Care and protection of children in NSW: HSC Legal Studies

What this dot point is asking

Care and protection of children is one of the four contemporary issues that must be studied in the Family option of the Legal Studies Stage 6 Syllabus (2009), alongside recognition of same-sex relationships, the changing nature of parental responsibility, and surrogacy and birth technologies. You must identify and investigate the issue and evaluate the effectiveness of legal and non-legal responses.

Child protection is a state responsibility, so the key law is NSW law, but it connects to federal family law (parenting orders and family violence), to international law (the Convention on the Rights of the Child) and to the themes of the option: the role of law in resolving conflict, compliance by government agencies, changing values (especially towards Aboriginal families), law reform and whether the law achieves justice for children.

The answer

Why child protection is a family law issue

Parents have primary responsibility for their children, but when parents cannot or will not keep a child safe, the state intervenes. This raises hard questions about the balance between family autonomy and state protection, about cultural identity, and about whether removal itself harms children. The issue has changed with community values: from the removal of Aboriginal children under past protection policies (documented in the Bringing Them Home report, 1997) to a system that now prefers family preservation, kinship care and Aboriginal self-determination.

International law. Australia ratified the Convention on the Rights of the Child in 1990. It requires the child's best interests to be a primary consideration (art 3), protection from all forms of violence, abuse and neglect (art 19), special protection for children deprived of their family environment, with regard to continuity and cultural background (art 20), and periodic review of placements (art 25).

Jurisdiction. Child protection is a state matter, while parenting disputes between parents are federal (Family Law Act 1975 (Cth)). The systems overlap: family courts must notify child welfare authorities of suspected abuse (Family Law Act s 67ZA), and a family court cannot generally make parenting orders for a child under a state care order without the state authority's consent (s 69ZK).

The legal framework in NSW

The Children and Young Persons (Care and Protection) Act 1998 (NSW) is the main statute. Its key principles (s 9) are:

• the safety, welfare and well-being of the child are paramount (s 9(1));
• the child's views should be heard, taking into account age and maturity;
• action must be the least intrusive intervention consistent with protecting the child (s 9(2)(c));
• where a child is removed, placement should be stable and maintain relationships and culture.

Reporting

Anyone may report a concern to the DCJ Child Protection Helpline. People who work with children in health care, welfare, education, children's services, residential services and law enforcement are mandatory reporters (s 27) and must report reasonable grounds to suspect a child is at risk of significant harm.

Risk of significant harm (ROSH, s 23)

A child is at ROSH if there are current concerns about safety, welfare or well-being because of circumstances such as: basic physical or psychological needs not being met; failure to arrange necessary medical care or education; physical or sexual abuse or ill-treatment; living in a household with domestic violence that puts the child at risk of serious harm; or serious psychological harm. The "significant" threshold was introduced after the Wood Special Commission of Inquiry (2008) found the system was overwhelmed by reports, so that lower-level concerns could be referred to other services.

Assessment and support

A ROSH report may be allocated to a caseworker for a safety and risk assessment. DCJ may provide or arrange support, family group conferencing and parent responsibility contracts. Since the Family is Culture amendments, DCJ must make active efforts to prevent children entering care and to restore them to family; from 15 November 2023 the Children's Court can require evidence of those active efforts.

Removal and court orders

A caseworker or police officer may remove a child in immediate danger without a warrant (s 43), and must apply promptly to the Children's Court. The court can make care orders if the child is in need of care and protection (s 71), including orders allocating parental responsibility to the Minister, a relative or another suitable person (s 79), and guardianship orders (s 79A), which give a relative or carer full parental responsibility until the child turns 18.

Permanency

The permanent placement principles (s 10A), introduced by the Child Protection Legislation Amendment Act 2014 (NSW), set an order of preference: first, family preservation or restoration to parents; then guardianship by a relative, kin or other suitable person; then, for non-Aboriginal children, open adoption; and finally parental responsibility to the Minister (long-term foster care). For Aboriginal and Torres Strait Islander children, adoption is the least preferred option. The 2014 reforms also set expectations that decisions about restoration be made within 6 months for children under 2 and 12 months for older children, so that children do not drift in care.

Aboriginal and Torres Strait Islander children

The Aboriginal and Torres Strait Islander Child Placement Principles (s 13) require placement, in order of preference, with extended family or kin, then members of the child's community, then other Aboriginal families, and only as a last resort with non-Aboriginal carers, while maintaining connection to culture. The Family is Culture review (2019), led by Professor Megan Davis, found that Aboriginal families experienced the system as a continuation of past removals and made more than 100 recommendations. The Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW) applied all five elements of the placement principle (prevention, partnership, placement, participation and connection), removed the presumption that a child needs care because a sibling was removed, allowed Aboriginal community representatives to speak in the Children's Court and introduced the active efforts requirements.

Oversight

The Office of the Children's Guardian accredits out-of-home care agencies and runs Working with Children Checks, the Advocate for Children and Young People advocates on systemic issues, and the NSW Ombudsman investigates DCJ. After the Royal Commission into Institutional Responses to Child Sexual Abuse (final report 2017), NSW adopted Child Safe Standards in the Children's Guardian Act 2019 (NSW) and joined the National Redress Scheme.

The national picture

The Australian Institute of Health and Welfare (AIHW), Child protection Australia 2023-24, reported that at 30 June 2024:

• 44,900 children were in out-of-home care nationally (7.7 per 1,000 children);
• First Nations children made up 45 per cent of children in out-of-home care and were nearly 11 times as likely as non-Indigenous children to be in care (50 compared with 4.6 per 1,000).

Target 12 of the National Agreement on Closing the Gap (2020) is to reduce the over-representation of Aboriginal and Torres Strait Islander children in out-of-home care by 45 per cent by 2031. Safe and Supported: the National Framework for Protecting Australia's Children 2021-2031 coordinates national policy.

How the NSW system is performing

DCJ's quarterly statistical reports show:

• Demand. In April to June 2025 the Helpline received 109,477 concern reports, of which 58.7 per cent met the ROSH threshold (64,270 ROSH reports). In January to March 2026 there were 109,678 concern reports, 60.7 per cent at ROSH.
• Children seen. In April to June 2025, 42,062 children were involved in ROSH reports but 6,577 (about one in six) were seen by a DCJ caseworker in the quarter. In January to March 2026 the figures were 41,989 and 7,073.
• Children in care. Out-of-home care in NSW fell from 13,987 at 30 June 2024 to 13,582 at 30 June 2025 and 13,501 at 31 March 2026.
• Aboriginal placement. At 31 March 2026, 70 per cent of Aboriginal children in care were placed with a relative or an Aboriginal carer.
• Emergency placements. 376 children were in high-cost emergency arrangements (costly short-term emergency placements used when no other placement is available) at the end of March 2026, up from 330 at the end of June 2025. Unaccredited emergency accommodation such as hotels and motels (Alternative Care Arrangements) ended in April 2025.

The NSW Ombudsman (February 2026). In "No capacity to allocate", the Ombudsman found that in 2024-25, 65 per cent of ROSH reports screened in by the Helpline were closed without being allocated to a caseworker because of "no capacity to allocate". It found the practice contrary to DCJ's statutory responsibilities under the Care Act, despite decades of warnings from oversight bodies, and recommended immediate and systemic reform.

The 2025-26 NSW Budget. The government announced a $1.2 billion Child Protection Package, including the first real increase to the foster care allowance in 20 years (a 20 per cent rise, $143.9 million), $191.5 million to recruit and retain caseworkers, and $49.2 million for 44 purpose-built or upgraded residential care homes for children over 12 with complex needs. Aboriginal peak body AbSec welcomed the related $900 million Family Preservation investment (May 2025), of which almost $350 million goes to Aboriginal Community Controlled Organisations.

Non-legal responses

• Early intervention and family support. DCJ's Targeted Earlier Intervention program served about 174,000 individual clients in 2024-25. The Tune review (2016) found that NSW spent far more on out-of-home care than on prevention.
• NGOs. Non-government agencies deliver most foster and kinship care in NSW; Aboriginal community-controlled organisations and AbSec advocate for Aboriginal-led services and self-determination.
• Media. Reporting on children in hotels, deaths of children known to DCJ and the Ombudsman's findings has driven political responses, including the 2025-26 package.
• Community and schools. Teachers, doctors and community workers identify and report concerns and support families.

Evaluating the effectiveness of responses

Judgement. The law on the care and protection of children is sound in principle but only partially effective in practice. The Care Act puts children's safety first, and reforms since 2014, especially the Family is Culture amendments, reflect changed community values by preferring family preservation, kinship care and cultural connection. The falling number of children in care suggests some success. But the system's own data and the Ombudsman's 2026 findings show that most children reported at risk are never assessed face to face because DCJ lacks caseworkers, and Aboriginal children remain heavily over-represented. Legal reform alone cannot achieve justice for children without the resources to apply it; the 2025-26 package is a step, and its effect should be judged in later data.

In one sentence

The Children and Young Persons (Care and Protection) Act 1998 (NSW) makes children's safety paramount and, through reforms such as Family is Culture (2022), now prefers family preservation and cultural connection, but chronic under-resourcing, shown by the small share of at-risk children seen by caseworkers and the Ombudsman's 2026 findings, and the continuing over-representation of Aboriginal children mean the system is only partially effective.

Try this

Q1. Outline the role of mandatory reporting in protecting children. (3 marks)

• What the marker wants. Section 27, who must report, the ROSH threshold and what happens next.

Q2. Explain how the law has changed to respond to the over-representation of Aboriginal children in out-of-home care. (6 marks)

• What the marker wants. Section 13 placement principles, the Family is Culture review and 2022 amendments, active efforts, and data on placement and over-representation.

Q3. To what extent does the NSW child protection system achieve justice for children? (8 marks)

• What the marker wants. The legal framework, current DCJ data, the Ombudsman's 2026 findings, the 2025-26 package, non-legal responses and a judgement.