On 28 August we tabled a report that highlighted the NSW Department of Communities and Justice’s (DCJ) wrong conduct in handling reports made to it raising concerns about children not yet born (referred to as ‘pre-natal reports’).
The report, titled ‘The Department of Communities and Justice’s practice of responding to pre-natal reports’, follows the NSW Ombudsman’s February 2026 report ‘No Capacity to Allocate’, which detailed the investigation of DCJ’s handling of ‘risk of significant harm’ (ROSH) reports about children and young people.
Concerns arising from the ROSH investigation led to a separate examination of whether DCJ’s policies, tools, and practices relating to pre-natal reports aligned with the Children and Young Persons (Care and Protection) Act 1998.
This latest investigation revealed that, until September 2024, DCJ closed a significant number of pre-natal reports without allocating them to a caseworker or referring the expectant parents to support services. DCJ’s Pre-natal Casework Policy was not consistently implemented or clear.
It also found that DCJ misapplied its statutory powers, including by pre-emptively making decisions that a child was at risk of significant harm or in need of care and protection before they were even born.
“Pre-natal reporting was introduced to enable DCJ to work with expectant parents, supporting families to stay together, and reducing or avoiding the need for statutory intervention after the child is born,” said NSW Ombudsman, Paul Miller. “Such reporting also gives DCJ early warning that it may need to assess and respond to risk after a child is born, including if the birth mother has not engaged with those
pre-natal supports.”
“However, the law does not give DCJ the power to undertake any non-consensual casework during pregnancy. The law also does not allow DCJ to pre-emptively make and act on statutory decisions, such as by deciding that a child needs care and protection warranting removal or other statutory intervention, before the child is born.”
Other findings of wrong conduct included the use of powers to investigate without the required consent of expectant parents, and staff reliance on inappropriate tools and processes for pre-natal decision-making.
“Ultimately, DCJ failed to develop and adopt appropriate policies, processes, tools and guidance to staff to enable them to correctly apply the provisions of the Care Act specifically for dealing with pre-natal reports,” continued Mr Miller.
Since the commencement of the investigation, DCJ told the Ombudsman of its progress toward reviewing relevant policies, providing interim guidance to caseworkers, and changing practices to prevent further non-compliance.
“Having considered DCJ’s submissions, our recommendations focus on setting a timeframe for the finalisation of the pre-natal policy review by no later than June 2027,” said Mr Miller.
The report further recommends that changes arising from the review should be implemented by no later than December 2027.
Another key recommendation was to design a customised support pathway for pre-natal reports aligned with the Care Act, which focuses on voluntary, early support for expectant parents.
“A review of pre-natal policies and practices is long overdue,” concluded Mr Miller.
The latest recommendations follow those provided to DCJ in February’s ROSH report which included a comprehensive review and reform of its ROSH (and related) policies, practices and tools. DCJ has since accepted all ROSH recommendations which the Ombudsman continues to monitor.
