New South Wales Consolidated Acts

CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 - SECT 38

38 Development and enforcement of care plans

(1) A care plan, developed by agreement in the course of alternative dispute resolution, may be registered with the Children's Court and may be used as evidence of an attempt to resolve the matter without bringing a care application in accordance with Part 2 of Chapter 5.

Note : Section 38F provides that a care plan or parent responsibility contract is taken to be registered with the Children's Court when it is filed with the registry of the Court without the need for any order or other further action by the Court.

(2) A care plan that allocates parental responsibility, or aspects of parental responsibility, to any person other than the parents of the child or young person, takes effect only if the Children's Court makes an order by consent to give effect to the proposed changes in parental responsibility.

(2A) If the Children's Court is satisfied of the matters set out in subsection (2B), the Court may make an order referred to in subsection (2)--

(a) without the need for a care application under Part 2 of Chapter 5, and

(b) without the need to be satisfied of the existence of any of the grounds under section 71, and

(c) in the case of a proposed guardianship order, without the need to be satisfied of the existence of the ground under section 79A(3)(a).

(2B) The matters of which the Children's Court must be satisfied for the purposes of subsection (2A) are as follows--

(a) the proposed order will not contravene the principles of this Act,

(b) the parties to the care plan understand its provisions and have freely entered into it,

(c) in the case of a party other than the Secretary, the party has received independent legal advice concerning the provisions to which the proposed order will give effect and the nature and effect of the proposed order.

Note : Section 98 provides that in proceedings with respect to a child or young person, the child or young person (among others) may appear in person or be legally represented.

(3) The Children's Court may make such other orders by consent for the purpose of giving effect to a care plan (being orders of the same kind as it could make in a care application that is duly made under Part 2 of Chapter 5) without the need for a care application under that Part and without the need to be satisfied of the existence of any of the grounds under section 71 if the Court is satisfied that--

(a) the proposed order will not contravene the principles of this Act, and

(b) the parties to the care plan understand its provisions and have freely entered into it, and

(c) in the case of a party other than the Secretary, the party has received independent advice concerning the provisions to which the proposed order will give effect.

(4) Section 79B(1A) and (8)(b) and (c) apply to the Secretary in seeking a guardianship order to give effect to a care plan pursuant to this section in the same way as they apply to the Secretary in making an application, and to an applicant, for a guardianship order.

(5) Section 79B(9) and (10) apply to a care plan referred to in subsection (4).