The Care and Protection of Children within Family Law

Syllabus Topic

Option 3: Family

The nature of family law

• legal rights and obligations of parents and children

INTRODUCTION

The care and protection of children is a critical issue within family law, reflecting society's obligation to ensure the safety, welfare, and wellbeing of minors. Under Australian law, various legal mechanisms are in place to safeguard children from neglect, abuse, and harm, while promoting their best interests.

BACKGROUND TO THE ISSUE

The issue of care and protection of children centers on the state's role in upholding minimum standards of care for children and intervening when those standards are not met by parents or caregivers.

This intervention can take various forms, including state-mandated court orders, with the most severe response being the removal of the child from their family environment.

In such cases, the state is obligated to provide special protection and assistance to the child, as outlined in Article 20 of the United Nations Convention on the Rights of the Child (CROC). The CROC plays a significant role in shaping Australian law in this area, ensuring that the rights and welfare of children remain a top priority in legal responses, additionally being supported by s60CC of the Family Law Act (1975) (Cth).

KEY RESPONSES AND ISSUES

• Children and Young Persons (Care and Protection) Act 1998 (NSW):m Allows the state to intervene in cases where children are at risk to safeguard their welfare, by allowing for court protection orders when necessary.

• Family and Community Services (FACS) often responds to issues involving the care and protection of children, however as they must bring cases to court, this can delay interventions and affect children’s wellbeing under the family law framework.

• Ebony Case (2009): Highlighted failures in the child protection system and led to significant reforms, where Ebony, a seven-year-old girl, died from severe neglect in 2007 while under the care of her mother in New South Wales. Despite multiple reports to Family and Community Services (FACS) about her mistreatment, FACS failed to intervene effectively.

• Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW): Introduced to address gaps in the system and improve FACS’ accountability following the media uproar created by the Ebony case coverage.

• Family Law Act 1975 (section 60C): Prioritizes the best interests of the child, focusing on protection from harm and neglect in family law proceedings.

• Review of foster care practices have been advocated for due to the overrepresentation of Aboriginal children, who represented 43.7% of children in out-of-home foster care, increasing from the 2019 figure by 3.7%. There have been concerns raised by Indigenous Australians over this key trend reflecting an “ongoing stolen generation”, where the NGO, Grandmothers Against Removals, are particularly invested in advocating against the disproportionate placement of Aboriginal children in foster care homes. They advocate for systems to prevent cultural disconnection and undesirable long-term outcomes of lacking support systems for an already vulnerable community.

SOURCES

United Nations Office of the High Commissioner: Convention on the Rights of the Child

AUSTLII: Family Law Act 1975- s60CC

NSW Legislation Register: Children and Young Persons (Care and Protection) Act 1998

NSW Government: FACs homepage

Sydney Morning Herald: DOCS failed Ebony by ignoring all rules

ABC News: Ebony report 'reveals history of DoCS neglect'

Aboriginal Legal Service: Aboriginal children bear the brunt of ‘protection’ system failures

Productivity Commission: Proportion of children in out-of-home care (0–17 years old) that are Aboriginal and Torres Strait Islander

National Indigenous Times: “Sorry means you don't do it again": Organisations protest against continual Indigenous child removal