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Chapter 8 Section D: People with mental health conditions and child protection

This section is about mental illness and child protection issues. Parents living with mental health conditions experience the same challenges that all parents face, but may also be managing the symptoms of their condition at the same time. Almost all parents with a mental illness are able to care for their children, but some may need additional support from family, friends and health professionals at times. People with mental health conditions who have family responsibilities may have 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 eighteen (18) years of age, then this is likely to be dealt with by child protection workers from the NSW Department of Communities and Justice (DCJ) and possibly involve an order from the Children’s Court.

In NSW, the law that protects children and young people from harm and abuse is the Children and Young Persons (Care and Protection) Act 1998. Under this law, the safety, welfare and well-being of the child or young person are always the most important factors in a decision made about them. As far as possible, the child or young person is also encouraged to be involved in decisions being made about them.

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

  • When services providers have to report concerns about children
  • Involvement of DCJ if you have children in your care
  • What DCJ can do if they decide that there is a risk of significant harm to your child or children
  • Temporary care arrangements
  • Agreed care plans
  • Parental Responsibility Contracts
  • What happens if DCJ wants your children removed from your care
  • Foster care; and
  • Risks of significant harm that the DCJ and the Children’s Court deal with.

8D.1: The child protection system in NSW

People with mental health conditions who have children may be worried about losing care of their children through the child 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 Communities and Justice (DCJ) and the Children’s Court of NSW.

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

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

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 usually confidential. This means that they would be acting against their professional code of conduct or unethically if they were to tell anyone else what you said.

In NSW, there is an exception to this rule that requires people in certain jobs to report any risk of significant harm to a child or children, even if it is contained within confidential information. This rule is called ‘mandatory reporting’.
People in the following types of jobs have to report to DCJ if they have a reasonable cause for concern on the basis that they suspect that a child is at risk of, or is being, abused or neglected:

  • health care (e.g. doctors, nurses, midwives, occupational therapists, speech therapists, psychologists, dentists, etc.)
  • welfare (e.g. social workers, caseworkers and youth workers)
  • education (e.g. teachers, counsellors, principals)
  • children’s services (e.g. childcare workers, including at family day care and home-based care)
  • residential services (e.g. refuge workers); and
  • law enforcement (e.g. police).

This means that if someone is reasonably worried that your mental health condition will impact your ability to care for a child or children, they will have to report this to DCJ. For example, if a teacher is worried that your condition might lead to risk of significant harm to children in your care, they will make a report to DCJ.

If DCJ 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 risks of significant harm DCJ will deal with, click here.

DCJ has a number of factsheets and information available from its website.

Click here to read these resources, ‘What happens once a report is made to the Child Protection Helpline?’. Click here to read the fact sheet.

To find more information and resources follow this link.

8D.1.2: Risks of significant harm

NSW Department of Communities and Justice (DCJ) will get involved if they are worried that there is a risk of significant (serious) harm, including when:

  • 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, cannot or will not arrange for the child or young person to get the medical care that they need
  • the parents or other caregivers have not, cannot or will arrange for the child or young person to go to school
  • the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated
  • 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; and/or
  • the child was the subject of a pre-natal report and the birth mother of the child did not engage with support services to eliminate or minimise risk factors in the report.

8D.1.3: What DCJ can do if there is a risk of significant harm to your child or children

Once DCJ receive a report that a child or children in your care may be at risk of significant harm, they will investigate further. If the DCJ decides that children in your care are at risk of significant harm, they can choose to do one of the following:

  • take no action if there are proper arrangements for the care and protection of the child, and the concerns that led to the report have been addressed
  • help you get support services to care for your child or children
  • put the child or children into temporary care
  • talk to you and other members of your family to develop an agreed care plan
  • put together a Parental Responsibility Contract with you and others who have responsibility for the child or children (Parental Responsibility Contracts have to be approved and registered by the Children’s Court)
  • remove your children from your care or
  • make a care application to the Children’s Court.

DCJ must try to resolve issues with you, the parent or caregiver, as soon as possible and try not to go to the Children’s Court if possible.

The Australia Government’s preferred option is always providing support to families and children so the child can safely remain in their home.

When DCJ is responding to a report that a child is at risk of significant harm, they must make sure that in their decisions:

the immediate safety, welfare and wellbeing of the child or young person, and of other children or young persons in that person’s home, are the most important factors considered

any action must be appropriate to the age of the child or young person, any disability they or their family members have, and the circumstances, language, religion and cultural background of the family; and

removal of the child or young person from their usual caregiver only happens where it is necessary to protect the child or young person from the risk of significant harm.

8D.1.4: Temporary care arrangements

A temporary care arrangement gives the NSW Department of Communities and Justice (DCJ) the right to decide where the child or children should live and to make decisions about the day-to-day care of the child. Daily decisions may include decisions about the child or children’s health care, behaviour and activities.

Temporary care arrangements can only be put in place if you agree to the arrangement as a parent. Such an arrangement can only last three (3) months, but can be extended (again only with your consent) for another three (3) 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.

DCJ can ‘terminate’ (or end) a temporary care arrangement if they believe that the child or young person is no longer in need of care and protection. The parent can terminate the agreement. However, if DCJ believes that the child or young person is still in need of care and protection, they can make a care application to the Children’s Court to stop the child or young person returning to the parent’s care.

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

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

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

The Association of Children’s Welfare Agencies have resources that can assist on care and protection matters.

For more information about restoration plans click here.

8D.1.5: Agreed care plans

A care plan includes actions the family will take to address DCJ’s concerns about the child or young person. For example, the care plan may include the support services that will be provided to the family. These plans can be registered with the Children’s Court. They can also be used as evidence in other Children’s Court proceedings.

8D.1.6: Parental Responsibility Contracts

A Parental Responsibility Contract (PRC) is a written agreement between the NSW Department of Communities and Justice (DCJ) and one of the people responsible for a child or children. The agreement tries to improve the primary (main) caregiver’s parenting skills and encourages them to take more responsibility for the child or children.

A PRC can include conditions that the parent has to do certain things to improve parenting skills, 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 substance misuse; and/or
  • have alcohol or drug tests.

It is possible that a PRC could require that a parent continue or start treatment for a mental health condition.

A PRC cannot place the child or young person in out-of-home care or re-allocate parental responsibility for them. DCJ must make a different application to do this.

The PRC is generally for six (6) months. Only one PRC can be made in any 12 month period.

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

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

If the Court finds that there has been a breach and the parent’s children are still assessed as being at risk of significant harm, 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 to find out about your options. A lawyer may also be help you to negotiate the conditions in a PRC.

8D.1.7: Children’s Court

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

After DCJ receives a report that a child is at risk of significant harm, they must try to first work with you to find a solution that does not require going to the Children’s Court. If an application for care orders is to be made, DCJ is to work towards making of orders that are in the best interests of the child or young person.

Wherever possible, families are encouraged to avoid court proceedings and try to come to an agreement with DCJ. For information about alternative dispute resolution options, click here.

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

The Children’s Court can make the following orders:

  • allow the previous parenting arrangement to continue, usually with a restoration plan
  • an emergency care and protection order, which is 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); or
  • make a contact order about who can see and/or contact your child, including when and how.

When the Children’s Court holds a hearing about a care and protection case, the following people may be involved in the court process (or ‘parties in the proceedings’):

  • the child or young person
  • each person having parental responsibility for the child or young person
  • a representative of the Secretary of DCJ; and
  • any other person who has a genuine concern for the safety, welfare and wellbeing of the child or young person if they apply to be involved.

The Children’s Court can appoint a lawyer to act for a child or young person if it appears to the Children’s Court that the child or young person needs to be represented in proceedings.

For more information about the Children’s Court, click here.

DCJ has a webpage called ‘Stages of court proceedings in care and protection cases’ to read more click here.

8D.1.8: Removal of children from your care

If the NSW Department of Communities and Justice (DCJ) wants to change care arrangements or remove your child or children from your care, DCJ has to apply to the Children’s Court.

Your child will not be removed from your care only because you have a mental health condition. However, they can be removed if your mental health condition is impacting your ability to meet your child’s needs.

If you think your child may be removed from your care, you should get legal advice, and if possible, legal representation in the Children’s Court. You should try to find out why your child is being removed, what actions impact your chances of getting your children back and the likelihood of going to the Children’s Court.

Legal Aid NSW may give you legal representation in care and protection matters. Representation in some cases may be given if you satisfy a ‘means and merits tests’ and/or you may be asked to pay part of the cost to Legal Aid NSW. For the specific policy that applies to your care and protection matter, click here.

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

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

8D.1.8: 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 Communities and Justice (DCJ) (and sometimes the Children’s Court) believes they are at risk of significant 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 example, your children may be in foster care for one or two nights, a few weeks or months, or even years.

Click here to find out more about your rights as a birth parent in relation to foster care.

See also DCJ about bringing your child home from foster care.

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

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

There are several situations where DCJ might get involved if you have children in your care and you have a mental health condition:

  • If you have a stay in hospital
  • If you are diagnosed with a mental illness or are receiving care and treatment for your mental illness
  • If DCJ decides (following a report or otherwise) that there is a risk of significant harm to your child or children, it can take action.

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

You may be worried that you will come to the attention of NSW Department of Communities and Justice (DCJ) workers through reports of possible significant harm to your children if you are:

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

However, if you have been reported and a DCJ 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.

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

It is important to remember that not doing enough to care for your children (‘neglect’) is as serious as ‘abuse’ towards your children (causing physical, sexual or psychological harm, including allowing children to witness domestic violence).

Therefore, if you are not able to manage, it is best to get help before someone asks DCJ 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/or friends).

If you are a single parent or your 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 Community and Justice (DCJ). DCJ will have responsibility for the care of your children while you are in hospital. 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 DCJ 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, DCJ is likely to place your children in foster care.

Mothers are sometimes able to have very young babies in hospital with them if they had to be admitted to a public mental health facility. There are not enough resources or facilities for these arrangements to be made in every public mental health facility. However, the following two mental health facilities facilitate young babies staying with their mothers in hospital.

The Professor Marie Bashir Mental Health Centre has a few beds allocated to mothers and babies within the adult psychiatric unit with specific facilities that are baby friendly.

If you belong to a private health fund that supports inpatient hospital mental health care or can afford private mental health care, the St John of God Burwood Hospital operates a ‘mother and baby’ unit with twelve (12) beds. This unit enables babies under the age of one (1) to stay with their mothers while their mothers are receiving inpatient mental health care and treatment. This facility specialises in providing inpatient treatment for mothers experiencing perinatal depression, anxiety and related conditions. The underlying philosophy of the mother 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 Mother and Baby 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.

8D.2.3: Residential rehabilitation facilities that allow children to stay

There are a number of residential rehabilitation facilities for alcohol and other drug issues that allow children to stay with the parent, for example:

  • Odyssey House (Eagle Vale, NSW): a medically assisted withdrawal unit, residential and rehabilitation programs, including parents’ and children’s program.
  • Jarrah House (Malabar, NSW): residential treatment facility for women (and children) where mothers can attend detox with children.
  • Kathleen York (Glebe, NSW): residential drug and alcohol facilities for women and women and children.
  • Kamira Farm (Wadalba, NSW): a drug and alcohol program between six (6) and nine (9) months for women, and their children (up to 8yrs). It is both a residential and outpatient centre.
  • Guthrie House (Enmore, NSW): accepts women eighteen (18) years and over, women who have dependent pre-school aged children in their full-time care and/or are participating in pharmacotherapy treatment, including methadone or buprenorphine. Accepts women with criminal history.

Each of these services have a waiting list. You can contact them directly to find out more about how long the residential program or how long the waiting time is.

For more information about which service is right for you, or for emergency assistance available 24 hours a day, seven (7) days a week, you can call the Alcohol and Drug Information Service. They are a state-wide telephone service by St Vincent’s Hospital providing education, information, referral, crisis counselling and support about illegal drugs (i.e. heroin, ice and cannabis) and legal drugs (i.e. alcohol). You can call 24 hrs a day on 1800 250 015*.

For more information about drug and alcohol issues, click here.

*Mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

8.D.3: Information and support for parenting

If you need information or think you need help or support with parenting, you might find the following organisations helpful:

  • Parent Line, NSW: phone 132 055* – a 24-hour telephone advice and information service for parents of children living in New South Wales. It is a tollfree number anywhere in NSW.
  • Tresillian Family Care Centres – provide support through a 24-hour Parents Help Line. Phone 1300 272 736*
  • raisingchildren.net.au –an online resource for Australian parents and carers. It offers free, trusted, reliable information on everyday parenting issues from pregnancy through to teens.
  • Brighter Futures – a voluntary program designed for families experiencing problems that impact their ability to care for their children, including parents with mental health issues. Brighter Futures is for families with children aged 0 to 9 years or who are expecting a baby. Each family in the program receives the ongoing support of a Brighter Futures worker, who meets with them regularly at home. Together, the worker and family plan for the support needed to build a strong, positive relationship with their child. For a list of organisations providing Brighter Futures, click here.

*Mobile phone calls to freecall numbers (numbers starting with 1800) and to local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

8.D.4: Legal advice and representation

If you have a mental health condition and a child or children in your care, and you would legal advice and assistance regarding child protection matters, contact one of the services below:

*Mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

Updated July 8, 2020