The Children’s Court of New South Wales is vital for keeping young folks safe and sound. This unique court looks after all sorts of issues that involve young people. It takes care of criminal trials, helps out when safety and care are on the line, and even deals with school attendance problems and violence concerns.

For parents, young people, and youth workers navigating the complex world of the Children’s Court, it is essential to understand the rights and procedures involved. This comprehensive guide aims to provide a clear overview of the Children’s Court’s jurisdiction, powers, and processes, empowering those involved to make informed decisions and ensure the best possible outcomes for the children and young people at the heart of these proceedings.

Jurisdiction and Powers of the NSW Children’s Court

The Children’s Court of NSW has broad jurisdiction over matters involving children and young people. The court deals with criminal proceedings, care and protection matters, compulsory schooling orders, and applications for apprehended violence orders involving juveniles.

Criminal Proceedings

The age of criminal responsibility in NSW is 10 years. Any child aged 10 or over can be charged with a criminal offence and ordered to attend the Children’s Court. The court handles criminal matters including traffic offences, summary offences, bail applications, pleas and contested hearings.

When sentencing young offenders, the court places greater emphasis on rehabilitation than adult courts. This recognises that young people make mistakes and should have the opportunity to learn from them. However, in serious cases or where there are repeat offences, the court can impose significant penalties including detention.

Care and Protection Proceedings

The Children’s Court has authority to make orders ensuring the safety, welfare and well-being of children and young people. The Department of Communities and Justice can apply to the court if they believe a child is at risk of serious harm. The court can order removal of a child from parental care if:

• The child is at serious risk of immediate harm
• Less intrusive actions are insufficient to reduce the risk
• Removal is necessary for the child’s protection

The court can make various orders regarding parental responsibility, contact arrangements, supervision requirements, treatment programs, and support services. Assessment orders may be issued to evaluate a child’s needs or a person’s parenting capacity.

Compulsory Schooling and Apprehended Violence Orders

The Children’s Court has jurisdiction over applications for compulsory schooling orders involving parents and children who are not attending mandatory schooling. The court also deals with apprehended violence order applications where juveniles are involved.

Court Procedures and Environment

The Children’s Court operates distinctly from adult courts, with procedures designed to be more appropriate for young people. The court environment is specifically structured to be less intimidating while maintaining the necessary formality of legal proceedings.

Closed Court Proceedings

The Children’s Court is closed to the general public to protect the privacy of young people involved in proceedings. Only parties directly involved in the case may be present in the courtroom, including:

• The Magistrate
• Prosecutors or Department of Communities and Justice representatives
• Lawyers
• The young person and their support person(s)
• Juvenile Justice or caseworkers when necessary

The Magistrate has discretion to exclude individuals who are not directly involved with the case when hearing individual matters.

Less Formal Court Environment

The Children’s Court conducts proceedings with notably less formality than adult courts to make the process less intimidating for young people. Legal practitioners remain seated when addressing the Magistrate, unlike in other courts where they must stand.

The court recognises that young people make mistakes and may not fully comprehend the seriousness of their actions in the way adults are expected to. This understanding is reflected in how matters are handled, with an emphasis on:

• Creating a more comfortable environment for young people to participate
• Allowing support persons to accompany young people
• Conducting proceedings in a way that young people can better understand
• Maintaining necessary legal procedures while reducing intimidating formalities

The court’s modified approach aims to ensure young people can meaningfully participate in proceedings while maintaining appropriate respect for the legal process.

Sentencing and Rehabilitation

The Children’s Court of NSW places a strong emphasis on rehabilitation and diversion programs when sentencing young offenders, aiming to help them reintegrate into society and avoid future criminal behaviour.

Sentencing Options

The Children’s Court has a range of sentencing options available for young offenders, depending on the seriousness of the offence and the individual circumstances of the case. These options include:

• Good behaviour bonds: The young person is required to be of good behaviour for a specified period, with or without supervision.
• Fines: The court may impose a monetary penalty, taking into account the young person’s ability to pay.
• Probation: The offender is placed under the supervision of a probation officer for a set period, with conditions such as attending school or counselling.
• Community service orders: The young person is required to perform a specified number of hours of community service work.
• Suspended sentences: The court imposes a term of imprisonment but suspends it on the condition that the young person complies with certain requirements, such as a good behaviour bond.
• Control orders: In serious cases, the court may sentence the young person to a period of detention in a youth justice centre.

When determining the appropriate sentence, the Children’s Court must consider the young person’s age, maturity, and personal circumstances, as well as the seriousness of the offence and any prior criminal history.

Focus on Rehabilitation

The Children’s Court recognises that young offenders have a greater capacity for rehabilitation than adult offenders and aims to address the underlying causes of their criminal behaviour. The court works closely with government agencies and community Organisations to provide young offenders with access to education, counselling, and other support services.

Diversion programs, such as Youth Justice Conferencing, are a key component of the Children’s Court’s rehabilitative approach. These programs bring together the young offender, their family, the victim, and community members to discuss the impact of the offence and develop a plan to make amends and prevent future offending.

The court may also refer young offenders to specialised programs that address specific issues, such as substance abuse, mental health, or family dysfunction. These programs aim to provide young people with the skills and support they need to make positive changes in their lives and avoid further involvement with the criminal justice system.

By prioritising rehabilitation over punishment, the Children’s Court seeks to give young offenders the best possible chance of turning their lives around and becoming productive members of society. However, in cases involving serious or repeat offences, the court may impose more severe penalties to ensure community safety and hold young offenders accountable for their actions.

Youth Koori Court

The Youth Koori Court (YKC) was established in response to the significant over-representation of Aboriginal young people in the criminal justice system. A pilot commenced in 2015 at Parramatta Children’s Court and following its success, government funding was provided to expand the Youth Koori Court to Surry Hills in 2019. A third Youth Koori Court commenced at Dubbo on 24 March 2023, making it the first regional location for the Youth Koori Court.

Purpose and Goals

The Youth Koori Court aims to support Aboriginal young people to achieve their full potential by asking them what they need to succeed, and endeavouring to provide that support to the young people and their families. The five key goals of the YKC are to:

1. Increase Aboriginal and Torres Strait Islander community, including Aboriginal and Torres Strait Islander young people’s, confidence in the criminal justice system
2. Reduce the risk factors related to the re-offending of Aboriginal and Torres Strait Islander young people
3. Reduce the rate of non-appearances by young Aboriginal and Torres Strait Islander offenders in the court process
4. Reduce the rate of breaches of bail by Aboriginal and Torres Strait Islander young people
5. Increase compliance with court orders by Aboriginal and Torres Strait Islander young people

The YKC is designed for young people with the most complex needs who are at risk of spending significant periods of time in custody. Something has to change and the Youth Koori Court provides the structure, support and cultural connection to achieve this change.

Process and Support

The YKC is a deferred sentencing model that relies upon s 33(c2) of the Children (Criminal Proceedings) Act 1987 to provide for the deferral of a young person’s sentence to allow them to demonstrate their capacity for rehabilitation when given appropriate supports. Eligible young people are referred to the YKC by a sitting Children’s Court Magistrate on application by their lawyer.

There are four types of appearances in the YKC:

1. An initial suitability assessment to join the Court
2. A conference where an Action and Support Plan is prepared
3. A number of progress reviews
4. A ‘graduation’ where the young person is ultimately sentenced

The Action and Support Plan is the guiding document that sets out the immediate needs and long term goals, including accommodation, disability and mental health support, cultural engagement, education and work opportunities. Importantly, it also specifies the parties responsible for working with the young person to meet those goals.

The process involves the young person sitting at the YKC bar table alongside their lawyer and family, mostly speaking for themselves. They work intensively with support services under the guidance of an Aboriginal Elder or respected community member, a specialist Children’s Court magistrate, an Aboriginal Legal Service lawyer, a civil lawyer from the Children’s Civil Law Service, Youth Justice case workers, Aboriginal community caseworkers and other parties.

Appeals and Dispute Resolution

The Children’s Court of NSW provides avenues for appealing decisions and resolving disputes in care and protection matters. Understanding these processes is crucial for parents, guardians, and young people involved in proceedings.

Appeal Process

Decisions made by the Children’s Court can be appealed to the District Court of NSW. The appeal must be lodged within 28 days of the original decision. Grounds for appeal may include:

• Error of law
• Insufficient evidence to support the decision
• Severity of the sentence or order

The District Court will review the case and may:

• Uphold the original decision
• Overturn the decision and substitute its own
• Send the matter back to the Children’s Court for re-hearing

It’s important to seek legal advice promptly if considering an appeal, as strict time limits apply.

Dispute Resolution Conferences

In care and protection matters, the Children’s Court may refer parties to a dispute resolution conference before proceeding to a hearing. These conferences aim to:

• Identify areas of agreement and disagreement
• Explore options for resolving the matter without a court hearing
• Develop a care plan that meets the child’s needs

Dispute resolution conferences are attended by:

• Parents or guardians
• Legal representatives
• Department of Communities and Justice caseworkers
• Other relevant parties (e.g., support persons, extended family)

The conference is facilitated by a trained mediator who assists parties in communicating effectively and reaching agreements. Any decisions made must prioritise the child’s safety, welfare, and well-being.

If an agreement is reached, it can be presented to the Children’s Court for approval. If no agreement is possible, the matter will proceed to a hearing before a magistrate.

Conclusion

The Children’s Court of NSW plays a vital role in delivering justice while   rehabilitation and support for young people involved in the legal system. Through specialised processes and programs like the Youth Koori Court, it demonstrates a commitment to addressing the unique needs of children and young people in the justice system.

The court’s emphasis on rehabilitation over punishment, combined with its less formal environment and specialised support services, creates opportunities for young people to make positive changes in their lives. Understanding these procedures and rights is essential for anyone involved with the Children’s Court, whether as a young person, parent, guardian, or support worker.

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