By Cassandra Bennett and Matthew Levy -
Snapshot
- In deciding whether there is a realistic possibility of a child being restored to the care of a parent, the Children’s Court of NSW is required to determine whether there is an ‘unacceptable risk’ of harm.
- Whilst M v M (1988) HCA 68 remains the leading case on unacceptable risk, there have been a number of recent decisions where the Children’s Court considered the meaning of unacceptable risk in care proceedings.
- This article examines the development of the unacceptable risk test in care proceedings and highlights some of the recent decisions of the Children’s Court.
Where there are concerns a child or young person is at risk of, or has suffered, physical, sexual or psychological harm, the Secretary of the Department of Communities and Justice (‘Secretary’) may commence proceedings in the Children’s Court of NSW to obtain parental responsibility for the child (i.e, a care order). This enables the Secretary to make decisions about the child or young person, including where they will live and who they will have contact with.
If the court is satisfied the child or young person is at risk of, or has suffered, harm, it will make a finding that the child is in need of care and protection. This finding grounds the jurisdiction of the court to make a care order and is often referred to as ‘establishment’.
