Children and Young Persons (Care and Protection) Amendment Bill 2018
What the bill means
The bill was passed by NSW parliament to amend the Children and Young Persons (Care and Protection) Act 1998 and the Adoption Act 2000. The main reason for the amendments were to make further provisions in relation to the care and protection of children and young people and for the provision of services to them. The amendment came into effect on the 4th February 2019.
What the amendments mean to dispute resolution practitioners
The important provisions are to clarify and require alternative dispute resolution rather than heavy handed legal action in cases that are not urgently high risk.
The objectives of the act and the role of the department have been clarified in section 16.
A new subsection 2 in Section 17 authorises the prioritisation of requests for services for children and young people at risk of significant harm by government departments, agencies and non-government agencies in receipt of government funding.
Section 16 – The General Role of the Secretary
(3) (a) to promote the development of co-ordinated strategies for the care and protection of children and young persons and for the provision of support services directed towards strengthening and supporting families (including the provision of prioritised access to support services to children and young persons at risk of significant harm and to their families), and
(b) to co-ordinate the provision of services for assisting young persons leaving statutory out-of-home care, and
New (c) to co-ordinate the early provision of alternative dispute resolution processes for children and young persons at risk of significant harm and their families who wish to participate in those processes.
Note. Section 37 (1A) requires the Secretary, on determining that a child or young person is at risk of significant harm, to offer these processes to the family of the child or young person (subject to certain exceptions) before seeking care orders.
Section 22 – Secretary‘s response to requests for assistance
The following text has been added.
If the Secretary determines that a child or young person is at risk of significant harm, the Secretary must offer alternative dispute resolution processes to the family of the child or young person (subject to certain exceptions) before seeking care orders.
This recognition and encouragement to attempt to involve the family in working out a plan for the care of their at risk child is a very positive step in the right direction.
The second addition to this section is
The Secretary may request government departments or agencies, or non-government agencies in receipt of government funding, to provide prioritised access to services to children or young persons who are at risk of significant harm and to their families.
The focus on Alternative dispute resolution is further reinforced in section 37 by changing the language from “is to consider” to “must consider”
Section 37 Alternative Dispute Resolution by the Secretary
(a) to ensure intervention so as to resolve problems at an early stage, and
(b) to reduce the likelihood that a care application will need to be made under Chapter 5, and
(c) to reduce the incidence of breakdown in adolescent-parent relationships, and
Also insert the following
(1A) If the Secretary determines that a child or young person is at risk of significant harm, the Secretary must offer alternative dispute resolution processes to the family of the child or young person before seeking care orders from the Children‘s Court.
(1B) Subsection (1A) does not apply in relation to the family of a child or young person if the Secretary forms the opinion on reasonable grounds that their participation in alternative dispute resolution processes would not be appropriate due to exceptional circumstances.
(1C) If the Secretary becomes aware of criminal proceedings or a police investigation that may be compromised if alternative dispute resolution processes are offered under subsection (1A), the Secretary:
(a) must seek the advice of the Commissioner of Police as to the likely effect of the processes, and
(b) is not required to offer the processes if the Secretary determines that it is not appropriate to do so after taking the advice into account.
(1D) Subsection (1A) does not affect the Secretary‘s obligation under section 34 (1) and is subject to sections 35 (1) and 36.
(2) Participation in any such alternative dispute resolution is voluntary.
Note : Within this provision, models for conferencing may be developed to accommodate the unique requirements of a community (whether cultural, geographic or language), the complexities of the case, or the nature and severity of the abuse suffered by the child or young person.
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What does it all mean?
The government in NSW is directing the department to make every effort to engage the family via family dispute resolution as long as there is not extreme levels of urgency or risk to the children in question.
That is going to be very good for Family Group Conference Facilitators and families as well facilitated Family Group Conferencing is a very child inclusive and empowering process.
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