Introduction

The court is the last place a child wants to be – it’s intimidating, foreign, and scary. However, there is a specific court assigned to children, hoping to alleviate the stress of their legal processes and ensure justice is carried out. The Children’s Court in New South Wales (NSW) plays a vital role in addressing legal matters involving children and young people. This court is designed to handle both criminal offences and care and protection cases, ensuring that the best interests of children are always the primary consideration. Unlike adult courts, the Children’s Court operates with a strong emphasis on rehabilitation and support, recognising the unique needs and circumstances of young people.

This guide provides a comprehensive overview of the Children’s Court in NSW, including its jurisdiction, key principles, and the processes involved in both criminal and care proceedings. It explores the court’s focus on rehabilitation, the types of orders it can issue, and the legal framework that guides its decisions. Whether you’re a young person, a parent, or a legal professional, this guide offers practical insights and essential information to navigate the complexities of the Children’s Court system.

Overview of the Children’s Court in New South Wales

Role and Purpose of the Children’s Court

The Children’s Court in NSW plays a crucial role in handling matters involving children and young people, focusing on both criminal offences and care and protection issues. Its primary objective is to act in the best interests of the child, ensuring their welfare and safety are paramount. Unlike adult courts, it places a strong emphasis on rehabilitation and support, recognising that young people require guidance and assistance due to their immaturity.

Moreover, key aspects of the court’s role include:

• Criminal Matters: the court deals with a range of criminal offences, including summary offences, traffic offences and bail applications, aiming to balance accountability with opportunities for rehabilitation.
• Care and Protection: the court addresses cases where children may be at risk of harm, working with the Department of Communities and Justice to ensure their safety and well‑being.
• Guiding Principles: it adheres to principles outlined in the Children (Criminal Proceedings) Act 1987 (NSW), such as the right of children to be heard, the importance of maintaining family ties, and the need for proportionate penalties.

Distinct Features Compared to Adult Courts

The Children’s Court operates differently from adult courts, incorporating several unique features designed to support young people effectively:

• Less Formal Procedures: it does not adopt an adversarial approach, making proceedings more accessible and less intimidating for children. Adversarial means someone goes against someone else, – such as A vs B – which is how all adult proceedings are structured.
• Model Litigant Policy: instead, the DCJ must adhere to the Model Litigant Policy, which is designed to promote fairness and comfort, through methods such as avoiding litigation and not taking advantage of someone who has insufficient resources to litigate a legitimate claim.
• Closed Proceedings: to protect the privacy of young people, hearings are closed to the general public, with only directly involved parties allowed to attend.
• Focus on Rehabilitation: rather than emphasising punishment, the court offers options such as cautions, community service and probation to promote rehabilitation.
• Specialist Services: it may utilise specialist services, including the Children’s Court Clinic, to provide expert assessments and tailored support.

These features ensure that the Children’s Court provides a supportive environment focused on the rehabilitation and well‑being of young people, while also addressing the need for accountability.

Jurisdiction and Legislative Framework in the Children’s Court

Relevant Legislation and Guiding Principles

The operations of the Children’s Court in NSW are primarily governed by two key statutes:

1. Children (Criminal Proceedings) Act 1987 (NSW)
   This Act sets out the principles that guide the court’s approach to young offenders. Specifically, it emphasises:
   • The right of children to be heard and to participate in decisions affecting them
   • The need for guidance and assistance due to their immaturity
   • The importance of allowing children to continue their education or employment without interruption
   • The desirability of maintaining family ties
   • The requirement that penalties for children should not exceed those imposed on adults for similar offences
2. Children and Young Persons (Care and Protection) Act 1998 (NSW)
   This Act focuses on the welfare and protection of children, outlining the court’s role in care and protection matters.

Scope of Jurisdiction: Criminal Offences and Care Matters

The Children’s Court has jurisdiction over a wide range of matters involving children and young people under the age of 18. These include:

• Criminal Offences
  The court deals with summary offences, traffic offences and other criminal matters where the defendant is a child or young person. More serious indictable offences are typically referred to higher courts such as the District Court or the Supreme Court.
• Care and Protection Matters
  Applications related to the care and protection of children fall within the court’s remit, especially in cases where a child may be at risk of harm. Orders may be made to remove the child from harmful environments or to place them in foster care to ensure their safety and well‑being.
• Other Matters
  In addition, the court handles applications for apprehended violence orders involving children, compulsory schooling matters and breaches of parole.

Furthermore, the court’s approach is focused on rehabilitation and the best interests of the child rather than punishment. To that end, a range of sentencing options is available, including:

• Cautions
• Fines
• Probation orders
• Community service orders

Criminal Proceedings in the Children’s Court

Process of Charging and Court Procedures

When a young person is charged with a criminal offence, the matter is brought before the Children’s Court. The process typically begins with the police filing a court attendance notice, which outlines the charges and the details of the alleged offence.

The initial stages of the process involve bail determination:

• If the young person is granted bail, they are required to attend court on the specified date
• If bail is denied, the matter is brought before the court as soon as possible

Once the matter is in court, the young person has the opportunity to plead guilty or not guilty. If a plea of not guilty is entered, the police must prepare a brief of evidence, which includes all relevant information and evidence related to the case. This brief is then served to the young person or their legal representative. If the young person maintains their plea of not guilty after reviewing the brief, the matter will be adjourned for a defended hearing.

Key steps in the process include:

• Filing of the court attendance notice: This document outlines the charges and details of the alleged offence
• Bail determination: The young person may be granted bail or remanded in custody
• Plea entry: The young person can plead guilty or not guilty to the charges
• Brief of evidence: If a not guilty plea is entered, the police prepare and serve a brief of evidence
• Defended hearing: If the plea remains not guilty, the matter proceeds to a hearing where evidence is presented

Bail, Pleas, and Adjournments

Bail applications are a critical part of the criminal process in the Children’s Court. If bail is granted, the young person is released from custody on certain conditions. If bail is denied, they remain in custody until the matter is resolved.

When entering a plea, the young person can choose to plead guilty or not guilty:

• A guilty plea acknowledges responsibility for the offence, after which the matter proceeds to sentencing
• A not guilty plea contests the charges, resulting in the matter being adjourned for a defended hearing

Adjournments are commonly used to allow time for the preparation of evidence, obtaining expert reports, or other necessary steps. During this time, the court may impose specific conditions on the young person, such as attending counselling or adhering to a curfew.

Key considerations in bail, pleas, and adjournments include:

• Bail conditions: These may include reporting to police, residing with a specific person, or avoiding certain activities
• Plea entry: The decision to plead guilty or not guilty significantly impacts the progression of the case
• Adjournment purposes: These are typically granted to allow for the preparation of evidence, obtaining reports, or other necessary steps

The Children’s Court places a strong emphasis on rehabilitation and the best interests of the young person. The court’s procedures are designed to balance accountability with the need for support and guidance.

Sentencing and Rehabilitation for Young Offenders in the Children’s Court

Range of Penalties and Sentencing Options

The Children’s Court in New South Wales offers various sentencing options for young people who commit criminal offences. These options aim to balance accountability with opportunities for rehabilitation. Available penalties include:

• Cautions and Dismissals: A young person may receive a caution or have their charges dismissed, with or without a caution, especially in cases involving minor offences.
• Fines and Good Behaviour Bonds: Fines are generally modest, while good behaviour bonds require compliance with specific conditions over a set period.
• Probation Orders: Under these orders, the young person remains in the community but is supervised and must meet conditions such as attending counselling or performing community service.
• Community Service Orders: Through unpaid work that benefits the community, these orders teach responsibility and restitution.
• Control Orders and Detention: In more serious cases, the court may impose control orders, which can include full‑time detention in a youth facility.

When determining the appropriate sentence, the court takes into account the severity of the offence, the young person’s prior record and their personal circumstances.

Emphasis on Rehabilitation and Reintegration

Recognising that young offenders require guidance and support, the Children’s Court places strong emphasis on rehabilitation and reintegration. This approach is guided by the principles outlined in the Children (Criminal Proceedings) Act 1987 (NSW), which prioritise helping the young person reform and successfully return to the community.

Rehabilitation efforts may include:

• Community‑Based Programs: Such as counselling, education and vocational training, to address underlying issues and foster positive behaviour.
• Family and Community Ties: By maintaining connections with family members and community networks, the court helps create a supportive environment for lasting change.
• Specialist Services: Leveraging resources like the Children’s Court Clinic, the court secures expert assessments and tailored support programs.

Through these measures, the court reinforces its commitment to helping young people understand the consequences of their actions and to make positive changes for the future.

Care and Protection Proceedings and Legal Orders in the Children’s Court

Initiating Care and Protection Applications

The Children’s Court plays a crucial role in ensuring the safety and welfare of children and young people through care and protection proceedings. These proceedings are initiated when there are concerns about a child’s safety, welfare, or well-being.

Care and protection proceedings begin by filing an application at the Children’s Court registry. The application must outline the reasons why the child is believed to be in need of care and protection. Once filed, the matter is listed before the court, and all parties, including the child, parents, and carers, must be served with the application and related documentation.

The Department of Communities and Justice (DCJ) is typically the applicant in these matters, as they are responsible for protecting vulnerable children. It’s important to note that care and protection applications cannot be initiated by individuals; only the DCJ can make such applications.

Types of applications that can be made include:

• Emergency care and protection orders: Sought when there is an immediate risk of serious harm to the child
• Assessment orders: Allow for the assessment of the child or a person’s parenting capacity
• Care orders: The primary orders made when a child is found to be in need of care and protection

The court can make orders to remove a child from their current environment if there is an immediate risk of serious harm and less intrusive actions are insufficient to mitigate the risk.

Types of Orders: Emergency, Assessment, Supervision, and More

The Children’s Court can issue various orders to ensure the safety and well-being of a child. These orders are designed to address the specific needs of the child and may include:

• Emergency care and protection orders: These orders are made when the court is satisfied that a child is at risk of serious harm. The order places the child in the care responsibility of the Secretary of DCJ or another specified person and can last for up to 14 days, with the possibility of a one-time extension.
• Assessment orders: These allow for the assessment of the child or a person’s parenting capacity. They may involve medical, psychological, or psychiatric examinations to gather information necessary for the court to make informed decisions.
• Supervision orders: These place the child under the supervision of DCJ, but allow the child to remain in the care of their family. The order requires the family to work with DCJ to address concerns and may include conditions such as participation in counselling or other support services.
• Contact orders: These set out the arrangements for contact between the child and their parents or other significant individuals. They may require supervision of contact to ensure the child’s safety.
• Prohibition orders: These prohibit certain actions by a person, such as preventing a parent from having contact with the child or from making decisions about the child’s care.
• Guardianship orders: These allocate parental responsibility to a guardian, such as a relative or DCJ, until the child turns 18. Guardianship orders are preferred over long-term parental responsibility orders when it is in the child’s best interests.

The court’s primary consideration in making any order is the best interests of the child. Orders are tailored to the specific circumstances of each case, ensuring the child’s safety, welfare, and well-being are prioritised.

If you believe you have received an unjust outcome from your case, you may appeal within 28 days of the orders you are appealing from. See our comprehensive article for more information about appeals.

Best Practices and Practical Considerations in the Children’s Court

Court Conduct and Participation for Young People

The Children’s Court is designed to support young people by creating a less formal environment than adult courts, which helps make legal processes more accessible for children.

Key measures include:

• Simplified explanations: Court procedures and legal terms are explained in an age‑appropriate manner to ensure understanding.
• Support persons: Young people may have a parent, guardian, or other support person present to provide comfort and assistance.
• Participation encouragement: Children are urged to express their views—either directly or through their legal representative—so that their voices are heard in decisions affecting them.

Role of Legal Representatives and Supporting Services

Legal representatives play a crucial role in advocating for the best interests of young people. Specifically:

• Children aged 12 and above have direct legal representation.
• Younger children are represented by independent legal practitioners.

Moreover, supporting services—such as the Children’s Court Clinic—provide expert assessments to guide court decisions. These services may involve:

• Evaluating the child’s circumstances.
• Recommending appropriate interventions to ensure their welfare and rehabilitation.

Conclusion

The Children’s Court in NSW plays a vital role in addressing legal matters involving children and young people, focusing on both criminal offences and care and protection cases. This guide has provided a comprehensive overview of the court’s jurisdiction, key principles, and the processes involved in both criminal and care proceedings. It has explored the court’s focus on rehabilitation, the types of orders it can issue, and the legal framework that guides its decisions. Whether you’re a young person, a parent, or a legal professional, this guide offers practical insights and essential information to navigate the complexities of the Children’s Court system.

If you or someone you know is involved in a matter before the Children’s Court, it’s important to seek expert legal advice. Contact Daoud Legal, a trusted criminal law firm in Sydney, for specialised guidance and support tailored to your needs. Our experienced team is here to help you navigate the legal process with confidence and ensure the best possible outcome.

Frequently Asked Questions