New South Wales Consolidated Acts

CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 - SECT 90

90 Rescission and variation of care orders

(1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court.

(1AA) An application may be made by--

(a) the Secretary, or

(b1) the child or young person, or

(c) a person having parental responsibility for the child or young person, or

(d) a person from whom parental responsibility for the child or young person has been removed, or

(e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person.

(1A) Subject to any order the Children's Court may make, a person who makes an application under this section must give notice of the application to the persons who were parties to the proceedings in which the care order was made.

Note : Section 256A sets out the circumstances in which the Children's Court may dispense with the requirement to give notice.

(2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.

(2A) Before granting leave to make an application to vary or rescind the care order, the Children's Court must consider the matters set out in subsections (2B) and (2C).

(2B) The primary considerations are as follows--

(a) the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views,

(b) the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements,

(c) if the Children's Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person.

(2C) Additional considerations are as follows--

(a) the age of the child or young person,

(b) the nature of the application,

(c) the plans for the child or young person,

(d) whether the applicant has an arguable case,

(e) matters concerning the care and protection of the child or young person that are identified in--

(i) a report under section 82, or

(ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150.

(2D) The Children's Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process.

(2E) Without limiting subsection (2D), the Children's Court may dismiss an application for leave under this section if it is satisfied that--

(a) the application has no reasonable prospect of success, and

(b) the applicant has previously made a series of applications for leave under this section that the Court has dismissed.

(3A) If--

(a) an application is made to the Children's Court by a person or persons (other than the Secretary) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and

(b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and

(c) the Secretary is not a party to the proceedings,

the applicant must notify the Secretary of the application, and the Secretary is entitled to be a party to the application.

(4) The Children's Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (1AA)(e) unless it considers the person to have a sufficient interest in the welfare of the child or young person.

(5) If--

(a) an application for variation of a care order is made or opposed by the Secretary, and

(b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children's Court,

the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order.

(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration--

(a) the age of the child or young person,

(b) the views of the child or young person and the weight to be given to those views,

(c) the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements,

(d) the strength of the child's or young person's attachments to the birth parents and the present caregivers,

(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

(7) If the Children's Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so--

(a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and

(b) if it rescinds such an order--it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.

(8) On the making of an order under subsection (7), the Children's Court must cause notice of the order to be served on the Secretary.

(9) This section does not apply to an application to vary an interim care order.

Note : Section 90AA provides for applications to vary interim care orders.