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CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998

- As at 3 August 2017
- Act 157 of 1998

TABLE OF PROVISIONS

           Long Title

CHAPTER 1 - PRELIMINARY

   1.      Name of Act
   2.      Commencement
   3.      Definitions
   4.      Children and young persons to whom this Act applies
   5.      Meaning of "Aboriginal" and "Torres Strait Islander"
   5A.     Meaning of "principal officer"
   6.      Notes

CHAPTER 2 - OBJECTS, PRINCIPLES AND RESPONSIBILITIES

   PART 1 - OBJECTS AND PRINCIPLES

   7.      What is the role of the objects and principles of this Act?
   8.      What are the objects of this Act?
   9.      Principles for administration of Act
   10.     The principle of participation
   10A.    Permanent placement principles

   PART 2 - ABORIGINAL AND TORRES STRAIT ISLANDER PRINCIPLES

   11.     Aboriginal and Torres Strait Islander self-determination
   12.     Aboriginal and Torres Strait Islander participation in decision-making
   13.     Aboriginal and Torres Strait Islander Child and Young Person Placement Principles
   14.     Records relating to Aboriginals and Torres Strait Islanders

   PART 3 - ROLES OF THE MINISTER AND SECRETARY

   15.     General role of the Minister
   16.     General role of the Secretary
   17.     Secretary's request for services from other agencies
   18.     Obligation to co-operate
   19.     Interagency co-operation and exchange of information

CHAPTER 3 - REQUESTS FOR ASSISTANCE AND REPORTS

   PART 1 - REQUESTS FOR ASSISTANCE

   20.     Request for assistance by child or young person
   21.     Request for assistance by parent of child or young person or by funded non-government agency
   22.     Secretary's response to requests for assistance

   PART 2 - REPORTS

   23.     Child or young person at risk of significant harm
   24.     Report concerning child or young person at risk of significant harm
   25.     Pre-natal reports
   26.     Anonymity
   27.     Mandatory reporting
   27A.    Alternative reporting arrangements
   28.     Record of reports and subsequent action
   29.     Protection of persons who make reports or provide certain information
   29AA.   Special provision relating to Royal Commissions
   29A.    Person who makes report is not prevented from helping child or young person

   PART 3 - INVESTIGATIONS AND ASSESSMENT

   30.     Secretary's investigations and assessment
   31.     Matters for consideration
   32.     Initial identification--Aboriginals and Torres Strait Islanders
   33.     Investigation if allegation made against staff of Department

CHAPTER 4 - CHILDREN AND YOUNG PERSONS IN NEED OF CARE AND PROTECTION

   PART 1 - ACTION TAKEN BY SECRETARY

   34.     Taking of action by Secretary
   35.     Decision against taking action
   36.     Principles of intervention

   PART 2 - USE OF ALTERNATIVE DISPUTE RESOLUTION

   37.     Alternative dispute resolution by Secretary

   PART 3 - CARE PLANS AND PARENT RESPONSIBILITY CONTRACTS

           Division 1 - Care plans

   38.     Development and enforcement of care plans

           Division 2 - Parent responsibility contracts

   38A.    Parent responsibility contracts
   38B.    Amendment of parent responsibility contracts
   38C.    Termination of parent responsibility contracts
   38D.    Effect of parent responsibility contract
   38E.    Contract breach notices

           Division 3 - Registration of care plans and parent responsibility contracts

   38F.    When registration occurs
   38G.    Registration does not make care plans and parent responsibility contracts court documents

   PART 4 - MISCELLANEOUS

           39-41. (Repealed)
   42.     Sexually abusive behaviour by certain children and young persons

CHAPTER 5 - CHILDREN'S COURT PROCEEDINGS

   PART 1 - EMERGENCY PROTECTION AND ASSESSMENT

           Division 1 - Emergency removal

   43.     Removal of children and young persons without warrant
   44.     Secretary may assume care responsibility of child or young person in hospital or other premises
   45.     Application to Children's Court for care order

           Division 2 - Emergency care and protection orders

   46.     Emergency care and protection orders
   47.     (Repealed)

           Division 3 - Other removal authorised by the Children's Court

   48.     Removal of child or young person pursuant to order of Children's Court

           Division 4 - Who has care responsibility?

   49.     Care of child or young person pending care proceedings
   50.     Discharge of child or young person from Secretary's care responsibility

           Division 5 - What information must be given following removal?
           Note

   51.     Duty of Secretary to give information to certain persons

           Division 6 - Examination and assessment orders

   52.     Definition of "assessment order"
   53.     Making of assessment orders
   54.     Assessment of person's capacity for parental responsibility
   55.     Application for order
   56.     Matters for consideration in making an assessment order
   57.     Information concerning assessment
   58.     Provision of assessment reports and other information
   59.     Evidentiary status of assessment report

   PART 2 - CARE APPLICATIONS

   60.     Definitions
   61.     Applications for care orders
   61A.    Applications for care orders by filing contract breach notices
   62.     Interim and final orders
   63.     Evidence of prior alternative action
   64.     Notification of care applications
   64A.    Evidence in the form of a recording
   65.     Dispute resolution conferences
   65A.    Referral of matters before the Court to ADR
   66.     Leave to withdraw care application
   67.     Children's Court order not limited by terms of care application
   67A.    Consecutive care orders
   68.     Leave to file further documentary evidence
   69.     Interim care orders
   70.     Other interim orders
   70A.    Consideration of necessity for interim care order
   71.     Grounds for care orders
   71A.    Effect of conduct outside New South Wales
   72.     Determination as to care and protection
   73.     Order accepting undertakings
   74.     Order for provision of support services
   75.     Order to attend therapeutic treatment
   76.     Order for supervision
   77.     Supervision of child or young person under a supervision order
   78.     Care plans
   78A.    Permanency planning
   79.     Order (other than guardianship order) allocating parental responsibility
   79A.    Allocation of parental responsibility by guardianship order
   79B.    Applications for guardianship orders
   79C.    Financial assistance for children and young persons in respect of whom guardianship orders are made
   79D.    Prospective guardian must notify Secretary of resident
   80.     Requirement to consider care plan
   81.     (Repealed)
   82.     Report on suitability of arrangements concerning parental responsibility
   83.     Preparation of permanency plan
   84.     Requirements of permanency plans involving restoration
   85.     Provision of services to facilitate restoration
   85A.    Review of permanency plans involving restoration
   86.     Contact orders
   86A.    Variation of contact orders by agreement
   87.     Making of orders that have a significant impact on persons
   88.     Costs
   89.     Copies of final orders to be given to all parties
   90.     Rescission and variation of care orders
   90A.    Prohibition orders
   91.     Appeals

   PART 3 - PARENT CAPACITY ORDERS

   91A.    Interpretation
   91B.    When parent capacity orders may be made
   91C.    Applications for parent capacity orders
   91D.    Dispute resolution conferences
   91E.    Making of parent capacity orders
   91F.    Orders made by consent
   91G.    Duration of parent capacity orders
   91H.    Variation or revocation of parent capacity order
   91I.    Right of appeal

CHAPTER 6 - CHILDREN'S COURT PROCEDURE

   PART 1 - GENERAL

   92.     Proceedings to which this Chapter applies
   93.     General nature of proceedings
   93A.    Powers exercised by Children's Registrar
   94.     Expedition and adjournments
   95.     Court to explain proceedings to children and young persons
   96.     Attendance of child or young person, parents and others
   97.     Effect of failure of attendance
   98.     Right of appearance
   99.     Appointment of legal representative by Children's Court
   99A.    Legal representative to act as independent legal representative or direct legal representative
   99B.    Child under 12 presumed incapable of giving proper instructions
   99C.    Child 12 or older and young person presumed capable of giving proper instructions
   99D.    Role of a legal representative
   100.    Guardian ad litem--child or young person
   101.    Guardian ad litem and amicus curiae--parents of child or young person
   101A.   Guardian ad litem--exclusion of personal liability
   102.    Support persons
   103.    Views of siblings
   104.    Exclusion of child or young person from proceedings
   104A.   Exclusion of particular persons from proceedings
   104B.   Exclusion of general public from proceedings
   104C.   Entitlement of media to hear proceedings
   105.    Publication of names and identifying information
   106.    Admissibility of certain statements
   106A.   Admissibility of certain other evidence
   107.    Examination and cross-examination of witnesses
   108.    Proceedings unaffected by pending criminal proceedings

   PART 2 - ATTENDANCE OF WITNESSES AND OTHERS AND PRODUCTION OF DOCUMENTS

           Division 1 - Preliminary

   109.    Definitions

           Division 2 - Compelling attendance at proceedings

   109A.   Form and service of care proceedings attendance notice
   109B.   Issue of arrest warrant to compel attendance at proceedings

           Division 3 - Subpoenas for attendance of witnesses to give evidence and produce documents

   109C.   Issue of subpoenas
   109D.   Time for service of subpoenas
   109E.   Conduct money
   109F.   Limits on obligations under subpoenas
   109G.   Production by non-party
   109H.   Subpoena may be set aside
   109I.   Inspection of subpoenaed documents and things
   109J.   Action that may be taken if person does not comply with subpoena
   109K.   Action that may be taken if person refuses to give evidence

           Division 4 - Arrest warrants

   109L.   When arrest warrants may be issued
   109M.   Form of arrest warrant
   109N.   Duration of arrest warrants
   109O.   Persons who may execute arrest warrant
   109P.   Procedure after arrest
   109Q.   Revocation of warrants

           Division 5 - Warrants of commitment

   109R.   Form of warrants of commitment
   109S.   Procedure for taking person to correctional centre, detention centre or other place of security
   109T.   Defects in warrants of commitment

           Division 6 - Bail

   109U.   Bail decision may be made under Bail Act 2013
   109V.   Powers of District Court and Children's Court to hear fresh bail application

           Division 7 - General

   109W.   Warrants
   109X.   Rules relating to subpoenas

CHAPTER 7 - SUPPORT FOR CHILDREN AND YOUNG PERSONS IN CRISIS

   PART 1 - SERIOUS OR PERSISTENT CONFLICT

   110.    What are the objects of this Part?
   111.    When does this Part apply?
   112.    What principle is to be applied in the administration of this Part?
   113.    Request for assistance
   114.    Alternative dispute resolution
   115.    Alternative parenting plan
   116.    Application for order for alternative parenting plan
   117.    Adjournment
   118.    Court orders
   119.    Registration of certain alternative parenting plans

   PART 2 - HOMELESSNESS

   120.    Homelessness of children
   121.    Homelessness of young persons
   122.    Mandatory reporting of child who lives away from home without parental permission

   PART 3 - (Repealed)
   None

CHAPTER 8 - OUT-OF-HOME CARE

   PART 1 - INTRODUCTION

   134.    Objects of this Chapter
   135.    Definition and types of "out-of-home care"
   135A.   Statutory out-of-home care
   135B.   Supported out-of-home care
   135C.   Voluntary out-of-home care
   136.    Restriction on who may provide statutory out-of-home care
   137.    Authorised carers
   138.    Persons who may arrange for provision of statutory or supported out-of-home care
   139.    Designated agencies
   140.    Supervisory responsibility of designated agency
   141.    Inability of designated agency to fulfil responsibilities

   PART 2 - OUT-OF-HOME CARE UNDER ORDER OF CHILDREN'S COURT

           Division 1 - General

   142.    Application of Part
   143.    Authorised carer's right to information for purpose of assessing placement
   144.    Authorised carer's right to information for purpose of medical care and safety
   145.    Child's or young person's right to information concerning authorised carer
   146.    Involvement of authorised carers in decision-making
   147.    Indemnity of authorised carers
           148-149A. (Repealed)

           Division 1A - Disclosure to parents and significant persons of information concerning placement in out-of-home care

   149B.   Definitions
   149C.   Disclosure to parents and significant persons
   149D.   Type and amount of information to be disclosed
   149E.   Consent of authorised carer to disclosure of high level identification information
   149F.   Disclosure of high level identification information without consent of authorised carer
   149G.   Application for administrative review of decision to disclose high level identification information
   149H.   Modification of Administrative Decisions Review Act 1997
   149I.   Refusal to disclose information concerning placement
   149J.   Disclosure not contravention of confidentiality or contravention of privacy law
   149K.   No conflict with court order

           Division 2 - Review of out-of-home care under order of Children's Court

   150.    Review of placements effected by order of Children's Court

   PART 3 - SUPPORTED OUT-OF-HOME CARE

           Division 1 - Temporary care arrangements

   151.    Making of temporary care arrangements
   152.    Duration, renewal and review of temporary care arrangements

           Division 2 - Other supported out-of-home care arrangements

   153.    Operation of other arrangements

           Division 3 - General provisions

   154.    Restriction on who may provide supported out-of-home care
   155.    Review of supported out-of-home care arrangements

   PART 3A - VOLUNTARY OUT-OF-HOME CARE

   156.    Preliminary
   156A.   Provision of voluntary out-of-home care
   156B.   Restrictions on who may provide or arrange voluntary out-of-home care

   PART 4 - DAILY CARE AND CONTROL

   157.    Care responsibility
   158.    Physical restraint of child or young person

   PART 5 - ARRANGEMENTS DURING STATUTORY OR SUPPORTED OUT-OF-HOME CARE

   159A.   Part applies to statutory and supported out-of-home care only
   159.    Maintenance of register
   160.    Maintenance of records
   161.    Financial assistance for children and young persons in out-of-home care
   162.    Rights of children and young persons in out-of-home care
   163.    Parents' right to information concerning progress and development of their children
   164.    Responsibility of Minister to accommodate certain children and young persons

   PART 6 - ARRANGEMENTS ON LEAVING STATUTORY OUT-OF-HOME CARE

   165A.   Part applies to statutory out-of-home care only
   165.    Provision of assistance after leaving out-of-home care
   166.    Leaving out-of-home care
   167.    Records concerning Aboriginal and Torres Strait Islander children and young persons
   168.    Access to personal information
   169.    Entitlement to certain documents
   170.    Retention of records
   170A.   Application of State Records Act 1998

   PART 7 - MISCELLANEOUS

   171.    Removal of children and young persons from unauthorised out-of-home care
   171A.   Principal officer of designated agency must not reside with children under agency's care
   172.    Notification of deaths of children and young persons in statutory or supported out-of-home care
   172A.   Secretary to report annually on deaths of children and young persons

CHAPTER 9 - MEDICAL EXAMINATION AND TREATMENT

   PART 1 - MEDICAL EXAMINATION OF CHILDREN AND YOUNG PERSONS

   173.    Medical examination of children in need of care and protection
   174.    Emergency medical treatment
   175.    Special medical treatment

   PART 2 - TREATMENT OF CHILDREN AND YOUNG PERSONS IN OUT-OF-HOME CARE ORDERED BY THE CHILDREN'S COURT

   176.    (Repealed)
   177.    Ordinary medical and dental treatment

   PART 3 - MISCELLANEOUS

   177A.   Regulations

CHAPTER 10 - CHILDREN'S GUARDIAN

   PART 1 - APPOINTMENT

   178.    Children's Guardian
   178A.   Term of office
   178B.   Full-time office
   178C.   Employment and remuneration
   178D.   Vacancy in office
   178E.   Removal from office
   178F.   Children's Guardian not Public Service employee
   179.    Acting Children's Guardian

   PART 2 - FUNCTIONS

   180.    Functions--generally
   181.    Principal functions of Children's Guardian
   182.    Removal of responsibility for daily care and control from an authorised carer
   183.    Appointment of advisory committees
   184.    Application for review of order of the Children's Court
   185.    Provision and exchange of information
   186.    Delegation of functions
   186A.   Referral of matters to police and other investigative agencies
   186B.   Protection from liability

   PART 3 - REPORTS

   187.    Annual reports to Parliament
   188.    Special reports to Parliament and to Minister
   189.    Furnishing of draft reports to Minister
   190.    Provisions relating to reports to Parliament

CHAPTERS 11-12A - (Repealed)
           None

CHAPTER 13 - CHILDREN'S EMPLOYMENT

   221.    Definitions
   222.    Endangering children in employment
   223.    Certain employers of children to be authorised
   224.    Exemptions
   225.    Employers' authorities
   226.    Removal of child from place of unlawful employment
   226A.   Enforcement of undertakings
   226B.   Power to compel production of information

CHAPTER 14 - OFFENCES INVOLVING CHILDREN AND YOUNG PERSONS

   227.    Child and young person abuse
   228.    Neglect of children and young persons
   229.    Unauthorised removal of children and young persons
   230.    Tattooing of children and young persons
   230A.   Body piercing of children
   231.    Leaving children and young persons unsupervised in motor vehicles

CHAPTER 14A - TRANSFER OF CHILD PROTECTION ORDERS AND PROCEEDINGS

   PART 1 - INTRODUCTORY

   231A.   Purpose of Chapter
   231B.   Definitions

   PART 2 - TRANSFER OF CHILD PROTECTION ORDERS

           Division 1 - Administrative transfers

   231C.   When Secretary may transfer order
   231D.   Persons whose consent is required
   231E.   Secretary to have regard to certain matters
   231F.   Notification to child or young person and his or her parents

           Division 2 - Judicial transfers

   231G.   When Children's Court may make order under this Division
   231H.   Service of application
   231I.   Type of order
   231J.   Children's Court to have regard to certain matters
   231K.   Appeals

   PART 3 - TRANSFER OF CHILD PROTECTION PROCEEDINGS

   231L.   When Children's Court may make order under this Part
   231M.   Children's Court to have regard to certain matters
   231N.   Interim order
   231O.   Appeals

   PART 4 - REGISTRATION

   231P.   Filing and registration of interstate documents
   231Q.   Notification by Registrar of Children's Court
   231QA.  Effect of registration
   231R.   Revocation of registration

   PART 5 - MISCELLANEOUS

   231S.   Effect of registration of transferred order
   231T.   Transfer of Children's Court file
   231U.   Hearing and determination of transferred proceeding
   231V.   Disclosure of information
   231W.   Discretion of Secretary to consent to transfer
   231X.   Evidence of consent of relevant interstate officer

   PART 6 - RECIPROCITY GENERALLY

   231Y.   Definitions
   231Z.   Arrangements for care
   231ZA.  Declarations concerning parental responsibility: interstate ward
   231ZB.  Declaration under law of jurisdiction other than NSW

CHAPTER 15 - REMOVAL OF PERSONS AND ENTRY OF PREMISES AND PLACES

   PART 1 - REMOVAL OF PERSONS

   232.    Persons under the parental responsibility of the Minister leaving or being removed from care
   233.    Power of search for and removal of children and young persons in need of care and protection
   234.    Reasons for removal and other information to be given to certain persons

   PART 2 - ENTRY OF PREMISES AND PLACES

   235.    Entry without warrant into premises--generally
   236.    Entry without warrant into premises--places of employment
   236A.   Entry without warrant into premises--suspected employment of children
   237.    Entry and inspection under search warrant

   PART 3 - ANCILLARY FUNCTIONS

   238.    Application of Part
   239.    Attendance of police or medical practitioner
   240.    Use of reasonable force
   241.    Powers exercisable on entry and inspection
   242.    Observing and conversing with persons
   243.    Application of search warrants provisions
   244.    Effect of failure to properly exercise function

CHAPTER 15A - ALTERNATIVE DISPUTE RESOLUTION

   244A.   Interpretation
   244B.   Protection of information disclosed in alternative dispute resolution
   244C.   Confidentiality of information disclosed in alternative dispute resolution

CHAPTER 16 - ADMINISTRATIVE REVIEW

   245.    Decisions that are administratively reviewable by Civil and Administrative Tribunal

CHAPTER 16A - EXCHANGE OF INFORMATION AND CO-ORDINATION OF SERVICES

   245A.   Object and principles of Chapter
   245B.   Interpretation
   245C.   Provision of information
   245CA.  Provision of information by any person
   245D.   Request for information
   245E.   Co-ordination of services
   245F.   Restriction on use of information provided under this Chapter
   245G.   Protection from liability for providing information
   245H.   Interaction with other laws
   245I.   Commonwealth agencies

CHAPTER 17 - MISCELLANEOUS

   246.    Separation of children and young persons from offenders
   247.    Jurisdiction of Supreme Court
   248.    Provision and exchange of information
   248A.   Collection of information by Secretary and Children's Court
   248B.   Disclosure of information to bodies in other jurisdictions
   249.    Delegation by Minister
   250.    Delegation by Secretary
   251.    Obstruction of persons
   252.    Person falsely representing as employee of Department
   253.    False or misleading statements
   254.    Disclosure of information
   254A.   Disclosure of information for research purposes
   255.    Use of optical surveillance devices
   256.    Service of notices
   256A.   Children's Court may dispense with service
   257.    Notices and other instruments to be written in other languages
   258.    Liability of directors etc for offences by corporation--offences attracting executive liability
   258AA.  Liability of directors etc for offences by corporation--accessory to the commission of the offences
   258AB.  Evidence as to state of mind of corporation
   258A.   Time for instituting proceedings
   259.    Proceedings for offences
   259A.   Penalty notices
   260.    Evidence of young children
   261.    Procedural matters
   262.    Act binds Crown
   263.    Savings, transitional and other provisions
   264.    Regulations
   265.    Review of Act
           Schedule 1 (Repealed)
           SCHEDULE 2
           SCHEDULE 3


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