPULSORY ASSISTANCE

123. What is “compulsory assistance”?
124. Application for compulsory assistance order or interim compulsory assistance order
124A. Notification and participation of Children’s Guardian
125. Making of compulsory assistance order
126. Terms of compulsory assistance order
127. Apprehension of child or young person who breaches compulsory assistance order
128. Duration of compulsory assistance orders
129. Interim compulsory assistance orders
130. Duration of interim compulsory assistance orders
131. Additional orders
132. Emergency compulsory assistance
133. Notification of Children’s Guardian of orders
133A. Monitoring of orders by Children’s Guardian
133B. Variation and revocation of orders

CHAPTER 8 - OUT-OF-HOME CARE

PART 1 - INTRODUCTION

134. What are the objects of this Chapter?
135. What is “out-of-home care”?
136. Who may provide out-of-home care?
137. Who is an “authorised carer”?
138. Who may arrange for the provision of out-of-home care?
139. Who is a “designated agency”?
140. Supervisory responsibility of designated agency
141. Inability of designated agency to fulfil responsibilities

PART 2 - OUT-OF-HOME CARE UNDER ORDER OF CHILDREN’S COURT

Division 1 - General

142. Application of Part
143. Authorised carer’s right to information for purpose of assessing placement
144. Authorised carer’s right to information for purpose of medical care and safety
145. Child’s or young person’s right to information concerning authorised carer
146. Involvement of authorised carers in decision-making
147. Indemnity of authorised carers
148. (Repealed)
149. Order for sole parental responsibility
149AA. Care plan and other relevant information to be presented before order made under section 149
149A. Variation or rescission of order for sole parental responsibility

Division 1A - Disclosure to parents and significant persons of information concerning placement in out-of-home care

149B. Definitions
149C. Disclosure to parents and significant persons
149D. Type and amount of information to be disclosed
149E. Consent of authorised carer to disclosure of high level identification information
149F. Disclosure of high level identification information without consent of authorised carer
149G. Application for review of decision to disclose high level identification information
149H. Modification of Administrative Decisions Tribunal Act 1997
149I. Refusal to disclose information concerning placement
149J. Disclosure not contravention of confidentiality or contravention of privacy law
149K. No conflict with court order

Division 2 - Review of out-of-home care under order of Children’s Court

150. Review of placements effected by order of Children’s Court

PART 3 - VOLUNTARY OUT-OF-HOME CARE

Division 1 - Voluntary out-of-home care arranged by Director-General

151. Making of temporary care arrangements
152. Duration, renewal and review of temporary care arrangements
153. Regulations relating to temporary care arrangements
154. Effect of temporary care arrangements

Division 2 - Other voluntary care arrangements

155. Monitoring of children and young persons in voluntary out-of-home care
156. Review of voluntary out-of-home care arrangements

PART 4 - DAILY CARE AND CONTROL

157. Care responsibility
158. Physical restraint of child or young person

PART 5 - ARRANGEMENTS DURING OUT-OF-HOME CARE

159. Maintenance of register
160. Maintenance of records
161. Financial assistance for children and young persons in out-of-home care
162. Rights of children and young persons in out-of-home care
163. Parents’ right to information concerning progress and development of their children
164. Responsibility of Minister to accommodate certain children and young persons

PART 6 - ARRANGEMENTS ON LEAVING OUT-OF-HOME CARE

165. Provision of assistance after leaving out-of-home care
166. Leaving out-of-home care
167. Records concerning Aboriginal and Torres Strait Islander children and young persons
168. Access to personal information
169. Entitlement to certain documents
170. Retention of records
170A. Application of State Records Act 1998

PART 7 - MISCELLANEOUS

171. Removal of children and young persons from unauthorised out-of-home care
172. Notification of deaths of children and young persons in out-of-home care

CHAPTER 9 - MEDICAL EXAMINATION AND TREATMENT

PART 1 - MEDICAL EXAMINATION OF CHILDREN AND YOUNG PERSONS IN NEED OF CARE AND PROTECTION

173. Medical examination of children in need of care and protection
174. Emergency medical treatment
175. Special medical treatment

PART 2 - TREATMENT OF CHILDREN AND YOUNG PERSONS IN OUT-OF-HOME CARE ORDERED BY THE CHILDREN’S COURT

176. (Repealed)
177. Ordinary medical and dental treatment

CHAPTER 10 - CHILDREN’S GUARDIAN

PART 1 - APPOINTMENT

178. Children’s Guardian
179. Acting Children’s Guardian

PART 2 - FUNCTIONS

180. Functions-generally
181. Functions relating to parental responsibility
182. Removal of responsibility for daily care and control from an authorised carer
183. Power of Children’s Guardian to resolve disputes
184. Application for review of order of the Children’s Court
185. Provision and exchange of information
186. Delegation of functions

PART 3 - REPORTS

187. Annual reports to Parliament
188. Special reports to Parliament and to Minister
189. Furnishing of draft reports to Minister
190. Provisions relating to reports to Parliament

CHAPTER 11 - (Repealed)
None

CHAPTER 12 - CHILDREN’S SERVICES

PART 1 - PRELIMINARY

199. Definitions
200. Meaning of “children’s service”

PART 2 - PURPOSE OF CHAPTER

201. Objects of Chapter
202. Principles underlying the provision of children’s services
203. Role of objects and principles

PART 3 - LICENSING OF CHILDREN’S SERVICES

204. Person not to provide prescribed children’s service without licence
205. No advertising of unlicensed services
206. Application for licence
207. Refusal to grant licence
208. Licences
209. Conditions of licences
210. Licensee and authorised supervisor
211. Revocation of licence
212. Death of licensee
213. Application of Part to certain pre-school services

PART 4 - MATTERS RELATING TO PARENTS

214. Information to be provided
215. Parental contact with children

PART 5 - MISCELLANEOUS

216. Exclusion of persons from premises of children’s service
217. Information to licensee concerning exclusion notice
218. Termination of illegal children’s services
218A. Application of State Records Act 1998 to certain children’s services
219. (Repealed)
220. Regulations

CHAPTER 12A - OUT OF SCHOOL HOURS CARE SERVICES

220A. Meaning of “out of school hours care service”
220B. Regulations for or with respect to out of school hours care services

CHAPTER 13 - CHILDREN’S EMPLOYMENT

221. Definitions
222. Endangering children in employment
223. Certain employers of children to be authorised
224. Exemptions
225. Employers’ authorities
226. Removal of child from place of unlawful employment

CHAPTER 14 - OFFENCES INVOLVING CHILDREN AND YOUNG PERSONS

227. Child and young person abuse
228. Neglect of children and young persons
229. Unauthorised removal of children and young persons
230. Tattooing of children and young persons
230A. Body piercing of children
231. Leaving children and young persons unsupervised in motor vehicles

CHAPTER 14A - TRANSFER OF CHILD PROTECTION ORDERS AND PROCEEDINGS

PART 1 - INTRODUCTORY

231A. Purpose of Chapter
231B. Definitions

PART 2 - TRANSFER OF CHILD PROTECTION ORDERS

Division 1 - Administrative transfers

231C. When Director-General may transfer order
231D. Persons whose consent is required
231E. Director-General to have regard to certain matters
231F. Notification to child or young person and his or her parents

Division 2 - Judicial transfers

231G. When Children’s Court may make order under this Division
231H. Service of application
231I. Type of order
231J. Children’s Court to have regard to certain matters
231K. Appeals

PART 3 - TRANSFER OF CHILD PROTECTION PROCEEDINGS

231L. When Children’s Court may make order under this Part
231M. Children’s Court to have regard to certain matters
231N. Interim order
231O. Appeals

PART 4 - REGISTRATION

231P. Filing and registration of interstate documents
231Q. Notification by Registrar of Children’s Court
231R. Revocation of registration

PART 5 - MISCELLANEOUS

231S. Effect of registration of transferred order
231T. Transfer of Children’s Court file
231U. Hearing and determination of transferred proceeding
231V. Disclosure of information
231W. Discretion of Director-General to consent to transfer
231X. Evidence of consent of relevant interstate officer

PART 6 - RECIPROCITY GENERALLY

231Y. Definitions
231Z. Arrangements for care
231ZA. Declarations concerning parental responsibility: interstate ward
231ZB. Declaration under law of jurisdiction other than NSW

CHAPTER 15 - REMOVAL OF PERSONS AND ENTRY OF PREMISES AND PLACES

PART 1 - REMOVAL OF PERSONS

232. Persons under the parental responsibility of the Minister leaving or being removed from care
233. Power of search for and removal of children and young persons in need of care and protection
234. Reasons for removal and other information to be given to certain persons

PART 2 - ENTRY OF PREMISES AND PLACES

235. Entry without warrant into premises-generally
236. Entry without warrant into premises-places of employment
237. Entry and inspection under search warrant

PART 3 - ANCILLARY FUNCTIONS

238. Application of Part
239. Attendance of police or medical practitioner
240. Use of reasonable force
241. Powers exercisable on entry and inspection
242. Observing and conversing with persons
243. Application of search warrants provisions
244. Effect of failure to properly exercise function

CHAPTER 16 - ADMINISTRATIVE REVIEW

245. Decisions that are reviewable by Administrative Decisions Tribunal

CHAPTER 16A - EXCHANGE OF INFORMATION AND CO-ORDINATION OF SERVICES

245A. Object and principles of Chapter
245B. Interpretation
245C. Provision of information
245D. Request for information
245E. Co-ordination of services
245F. Restriction on use of information provided under this Chapter
245G. Protection from liability for providing information
245H. Interaction with other laws
245I. Commonwealth agencies

CHAPTER 17 - MISCELLANEOUS

246. Separation of children and young persons from offenders
247. Jurisdiction of Supreme Court
248. Provision and exchange of information
249. Delegation by Minister
250. Delegation by Director-General
251. Obstruction of persons
252. Person falsely representing as employee of Department
253. False or misleading statements
254. Disclosure of information
255. Use of optical surveillance devices
256. Service of notices
256A. Children’s Court may dispense with service
257. Notices and other instruments to be written in other languages
258. Offences by corporations
258A. Time for instituting proceedings
259. Proceedings for offences
260. Evidence of young children
261. Procedural matters
262. Act binds Crown
263. Savings, transitional and other provisions
264. Regulations
265. Review of Act
Schedule 1 (Repealed)
SCHEDULE 2
SCHEDULE 3

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