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3.1 Care and Protection

3.1.1.1 Care and Protection - Early Intervention Mediation Pilot

Funding for Early Resolution Assistance (ERA) is available for the Legal Assistance for Families Partnership Agreement (LAFPA) Pilot.

ERA is available where:

  • Significant safety issues for the child/ren have been identified, including risk of assumption, or
  • The family and child/ren would benefit from a legally assisted mediation,

AND

  • The family have been referred to ERA early intervention mediation in accordance with the LAFPA referral criteria.

To be eligible for ERA funding, the applicant must satisfy the following tests:

Note: When considering if the family and child/ren would benefit from a legally assisted mediation, “family” includes people who are connected through kinship systems, including but not limited to shared cultural, tribal and community connections, where the child subject to the application.

Note: Children participating in the LAFPA pilot are not required to satisfy the ERA Means Test or ERA Merit Test.

The LAFPA Pilot commenced on 1 June 2023 and will end on 30 June 2024.

3.1.1.2 Prefiling Adoption Mediation Pilot

Adoption mediations provide an opportunity for people to talk about issues regarding a child or young person currently living with carers when the issue of adoption of the child or young person has been raised.

Funding for ERA for prefiling adoption mediation is available where the applicant:

  • is a birth parent or family member of the child,
  • is connected to that child through kinship systems, including but not limited to shared cultural, tribal and community connections, where the child subject to the application is Aboriginal and/or Torres Strait Islander, or
  • is significant to the care, welfare and development of the child.

To be eligible for ERA the applicant must satisfy the following tests:

Note: For assistance in completing an application for an Adoption mediation please contact: Note: For assistance in completing an application for an Adoption mediation please contact: ADR@legalaid.nsw.gov.au

Prefiling adoption mediation is a Pilot that commenced on 7 July 2021 and will end on 30 June 2024.

3.1.1.3 Postfiling Adoption Mediations

Adoption mediations provide an opportunity for people to talk about issues regarding a child or young person when the proceedings for the adoption of the child or young person have been filed in the Supreme Court.

Funding for ERA for post filing adoption mediation is available where the applicant:

  • is a birth parent or family member of the child,
  • is connected to that child through kinship systems, including but not limited to shared cultural, tribal and community connections, where the child subject to the application is Aboriginal and/or Torres Strait Islander, or
  • is significant to the care, welfare and development of the child.

To be eligible for ERA the applicant must satisfy the following tests:

3.1.1.4 Contact Dispute Mediation

Funding for Early Resolution Assistance (ERA) is available for attendance at a pre-litigation contact dispute mediation under s 86(1A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

To be eligible for ERA an adult applicant must satisfy the following tests:

Note: children participating in contact dispute mediations are not required to satisfy the ERA Means Test or Merit Test.

Legal aid is available for proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) in the following circumstances.

3.1.2.1 - Care Circle Conferences - for adults

Legal aid is available to a person for attendance at Care Circles Conferences, where the person has a grant of legal aid for current Children's Court proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

To be eligible for legal aid the applicant must satisfy:

  • the Means Test;
  • the court has referred the legal aid applicant to the Care Circle Conference.
3.1.2.2 - Care Circle Conferences - for children

Legal aid is available to the child or young person (or a child representative appointed by the court) for attendance at Care Circles Conferences where the child or young person has a grant of legal aid for current proceedings under the Children and Young Persons (Care and protection) Act 1998 (NSW).

For a grant of legal aid to be made in these types of matters, Legal Aid NSW must be satisfied that the court has referred the legal aid applicant to the Care Circle Conference.

There is no means or merit test applied.

3.1.2.3 - Care proceedings – for parents

Legal aid is available for care and protection proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), in the Children's Court and the legal aid applicant:

  • has parental responsibility for the child or young person, or
  • has had an aspect of parental responsibility removed by order of a court.

The grant of legal aid extends to include any court ordered alternative dispute resolution.

Note: Before funding the grant of aid for a final hearing Legal Aid NSW must be satisfied that the legally assisted person has reasonable prospects of achieving a better outcome than that which has been proposed in the Care Plan. See Family guideline 3.3.2 on how this aspect of the policy is to be applied. 

Note: Parental responsibility in relation to a child or young person is defined under the Children and Young Persons (Care and Protection) Act 1998 (NSW) to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

3.1.2.4 - Care proceedings - legal aid for children and young people

Legal aid is available to a child and young persons (or for a child representative appointed by the court) for care and protection proceedings in the Children's Court.

There is no means or merit test applied.

The grant of legal aid extends to include any court ordered alternative dispute resolution. .

3.1.2.5 - Proceedings in the Children's Court - post final orders - for parents

Legal aid is available for care and protection proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) in the Children's Court, where the legal aid applicant:

  • has parental responsibility for the child or young person, or
  • has had an aspect of parental responsibility removed by order of a court.

The types of matters which may be included under this policy are:

  • applications for compulsory assistance orders,
  • application for variation or rescission orders,
  • applications for sole parental responsibility by an authorised carer, and
  • serious and persistent conflict matters where the applicant for legal aid is the applicant in the proceedings.
  • applications for contact orders,
  • applications for guardianship orders.

To be eligible for legal aid the applicant must satisfy:

Legal aid is only available for contact order proceedings when:

  • the legal aid applicant has attended mediation, or
  • there are exceptional circumstances.

The grant of legal aid extends to include any court ordered alternative dispute resolution.

Note: Parental responsibility in relation to a child or young person is defined under the Children and Young Persons (Care and Protection) Act 1998 (NSW) to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

3.1.2.6 - Care proceedings - for people who are significant to the child

Legal aid is available for care and protection proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), in the Children's Court where the legal aid applicant is a person who:

  • is significant to the care, welfare and development of the child, and
  • has a genuine concern for the safety, welfare and well-being of the child or young person.

To be eligible for legal aid the applicant must satisfy:

The grant of legal aid extends to include any court ordered alternative dispute resolution.

Note: this policy covers an applicant who is either a person or a representative of an Aboriginal and Torres Strait Islander family or community who has been given leave to be heard under s 87 of the Children and Young Persons (Care and Protection) Act. See Means Test 1.4.11.4 for how different types of applicants are treated under the Means Test.

3.1.2.7 - Care proceedings in the District, Supreme and High Court –  for adults

Legal aid is available for care and protection appeals in the District, Supreme and High Court to a person:

  • who has parental responsibility for the child or young person, or
  • from whom an aspect of parental responsibility has been removed by an order of a court, and
  • has a genuine concern for the safety, welfare and well-being of the child or young person.

To be eligible for legal aid the applicant must satisfy:

The grant of legal aid also extends to include any court ordered alternative dispute resolution.

Note: Parental responsibility in relation to a child or young person is defined under the Children and Young Persons (Care and Protection) Act 1998 (NSW) to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

3.1.2.8 - Care proceedings in the District, Supreme and High Court –  for children and young people

Legal aid is available for care and protection appeals in the District, Supreme and High Court to a child or young person (or a child representative appointed by the court).

To be eligible for legal aid the applicant must satisfy:

The grant of legal aid also extends to include any court ordered alternative dispute resolution.

3.1.2.9 - Supreme Court proceedings pursuant to the Court's inherent jurisdiction –  for adults

Legal aid is available in relation to proceedings for prerogative relief or pursuant to the Supreme Court's inherent jurisdiction.

Legal aid is available to a person:

  • who has parental responsibility for the child or young person, or
  • from whom an aspect of parental responsibility has been removed by an order of a court,

or

  • who is significant to the care, welfare and development of the relevant child or young person, and
  • has a genuine concern for the safety welfare and well-being of the child or young person.

To be eligible for legal aid the applicant must satisfy:

Note: Parental responsibility in relation to a child or young person is defined under the Children and Young Persons (Care and Protection) Act 1998 (NSW) to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

3.1.2.10 - Supreme Court proceedings pursuant to the Court's inherent jurisdiction - for children and young people

Legal aid is available to children and young people in relation to proceedings for prerogative relief or pursuant to the Supreme Court's inherent jurisdiction.

To be eligible for legal aid the applicant must satisfy:

3.1.2.11 - Proceedings in the Administrative and Equal Opportunity Division of NCAT – for authorised carers

Legal aid is available for proceedings in the Administrative and Equal Opportunity Division of NCAT for a review of a decision to:

  • authorise or not to authorise a person as an authorised carer,
  • cancel or suspend a person's authorisation as an authorised carer, or
  • grant to, or to remove from an authorised carer the responsibility for the daily care and control of the child or young person.

To be eligible for legal aid the applicant must satisfy:

Legal Aid NSW must be satisfied that:

  • there are exceptional circumstances,
  • it is reasonable to provide representation, and
  • there is a benefit to the child or young person that might be gained by the applicant receiving legal aid (see Family guideline 3.3.1).

Note: Section 137 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) defines authorised carer.

3.1.2.12 - Proceedings in the Administrative and Equal Opportunity Division of NCAT -  for children and young people

Legal aid is available to children and young persons for proceedings in the Administrative and Equal Opportunity Division of NCAT where an order for separate representation has been made, for a review of a decision to:

  • authorise or not to authorise a person as an authorised carer, or
  • cancel or suspend a person's authorisation as an authorised carer, or
  • grant to, or to remove from an authorised carer, the responsibility for the daily care and control of the child or young person.

To be eligible for legal aid the applicant must satisfy:

3.1.2.13 - Compulsory schooling order matters – for parents

Legal aid is available to parents for proceedings in relation to compulsory schooling order matters under the Education Act 1990 (NSW) in the Children's Court.

To be eligible for legal aid the applicant must satisfy:

3.1.2.14 - Compulsory schooling order matters – for children and young people

Legal aid is available to children for proceedings in relation to compulsory schooling order matters under the Education Act 1990 (NSW) in the Children's Court, where the order is directed at the child (as opposed to the parent).