Care and protection matters: what are my rights?

If the state believes that a parent is not able to properly care for a child at this time, they may take the child away. This is a very distressing and confusing time, and you might not know where to turn for help. Below, we look at what rights you have, and the steps you can take if you face a child protection case.

Care and Protection of children and the Law
Parents must keep their child safe, clothed and fed, educated, and medically provided for. These obligations continue until a child is 18. If the state has concerns about the care and protection of a child, the Children’s Court can make special orders to guarantee child safety, well-being, and welfare.
It is important to remember that children have the right to meaningful relationships and contact with their parents, and the court will always consider this before separating children from their parents. That’s why it’s so important to seek legal advice.

The Well-Being of the Child
The well-being of the child is the most important thing. This means that parents do not have an automatic right to custody or contact of or with the child if it interferes with the child’s safety.
The rights of a child to have a meaningful relationship with both their parents will always be weighed against the right to be safe and loved. A court will always consider arguments from every side before reaching a decision.

When Can the Department of Family and Community Services (FACS) Take My Children?
FACS is the main agency in NSW for enforcing child protection laws. FACS can apply to the court to have the child removed from your care and custody.

FACS can take your child immediately if they believe the child is at risk of serious harm. They must attend Children’s Court the next day to explain why this was necessary, and to explain what should happen next. The court then decides who should look after your child, in the short term and long term. 

You should attend court when requested and speak with FACS for more information. You should seek legal advice immediately.

If the court takes your child from your care, you can apply for visitation and contact. If you satisfy the Children’s Court or FACS that you can care for your child, they may be returned to your custody.

Where to Get Help
Care and protection cases are very complex, and you need someone on your side. You will not be judged, and it is important to remember you do have rights. It is often best for a child to have regular contact with both parents, and this is always remembered by the court.

In NSW, you can apply for legal aid for representation at court and further advice, and you can also speak with a duty solicitor at the Children’s Court who can offer legal advice and may be able to represent you.

For more detailed information on what to expect when dealing with Family Law cases, download our free ebook here.

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