2014
2014
2014-10-30
act
government
publicspecial
act.reprint
allinforce
2013-11-21
2013-11-21
0
2014-10-30
act-1987-015
2013
none
act-2014-008
db1a9a44-9479-4b8f-9b36-5f6da52e63f1
f40a8113-9d05-4566-a3f5-cd7212719d6c
Repeal:
The Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 30.10.2014.
An Act to make miscellaneous amendments to the
Children and Young Persons (Care and Protection) Act
1998; to make consequential and related amendments to the
Adoption Act 2000 and the Child Protection (Working with Children) Act
2012 and other legislation; and for other
purposes.
1Name of
Act
This Act is the Child Protection
Legislation Amendment Act 2014.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
Schedule 1Amendment of Children and Young Persons (Care and Protection) Act
1998 No 157
[1]Section 3
Definitions
Insert in alphabetical order:
alternative dispute
resolution—see section 244A.
Children’s Registrar means a
Children’s Registrar within the meaning of theChildren’s Court Act
1987.
contact
order—see section 86 (1).
guardianship order—see section
79A (2).
kin of a child or young person means
a person who shares a cultural, tribal or community connection with the child
or young person that is recognised by that child or young person’s
family or community.
parent
capacity order—see section 91A.
permanent
placement—see section 10A (1).
permanent
placement principles—see section 10A
(3).
prohibition order—see section
90A (1).
relative of a child or young person
means any of the following:
(a)
a parent, step-parent, or spouse of a parent or
step-parent, of the child or young person,
(b)
a grandparent, brother, sister, step-brother,
step-sister, cousin, niece or nephew, uncle or aunt (whether by blood,
marriage, affinity or adoption) of the child or young
person,
(c)
a person who has parental responsibility for the
child or young person (not being the Minister, the Director-General or a
person who has parental responsibility other than in his or her personal
capacity),
(d)
a person who has care responsibility for the
child or young person under the Adoption Act
2000 (not being the Minister, the Director-General or a
person who has care responsibility other than in his or her personal
capacity),
(e)
in the case of a child or young person who is an
Aboriginal or Torres Strait Islander—a person who is part of the
extended family or kin of the child or young
person.
[2]Section 3, definition of
“non-court proceedings”
Omit paragraphs (b) and (c) of the definition.
Insert instead:
(b)
any dispute resolution conference under section
65 or 91D,
(c)
any other alternative dispute resolution
process.
[3]Section
3
Omit the definition of permanent
placement.
[4]Section 3
(2)
Insert at the end of section 3:
(2)
In this section, spouse of a person means:
(a)
the person’s husband or wife,
or
(b)
the person’s de facto
partner,
but if more than one person would so qualify as a
spouse, means only the latest person to so qualify.
Note—
De facto
partner is defined in section 21C of the Interpretation Act
1987.
[5]Section 8 What are the objects
of this Act?
Insert after section 8 (a):
(a1)
recognition that the primary means of providing
for the safety, welfare and well-being of children and young persons is by
providing them with long-term, safe, nurturing, stable and secure environments
through permanent placement in accordance with the permanent placement
principles, and
[6]Section 9 Principles for
administration of Act
Insert after section 9 (2) (f):
(g)
If a child or young person is placed in
out-of-home care, the permanent placement principles are to guide all actions
and decisions made under this Act (whether by legal or administrative process)
regarding permanent placement of the child or young
person.
[7]Section
10A
Insert after section 10:
10APermanent placement
principles
(1)
In this Act:
permanent
placement means a long-term placement following the removal
of a child or young person from the care of a parent or parents pursuant to
this Act that provides a safe, nurturing, stable and secure environment for
the child or young person.
(2)
Subject to the objects in section 8 and the
principles in section 9, a child or young person who needs permanent placement
is to be placed in accordance with the permanent placement
principles.
(3)
The permanent
placement principles are as follows:
(a)
if it is practicable and in the best interests of
a child or young person, the first preference for permanent placement of the
child or young person is for the child or young person to be restored to the
care of his or her parent (within the meaning of section 83) or parents so as
to preserve the family relationship,
(b)
if it is not practicable or in the best interests
of the child or young person to be placed in accordance with paragraph (a),
the second preference for permanent placement of the child or young person is
guardianship of a relative, kin or other suitable person,
(c)
if it is not practicable or in the best interests
of the child or young person to be placed in accordance with paragraph (a) or
(b), the next preference is (except in the case of an Aboriginal or Torres
Strait Islander child or young person) for the child or young person to be
adopted,
(d)
if it is not practicable or in the best interests
of the child or young person to be placed in accordance with paragraph (a),
(b) or (c), the last preference is for the child or young person to be placed
under the parental responsibility of the Minister under this Act or any other
law,
(e)
if it is not practicable or in the best interests
of an Aboriginal or Torres Strait Islander child or young person to be placed
in accordance with paragraph (a), (b) or (d), the last preference is for the
child or young person to be adopted.
[8]Section 13 Aboriginal and
Torres Strait Islander Child and Young Person Placement
Principles
Insert at the end of section 13 (1):
Note—
The placement principles set out in this section
also apply to the making of guardianship orders in relation to Aboriginal and
Torres Strait Islander children and young persons (see section 79A (3)
(c)).
[9]Section 25 Pre-natal
reports
Omit “the expectant mother” and
“her child” from paragraph (a) of the note to the
section.
Insert instead “an expectant parent”
and “the parent’s child”,
respectively.
[10]Section 37 Alternative dispute
resolution by Director-General
Omit “services” from section 37 (1).
Insert instead “processes”.
[11]Section 37
(3)
Omit the subsection.
[12]Section 37,
note
Omit “counselling
and”.
[13]Section 38A Parent
responsibility contracts
Omit section 38A (1). Insert instead:
(1)
A parent
responsibility contract is either or both of the
following:
(a)
an agreement between the Director-General and one
or more primary care-givers for a child or young person that contains
provisions aimed at improving the parenting skills of the primary care-givers
and encouraging them to accept greater responsibility for the child or young
person,
(b)
an agreement between the Director-General and
either or both expectant parents whose unborn child is the subject of a
pre-natal report under section 25 that contains provisions aimed at improving
the parenting skills of the prospective parent and reducing the likelihood
that the child will be at risk of significant harm after
birth.
[14]Section 38A (2)
(b)
Insert “or each expectant parent”
after “care-giver”.
[15]Section 38A (2)
(e)
Omit the paragraph. Insert instead:
(e)
specify the period (not exceeding 12 months)
during which the contract will (unless varied under section 38B) be in force,
commencing on the date on which the agreement is registered with the
Children’s Court, and
[16]Section 38A (2)
(f)
Omit “a primary care-giver”. Insert
instead “a party to the contract”.
[17]Section 38A
(3)
Omit “12 months”. Insert instead
“18 months”.
[18]Section 38A (5)
(a)–(c)
Omit “the primary care-giver”
wherever occurring. Insert “party to the
contract”.
[19]Section 38A (5)
(e)
Omit “the primary care-givers”.
Insert instead “any party to the contract”.
[20]Section 38A
(11)
Insert after section 38A (10):
(11)
The period for which the parent responsibility
contract has effect may be specified by reference to a fixed or ascertainable
period or by reference to the occurrence of a specified future
event.
[21]Section 38B Amendment of
parent responsibility contracts
Insert “beyond 12 months” after
“force” in section 38B (1).
[22]Section 38B
(3)
Insert “or for the period as varied by
agreement under this section” after
“duration”.
[23]Section 38E Contract breach
notices
Omit “a primary care-giver for a child or
young person who is” from section 38E (1) (a).
[24]Section 38E (1)
(b)
Omit “the primary care-giver”. Insert
instead “any party to the contract”.
[25]Section 38E (2)
(a)
Omit “the primary care-giver for a child or
young person”.
Insert instead “the party to the
contract”.
[26]Section 38E (2) (b) and
(c)
Omit “the primary care-giver”
wherever occurring.
Insert instead “the party to the
contract”.
[27]Section 38E (3)
(a)
Omit “primary care-giver who is
a”.
[28]Section 38E
(4)
Omit the subsection.
[29]Section 60
Definitions
Insert “but does not include a parent
capacity order” after “section 86” in the definition of
care order.
[30]Section 65 Dispute resolution
conferences
Omit section 65 (1) and (1A). Insert
instead:
(1)
If it considers it appropriate, the
Children’s Court may, before or at any stage during the hearing of a
care application, refer the application to a Children’s Registrar to be
dealt with under this section.
(1A)
The Children’s Registrar is to arrange and
conduct a dispute resolution conference between the parties to the care
application.
[31]Section 65
(2A)
Insert “or persons specified in section 86
(1A) (b)” after “parties” wherever
occurring.
[32]Section 65 (2A) (b)
(iii)
Omit “, including by referring the
application to independent alternative dispute
resolution”.
[33]Section 65 (2A) (b)
(iv)
Omit “if it is not appropriate to refer the
application to independent alternative dispute
resolution,”.
[34]Section 65
(3)
Insert “or person specified in section 86
(1A) (b)” after “party”.
[35]Section 65 (4) and
(5)
Omit the subsections.
[36]Section 65A Referral of
matters before the Court to ADR
Omit “attend an alternative dispute
resolution service” from section 65A (1).
Insert instead “participate in an
alternative dispute resolution process”.
[37]Section
67A
Insert after section 67:
67AConsecutive care
orders
(1)
A care order has effect for the period specified
in the order commencing on the date on which the Children’s Court makes
the order (or a later date specified in the order).
(2)
The period may be specified by reference to the
occurrence of a future event described in the order.
(3)
Without limiting subsection (2), the
Children’s Court may specify that a care order is to take effect at the
end of the period for which another care order has
effect.
[38]Section 71 Grounds for care
orders
Omit section 71 (1) (i).
[39]Section 71
(3)
Insert after section 71 (2):
(3)
This section does not apply to or in respect of a
contact order made under section 86 (1A) (b).
[40]Section 73 Order accepting
undertakings
Insert “(other than an application for a
guardianship order)” after “person” where firstly occurring
in section 73 (1).
[41]Section 74 Order for provision
of support services
Omit “that child or young person”
from section 74 (1).
Insert instead “a child or young person
(other than a child or young person the subject of an application for a
guardianship order)”.
[42]Section 75 Order to attend
therapeutic treatment
Insert after section 75 (3):
(4)
An order cannot be made under this section in
proceedings in relation to an application for a guardianship
order.
[43]Section 76 Order for
supervision
Insert “(other than an application for a
guardianship order)” after “application” in section 76
(1).
[44]Section 76
(3A)
Insert after section 76 (3):
(3A)
Despite subsection (3), the Children’s
Court may specify a maximum period of supervision that is longer than 12
months (but that does not exceed 24 months) if the Children’s Court is
satisfied that there are special circumstances that warrant the making of an
order of that length and that it is appropriate to do
so.
[45]Section 76
(6)
Omit “not exceeding 12
months”.
Insert instead “that together with the
period specified under subsection (3) or (3A) does not exceed 24 months in
total”.
[46]Section 76
(7)
Insert after section 76 (6):
(7)
The Children’s Court may, of its own motion
or on application by the Director-General, and after giving the parties an
opportunity to be heard, revoke an order before the end of the period of
supervision specified under subsection (3A) at any time after the expiration
of the first 12 months of that period if it considers that there is no longer
need for supervision in order to protect the child or young
person.
[47]Section 78A Permanency
planning
Omit “principle set out in section 9 (2)
(e)” from section 78A (1) (a).
Insert instead “principles set out in
section 9 (2) (e) and (g)”.
[48]Section 78A
(4)
Omit “sole parental responsibility
or”.
[49]Sections
79–79C
Omit section 79. Insert instead:
79Order (other than guardianship
order) allocating parental responsibility
(1)
The Children’s Court may make an order
under this section allocating all aspects of parental responsibility, or one
or more specific aspects of parental responsibility, for a child or young
person who it finds is in need of care and protection for a period specified
in the order:
(a)
to one parent to the exclusion of the other, or
to both parents jointly, or
(b)
solely to the Minister, or
(c)
to one or both parents and to the Minister
jointly, or
(d)
to one or both parents and to another person or
persons jointly, or
(e)
to the Minister and another suitable person or
persons jointly, or
(f)
to a suitable person or persons
jointly.
(2)
The specific aspects of parental responsibility
that may be allocated by an order of the Children’s Court under
subsection (1) include, but are not limited to, the following:
(a)
the residence of the child or young
person,
(b)
contact,
(c)
the education and training of the child or young
person,
(d)
the religious and cultural upbringing of the
child or young person,
(e)
the medical and dental treatment of the child or
young person.
(3)
The Children’s Court must not make an order
allocating parental responsibility unless it has given particular
consideration to the permanent placement principles and is satisfied that the
order is in the best interests of the child or young
person.
(4)
Without limiting subsection (3), the
Children’s Court must not make an order under this section if, taking
into account the permanent placement principles, it would be more appropriate
to make a guardianship order than an order under this
section.
(5)
The Children’s Court must not make an order
allocating parental responsibility for a child or young person if the order
would be inconsistent with:
(a)
any order made with respect to the child or young
person by the Supreme Court in the exercise of its jurisdiction with respect
to the custody and guardianship of children, or
(b)
a guardianship order with respect to the young
person made by the Guardianship Tribunal.
(6)
If an order allocates all aspects of parental
responsibility for a child or young person to the Minister, the Minister must,
so far as is reasonably practicable, have regard to the views of the persons
who had parental responsibility for the child or young person before the order
was made while still recognising that the safety, welfare and well-being of
the child or young person remains the paramount
consideration.
(7)
If aspects of parental responsibility are
allocated jointly between the Minister and another person or persons, either
the Minister or the other person may exercise those aspects but, if they
disagree concerning their exercise, the disagreement is to be resolved by
order of the Children’s Court.
(8)
The Children’s Court must not make an order
allocating parental responsibility jointly between two or more persons unless
it is satisfied that the persons can work together co-operatively in the best
interests of the child or young person.
79AAllocation of parental
responsibility by guardianship order
(1)
In this Act:
guardian means a person who has been
allocated all aspects of parental responsibility for a child or young person
until the child or young person reaches 18 years of age by a guardianship
order made under this section.
prospective guardian means the
person to whom it is proposed to allocate parental responsibility for a child
or young person under a guardianship order.
(2)
An order may be made by the Children’s
Court allocating to a suitable person all aspects of parental responsibility
for a child or young person who is in statutory out-of-home care or supported
out-of home care or who it finds is in need of care and protection until the
child or young person reaches 18 years of age (a guardianship
order).
(3)
The Children’s Court must not make a
guardianship order unless it is satisfied that:
(a)
there is no realistic possibility of restoration
of the child or young person to his or her parents, and
(b)
that the prospective guardian will provide a
safe, nurturing, stable and secure environment for the child or young person
and will continue to do so in the future, and
(c)
if the child or young person is an Aboriginal or
Torres Strait Islander child or young person—permanent placement of the
child or young person under the guardianship order is in accordance with the
Aboriginal and Torres Strait Islander Child and Young Person Placement
Principles that apply to placement of such a child or young person in
statutory out-of-home care under section 13, and
(d)
if the child or young person is 12 or more years
of age and capable of giving consent—the consent of the child or young
person is given in the form and manner prescribed by the
regulations.
(4)
A guardianship order may allocate parental
responsibility jointly to more than one person.
(5)
The Children’s Court must not make a
guardianship order with respect to a child or young person if the order would
be inconsistent with:
(a)
any order made with respect to the child or young
person by the Supreme Court in the exercise of its jurisdiction with respect
to the custody and guardianship of children, or
(b)
a guardianship order with respect to the young
person made by the Guardianship Tribunal.
(6)
A guardianship order remains in force (unless
sooner varied or rescinded under section 90) until the child or young person
concerned reaches 18 years of age.
(7)
A guardianship order may only be made as a final
order.
79BApplications for guardianship
orders
(1)
Despite section 61 (1), an application for a
guardianship order may be made by the following:
(a)
the Director-General,
(b)
with the written consent of the
Director-General—the designated agency responsible for supervising the
placement of the child or young person,
(c)
with the written consent of the
Director-General—a person who is an authorised carer or who has been
assessed, in accordance with the regulations, by the Director-General or
designated agency in relation to a child or young person to be a suitable
person to be allocated all aspects of parental responsibility for the child or
young person.
(2)
The Children’s Court may order an applicant
for a guardianship order to notify those persons specified by the
Children’s Court of the making of the application.
Note—
Section 256A sets out the circumstances in which
the Children’s Court may dispense with service.
(3)
Subject to any order the Children’s Court
may make, the applicant for a guardianship order is to make reasonable efforts
to notify each parent of the child or young person of the making of the
application for the order.
(4)
Each parent must be given a reasonable
opportunity to obtain independent legal advice about the application and is
entitled to be heard at the hearing of the matter.
(5)
Without limiting section 90 (1A), an applicant
for variation or rescission of a guardianship order made in respect of a child
or young person must notify the principal officer of the designated agency
that was supervising the placement of the child or young person in out-of-home
care immediately before the guardianship order was made of the making of the
application.
(6)
Without limiting subsection (2), an applicant for
a guardianship order other than the Director-General is to notify the
Director-General of the making of the application for the order on the day the
application is filed and the Director-General is entitled to be a party to the
proceedings.
(7)
An application cannot be made under subsection
(1) (c) by a person who is an authorised carer solely in his or her capacity
as the principal officer of a designated agency.
(8)
Subject to any order the Children’s Court
may make, an applicant for a guardianship order must present the following to
the Children’s Court before the order is made:
(a)
copies of any written consent required to be
given in relation to the applicant by subsection (1),
(b)
a care plan prepared by the
applicant,
(c)
a copy of any report on the health, educational
or social well-being of the child or young person that is available to the
applicant and that is relevant to the care plan.
(9)
Without limiting the information that must be
contained in a care plan, it must contain information about the
following:
(a)
the residence of the child or young
person,
(b)
if the Children’s Court has made any
contact order under section 86 in relation to contact of the child or young
person with his or her parents, relatives, friends or other persons—the
arrangements for contact,
(c)
the education and training of the child or young
person,
(d)
the religious upbringing of the child or young
person,
(e)
the health care of the child or young
person,
(f)
the resources required to provide any services
that need to be provided to the child or young person and the availability of
those resources,
(g)
any views the child or young person has expressed
about any aspect of the care plan.
(10)
Other requirements and the form of care plan
under this section may be prescribed by the regulations.
(11)
The care plan is only enforceable to the extent
to which its provisions are embodied in or approved by orders of the
Children’s Court.
(12)
In this section:
care
plan means a plan to meet the needs of a child or young
person that represents a set of proposals to be considered by the
Children’s Court.
79CFinancial assistance for
children and young persons in respect of whom guardianship orders are
made
(1)
The Director-General may, after the making of the
guardianship order, continue to provide financial assistance to the guardian
of a child or young person who, immediately before the guardianship order was
made, was being provided with financial assistance in respect of the child or
young person under section 161 as if (for this purpose only) the child or
young person were still in out-of-home care.
(2)
The Director-General may grant financial
assistance to the guardian of a child or young person in respect of whom a
guardianship order is made who was not being provided with financial
assistance under section 161 before the guardianship order was made:
(a)
if the Director-General considers it is
appropriate to provide the financial assistance for the purpose of achieving
the objects of the Act, or
(b)
in such other circumstance as may be prescribed
by the regulations.
(3)
Without limiting subsection (2), financial
assistance may take the form of a grant, an allowance or a refund of
expenditure, or any other form of financial assistance that the
Director-General may approve generally, or in a particular case or class of
cases.
(4)
A guardian who is provided with financial
assistance under this section must make an annual report to the
Director-General (in the form required by the Director-General) concerning
such matters as may be required by the Director-General relating to the
provision of that financial assistance.
[50]Section 80 Requirement to
consider care plan
Insert “or, in the case of an application
for a guardianship order, by the applicant for the order” after
“Director-General”.
[51]Section 81 Parental
responsibility of the Minister
Omit the section.
[52]Section 82 Report on
suitability of arrangements concerning parental
responsibility
Insert “other than a guardianship
order” after “order” where firstly occurring in section 82
(1).
[53]Section 83 Preparation of
permanency plan
Omit “may” from section 83 (4).
Insert instead “must”.
[54]Section 83
(4)
Insert at the end of the subsection:
Note—
See section 10A (3) (e) in relation to adoption
of Aboriginal and Torres Strait Islander children and young
persons.
[55]Section 83 (5) and
(5A)
Omit section 83 (5). Insert instead:
(5)
The Children’s Court is to decide whether
to accept the Director-General’s assessment of whether or not there is a
realistic possibility of restoration:
(a)
in the case of a child who is less than 2 years
of age on the date the Children’s Court makes an interim order
allocating parental responsibility for the child to a person other than a
parent—within 6 months after the Children’s Court makes the
interim order, and
(b)
in the case of a child or young person who is 2
or more years of age on the date the Children’s Court makes an interim
order allocating parental responsibility for the child or young person to a
person other than a parent—within 12 months after the Children’s
Court makes the interim order.
(5A)
However, the Children’s Court may, having
regard to the circumstances of the case and if it considers it appropriate and
in the best interests of the child or young person, decide, after the end of
the applicable period referred to in subsection (5), whether or not there is a
realistic possibility of restoration.
[56]Section 83
(9)
Omit the subsection. Insert instead:
(9)
In this section, parent, in relation to the child or
young person concerned, means:
(a)
the child’s or young person’s birth
parent, or
(b)
if the child or young person has been
adopted—the child’s or young person’s adoptive
parent.
[57]Section 86 Contact
orders
Omit section 86 (1). Insert instead:
(1)
An order may be made by the Children’s
Court doing any one or more of the following:
(a)
stipulating minimum requirements concerning the
frequency and duration of contact between a child or young person and his or
her parents, relatives or other persons of significance to the child or young
person,
(b)
requiring contact with a specified person to be
supervised,
(c)
denying contact with a specified person if
contact with that person is not in the best interests of the child or young
person.
[58]Section 86
(1A)–(1F)
Insert after section 86 (1):
(1A)
A contact order may be made by the
Children’s Court:
(a)
on application made by any party to proceedings
before the Children’s Court with respect to a child or young person,
or
(b)
with leave of the Children’s Court—on
application made by any of the following persons who were parties to care
proceedings with respect to a child or young person:
(i)
the Director-General,
(ii)
the child or young person,
(iii)
a person having parental responsibility for the
child or young person,
(iv)
a person from whom parental responsibility for
the child or young person has been removed,
(v)
any person who considers himself or herself to
have a sufficient interest in the welfare of the child or young person,
or
(c)
with leave of the Children’s Court—on
application made by any person who considers himself or herself to have a
sufficient interest in the welfare of the child or young
person.
(1B)
The Children’s Court may grant leave under
subsection (1A) (b) or (c) if it appears to the Court that there has been a
significant change in any relevant circumstances since a final order was made
in the proceedings.
(1C)
The Children’s Court is not required to
hear or determine an application made to it with respect to a child or young
person by a person referred to in subsection (1A) (c) unless it considers the
person to have a sufficient interest in the welfare of the child or young
person.
(1D)
Before granting leave under subsection (1A) (b)
or (c), the Children’s Court:
(a)
must take into consideration whether the
applicant for the contact order and persons to whom the contact order applies
have attempted, or been ordered by the Children’s Court to try, to reach
an agreement about contact arrangements by participating in alternative
dispute resolution, and
(b)
may order the applicant and those persons to
attend a dispute resolution conference conducted by a Children’s
Registrar under section 65 or alternative dispute resolution process under
section 65A.
(1E)
Subject to any order the Children’s Court
may make, an applicant for a contact order under subsection (1A) (b) who was a
party to care proceedings must notify other persons who were parties to the
proceedings of the making of the application.
Note—
Section 256A sets out the circumstances in which
the Children’s Court may dispense with the requirement to give
notice.
(1F)
A contact order made under subsection (1A) (b) on
application of a person who was a party to proceedings in which an earlier
contact order was made that has expired may be made in the same or different
terms to the expired order.
[59]Section 86
(2)
Insert “and must not be made in relation to
contact with a child or young person who is the subject of a guardianship
order” after “consent”.
[60]Section 86
(5)–(7)
Insert after section 86 (4):
(5)
A contact order made under this section has
effect for the period specified in the order, unless the order is varied or
rescinded under section 86A or 90.
(6)
Despite subsection (5), if the Children’s
Court decides (whether by acceptance of the Director-General’s
assessment under section 83 or otherwise) that there is no realistic
possibility of restoration of a child or young person to his or her parent,
the maximum period that may be specified in a contact order made under
subsection (1A) concerning the child or young person is 12
months.
(7)
Subsection (6) does not apply to a contact order
made on the application of a former party to proceedings in which an earlier
contact order was made that has expired.
[61]Section
86A
Insert after section 86:
86AVariation of contact orders by
agreement
(1)
A contact
variation agreement is an agreement to vary the terms of a
contact order in the light of a change in any relevant circumstances since the
contact order was made or last varied.
(2)
A contact variation agreement must:
(a)
be in writing, and
(b)
be signed and dated by those parties to the
proceedings in which the contact order was made who are affected by the
variation and, if the contact variation agreement is made less than 12 months
after the contact order was made, the legal representative of the child or
young person, and
(c)
be registered with the Children’s Court by
those parties within 28 days after the date on which the agreement was
signed.
(3)
The contact variation agreement is taken to be
registered with the Children’s Court when filed with the registry of the
Court without the need for any order or other action by the
Court.
(4)
The contact variation agreement takes effect only
if (and when) it is registered.
(5)
The contact variation agreement has effect from
the date of registration until the end of the period specified in the
variation agreement.
(6)
Nothing in this section prevents the variation of
a contact order under section 90.
[62]Section 90 Rescission and
variation of care orders
Omit section 90 (1A). Insert instead:
(1A)
Subject to any order the Children’s Court
may make, a person who makes an application under this section must give
notice of the application to the persons who were parties to the proceedings
in which the care order was made.
Note—
Section 256A sets out the circumstances in which
the Children’s Court may dispense with the requirement to give
notice.
[63]Section 90A Prohibition
orders
Omit “order prohibiting any person,
including a parent of a child or young person”.
Insert instead “order (a prohibition order) prohibiting any
person, including a parent of a child or young person or any person who is not
a party to the care proceedings”.
[64]Section 90A
(2)–(4)
Insert at the end of section 90A:
(2)
A party to care proceedings during which a
prohibition order is made may notify the Children’s Court of an alleged
breach of the prohibition order.
(3)
The Children’s Court, on being notified of
an alleged breach of a prohibition order:
(a)
must give notice of its intention to consider the
alleged breach to the person alleged to have breached the prohibition order,
and
(b)
must give that person an opportunity to be heard
concerning the allegation before it determines whether or not the order has
been breached, and
(c)
is to determine whether or not the order has been
breached, and
(d)
if it determines that the order has been
breached—may make such orders (including a parent capacity order) as it
considers appropriate in all the circumstances.
(4)
The person who is alleged to have breached the
prohibition order is entitled to be heard, and may be legally represented, at
the hearing of the matter.
[65]Chapter 5, Part
3
Insert after section 91:
Part 3Parent capacity
orders
91AInterpretation
In this Part:
parent, in relation to a child or
young person, means the following:
(a)
the child’s or young person’s birth
parent,
(b)
if the child or young person has been
adopted—the child’s or young person’s adoptive
parent.
parent
capacity order means an order requiring a parent or primary
care-giver of a child or young person to attend or participate in a program,
service or course or engage in therapy or treatment aimed at building or
enhancing his or her parenting skills.
91BWhen parent capacity orders
may be made
A parent capacity order may be made in relation
to a parent or primary care-giver of a child or young person by the
Children’s Court:
(a)
on the application of the Director-General,
or
(b)
on the Children’s Court’s own
initiative if it determines under section 90A that a prohibition order has
been breached by the parent or primary care-giver.
91CApplications for parent
capacity orders
(1)
The Director-General is to cause a copy of an
application made under section 91B (a) to be served on the parent or primary
care-giver in relation to whom the order is sought to be made as soon as is
reasonably practicable after the application is filed.
(2)
The copy of the application must be written and
arranged in such a form that there is a reasonable likelihood that its
contents will be understood by the person on whom it is
served.
91DDispute resolution
conferences
(1)
If it considers it appropriate, the
Children’s Court may, before or at any stage during the hearing of an
application by the Director-General for a parent capacity order, or after it
finds a prohibition order has been breached in proceedings under section 90A,
refer the matter to a Children’s Registrar to be dealt with under this
section.
(2)
The Children’s Registrar is to arrange and
conduct a dispute resolution conference between the Director-General and the
parent or primary care-giver in relation to whom the order is sought (the
parties).
(3)
The purpose of a dispute resolution conference is
to provide the parties with an opportunity to agree on action that should be
taken to build or enhance the parenting skills of the parent or primary
care-giver.
(4)
In conducting a dispute resolution conference, a
Children’s Registrar is to act as a conciliator between the parties. In
so doing:
(a)
the Children’s Registrar should seek to
encourage the parties to agree on action that should be taken (including the
formulation of an order that may be made by consent under section 91F),
or
(b)
if the parties cannot agree on the action to be
taken, the Children’s Registrar should encourage the parties:
(i)
to identify areas of agreement between the
parties, and
(ii)
to identify issues in dispute between the
parties, and
(iii)
to determine the best way of resolving any issues
in dispute, and
(iv)
to set a timetable for the hearing of the matter
by the Children’s Court.
(5)
A party may be legally represented at a dispute
resolution conference.
91EMaking of parent capacity
orders
(1)
The Children’s Court may make a parent
capacity order in relation to a parent or primary care-giver of a child or
young person (including a parent or primary care-giver found to have breached
a prohibition order under section 90A) if it is satisfied that:
(a)
there is an identified deficiency in the
parenting capacity of the parent or primary care-giver that has the potential
to place the child or young person at risk of significant harm and it is
reasonable and practicable to require the parent or primary care-giver to
comply with the order, and
(b)
the parent or primary care-giver is unlikely to
attend or participate in the program, service or course or engage in the
therapy or treatment required by the order unless the order is
made.
(2)
A parent capacity order may be made whether or
not a care application or care order has been made and at any stage in care
proceedings.
91FOrders made by
consent
(1)
The Children’s Court may, with the consent
of the Director-General and the parent or primary care-giver who will be
subject to a parent capacity order, make that order by giving effect to the
terms of an agreement reached between the Director-General and the parent or
primary care-giver concerning his or her attendance or participation in a
program, service or course or engagement in therapy or treatment aimed at
building or enhancing his or her parenting skills (a consent
order).
(2)
A consent order may be made following the
conclusion of a dispute resolution conference or at any stage of proceedings
on an application for a parent capacity order.
(3)
A consent order may be made by the
Children’s Court if it considers it reasonable and practicable to do so
and that the terms of the order are appropriate in the
circumstances.
(4)
The functions conferred on the Children’s
Court by this section in relation to an application made under section 91B (a)
may be exercised by a Children’s Registrar.
Note—
See section 93A (Powers exercised by
Children’s Registrar).
91GDuration of parent capacity
orders
(1)
A parent capacity order has effect for the period
specified in the order, unless the order is varied or revoked under section
91H.
(2)
The period for which a parent capacity order has
effect may be specified by reference to a fixed or ascertainable period or by
reference to the occurrence of a specified future event.
91HVariation or revocation of
parent capacity order
(1)
The Children’s Court may at any time vary
or revoke a parent capacity order (including a parent capacity order made
after a breach of a prohibition order) on application by:
(a)
the Director-General, or
(b)
the parent or primary care-giver to whom it
relates.
(2)
The Children’s Court may vary or revoke a
parent capacity order if the Court is satisfied there has been a significant
change in any relevant circumstances since the order was made or last
varied.
(3)
Subject to any order the Children’s Court
may make, a person who makes an application under this section must notify
other persons who were parties to the proceedings for the making of the parent
capacity order of the making of the application.
Note—
Section 256A sets out the circumstances in which
the Children’s Court may dispense with the requirement to give
notice.
(4)
The Children’s Court must, before varying
or revoking a parent capacity order under this section:
(a)
allow all parties a reasonable opportunity to be
heard on the matter, and
(b)
have regard to the factors that the
Children’s Court is required to have regard to under section 91E in
considering whether or not to make a parent capacity order and in considering
the terms of a parent capacity order.
91IRight of
appeal
(1)
A party to proceedings under this Part who is
dissatisfied with a parent capacity order of the Children’s Court
(including a parent capacity order made under section 90A) may, in accordance
with the rules of the District Court, appeal to the District Court on a
question of law.
(2)
The District Court is to hear and determine the
appeal and make such order as it thinks appropriate by reason of its decision,
including, without limiting the Court’s power to make such orders, an
order confirming, varying or setting aside the decision of the
Children’s Court.
(3)
Subject to any interlocutory order made by the
District Court, an appeal does not affect the operation of the order appealed
against or prevent the taking of action to implement that
order.
(4)
The provisions of Chapter 6 apply to and in
respect of the hearing of an appeal under this section in the same way as they
apply to and in respect of the hearing of a care application under that
Chapter.
[66]Section
93A
Insert after section 93:
93APowers exercised by
Children’s Registrar
(1)
A power conferred by this Act when exercised by a
Children’s Registrar is taken to have been exercised by the
Children’s Court.
(2)
The exercise by a Children’s Registrar of a
power conferred by this Act does not prevent the exercise of the power by the
Children’s Court.
(3)
No matter or thing done or omitted to be done by
a Children’s Registrar under section 65, 91D or 244C subjects the
Children’s Registrar to any action, liability, claim or demand if the
matter or thing was done in good faith for the purposes of that
section.
[67]Section 105 Publication of
names and identifying information
Insert after section 105 (1A):
(1B)
This section applies to the publication or
broadcast of a child or young person’s name to the public, or a section
of the public, by publication in a newspaper or periodical publication, by
radio or television broadcast or other electronic broadcast, by the internet,
or by any other means of dissemination.
(1C)
The publication of information to a website that
provides the opportunity for, or facilitates or enables, dissemination of
information to the public or a section of the public (whether or not the
particular publication results in the dissemination of information to the
public or a section of the public) constitutes the publication of information
to the public or a section of the public for the purposes of this
section.
[68]Section 114 Alternative
dispute resolution
Insert “alternative” after “any
form of” in section 114 (2).
[69]Section 116 Application for
order for alternative parenting plan
Omit section 116 (4). Insert instead:
(4)
Subject to any order the Children’s Court
may make, a person who makes an application under this section must notify the
other persons referred to in subsection (1) of the making of the
application.
Note—
Section 256A sets out the circumstances in which
the Children’s Court may dispense with the requirement to give
notice.
[70]Section 117
Adjournment
Omit “mediation”. Insert instead
“alternative dispute resolution”.
[71]Section 122 Mandatory
reporting of child who lives away from home without parental
permission
Insert “(other than an excluded
person)” after “A person”.
[72]Section 122
(2)
Insert at the end of section 122:
(2)
In this section:
excluded
person means a person who:
(a)
is a friend or relative of the child who
maintains both a close personal relationship with the child through frequent
personal contact and a personal interest in the child’s welfare,
and
(b)
does not provide support to the child wholly or
substantially on a commercial basis.
[73]Section 135 Definition and
types of “out-of-home care”
Insert “or kin” after
“relative” in section 135 (3) (b).
[74]Section 135 (3)
(b1)
Insert after section 135 (3) (b):
(b1)
any care of a child or young person provided by a
person who has parental responsibility for the child or young person under a
guardianship order, or
[75]Section 137 Authorised
carers
Insert at the end of section 137 (1) (c):
, or
(d)
subject to the regulations, a person who is
assessed to be suitable to be approved to adopt a child under section 45 of
the Adoption Act
2000.
[76]Section 149 Order for sole
parental responsibility
Omit the section.
[77]Section 149AA Care plan and
other relevant information to be presented before order made under section
149
Omit the section.
[78]Section 149A Variation or
rescission of order for sole parental responsibility
Omit the section.
[79]Section 153 Operation of other
arrangements
Insert “(other than a child or young person
referred to in subsection (3))” after “person” where firstly
occurring in section 153 (2).
[80]Section 153 (3) and
(4)
Omit section 153 (3). Insert instead:
(3)
A child or young person who has been placed in
out-of home care with a relative or kin otherwise than by a court ordered
placement under an arrangement under this section supported by the
Director-General must not remain in the out-of-home care provided under the
arrangement for more than 2 years.
(4)
In this section:
court
ordered placement means the placement of a child or young
person with a relative or kin of the person who has been allocated all aspects
of parental responsibility for the child or young person by virtue of an order
of the Children’s Court or a parenting order in favour of the relative
or kin under the Family Law Act 1975 of the
Commonwealth.
[81]Section 155 Review of
supported out-of-home care arrangements
Insert after section 155 (3):
(3A)
Subsection (1) does not require the designated
agency having supervisory responsibility for a child or young person who is in
a court ordered placement (within the meaning of section 153), and in respect
of whom supported out-of-home care is provided, to conduct an annual review if
a review of the placement of the child or young person conducted under another
provision of this Act has determined that the placement is safe and
secure.
(3B)
The authorised carer of a child or young person
determined to be in a safe or secure placement as referred to in subsection
(3A) must submit a self-assessment report to the designated agency having
supervisory responsibility for the child or young person at least once in
every period of 12 months after the child or young person is placed in
supported out-of-home care.
(3C)
The self-assessment report is to address such
matters as may be required by the designated agency (including verification
that the child or young person resides with the authorised carer and of the
need for on-going provision of support).
[82]Section 161 Financial
assistance for children and young persons in out-of-home
care
Insert at the end of section 161 (4) (b):
, or
(c)
in other circumstances prescribed by the
regulations.
[83]Section
172A
Insert after section 172:
172ADirector-General to report
annually on deaths of children and young persons
(1)
The Director-General must make a written report
to the Minister every year on the reportable deaths known to the
Director-General that occurred during the previous calendar
year.
(2)
In this section:
reportable death means the death of
any child or young person:
(a)
who was the subject of a risk of significant harm
report made during the period of 3 years immediately preceding the death of
the child, or
(b)
who was a sibling of a child or young person who
was the subject of a risk of significant harm report made during the period of
3 years immediately preceding the death of the sibling, or
(c)
for whom the Minister has parental responsibility
under this Act, or
(d)
who is in statutory out-of-home care or supported
out-of-home care, or
(e)
for whom the Director-General or a designated
agency has care responsibility under section 49, or
(f)
who is the subject of a sole parental
responsibility order made under section 149 (as in force immediately before
its repeal by the Child Protection Legislation Amendment
Act 2014).
risk of
significant harm report means a report given to the
Director-General under this Act that, in the assessment of the
Director-General, indicates that a child or young person is at risk of
significant harm (within the meaning of Part 2 of Chapter 3).
Note—
See section 23 (Child or young person at risk of
significant harm).
(3)
A report under this section must include the
following:
(a)
the number of reportable deaths that occurred
during the calendar year to which the report relates,
(b)
the general circumstances of each of those
reportable deaths, if known,
(c)
details relating to the implementation of any
Departmental practice changes in response to, or resulting from, those
reportable deaths.
(4)
A report under this section is to be made to the
Minister as soon as practicable after the end of the calendar year to which
the report relates.
(5)
The Minister is to cause a copy of the report
made to the Minister under this section to be tabled in each House of
Parliament as soon as practicable after the report is made to the
Minister.
[84]Section 175 Special medical
treatment
Insert at the end of section 175 (2) (c):
, or
(d)
the Director-General, in the case of special
medical treatment described in paragraph (c1) of the definition of special
medical treatment in subsection (5), grants an exemption
under subsection (4A).
[85]Section 175 (4A) and
(4B)
Insert after section 175 (4):
(4A)
The Director-General may, by order in writing,
grant an exemption (either generally or in a particular case) in relation to
the administration of a drug referred to in paragraph (c1) of the definition
of special
medical treatment in subsection (5) on the written request
of the Director-General of the Ministry of Health.
Note—
A copy of the general exemption issued by the
Director-General can be accessed at the following website:
www.community.nsw.gov.au/about_us/legislation.html.
(4B)
If the Director-General of the Ministry of Health
makes a written request under subsection (4A) for an exemption in relation to
the administration of a particular drug to a particular child and does not
receive notification of the decision of the Director-General of the Department
within 21 days after the making of the request, the exemption is taken to have
been granted on the expiration of the 21-day period.
[86]Section 175 (5), definition of
“special medical treatment”
Insert after paragraph (c) of the
definition:
(c1)
any medical treatment that involves the
administration of a drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966
over a period or periods totalling more than 10 days in any period of 30 days,
or
Note—
A drug of addiction is a substance specified in
Schedule Eight of the Poisons List proclaimed under the Poisons and Therapeutic Goods Act 1966.
The Poisons List adopts by reference, with certain modifications, Schedules
1–8 of the Poisons Standard under the Therapeutic Goods Act
1989 of the Commonwealth. See also the Poisons List
information available at
www.health.nsw.gov.au/resources/publichealth/pharmaceutical/poisons_list_pdf.asp.
(c2)
any medical treatment that involves an
experimental procedure that does not conform to the document entitled National Statement on Ethical Conduct in
Human Research 2007 published by the National Health and
Medical Research Council in 2007 and updated in 2013, or
Note—
A copy of the National Statement on Ethical Conduct in Human Research
2007 can be found at
www.nhmrc.gov.au/guidelines/publications/e72.
[87]Chapter 9, Part
3
Insert after section 177:
Part 3Miscellaneous
177ARegulations
(1)
The regulations may make provision for or with
respect to the procedures to be followed by the designated agency having
supervisory responsibility for a child or young person in out-of-home care in
authorising, consenting to or monitoring the physical, psychological,
psychiatric or other medical examinations, treatment and control of the
behaviour of the child or young person under this
Chapter.
(2)
Without limiting subsection (1), the regulations
may require a designated agency to carry out such procedures in accordance
with any publicly available guidelines that may be prescribed by the
regulations.
[88]Section 181 Principal
functions of Children’s Guardian
Insert “the carrying out of” after
“monitor” wherever occurring in section 181 (1) (e) and
(f).
[89]Section 181 (1)
(k)
Insert after section 181 (1) (j):
(k)
to accredit adoption service providers under the
Adoption Act 2000 and to monitor the
carrying out of the responsibilities with respect to the provision of adoption
services under that Act and the regulations of those providers and the
Director-General.
[90]Chapter
15A
Insert after section 244:
Chapter 15AAlternative dispute
resolution
244AInterpretation
In this Act:
alternative dispute resolution means
any process (other than a process involving a judicial determination)
conducted under this Act in which an impartial person assists persons in
dispute to resolve issues between them, and includes (without limitation) the
following:
(a)
alternative dispute resolution conducted under
section 37,
(b)
a dispute resolution conference conducted under
section 65,
(c)
alternative dispute resolution conducted under
section 65A,
(d)
a dispute resolution conference conducted under
section 91D,
(e)
alternative dispute resolution conducted under
section 114.
244BProtection of information
disclosed in alternative dispute resolution
(1)
Evidence of anything said or of any admission
made in the course of alternative dispute resolution is not admissible in any
proceedings before any court, tribunal or body.
(2)
Evidence of the conduct of any party in the
course of alternative dispute resolution is not admissible in any proceedings
before any court, tribunal or body.
(3)
A document prepared for the purposes of, or in
the course of, or as a result of, alternative dispute resolution is not
admissible in evidence in any proceedings before any court, tribunal or
body.
(4)
Subsections (1)–(3) do not apply with
respect to any evidence or document:
(a)
if the persons participating in, or identified
during, the alternative dispute resolution and in the case of a document, all
persons identified in the document, consent to the admission of the evidence
or document, or
(b)
in proceedings instituted with respect to any act
or omission in connection with which a disclosure has been made under section
244C (2) (b) or (c), (3) or (4).
244CConfidentiality of information
disclosed in alternative dispute resolution
(1)
A person who conducts or participates in any
alternative dispute resolution process must not disclose anything said or done
or any admission made during the process to any other person, except as
permitted by subsections (2)–(4).
(2)
A person conducting alternative dispute
resolution may disclose information obtained in connection with the
alternative dispute resolution only in any one or more of the following
circumstances:
(a)
with the consent of the person from whom the
information was obtained,
(b)
if there are reasonable grounds to believe that
the disclosure is necessary to prevent or minimise the danger of injury to any
person or damage to any property,
(c)
if, as a result of obtaining the information, the
person conducting alternative dispute resolution has reasonable grounds to
suspect that a child or young person is at risk of significant harm within the
meaning of Part 2 of Chapter 3,
Note—
See section 23.
(d)
in accordance with a requirement imposed by or
under a law of the State (other than a requirement imposed by a subpoena or
other compulsory process) or the Commonwealth.
(3)
A person participating in alternative dispute
resolution may disclose information obtained in connection with the
administration or execution of this Chapter only if there are reasonable
grounds to believe that the disclosure is necessary to prevent or minimise the
danger of injury to any person or damage to any
property.
(4)
Any person conducting or participating in
alternative dispute resolution may disclose information obtained in connection
with the alternative dispute resolution if the disclosure is reasonably
required for the purpose of referring any person conducting the alternative
dispute resolution or a legal practitioner participating in the alternative
dispute resolution to an appropriate body for any professional misconduct
alleged to have been committed in connection with the alternative dispute
resolution.
[91]Section
245
Insert after section 245 (1) (k):
(l)
a decision of the Director-General or a
designated agency as to the suitability of a person to be a
guardian.
[92]Section 245B
Interpretation
Omit section 245B (1). Insert instead:
(1)
In this Chapter:
prescribed body means:
(a)
any body or organisation specified in section 248
(6) or that is prescribed by the regulations for the purposes of that section,
or
(b)
any other body or class of bodies (including an
unincorporated body or bodies) or organisation prescribed by the regulations
for the purposes of this section.
[93]Schedule 3 Savings,
transitional and other provisions
Omit clause 1 (1). Insert instead:
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
[94]Schedule 3, Part
10:
Insert after clause 30:
Part 10Provisions consequent on
enactment of Child Protection Legislation Amendment
Act 2014
31Definition
In this Part:
amending
Act means the Child Protection
Legislation Amendment Act 2014.
32Parent responsibility
contracts
(1)
An amendment made to sections 38A–38E by
the amending Act extends (except as provided by subclause (2)) to a parent
responsibility contract that is in force immediately before the commencement
of the amendment.
(2)
Section 38E (4) as in force immediately before
its repeal by the amending Act continues to apply to and in respect of a
parent responsibility contract that is in force immediately before that repeal
unless its terms are varied under sections 38A–38E as amended by the
amending Act.
33Contact
orders
(1)
An application may be made under section 86 (1A),
as inserted by the amending Act, by a party to proceedings commenced
(irrespective of whether or not finally determined) before the commencement of
the insertion.
(2)
Section 86A, as inserted by the amending Act,
extends to the variation of a contact order made before that
insertion.
34Orders for sole parental
responsibility
An order that is in force under section 149 of
the Act (as in force immediately before its repeal by the amending Act)
allocating sole parental responsibility to an authorised carer (or to the
authorised carer and his or her partner) continues to have effect, on the
repeal, as if that section were still in force.
35Other orders allocating
parental responsibility
(1)
An order that is in force under section 79 (1)
(a) (iii) of the Act (immediately before the substitution of that subparagraph
by the amending Act) allocating all aspects of parental responsibility for a
child or young person at a place other than the usual home of the child or
young person to a relative or kin of the child or young person until the child
or young person reaches 18 years of age (the original
order) is taken, on the commencement of section 79A, to be a
guardianship order allocating all aspects of parental responsibility for the
child or young person to that authorised person and his or her
spouse.
(2)
Despite section 135 (3) (b1) (as inserted by the
amending Act), a relative or kin of a child or young person who, immediately
before being taken to have parental responsibility for a child or young person
under a guardianship order by the operation of subclause (1), was being
provided with financial assistance under section 161 may (subject to subclause
(3) and the regulations) continue to be provided financial assistance under
that section as if the child or young person were still in out-of-home care
for the purposes of this Act.
(3)
A person who is provided with financial
assistance in accordance with subclause (2) must make an annual report to the
Director-General (in the form required by the Director-General) concerning
such matters as may be required by the Director-General relating to the
provision of that financial assistance.
36Existing supported out-of-home
care arrangements
Except as provided by clause 34, a provision of
Chapter 8 that applied to or in respect of the placement of a child or young
person in supported out-of-home care before the provision was amended by the
amending Act continues to apply to and in respect of that placement as if the
provision had not been amended.
37Parent capacity
orders
Section 91B (b), as inserted by the amending Act,
extends to a prohibition order breached before the
insertion.
38Alternative dispute
resolution
Chapter 15A, as inserted by the amending Act,
does not apply to or in respect of alternative dispute resolution conducted
before the commencement of that Chapter under section 37, 65 or
114.
39Preparation of permanency
plan
Section 83 (4), as amended by the amending Act,
extends to a plan prepared, but that has not been submitted to the
Children’s Court in accordance with section 83 (3), before the
commencement of the amendment.
Schedule 2Amendment of other Acts and
Regulation
2.1Adoption Act 2000 No
75
[1]Section 10 Adoption services
to be provided by or on behalf of Director-General
Omit “, and may accredit others to
provide,” from section 10 (1).
[2]Section 10 (2)
(e)
Omit the paragraph.
[3]Section 11 Unauthorised
arrangements for adoption
Omit section 11 (1) (b). Insert instead:
(b)
an organisation accredited by the
Children’s Guardian in accordance with the regulations as an adoption
service provider that may provide the service.
[4]Section 11
(2)
Omit “under Part 2”. Insert instead
“in accordance with the regulations”.
[5]Chapter 3, Part
2
Omit the Part. Insert instead:
Part 2Accreditation of adoption
service providers
12Accreditation and review of
adoption service providers
(1)
A charitable or non-profit organisation may apply
to the Children’s Guardian for accreditation as an adoption service
provider that may provide adoption services specified by the Children’s
Guardian.
(2)
The Children’s Guardian is to monitor the
carrying out of the responsibilities with respect to the provision of adoption
services under this Act and the regulations of the Director-General and
accredited adoption service providers.
13Accreditation
criteria
(1)
On the recommendation of the Children’s
Guardian, the Minister may, from time to time by order published in the
Gazette, approve standards and other criteria for use in determining:
(a)
whether to grant an application for accreditation
as an accredited adoption service provider, and
(b)
the period for which accreditation is to be
granted.
(2)
Standards and criteria may be approved under
subsection (1) in respect of a class or classes of
applicants.
(3)
Without limiting subsection (1), the criteria
approved under that subsection are to be integrated, to the greatest extent
practicable, with the criteria for accreditation of a designated agency under
the Children and Young Persons (Care and Protection) Act
1998.
(4)
Failure to comply with subsection (3) does not
affect the validity of any decision of the Children’s Guardian to
accredit or not to accredit an applicant.
[6]Chapter 4, Part 3,
heading
Insert “other than authorised
carers” after “parents”.
[7]Section
41
Omit the section. Insert instead:
41Application of
Part
This Part applies to the assessment of the
suitability, and selection, of prospective adoptive parents of a child other
than step parents or relatives or authorised carers.
Note—
Part 3A of this Chapter provides for prospective
adoptive parents who are authorised carers.
[8]Section 45 Assessment of
suitability, and selection, of adoptive parents
Omit section 45 (2). Insert instead:
(2)
The Director-General or appropriate principal
officer must not assess a person as suitable to be approved to adopt a child
unless the person and every adult person who resides with the person has a
working with children check clearance that is in force under the Child Protection (Working with Children) Act
2012 or is exempted by the regulations under that Act from
the requirement to hold such a clearance.
[9]Chapter 4, Part
3A
Insert after section 45B:
Part 3ASelection of authorised carers
as adoptive parents
45CApplication of
Part
This Part applies to the assessment of the
suitability, and selection, of prospective adoptive parents who are authorised
carers (within the meaning of section 137 (1) (b) of the Children and Young Persons (Care and Protection) Act
1998) of a child who is in out-of-home
care.
45DApplication to
adopt
The Director-General may, in accordance with the
regulations, invite an authorised carer of a child who is in out-of-home care
to submit an application to adopt the child.
45EForm of
application
An application to adopt a child under this Part
is to be made in accordance with the regulations.
45FAssessment of suitability, and
selection, of adoptive parents
The regulations may make provision for or with
respect to the assessment of the suitability of authorised carers of children
to be approved and selected to adopt the children under this
Act.
45GBackground information about
prospective adoptive parents to be made available to birth
parents
(1)
If an application to adopt a child is made by an
authorised carer, background information relating to the authorised carer that
is obtained by the Director-General or principal officer in connection with
the application is, at the request of the birth parents of the child, to be
provided to the birth parents before any adoption order may be made in
relation to that child.
(2)
In this section, background information relating to
an authorised carer includes information about the carer’s social and
cultural background, religious beliefs, domestic relationship and living
arrangements, but does not include any information that identifies the
carer.
45HConsideration of wishes of
parents consenting to adoption
(1)
A general consent of the parent of a child to the
adoption of the child, as referred to in section 53, may express the wishes of
the parent as to the preferred background, beliefs or domestic relationship of
any prospective adoptive parents of the child.
(2)
Nothing in the Anti-Discrimination Act 1977 prevents
the Director-General or a principal officer of an adoption service provider
from identifying (consistently with the best interests of the child)
prospective adoptive parents who reflect those wishes in the adoption
selection process under this Part.
[10]Section 46 What is an adoption
plan?
Insert after section 46 (2):
(2A)
A birth parent who has not consented to the
adoption of a child (a non-consenting birth parent) is, as
far as possible, to be given the opportunity to participate in the development
of, and agree to, an adoption plan in relation to the
child.
(2B)
A non-consenting birth parent who agrees to an
adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be
treated as if the non-consenting birth parent were a party to the adoption of
the child.
[11]Section 193 (1)
(a)–(d)
Omit the paragraphs.
[12]Section 208
Regulations
Insert “or the Children’s
Guardian” after “Director-General” in section 208 (2)
(b).
[13]Section 208 (2) (d) and
(e)
Insert after section 208 (2) (c):
(d)
the accreditation of organisations as adoption
service providers and the provision of adoption services by such
providers,
(e)
the appointment of principal officers of
accredited adoption service providers.
[14]Schedule 3 Savings,
transitional and other provisions
Insert after clause 24:
Part 7Provisions consequent on
enactment of Child Protection Legislation Amendment
Act 2014
25Definition
In this Part:
amending
Act means the Child Protection
Legislation Amendment Act 2014.
26Existing accreditation and
applications for accreditation
(1)
An organisation that, immediately before the
substitution of Part 2 of Chapter 3 by the amending Act, was accredited as an
adoption service provider under that Part is taken on that substitution to
have been accredited under that Part as substituted for the period and subject
to the conditions to which it was subject before the
substitution.
(2)
An application for accreditation made by an
organisation under Part 2 of Chapter 3 before its substitution by the amending
Act and not finally dealt with before that substitution is to continue to be
dealt with as if the Part had not been substituted unless the applicant elects
to have the application dealt with under the Part as
substituted.
[15]Dictionary
Omit the definition of accreditation
notice.
[16]Dictionary, definition of
“accredited adoption service provider”
Omit “under Chapter
3”.
[17]Dictionary
Insert in alphabetical order:
Children’s Guardian means the
Children’s Guardian appointed under section 178 of the Children and Young Persons (Care and Protection) Act
1998.
out-of-home care has the same
meaning as it has in the Children and Young Persons (Care and
Protection) Act 1998.
[18]Dictionary, definition of
“principal officer”
Omit the definition. Insert instead:
principal
officer of an accredited adoption service provider means the
person who has the overall supervision of the provision by the accredited
adoption service provider of adoption services.
2.2Child
Protection (Working with Children) Act 2012 No
51
[1]Sections 11 and
11A
Omit section 11. Insert instead:
11Prospective adoptive parents
and adults residing with them
(1)
This section applies to:
(a)
a person who has submitted an application under
the Adoption Act 2000 to adopt a child that
has not been finally dealt with by the making of or refusal to make an
adoption order (a prospective adoptive parent),
and
(b)
each adult person who is residing at the home of
that prospective adoptive parent during the period beginning when the
application is made and ending when it is finally dealt with (an adult
resident).
(2)
A person to whom this section applies must apply
to the Children’s Guardian for a working with children check clearance
of the volunteer class unless:
(a)
the person holds a clearance of any class that is
in force, or
(b)
a current application for a clearance has been
made by the person, or
(c)
the person is exempted by the regulations from
the requirement to hold a clearance.
(3)
For the purposes of the application of this Act
(other than section 9) to a prospective adoptive parent or adult resident, the
relevant decision-maker in relation to the prospective adoptive parent is to
be treated as the employer of the prospective adoptive parent and adult
resident.
(4)
In this section:
accredited adoption service
provider has the same meaning as it has in the Adoption Act 2000.
relevant
decision-maker in relation to a prospective adoptive parent
means:
(a)
if the prospective adoptive parent has made an
application to adopt a child to the Director-General of the Department of
Family and Community Services—the Director-General,
or
(b)
if the prospective adoptive parent has made an
application to adopt a child to an accredited adoption service
provider—the principal officer of the service
provider.
11AProspective guardians and
adults residing with them
(1)
This section applies to:
(a)
a prospective guardian within the meaning of
section 79A of the Children and Young Persons (Care and
Protection) Act 1998, and
(b)
each adult person who is residing at the home of
that prospective guardian during the period beginning when the application
under that section for a guardianship order relating to that prospective
guardian is made under that section and ending when it is finally dealt with
(an adult
resident).
(2)
A person to whom this section applies must apply
to the Children’s Guardian for a working with children check clearance
of the volunteer class unless:
(a)
the person holds a clearance of any class that is
in force, or
(b)
a current application for a clearance has been
made by the person, or
(c)
the person is exempted by the regulations from
the requirement to hold a clearance.
(3)
For the purposes of the application of this Act
(other than section 9) to a prospective guardian or adult resident, the
relevant decision-maker in relation to the prospective guardian is to be
treated as the employer of the prospective guardian and adult
resident.
(4)
In this section:
relevant
decision-maker in relation to a prospective guardian
means:
(a)
if the application for the guardianship order was
made by the Director-General of the Department of Family and Community
Services—the Director-General, or
(b)
in the case of such an application made by any
other person or body—the principal officer of the designated agency
responsible for assessing the prospective guardian to be a suitable person to
be allocated all aspects of parental responsibility for a child or young
person.
[2]Schedule 3 Savings,
transitional and other provisions
Insert after clause 7:
Part 3Provision consequent on
enactment of Child Protection Legislation Amendment
Act 2014
8Potential adoptive
parents
Section 11, as substituted by the Child Protection Legislation Amendment Act
2014 applies to and in respect of an application to adopt
that has been made but not finally dealt with by the making of or refusal to
make an adoption order before the commencement of this
clause.
2.3Children Legislation Amendment (Wood Inquiry
Recommendations) Act 2009 No 13
Repeal the Act.
2.4Children’s Court Regulation
2009
Clause 5 Appeals etc under
Children and Young Persons (Care and Protection) Act
1998
Insert after clause 5 (1) (a):
(a1)
section 91I (Right of
appeal),
2.5Guardianship Act 1987 No
257
Section 15 Restrictions on
Tribunal’s power to make guardianship orders
Insert at the end of section 15 (1) (b):
, or
(c)
in the case of a person who is the subject of an
order made by the Children’s Court in the exercise of its jurisdiction
under section 79A of the Children and Young Persons (Care and
Protection) Act 1998—unless the Children’s
Court consents to the making of the order.
Historical
notes
Table of amending
instruments
Child Protection
Legislation Amendment Act 2014 No 8. Assented to 1.4.2014.
Date of commencement, 29.10.2014, sec 2 and 2014 (322) LW
6.6.2014.