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Main changes resulting from the out-of-home care legislation
The out-of-home care provisions of the Children and Young Persons (Care and Protection) Act 1998 make a number of significant improvements in the provision of out-of-home care services in NSW.
Much of what has now become law has been recognised for some time as best practice and reflected in Community Services policies and guidelines.
Key elements of the Act include:
Charter of Rights
A Charter of Rights has been developed specifically for children and young people in out-of-home care.
The Charter describes the rights of children and young people in out-of-home care including:
- the right to take part in making decisions affecting their lives, including their care placement
- the right to information which is being kept on file
- the right to planning, and support after leaving out-of-home care. Young people leaving out-of-home care after the age of 15 can be provided with assistance until they are 25. See more on after care support.
Provision of information
The legislation gives children and young people, their carers and parents the right to particular information about aspects of their care including health, education and other details about out-of-home care living arrangements which is relevant to their upbringing.
Agencies that provide out-of-home care must meet certain standards in order to be accredited by the Office of the Children's Guardian (OCG).
The OCG monitors the responsibilities of these agencies to ensure they meet the standards of service approved by the Minister for Community Services and described in the legislation.
Part of the Children’s Guardian’s role is to examine case plans relating to children and young persons in out-of-home care through audits of files.
Review of case plans
Agencies that provide out-of-home care must develop case plans in consultation with the child or young person, the family and the carers to:
- help them achieve their potential
- ensure a continuity of care
- enable them to maintain relationships with family and people who are important in their lives.
The case plan is a document that sets out what actions must be taken to address the needs of the child or young person, assist them to attain their goals and ensure their personal wellbeing, e.g. contact visits, education and dental, medical and holiday arrangements.
It also documents who has responsibility for case work actions and timeframes for completion and review of case plan tasks.
Case plans must be reviewed in accordance with the legislation by the agency with case management responsibility for the placement.
See details on participation in planning in our foster care section.
Sole parental responsibility
Authorised carers can apply for ‘sole parental responsibility’ for a child or young person who has been in their care for two years or more.
A sole parental responsibility order is a long term order intended to last until the child or young person is 18 years old, and there are limited circumstances under which they may be varied or cancelled.
The order gives the carer all the powers and responsibilities which parents have in relation to their children under the law. It reduces the involvement of DoCS and the designated agency by allowing the carer to make long-term decisions for the child or young person.
An application for sole parental responsibility can only be made with the consent of the birth parents. If the child is aged over 12 the order will also require their consent. This means that agreement needs to be reached by all about what is best for the child, and everyone must be committed to the case plan.
Designated agencies must maintain written, photographic and other records relating to the development, history and identity of a child or young person in out-of-home care and provide them with access to their records.
For some children and young people this may be the only chronological, documented information they have about their lives. These records help children and young people in care maintain a sense of identity and self worth and are therefore very important.
Even when there is no change in parental responsibility, specific records must be kept for all Aboriginal and Torres Strait Islander children and young people who enter out-of-home care for any period of time.
See details on life story work in our foster care section.
Leaving and after care arrangements
In consultation with a child or young person, the designated agency must prepare a plan before the child or young person leaves care. The plan aims to prepare a child or young person for returning to live with their family or the transition to independent living.
After a child or young person leaves out-of-home care, they may need further assistance. Assistance may be available to a young person leaving care between the age of 15 and 25. Community Services also has the discretion to provide assistance to people above the age of 25 who have been in care. See more on after care support for young people leaving care.
Definitions in the legislation
Out-of-home care (S135)
- the care of a child or young person at a place other than their usual home, and by a person other than their parent, as a result of a Children’s Court care order that lasts for more than 14 days or because they are a protected person
- it does not include care exercised by a relative unless the Minister or Community Services has care or some aspect of parental responsibility through an order of the Children’s Court.
A protected person is a child or young person who is:
- a ward of the Supreme Court and the Minister or Community Services has custody or care
- in the parental responsibility of the Director-General of Community Services while awaiting adoption
- in the parental responsibility of the Minister or Community Services by order of the Family Court.
- S139 - "An organisation that arranges out-of-home care…in accordance with the regulations"
- S181 (e) – an agency that is accredited by the Children’s Guardian
- S137 - a person authorised by a designated agency and/or in accordance with regulations
Roles & responsibilities
There is a distinction between:
- Care Responsibility - daily care and control of a child or young person
- Supervisory Responsibility - supervision of those who have care responsibility
- Parental Responsibility - all duties, powers, responsibilities and authority which, by law, parents have in relation to their children.
These roles give greater responsibility to the persons who have direct contact with the child or young person in care.
Many day-to-day decisions can be made by the carer or the agency supervising the placement.