about the Children and Young Persons (Care and Protection) Act 1998
what does the Act cover?
The Children and Young Persons (Care and Protection) Act 1998 talks about the child protection system in NSW. It explains how children and young people, who are at risk or being abused, should be cared for in NSW and how vulnerable families should be helped.
It outlines the responsibilities of Community Services and other agencies, as well as parents, authorised carers.
The Act covers things such as when to make a report of abuse or risk of harm, what happens when a report is made, and what happens when child or young person can’t safely live with their family.
It outlines ways of working with children, young people and families to help them to remain safely at home, and reduce the need for them to enter care.
principles of the Act
The Act lays out objects and principles which guide how people should put the Act to practice in child protection and early intervention. These include:
- when making a decision about a child or young person the main consideration must be their safety, welfare and wellbeing
- the rights of children and young people to participate in decision making are recognised and there are specific obligations to put this principle into practice
- children and young people are entitled to an explanation about actions taken to protect them
- when taking action to protect a child or young person from harm, the least intrusive intervention is to be used
- if children and young people can’t stay in their family environment, their name, identity, cultural and religious ties are to be preserved
- if a child or young person has to leave their family and live in out-of-home care, they should be able to keep close relationships with people who are important to them, such as family members and friends
- Aboriginal and Torres Straits Islander families and communities are to be more involved in making decisions about the care and protection of their children and young people, in the spirit of self-determination.
Overall, the Act sees caring for children and young people as a responsibility shared by families, agencies and communities working in partnership.
It promotes working with children, young people and families in flexible, responsive and innovative ways to meet their needs.
A 'child' is defined as a person under 16 years and a 'young person' from 16 to 18 years. In some areas, the law treats a child and young person differently, for example, in relation to homelessness and mandatory reporting.
risk of harm
The Act emphasises the need for families to seek support and assistance early from Community Services, before situations deteriorate and more intervention is required. This recognises that parenting is a difficult job and that solutions are best sought early.
The Act defines when a child or young person is 'at risk of harm', to make it clear when people may make a 'report' to Community Services about a child or young person's welfare. It says a child or young person may be 'at risk of harm' if:
- their physical and psychological needs are not being met
- they are not receiving necessary medical care
- they have been or are at risk of physical or sexual abuse
- they are exposed to domestic violence or serious psychological harm.
See more about reporting risk of harm.
Community Services response to reports
The Act says Community Services can be flexible and innovative in deciding how to respond to a report of child abuse to give greater priority to children and young people most at risk.
There is an emphasis on seeking early solutions through co-operation between government and community agencies.
Under the Act, Community Services works with families to resolve problems by consent, reducing the need for hearings in the Children's Court. This may involve developing 'care plans' and using alternative dispute resolution, mediation or other conferencing models.
requests for assistance
The Act talks about early intervention, that is, the need to identify risk of harm at an early stage, and provide support and assistance before the care relationship becomes unsafe.
Under the Act, children or young people can contact Community Services to seek assistance. They may request any form of assistance, for any reason, and doe not need to demonstrate that they are at risk of harm.
A parent of a child or young person may also seek assistance to help their child remain in, or return to, the care of their family.
The Act also recognises that children and young persons may experience conflict with their parents and that sometimes that conflict may become so serious that the child or young person can no longer stay at home.
In this case, a parent, child or young person, or any other person may make a request for assistance, and Community Services may provide or arrange assistance necessary to resolve the conflict without legal proceedings.
There is a strong preference for diverting children and adolescents with family conflict away from the legal system, and encouraging them to accept assistance.
The Children and Young Persons (Care and Protection) Act 1998 introduced the term 'out-of-home care'.
Out-of-home care is any residential care and control of a child or young person in any place other than the usual home, by any person other than a parent or relative for any period over 28 days (or 14 days if subject of a Court order).
The Act allows for the sharing of ‘parental responsibility’ for a child or young person between a number of people, for example parents, the Minister, a foster carer, or an agency providing out-of-home care services.
Parents of children in out-of-home care are encouraged to maintain links with their children and exercise some parental responsibility. See "is your child in care?"
The Act clarifies the rights of children, young people, foster carers and parents to access necessary information and records. See our web pages on rights of young people in care, rights of foster carers and rights of birth parents.
The Act says children and young people in out-of-home care should participate in developing a plan for their future which includes who they should have contact with, what support services they should get, where they should live or who should have ‘parental responsibility’.
Restoration plans can also be drawn up to help ensure a child is safely returned to their family wherever possible. See more on participation in planning.
The Act introduced homelessness as a distinct ground upon which a report may be made. This implies that homelessness in itself is an indicator of risk.
Any person may report the homelessness of a child to Community Services. It is not mandatory to make such a report, unless you also form the belief that a child is at risk of harm under the terms of the Act.
Any person may also report the homelessness of a young person, but only with the consent of that young person.
However, if you provide residential accommodation to a person who you reasonably believe to be a child living away from home without parental permission you must immediately inform Community Services. This is a mandatory reporting requirement.
See more on mandatory reporting.