MHCC Mental Health Rights Manual

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Chapter 8 Section D : People with mental health conditions who have family responsibilities

This section is about mental illness and family law, particularly its impact on people with mental health conditions who have family responsibilities and may be affected by concerns about their parenting capacity when they are unwell.

If you are separated from your spouse or partner and you disagree about how your children should be cared for, these disagreements are usually resolved through family law.

However, if another person or organisation is worried about how you are looking after your children who are under 18 years of age, then this is likely to be dealt with by child protection workers from the NSW Department of Family and Community Services (FaCS) and possibly involve an order from the Children's Court.

In this section, you can find out more about:

8D.1: The child care and protection system in NSW

Many people with mental health conditions who have children in their care are worried about losing those children through the children protection system. The child protection system is set up under NSW laws and the two main organisations that are involved are the NSW Department of Family and Community Services (FaCS) and the Children’s Court of NSW.

FaCS is responsible for responding to concerns about risk of serious harm to children and young people. The Children’s Court is responsible for making formal orders for care of children.

In this section on the care and protection system in NSW, you can find out more about:

8D.1.1: When services providers have to report concerns about children

Usually when you see a health care professional or ask for advice from a professional or service provider about yourself or your children, your conversation with them is confidential and they would be acting unethically if they were to tell anyone else about what was said or what the conversation was about.

In NSW, there is an exception to this rule that requires certain people in authority and certain health care professionals, including doctors, nurses and psychologists, to report confidential information if it reveals a risk of serious harm to a child or children.

Many people who provide professional, law enforcement, educational and welfare services have to report to FaCS if they have a reasonable basis for suspecting that a child is at risk of or is being abused or neglected. This includes local doctors, psychiatrists, nurses and teachers.

This means that if someone is worried that your mental health condition (e.g., you feel very unwell and this makes it difficult for you to care for your children) or treatment for your condition might cause a risk of serious harm to children in your care, they may think they have to report this to FaCS.

If FaCS gets a report, it must complete a risk assessment, usually beginning with talking to the parents or carers and the children who are the subject of the report. For more about what kind of serious harm FaCS will deal with, click here.

For more about what FaCS will do if it decides there is a risk of serious harm, click here.

Keep Them Safe: A shared approach to child wellbeing was the NSW Government's five-year plan (2009-14). It is the NSW Government’s plan to re-shape the way family and community services are delivered in NSW to improve the safety, welfare, and wellbeing of children and young people.

NSW Family and Community Services (FaCS) has a number of factsheets and information available from its website.

Click here to read these resources, 'What happens if a report is made about me or a child in care'.  Click here to read the fact sheet.

To find more information and resources follow this link

8D.1.2: Involvement of NSW Family and Community Services if you have children in your care

There are several situations where the Department of Family and Community Services (FaCS) might get involved if you have children in your care and you have a mental health condition:

For information about what FaCS can do, click here .

8D.1.3: What the NSW Department of Family and Community Services (FaCS) can do if it decides there is a risk of serious harm to your child or children

If the NSW Department of Family and Community Services (FaCS)  decides that the children in your care are at risk of serious harm , it can:

8D.1.4: Temporary care arrangements

A Temporary Care Arrangement gives the NSW Department of Family and Community Services (FaCS) the right to decide where the child or children should live and to make decisions about the day-to-day care of the child, including about health care, behaviour and activities.

Temporary care arrangements can only be put in place if, as a parent, you agree to the arrangement. Such an arrangement can only last three months, but can be extended (again only with your consent) for another three months. Temporary care arrangements must include a ‘restoration plan’, which is a plan for how your child or children can be returned to your care.

If you are thinking about agreeing to a temporary care arrangement or care plan with FaCs, Legal Aid NSW can give you legal advice before or after you make the proposed care arrangements.

FaCS has webpage that explains what it will do to respond to a report that a child or children is at risk of serious harm under the Keep them Safe initiative. Click here to go to the FaCS webpage.

Click here for the Legal Aid NSW page on care and protection matters.

The Association of Children’s Welfare Agencies (ACWA) have a number of information and resources about the Keep them Safe Initiative.

For more information about restoration plans click here.

8D.1.5: Parental Responsibility Contracts

A Parental Responsibility Contract (PRC) is a written agreement between you and the NSW Department of Family and Community Services (FaCS) and one of the people responsible for a child or children. The PRC is for six months but only one PRC can be made in any 12-month period.

A PRC has to be registered with the Children's Court.

A PRC can include conditions that the parent has to do certain things, such as:

A Parental Responsibility Contract (PRC) is a written agreement between you and Community Services NSW if you are one of the people responsible for a child or children. The Contract is for six months but only one Parental Responsibility Contract can be made in any 12-month period.

A Parental Responsibility Contract has to be registered with the Children's Court.

A Parental Responsibility Contract can include conditions that the parent has to do certain things, such as:

  • get family/ relationship and individual counselling
  • go to courses to improve their parenting skills
  • have treatment and participate in counselling and rehabilitation for drug, alcohol or other substance abuse
  • have drug tests

The law does not to limit what can be in a PRC. Therefore, it is possible that a PRC could require that a parent continue or start treatment for a mental health condition.

If a person who is subject to a PRC, does not comply with its conditions, they could be made to go back to the Children’s Court for the court to deal with it as a breach of the PRC.

If the Court finds that there has been a breach and that the parent’s children are still assessed as being at risk of serious harm and are therefore in need of care and protection, there is a strong possibility that the children will be removed from the parent’s care. 

For these reasons, you should get legal advice before you sign a PRC.

8D.1.6: What happens if the NSW Department of Family and Community Services (FaCS) wants to have your children removed from your care?

If the NSW Department of Family and Community Services (FaCS) wants to change care arrangements or remove your child or children from your care, it has to apply to the Children's Court. If this is happening, you should get legal advice, and if possible, legal representation in the Children's Court.

Legal Aid NSW may give you legal representation in care and control matters. Representation in these cases is subject to a 'means and merits tests' and you may be asked to pay part of the cost to Legal Aid NSW. The Legal Aid NSW guidelines say that "if a parent has mental illness, this will be taken into account in deciding whether or not it will agree to provide legal representation".

Click here to download various Legal Aid factsheets for parents about care and protection matters including:

  • Factsheet about going to the Children's Court in care and protection matters, 'What happens in a care and protection hearing at the Children's Court'
  • Factsheet about restoration, 'Getting my children back home - information for parents about "restoration”

One option that FaCS may consider is putting your child into foster care.

8D.1.7: Foster care

Foster care is care for children and young people who can't live with their own families.

Foster carers take on the responsibilities of a parent for a period of time. They are usually but not always, a two-parent family, often with their own children.

Most children go into foster care because NSW Department of Family and Community Services (FaCS) (and sometimes the Children's Court) believes they are at risk of serious harm or neglect or because their parent or their carer needs a break.

Foster care can be for a short time or long time: for one or two nights, a few weeks or months, or even years.

Click here to find out more about your rights and how foster care works from a FaCS factsheet.

See also FaCS NSW factsheet 'Is your child in care?'

8D.1.8: What risks of serious harm do the NSW Department of Family and Community Services (FaCS) and the Children's Court deal with?

NSW Department of Family and Community Services (FaCS) will get involved if:

  • a child or young person's basic physical or psychological needs are not being met or are at risk of not being met
  • the parents or other caregivers have not arranged and can't or won't arrange for the child or young person to get the medical care that they need
  • the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated (this does not necessarily mean abuse by you, it could be abuse by someone else)
  • a parent or other caregiver has caused the child or young person to suffer or be at risk of suffering serious psychological harm
  • the child or young person is living in a home where there is or has been domestic violence and, as a result, the child or young person is at risk of serious physical or psychological harm

FaCS can also get involved if it considers there is a risk of serious harm to an unborn child.

FaCS can only change parenting arrangements and put your child in someone else's care for a short time. If Community Services NSW wants to permanently change these arrangements, it has to apply to the Children's Court.

A magistrate is in charge of the Children's Court process. There is a separate Children's Courts in Sydney. In rural and regional areas, the Children's Court takes place as special sittings of the Local Court.

The Children's Court can make the following orders:

  • Allow the previous parenting arrangement to continue, usually with a restoration plan.
  • Make a temporary order putting your child or children in someone else's care (usually foster care).
  • Make a permanent order putting your child or children in someone else's care (usually foster care).
  • Make a contact order about who can see and/or contact your child, including when and how.

The Association of Children’s Welfare Agencies have a fact sheet called 'Information for parents attending care and protection hearings'. To download the factsheet from the website, click here

8D.2: Getting help with caring for your children

While the NSW Department of Family and Community Services (FaCS) can put in place alternative care arrangements, it can also help you to look after your children. For more about how FaCS can help, click here.

There are other services that can help you with caring for children if you are finding it hard. For more about these services, click here .

8D.2.1: If you are diagnosed with or being treated for a mental health condition and have children in your care

It is very possible that you will come to the attention of FaCS workers because of reporting of possible serious harm to the NSW Department of Family and Community Services by a range of health and other professionals, particularly if you have care of children and you are:

  • diagnosed with a mental illness;
  • being treated for a mental illness;
  • on a Community Treatment Order;
  • behaving in a way that someone thinks you might have a mental health condition that affects your ability to care for children.

If you have been reported and a FaCS worker comes to your home to talk to you and your children, it does not necessarily mean that your children will be taken away from you.

FaCS will assess the risk of serious harm to the children and consider options, other than putting your children in foster care, even if they think there is a risk of serious harm.

It is important to remember that not doing enough for your children ('neglect') is as serious as 'abuse' (inflicting physical, sexual or psychological harm, this includes allowing children to witness domestic violence) on your children.

Therefore if you are not able to manage it is best to get help before someone asks FaCS to get involved. Click here to find out how to get help or advice about caring for your children.

8D.2.2: If you have to stay in hospital and have young children in your care

If you go to hospital suddenly and you are made an involuntary patient when you have young children in your care, arrangements will have to be made to care for the children, at least while you are in the hospital and probably for a longer recovery period.

If you are married or in a de facto relationship, your partner may take over the care of the children in this period (perhaps with some help from other family members, older young children and friends).

If you are a single parent or your spouse or partner can't look after the children because of work for example, then arrangements will need to be made for their care. In this situation, other family members, such as grandparents, or friends may be able to look after the children for several weeks or even months. You may be able to get help from a social worker (either in the hospital or in the community) to sort out such arrangements.

However, if no-one can be found to look after your children then this will be reported to the NSW Department of Family and Community Services (FaCS) and it will have responsibility for the care of the children. This does not mean that you will lose the responsibility to care for your children in the long term. What it does mean is that FaCS and possibly the Children's Court will need to be satisfied you are able to look after your children properly before they are returned to you.

If there are no appropriate family or friends to look after your children, FaCS is likely to place your children in foster care .

Mothers used to be able to have their newborn or very young babies in hospital with them if they had to be admitted to a NSW psychiatric hospital or unit. This is no longer possible (except where identified below).* Current NSW Health policy is that there are not enough resources or facilities for this to happen.

*In 2015, the new acute psychiatric adult unit at the Royal Prince Alfred Hospital, the Professor Marie Bashir Mental Health Centre allocated two beds to mothers and babies within the adult psychiatric unit with specific facilities that are baby friendly.

If you are able to afford private mental health care, the St John of God Burwood Hospital operates a 12 place ‘mothers and babies’ unit which enables babies under the age of one-year to stay with their mothers while their mothers are receiving inpatient mental health treatment. This facility specialises in providing inpatient treatment for mothers with perinatal depression, anxiety and related conditions. The underlying philosophy of the mothers and baby unit is to help mothers and babies bond, and for infants to develop a secure attachment. Hospital caregivers also provide assistance with sleep and feeding issues. The St John of God Mothers and Babies Unit is the only service of this type operating in NSW in the private sector.

Northern Sydney Central Coast Health has an online pamphlet called Tips for managing your parenting role during a mental health admission.

Click here to go to the link to download this pamphlet.


 DISCLAIMER

  • The legal and other information contained in this Section is up to date to 30 January 2015
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
  • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.