Legal matters

Police and court

Sometimes carers are called upon to support kids in care through court proceedings or contact with the police. Together, you and your caseworker will be responsible for preparing documents, attending certain appointments and interviews, and giving the child or young person the guidance and comfort they need.

Contact with the police

Interviews and arrests

A person cannot be forced to attend a police interview unless they are arrested. If the police ask the child or young person to come to the station for questioning, then either they, you or the caseworker should ask if the child is under arrest.

If a child or young person is arrested, the police can keep them for up to four hours unless they get special permission from a court to keep them longer.

If they are not under arrest, then they don’t have to go to the interview.

The decision about whether or not a child or young person is to attend a police interview must involve the Minister’s delegate (in other words, the DCJ Manager Casework or equivalent from a non-government agency).

The purpose of the interview must be given some consideration. For example, is the child or young person suspected of committing an offence, or are police attempting to obtain evidence from them to charge someone else?

Call your caseworker

You should contact your caseworker as soon as possible if the child or young person in your care comes into contact with the police.  Your caseworker can provide support and assistance in terms of police interviews, obtaining legal advice and the court process.

Attending a police interview

The best interests of the child or young person must always be the primary concern. If the child wants to provide a statement, the caseworker should arrange legal advice before they do so. If the agency manager is of the view that the child should not provide a statement, the caseworker should have a solicitor attend the interview if possible.

If the child is under 14, a parent or guardian should be present for police questioning. Remember that a ‘guardian' is someone who has full parental responsibility for the child. Depending on their circumstances, that could either be the child's legal guardian or a delegate of the Minister (in other words their DCJ caseworker or Manager Casework, or the non-government agency equivalent). Alternatively, the parent or guardian can give permission for another independent adult, such as a carer, to be present.

If the child or young person is 14 to 17 years old, an independent adult can be present during the interview. The independent adult should be someone they can trust: for example, a lawyer, family member, carer, youth worker, or a friend who is over 18. The independent adult cannot be a police officer. If the child or young person asks to have you (the carer) attend as the independent adult, you should contact your caseworker prior to attending the interview.

Everyone has the right to remain silent when being interviewed by police. This means a child or young person doesn’t have to provide any information in an interview except for their name and address.

The principle of Doli Incapax

The principle of ‘doli incapax’ is a common law principle that presumes that a child between the ages of 10 and 14 does not have the capacity to form or possess the criminal intent to commit a criminal offence. The court will act on this presumption unless it can be clearly shown that the child knew their criminal conduct was seriously wrong and not just ‘naughty’.

Obtaining legal advice for the child or young person

Your caseworker can help the child or young person obtain legal advice and representation. The Legal Aid Youth Hotline on 1800 101 810 provides free advice to young people under 18 when they have committed, or are suspected of committing a crime. If the child or young person is Aboriginal or Torres Strait Islander, legal advice is also available through the ALS Hotline on 1800 765 767.

The Aboriginal Legal Service

There are rules the police have to follow when speaking to and dealing with indigenous people. This includes calling the Aboriginal Legal Service (ALS) if an indigenous person is arrested and hasn’t organised their own lawyer. If the child or young person is an indigenous person, then they or you or their caseworker should inform the police of this. The police must call the ALS before they question the person.

Obligation to report matters to police

If someone knows or believes that a person has committed a serious indictable offence and has information that might be of material assistance to police in securing the apprehension, prosecution or conviction of the offender, then they are obliged to provide this information to police. It is a criminal offence to fail to provide this information to police. It is also an offence to hinder the investigation of a serious indictable offence committed by another person. An offence is a ‘serious indictable offence’ if it is punishable by imprisonment for more than 5 years. This includes murder, manslaughter, indecent and sexual assaults and producing, disseminating and possession of child pornography. A carer or caseworker may have an obligation to report matters involving a child or young person in care to the police.

Court processes

What happens if a matter goes to court

The Children and Young Persons (Care and Protection) Act 1998 gives the Children’s Courtthe authority to make a variety of orders about the care and protection of a child or young person.

These orders may include things like Orders Allocating Parental Responsibility, Contact Orders and Orders to Attend Therapeutic or Treatment Programs.

Roles and responsibilities in court matters

DCJ is responsible for presenting matters to the Children’s Court and preparing documents for the hearing. Those documents may include a Care Plan, which provides background information about the child or young person and outlines the plan for their placement. If you are a carer with a non-government agency, your agency caseworker will work with the DCJ representative to prepare these documents. Carers are generally not given copies of documents unless they are a party to court proceedings. However, your caseworker will provide you with information and updates.

You may ask to be party to the court proceedings or the court may request that you be involved. This usually happens when you have had care of the child or young person for some time, or if you ask to be heard by the court about a matter that significantly affects you or your family.

What’s it like going to court?

The court process can be complex, time-consuming, unsettling and stressful for all involved. Children and young people may be included in hearings and may need to meet or speak with a legal representative who is appointed to seek their views and represent their interests. Generally, children over 12 years of age are presumed capable of giving proper legal instructions to their legal representative. Children under 12 years of age are presumed incapable of giving proper instructions. A legal representative for a child may apply to the Children’s Court to rebut the assumptions about the child’s capacity to give proper legal instructions.

The caseworker will spend time preparing the child or young person for their court attendance. They’ll also explain the outcome of the proceedings to you and the child. Sometimes the child or young person may not fully understand the outcome or decisions of the court, and may have more questions. If you think the child does not understand what’s happening, please raise your concerns with the caseworker so they can thoroughly explain the decisions made by the court.

The child or young person involved in a court hearing may need a lot of support from their carer. You may be asked to attend court as a support person. Carers are generally not required to give evidence at court. If you are required to do so, your caseworker can support you during the process.
 

Carers’ rights in the court process

As a carer, you can expect:

• any information you provide to be considered where relevant to the court process
• to be informed of how and when the child or young person will be involved in the court process, the dates the matter is being heard at court and any outcomes in the court matter
• to be provided with a copy of the final Court Order concerning the child – this information must be treated as confidential.

Bail, surety and payment of fines

Your agency is responsible for ensuring a child or young person isn’t held in custody when charged with a criminal offence for which bail or surety is sought or a fine has been imposed by a court.

Your agency may enter a bail agreement as an ‘acceptable person’, or pay a surety or fine on behalf of a child or young person.

Whenever possible, the child or young person should be responsible for paying fines. The caseworker will make arrangements with them to pay it off completely or in installments.

If you pay the fine yourself, encourage the child or young person to take responsibility as long as it’s age-appropriate and relevant to their circumstances. You may be reimbursed for paying a fine if the child or young person is at risk of being jailed if the fine is left unpaid.

Victims of crime and Victims Register

Victims of crime

Under the Victims Rights and Support Act 2013, victims of crime in NSW have the Charter of Victims Rights to protect and promote their rights. This includes the right to:

• be treated with courtesy, compassion and respect
• information about, and access to, welfare, health, counselling and legal services
• not to have their residential address and telephone number disclosed unless a court otherwise directs
• information about whether any charges are to be laid against the accused  and any criminal trial
• compensation

The child or young person’s caseworker can work on their behalf to access services and support, and apply for victims of crime compensation when eligible.

Victims Register

Children and young people who have been victims of crime, where the offender has been convicted, can be added to the Victims Register. The register aims to keep victims and their guardians or other people with parental responsibility informed of the following:

• an offender’s impending release from gaol or escape from custody
• a change in an offender’s security classification that may result in the offender being eligible for unescorted absence from custody
• an offender’s death in custody or while under a community-based order.

Submissions from victims

A registered victim can make submissions concerning the granting of parole or unescorted leave or any change in security classification that may result in an offender being released from custody.

Legal decision-making

There are a small number of decisions that require legal involvement. If you have any doubts about how to proceed, get in touch with your caseworker.

Legal decisions: personal matters

Changing a child’s name

Children and young people have the right to preserve their name and identity. ‘Name’ includes the first name, middle name and surname listed on their birth certificate. These names are to be used in all official documents, including school enrolment.

If the child or young person prefers to be called another name or wants to legally change their name, talk to your caseworker. They’ll discuss the child’s wishes with all relevant parties. They’ll also seek input from community and cultural representatives if the child is Aboriginal or Torres Strait Islander.

If a child wishes to use a preferred name, this is fine if it’s part of the child’s approved Case Plan. If the child wishes to legally change their name, DCJ or the agency with parental responsibility must consent. They may approve an application for a legal change of name if there’s no sign the child is being forced into doing so and:

• they’re 12 years of age or older
• they’ve been assessed as competent to make an informed decision
• they’ve been in a stable long-term placement for at least two years
• there’s no plan to restore them to their birth family
• they’re fully aware of their identity.

Teenage marriage

All young people aged 16 to 17 need permission from a judge to get married. This permission is only given in exceptional and unusual circumstances.

Talk to your caseworker if the young person in your care wants to get married. The caseworker will get your views and those of the young people, their parents and other significant people. The caseworker must also contact DCJ for consent. If DCJ gives consent for the young person to marry, it will seek permission from the relevant court. If consent is not given, the young person has the same right as any other young person to seek permission from a judge to marry without parental consent.

Legal decisions: financial matters

Trust accounts

If a child or young person has property or assets of their own, the agency may set up a trust account to look after these assets on the child’s behalf until they turn 18. Assets include any lump-sum compensation payment. If the cost of having a trust account is greater than the benefit, the child’s money is held in an interest-bearing account.

The kind of account established, and details including how many signatories are attached to the account and who those people should be, will be decided by the caseworker in consultation with you.

Caseworkers and carers can’t access money or assets held in trust or in an interest-bearing account. The agency may approve an advance of funds if this will directly benefit the child or young person. For example, a young person moving to independent living may request an advance to rent, buy or invest in a property or business.

Claims against a foster carer’s estate

A will allows you to say who can have what from your estate when you die. You can also make a written statement to be kept with your will explaining how you’ve made proper provision for all those dependent upon you and the reasoning behind this. This may be taken into account if someone makes a claim on your estate or is considering making a claim on your estate.

The Succession Act 2006provides protection for people who have not been provided for in a will or who feel they have not been properly provided for. Any person who was a spouse, de facto partner, child or grandchild of the deceased, or was at any time wholly or partly dependent upon the deceased person and was part of the deceased person’s household, is eligible to make a claim.

A child or young person who has been in the care of an authorised carer and accepted as part of the family may be entitled to apply for a share of the carer’s estate. A decision about entitlement to claim is made by the Supreme Court or District Court. The decision will be based on factors including the nature and duration of the relationship between the child or young person and the authorised carer. The court will also consider the size of your estate and the needs of any competing beneficiaries, such as any surviving spouse or partner and biological children.

You can prepare a will that sets out who you want to leave your estate to when you die. If any claim is made on your estate the court must consider the terms of your will and what your intentions were as set out in your will.  It is important to seek legal advice when making a will as this can help reduce the possibility that a successful claim may be made on your estate.

Legal decisions: end-of-life choices and wills

End-of-life decisions and urgent medical treatment

When a child or young person is dying from a terminal illness or as a result of an accident, decisions need to be made about what medical intervention will happen. This involves respecting the child’s wishes and considering decisions about withdrawal of treatment and organ donations.

If the child has a terminal illness, their caseworker will involve medical professionals, carers, family and significant others in palliative care planning and decision-making. The palliative care plan contains end-of-life decisions and must be approved by the agency.

If the child or young person has an accident, urgent medical treatment may be carried out by a doctor without consent. This is until the child’s caseworker has obtained required consents. It’s important to call your caseworker or the Child Protection Helpline on 132 111 as soon as possible after the child has been admitted to hospital.

Consent for organ donations cannot be given without the approval of the Secretary.

Wills for children and young people

There’s no need for a child or young person to have a will if they don’t have assets, such as property, inheritance money or compensation payment. If they do have assets, it’s advisable they have a will to ensure their estate goes to the people they want it to go to when they die.

Unless the young person is married or planning to marry, an application to make a will by a minor must be lodged with the Supreme Court of NSW. However there must be special circumstances for the Court to make a will for a child or young person under 18. These special circumstances could include:

• if the minor were to die without a will their estate would pass to an inappropriate person such as a parent who caused injury or harm to the child
• the minor has a terminal illness and is unlikely to reach 18 (where they can legally make a will)
• the minor is unlikely to ever gain the legal capacity to make a will (that is the capacity to understand the nature and extent of their assets, the nature of a will, and the persons who ought to be provided for in their will).

If an application is made to the Supreme Court to make a will for a minor, the Public Trustee of NSW will write the will on behalf of the child or young person. The Public Trustee or another suitable person may be appointed as the executor of the will.

Talk to your caseworker if you think there may be special circumstances that warrant the child or young person in your care making a will. They’ll discuss this with the child, including their wishes, and organise the necessary legal arrangements.

Government bodies and the law

Your agency will make sure you have all the information you need to carry out your role in a way that complies with the law, so you're not expected to have in-depth legal knowledge of the Acts and Regulations that define out-of-home-care.

Government bodies

Office of the Children’s Guardian

The Office of the Children’s Guardian has a number of responsibilities under the Act and Regulation. One of their key roles is developing guidelines to assist agencies and carers in fulfilling their responsibilities under the legislation.

The NSW Child Safe Standards for Permanent Care 2015are used by the Children’s Guardian for the evaluation, accreditation and ongoing monitoring of agencies that provide statutory out-of-home care services and/or adoption services in NSW.

The rights of children and young people arise from the United Nations Convention on the Rights of the Child (pdf)and the Charter of Rights for Children and Young People in Out-of-Home Care in NSW. These charters underpin the NSW Child Safe Standards for Permanent Care.

Children and young people have the right to:

• be safe and protected from harm
• live a full and healthy life
• participate in decisions that affect them
• live in healthy environments
• receive an education
• receive quality healthcare
• maintain relationships with family and people of significance
• maintain connections to community, culture, language and spirituality
• access information about issues that concern them
• have their privacy respected
• engage in leisure activities and spend time with their peers
• access services that assist them to achieve their full potential.

NSW Civil and Administrative Tribunal (NCAT)

Some decisions that agencies make about out-of-home care can be reviewed by the NSW Civil and Administrative Tribunal (NCAT). These include decisions about authorisation and de-authorisation of carers, and decisions to grant or remove a child or young person from a current placement.

NSW Ombudsman

The NSW Ombudsman can deal with complaints about the way services are provided to children and young people in out-of-home care under the Ombudsman Act 1974 (pdf)and the Community Services (Complaints, Reviews and Monitoring) Act 1993 (pdf).

The Ombudsman can decide to review the circumstances of a child or group of children in care, where various aspects of their welfare and circumstances are examined. It is responsible for reviewing the deaths of children and young people. It also coordinates official community visitors, who advocate for and aim to protect the interests of children, young people and adults living in full-time residential care.

For more information about the NSW Ombudsman call (02) 9286 1000 (Sydney metro) or 1800 451 524 (outside Sydney metro).

Acts and regulations

Children and Young Persons (Care and Protection) Act 1998

All states and territories in Australia have their own laws for protecting children and young people. In NSW, the child protection legislation is the Children and Young Persons (Care and Protection) Act 1998.

The Act requires that the best interests of the child or young person are considered in all decisions and actions. This includes the safety, welfare and wellbeing of children and young people who are removed from their families. The Act gives specific powers to DCJ to investigate child protection reports, and the courts to make orders. It also sets out the responsibilities of each government agency, non-government agency and person involved in protecting and caring for children at risk of significant harm.

Children and Young Persons (Care and Protection) Regulation 2012

The Children and Young Persons (Care and Protection) Regulation 2012 (pdf) provides more detailed guidance about what is required to meet responsibilities around children and young people in care. This is where the Code of Conduct for Authorised Foster, Relative and Kinship Carers [internal link Code of Conduct] comes from.

The Charter of Rights

The Charter of Rights outlines the general rights and responsibilities of every child and young person in out-of-home care. These rights reflect those of any child or young person. The Children and Young Persons (Care and Protection) Act 1998 requires that these rights are supported by carers and caseworkers.

• You have the right to have contact with your family and community.
• You have the right to be told why you are in care and to keep a record of your time in care.
• You have the right to ask for any information that is being kept about you, to read your file and to add information to your file.
• You have the right to be treated fairly.
• You have the right to be treated with respect.
• You have the right to feel safe and not be abused.
• You have the right to complain.
• You have the right to services that promote your health and wellbeing.
• You have the right to ask for extra help with your education.
• If you have to go to court, you have the right to be helped and supported.
• You have the right to do things you enjoy.
• You have the right to your own beliefs and way of life.
• You have the right to make choices about everyday matters.
• You have the right to say what you are thinking and feeling.
• You have the right to take part in making important decisions affecting your life.
• Before leaving care, you have the right to be involved in planning the kind of support and assistance you may need after leaving care.