Care & Protection Lawyers Hawkesbury

Care and protection law deals with cases brought by the NSW Department of Communities and Justice (DCJ) in the NSW Children’s Court. Unlike private family law matters under the Family Law Act 1975 (Cth), these cases focus on protecting children deemed to be at risk of harm or in need of care.

Under the Children and Young Persons (Care and Protection) Act 1998 (NSW), the court can issue care orders if it finds a child requires protection. These may include transferring parental responsibility to the State or a suitable individual, such as a relative.

The Children’s Court has the authority to make several types of orders, including:

• Final Care Orders: Permanently altering parental responsibility for a child.
• Supervision Orders: Allowing DCJ to monitor the child’s welfare and care arrangements.
• Contact Orders: Enabling the child to maintain relationships with specific individuals.
• Undertakings: Commitments made by parties involved to act in the child’s best interests.
• Interim care orders can also be issued before the court reaches a final decision to ensure the child’s immediate safety.

Emergency Powers of DCJ

DCJ can remove children from their homes without a warrant if they are at immediate risk of serious harm. The Children’s Court must review these cases within days.

In care proceedings, the Department of Communities and Justice (DCJ) and the biological parents of the child are parties to the case. The child is also represented by their own lawyer, which depends on the child’s age:

• An Independent Legal Representative (ILR) is appointed for children under 12 and acts in the child’s best interests.
• A Direct Legal Representative (DLR) is appointed for children aged 12 or older and follows the child’s direct instructions, similar to how a lawyer represents an adult client.

Other individuals with a genuine interest in the child’s welfare, such as relatives or family friends, can apply for rights of appearance. If granted, they can file evidence, make submissions, and cross-examine witnesses. Those without full participation rights may still have limited involvement in proceedings if the court’s decisions impact them.

If you want to take part in care proceedings, Kells can provide legal guidance to help you through the process.

The Magistrate’s primary concern in care proceedings is the child’s safety, welfare, and wellbeing. The court’s decisions focus on the child’s best interests, even if this conflicts with the preferences of parents or other parties.

The Magistrate first makes interim orders regarding the child’s living and contact arrangements. Parties can present evidence and request changes if circumstances evolve.

The court assesses whether the child requires care and protection due to neglect, abuse, or the absence of a suitable caregiver. If so, final care orders are determined.

This process may involve carer assessments, care plans, and dispute resolution conferences. If no agreement is reached, a final hearing is held, where the Magistrate makes legally binding decisions.

If you disagree with a final care order, you can appeal to the District Court for a rehearing.

In limited cases, the Supreme Court may also hear child protection matters under its parens patriae jurisdiction, allowing it to act in a child’s best interests.

Kells can advise whether an appeal or Supreme Court application is suitable for your case.

Under the Children and Young Persons (Care and Protection) Act 1998 (NSW), final care orders may be varied or revoked if there is a significant change in circumstances.

If granted permission, the case is reopened, allowing the court to amend or dismiss existing care orders. During this process, new interim orders may be issued to meet the child’s immediate needs.

If circumstances have changed and you need to challenge a final order, Kells can help you take the next legal steps.