CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 - As at 3 April 2024 - 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"
• 5A Meaning of "principal officer"
• 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 Principles for administration of Act
• 9A Principle of making "active efforts"
• 10 The principle of participation
• 10A Permanent placement principles

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
• 12A Aboriginal and Torres Strait Islander Children and Young Persons Principle
• 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 SECRETARY

• 15 General role of the Minister
• 16 General role of the Secretary
• 17 Secretary'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

PART 1 - REQUESTS FOR ASSISTANCE

• 20 Request for assistance by child or young person
• 21 Request for assistance by parent of child or young person or by funded non-government agency
• 22 Secretary's response to requests for assistance

PART 2 - REPORTS

• 23 Child or young person at risk of significant harm
• 24 Report concerning child or young person at risk of significant harm
• 25 Pre-natal reports
• 26 Anonymity
• 27 Mandatory reporting
• 27A Alternative reporting arrangements
• 28 Record of reports and subsequent action
• 29 Protection of persons who make reports or provide certain information
• 29AAA Protection of persons who make reports or provide information to particular institutions
• 29AA Special provision relating to Royal Commissions
• 29AB Protection against retribution
• 29A Person who makes report is not prevented from helping child or young person

PART 3 - INVESTIGATIONS AND ASSESSMENT

• 30 Secretary'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 SECRETARY

• 34 Taking of action by Secretary
• 35 Decision against taking action
• 36 Principles of intervention

PART 2 - USE OF ALTERNATIVE DISPUTE RESOLUTION

• 37 Alternative dispute resolution by Secretary

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

• 39A Care responsibility on death of guardian or carer with full parental responsibility
39-41. (Repealed)
• 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 Secretary may assume care responsibility of child or young person in hospital or other premises
• 45 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 Secretary's care responsibility

Division 5 - What information must be given following removal?

• 51 Duty of Secretary 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 Provision of assessment reports and other information
• 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 active efforts to take alternative action
• 64 Notification of care applications
• 64A Evidence in the form of a recording
• 65 Dispute resolution conferences
• 65A Referral of matters before the Court to ADR
• 66 Leave to withdraw care application
• 67 Children's Court order not limited by terms of care application
• 67A Consecutive care orders
• 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 treatment
• 76 Order for supervision
• 77 Supervision of child or young person under a supervision order
• 78 Care plans
• 78A Permanency planning
• 79 Order (other than guardianship order) allocating parental responsibility
• 79AA Special circumstances that warrant allocation of parental responsibilities to Minister for more than 24 months
• 79A Allocation of parental responsibility by guardianship order
• 79B Applications for guardianship orders
• 79C Financial assistance for children and young persons in respect of whom guardianship orders are made
• 79D Prospective guardian must notify Secretary of resident
• 79E Entry to premises of prospective guardians
• 80 Requirement to consider care plan
81. (Repealed)
• 82 Report on suitability of arrangements concerning parental responsibility
• 83 Preparation of permanency plan
• 83A Additional requirements for permanency plans for Aboriginal and Torres Strait Islander children and young persons
• 84 Requirements of permanency plans involving restoration
• 85 Provision of services to facilitate restoration
• 85A Review of permanency plans involving restoration
• 86 Contact orders
• 86A Variation of contact orders by agreement
• 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
• 90AA Variation of interim care orders
• 90A Prohibition orders
• 91 Appeals

PART 3 - PARENT CAPACITY ORDERS

• 91A Interpretation
• 91B When parent capacity orders may be made
• 91C Applications for parent capacity orders
• 91D Dispute resolution conferences
• 91E Making of parent capacity orders
• 91F Orders made by consent
• 91G Duration of parent capacity orders
• 91H Variation or revocation of parent capacity order
• 91I Right of appeal

CHAPTER 6 - CHILDREN'S COURT PROCEDURE

PART 1 - GENERAL

• 92 Proceedings to which this Chapter applies
• 93 General nature of proceedings
• 93A Powers exercised by Children's Registrar
• 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
• 101AA Use of Guardian Ad Litem Panel
• 101A Guardian ad litem--exclusion of personal liability
• 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 Bail decision may be made under Bail Act 2013
• 109V Powers of District Court and Children's Court to hear fresh bail application

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 - (Repealed)

CHAPTER 8 - OUT-OF-HOME CARE

PART 1 - INTRODUCTION

• 134 Objects of this Chapter
• 134A Definition
• 135 Definition and types of "out-of-home care"
• 135A Statutory out-of-home care
• 135B Supported out-of-home care
135C. (Repealed)
• 136 Restriction on who may provide statutory out-of-home care
• 137 Authorised carers
• 137AA Definition of authorised residential care worker
• 137A Entry to premises of applicants for authorisation
• 137B Entry to premises of authorised carers
• 138 Persons who may arrange for provision of statutory or supported out-of-home care
139, 140. (Repealed)
• 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
148-149A. (Repealed)

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 administrative review of decision to disclose high level identification information
• 149H Modification of Administrative Decisions Review 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 - SUPPORTED OUT-OF-HOME CARE

Division 1 - Temporary care arrangements

• 151 Making of temporary care arrangements
• 152 Duration, renewal and review of temporary care arrangements

Division 2 - Other supported out-of-home care

• 153 Operation of other supported out-of-home care

Division 3 - General provisions

• 154 Restriction on who may provide supported out-of-home care
• 155 Reports and reviews of supported out-of-home care

PART 3A - (Repealed)

PART 4 - DAILY CARE AND CONTROL

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

PART 5 - ARRANGEMENTS DURING STATUTORY OR SUPPORTED OUT-OF-HOME CARE

• 159A Part applies to statutory and supported out-of-home care only
• 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 STATUTORY OUT-OF-HOME CARE

• 165A Part applies to statutory out-of-home care only
• 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
171A, 172. (Repealed)
• 172A Secretary to report annually on deaths of children and young persons

CHAPTER 9 - MEDICAL EXAMINATION AND TREATMENT

PART 1 - MEDICAL EXAMINATION OF CHILDREN AND YOUNG PERSONS

• 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

• 177 Ordinary medical and dental treatment

PART 3 - MISCELLANEOUS

• 177A Regulations
CHAPTERS 10-13 - (Repealed) None

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 Secretary may transfer order
• 231D Persons whose consent is required
• 231E Secretary 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
• 231QA Effect of registration
• 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 Secretary 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
236, 236A. (Repealed)
• 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 15A - ALTERNATIVE DISPUTE RESOLUTION

• 244A Interpretation
• 244B Protection of information disclosed in alternative dispute resolution
• 244C Confidentiality of information disclosed in alternative dispute resolution

CHAPTER 16 - ADMINISTRATIVE REVIEW

• 245 Decisions that are administratively reviewable by Civil and Administrative Tribunal

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

• 245A Object and principles of Chapter
• 245B Interpretation
• 245C Provision of information
• 245CA Provision of information by any person
• 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 and interstate agencies

CHAPTER 17 - MISCELLANEOUS

• 246 Separation of children and young persons from offenders
• 247 Jurisdiction of Supreme Court
• 248 Provision and exchange of information
• 248A Collection of information by Secretary and Children's Court
• 248B Disclosure of information to bodies in other jurisdictions
• 248C Code of conduct
• 249 Delegation by Minister
• 250 Delegation by Secretary
• 251 Obstruction of persons
• 252 Person falsely representing as employee of Department
• 253 False or misleading statements
• 254 Disclosure of information
• 254A Disclosure of information for research purposes
• 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 Liability of directors etc for offences by corporation--offences attracting executive liability
• 258AA Liability of directors etc for offences by corporation--accessory to the commission of the offences
• 258AB Evidence as to state of mind of corporation
• 258A Time for instituting proceedings
• 259 Proceedings for offences
• 259A Penalty notices
• 260 Evidence of young children
• 261 Procedural matters
• 262 Act binds Crown
• 263 Savings, transitional and other provisions
• 264 Regulations
• 265 Review of particular amendments to Act
• 266 Minister to give annual report about active efforts
Schedule 2 (Repealed)
• SCHEDULE 3