Foster care
Carer guide
Child protection and out of home care legislation

Child protection and out of home care legislation

Child protection legislation

Out of home care is either foster care, kinship care or residential care provided to a child when they can’t be protected within their own family. The government department responsible for child protection will either be working with the child and their family or oversighting this work. This is usually referred to as child protection, and in many cases the child will be subject to a child protection order made by a Children’s Court.

You will provide care under the child protection legislation in your state or territory. Child protection legislation sets out the standards of care that must be provided by carers. Child protection legislation also sets out the requirements that carers must meet to maintain their approval.

What is child protection legislation?

Child Protection legislation (laws) exists throughout Australia, with each state and territory government being responsible for their own laws about the protection of children.

Each state and territory has a principal or main “Act” of parliament (a set of laws) about the protection of children.

Each Act also comes with additional details called Regulations. So when we speak of Child Protection legislation (laws) this means the Act and the regulations.

Your care team can help you to access and understand all the information you need to carry out your role in a way that complies with the law, so you’re not expected to have in-depth knowledge of the Acts and Regulations. If you do want to access information about the legislation ask your care team.

The Principles on which child protection legislation is based

Australia has signed the United Nations Convention on the Rights of the Child (1989). A number of the principles that are outlined in this Convention are found in the various child protection laws throughout Australia.

Governments and agencies like LWB develop their child protection policies and practices from this legislation.

Legislation about the protection of children in all states and territories contains similar guiding principles, including

A “best interest” principle

Aims to ensure that child protection laws are focused on what is best for the child involved.

Early intervention

It is best to provide support and services to children and families as early as possible. Early support can reduce the risk that statutory (court/legal) intervention will be necessary later on.

The participation of children in decision making

Recognises how important it is to include children in decisions that affect their lives.

You can find related information in

Out of home care legislation

Recognises that placing children in out of home care is sometimes necessary so that they can be protected from harm.

Provisions for the assessment and approval of carers as well as standards for out of home care are also provided for in legislation. You have been approved to provide foster care and that this is a formal legal approval issued under child protection laws in your state or territory. The term for being ‘approved’ varies and could be ‘approved’, ‘authorised’, ‘certified’, ‘registered’ or ‘accredited’.

Your approval will be reviewed regularly and reissued if you have met the standards of care in your state or territory, or withdrawn if standards have not been maintained.

Culturally specific responses to Aboriginal and Torres Strait Islander people

Child protection legislation recognises the need for Aboriginal and Torres Strait Islander children to maintain their cultural identity as well as the need to keep them connected to their community.

You can find related information in Aboriginal and Torres Strait Islander culture and identity here

The Aboriginal and Torres Strait Islander child Placement Principle

All states and territories make reference to placement principles for Aboriginal and Torres Strait Islander children (often termed the “Aboriginal Child Placement Principle”) either in legislation, policy or regulations.

You can find more information in

Other Key Legislation Matters

After Care Support

It is recognised that children will continue to need support after leaving out-of-home care as they make the transition to some kind of independent living arrangement.

You can find related information about leaving care planning here

Permanency Planning and Stability of Care

Permanency planning is a relatively recent development in Australian child protection and not all jurisdictions have put laws in place in relation to this. In those states and territories without specific mention of permanency planning in legislation, policy frameworks often provide guidance about this. LWB is committed to permanency planning for all children in our care.

You can find related information in Permanency planning

Government Departments – Their Role in Child Protection

In each state and territory a particular government department will have the main responsibility for child protection services. Child protection services are delivered through a number of offices in each state and territory as well as after-hours contact centres.

Departments are responsible for following up notifications they receive of possible harm to children, and ensuring children are safe and protected from harm when their parents cannot provide the necessary levels of care and protection.

The main types of services provided by government departments responsible for child protection include

Providing services for children at risk

This includes receiving and assessing information about the safety and wellbeing of children, offering family support services, providing short-term protective intervention and seeking a court order if necessary to protect a child.

Services for children in care

Departments often have partnerships with licensed services (such as LWB) to provide safe, supportive and quality care for children who may be unable to live with their parents for varying periods of time.

Mandatory notifiers and reporting

The legal requirement for some people to report concerns they have in relation to possible harm to a child is known as mandatory reporting. All child protection laws identify some groups of people as mandatory reporters. The laws vary from state to state and identify different groups of people.

However no matter what state or territory you are living in, as a LWB carer you must report all concerns to LWB. This is because LWB policy and procedure requires all employees, carers and volunteers to report all child protection concerns.

You can find related information about mandatory reporting here

Children's rights

You can find information about children's rights here

See the links below to your state or territory based carer resources for more information.

Want to become a carer?
To become a foster carer your ability to care and nurture a child is what really matters.
To learn more, visit the LWB foster care website