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 refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have an operation. A person may lack capacity in some areas, but still be able to make other decisions. 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:
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:
Usually when you see a health care professional or ask for advice from a professional or service In the context of the NDIS, a provider is someone who provides products or services to assist NDIS participants to achieve the goals outlined in their plan. If you do not self-manage any of your NDIS funding, as an NDIS participant you are required to use providers who are registered with the NDIS Quality and Safeguards Commission. 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 The term mental health condition is a broad term that refers to symptoms that may be caused by life events, genetic factors or birth defects. They can be temporary or lifelong and include mood, anxiety, personality, psychotic and compulsive disorders. It includes, but is not limited to those conditions and symptoms recognised as constituting mental illness under the Mental Health Act 2007 (NSW). (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.
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 The term mental health condition is a broad term that refers to symptoms that may be caused by life events, genetic factors or birth defects. They can be temporary or lifelong and include mood, anxiety, personality, psychotic and compulsive disorders. It includes, but is not limited to those conditions and symptoms recognised as constituting mental illness under the Mental Health Act 2007 (NSW).:
For information about what FaCS can do, click here .
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 Agreeing to medical treatment is called 'consent'. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, risks. You agreeing to the treatment once you have been given the information and understand it is called 'informed consent' to treatment. Informed consent by a person who has capacity is a valid consent. To read more see Chap 3B.1 & Chap 8F.3.) 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.
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.
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:
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 The term mental health condition is a broad term that refers to symptoms that may be caused by life events, genetic factors or birth defects. They can be temporary or lifelong and include mood, anxiety, personality, psychotic and compulsive disorders. It includes, but is not limited to those conditions and symptoms recognised as constituting mental illness under the Mental Health Act 2007 (NSW)..
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.
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:
One option that FaCS may consider is putting your child into 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.
NSW Department of Family and Community Services (FaCS) will get involved if:
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:
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.
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 .
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:
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.
If you go to hospital suddenly and you are made an An Involuntary patient is someone who is admitted and detained in a hospital or psychiatric unit for care and treatment under the Mental Health Act 2007. In most cases it refers to a person who is detained under an Involuntary Patient Order made by the Mental Health Review Tribunal. In some circumstances the term includes an ‘assessable person’ detained in a mental health facility prior to a Mental Health Inquiry. To read more see Chap 4C.5. 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.
Updated January 30, 2015