Review of Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act) - Second Reading

RLC is a member of the NSW Community Legal Centres Care & Protection Network Committee contributing to the Committee’s extensive review of the wholesale amendment agenda of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

Separately, RLC initiated legislative reform seeking amendment to section 21 of the Act. On 13 November 2018 during the Second Reading Debate in the NSW Legislative Assembly, Tania Mihailuk MP told the Parliament:

Redfern Legal Centre case study

"‘This amendment deals with requests for assistance by inserting "or primary care-giver" into section 21 (1) to allow caregivers to request assistance from the secretary to obtain services that will enable the child or young person to remain in or be returned to the care of their families. This amendment ensures that the request is not limited to a parent, but includes the broader addition of primary caregiver.

This amendment is critical because it is clear from the way the legislation has been written that only a parent can request assistance. That is why it is so important to include the words "or primary care-giver", given that we know that many vulnerable and marginalised children are being cared for by grandparents, aunties and uncles, and other members of their extended family.

We have been asked by the Community Legal Centres to move this amendment, because these centres provide parties with assistance in trying to restore a child to their family. The centres know all too well that some parents are under age and residing with their own parents, who are the primary caregivers, or the parent is incarcerated or is suffering from a mental health condition or has substance abuse issues that require other caregivers to take more responsibility for the child... There are many situations where the primary caregiver of a child is somebody other than the parent...

The Community Legal Centres said: Currently section 21 of the Act allows parents to request material assistance from FACS to help them support their children. This assistance does not extend to non-biological primary caregivers, who may be caring for an underage parent, a child or an adult parent who lives with their child but is unable to care for them—for example, Redfern Legal Centre has been assisting an old woman who is a primary carer for a mother with significant mental health issues and her young child, neither of whom are biologically related to her.

Due to her age, she does not want to legally adopt the child; instead, she wishes to continue caring for both mother and child under the same roof. To do so, she needs assistance; however, due to the current wording of section 21, she is excluded from requesting material assistance from FACS. The proposed amendment would expand the class of persons who can apply to FACS for assistance under section 21 to primary carers. This would enable people who have strong and committed relationships with children to receive the support they need to keep families together.

This is particularly important for Indigenous families. We know that a biological relationship is not necessary in indigenous culture, but aunties and uncles often care for children although they are not part of the extended family. It is critical to understand that the way the legislation currently stands, it would make it almost impossible for these caregivers to obtain assistance. They will not be recognised under the law, if this legislation is not amended.

This is a minor amendment, which I think the Minister could agree to, to be confident that when we are ensuring the provision of support to all parties, we recognise that primary caregivers may not be parents in some instances.’”