What is a s87 Application – You have the right to be heard in the Children’s Court NSW

What is a Section 87 application?

In some matters before the Children’s Court in NSW, a person may seek to be heard by the Court even if they are not a party to the proceedings, if the Court is considering making an order that would have a significant impact on that person. This is referred to as a section 87 application.  The law says in section 87 of the Children and Young Persons (Care and Protection) Act 1998 (Care Act) that the Court can not make an Order that has a significant impact on a person unless they have been given an opportunity to be heard on the matter of significant impact.

Being “heard” enables a person to have their views considered by the Court about a matter that would have a significant impact on them. 

Whilst section 87 provides for a person to be heard, it does not make that person a party to the proceedings. This means that a person generally is not able to receive all the documents filed in the proceedings, or to cross-examine other parties at a hearing.  

Section 87 does not just apply to individual people significantly impacted by the making of an order. It also extends to a group of people, such as a family. In this case, a representative of the group approved by the Children’s Court could be heard on the making of order which would have a significant impact on them. 

What has recently changed?

More significantly the law in NSW has recently changed to allow persons or members of a group or community to be heard by the Court if it is considering making an Order that has a significant impact on them. The Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022  brings in several amendments to reflect the recommendations in the Family is Culture Review Report (2019). This report can be found at familyisculture.nsw.gov.au

What does this mean to you? 

If you are a relative of a child or a person with a significant interest in a child’s welfare and wellbeing or if are you a member of a community group or cultural group to which a child belongs who is the subject of proceedings before the Children’s Court NSW,   you  can bring a section 87 Application  to the Court and seek leave to be heard providing the Court is going to make an order that has a significant impact on you.

For example,  you can bring an Application to the Children’s Court, to request to have a say about things such as where a child lives, a child’s contact with important people including extended family members, elders and about a child’s engagement in their culture. 

Another example is if the Court is considering making an order to say that a relative could not have contact with a child or young person, that relative may have a right to have their views considered by the Court. 

A final example is if the Court considered making an order that would significantly impact an Aboriginal or Torres Strait Islander family or community, a representative of the group or family approved by the Court could speak to the Court about the group or family’s views. 

Legal Aid has now amended their policy and is available to assist persons or members of a community or cultural group for legal representation where leave has been given to be heard under s.87 of the Care Act.

For further information or assistance with Section 87, please contact our team at NLS Law.