Children’s Criminal Offences

The Children’s Court of NSW is a special court that deals with cases involving children and young people.

The court has jurisdiction to hear and determine cases related to:

• the care and protection of children and young people aged under 18 years
• criminal offending involving people who were aged under 18 at the time of the alleged offence
• traffic cases where the defendant is not old enough to hold a driver’s licence or permit
• applications for Apprehended Violence Orders where the defendant is aged under 18
• applications for Compulsory Schooling Orders where a child or young person has not been attending school
• breaches of parole and the eligibility of children and young people for release on parole.

The role of the Children’s Court is to ensure that the best interests of children and young people are paramount to any proceedings.

The court only deals with children and young people. If an adult – a parent, for example – is charged with a crime against a child, they go to a different court.

Not all cases involving children are dealt with in the Children’s Court. For example, in cases of separation and divorce, the Family Court of Australia can determine where a child will live. The Family Court also deals with contact and guardianship matters. Local or Magistrates courts are also empowered under the Family Law Act to deal with family violence cases.

A person appealing a decision made by the Children’s Court is heard by the District Court of NSW. The Supreme Court of NSW deals with adoption matters.

Children (Criminal Proceedings) Act 1987

The Children (Criminal Proceedings) Act 1987 governs the jurisdiction of the Children’s Court and sets out the main provisions relating to criminal proceedings against children.

Subject to some exceptions, the Children’s Court has jurisdiction to deal with offences alleged to have been committed by a person who was a child when the offence was committed and was under the age of 21 years when charged before the Children’s Court: s 28(1). A child is a person under the age of 18 years: s 3(1).

There is a conclusive presumption that no child under the age of 10 years can be guilty of an offence (s 5) and a rebuttable presumption that a child between the ages of 10 and 14 years does not bear criminal responsibility: C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1; R v CRH (unrep, 18/12/96, NSWCCA); BP v R [2006] NSWCCA 172 at [27].

The court may, if it is satisfied that no other evidence of the person’s age is readily available, rely on the apparent age of the person: s 7A.

The Children’s Court has jurisdiction to hear and determine:

• all summary offences, except certain traffic offences, as described in s 28(2),
• indictable offences other than:
  • “serious children’s indictable offences” as defined in s 3,
  • and indictable offences dealt with “according to law” following exercise of the residual discretion under s 31(3) of the Act.

There is no such discretion for “serious children’s indictable offences” and these must be dealt with according to law in the higher courts: s 17.

A “serious children’s indictable offence” is defined in s 3 and includes indictable offences prescribed by the regulations as such an offence for the purposes of the Act. Clause 4 Children (Criminal Proceedings) Regulation 2016 prescribes as a serious children’s indictable offence, an offence against s 80A of the Crimes Act 1900 (sexual assault by forced manipulation), if the victim was under 10 years old when the offence occurred.

A principal in the second degree to a serious children’s indictable offence is dealt with in the same way as the principal in the first degree: R v PJP (unrep, 8/6/94, NSWCCA).

For indictable offences other than “serious children’s indictable offences”, the discretion under s 31(3) enables the Children’s Court to choose between committing a child charged with an indictable offence to a higher court to be dealt with according to law or to deal with the matter itself under the less harsh regime of Div 4 of Pt 3 of the Act.