The Department of Communities and Justice's practice of responding to pre-natal reports
The Department of Communities and Justices practice of responding to pre natal reports
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The Department of Communities and Justices practice of responding to pre natal reports
PDF - 1MB
This report reveals that the Department of Communities and Justice (DCJ) misapplied its statutory powers and engaged in wrong conduct in handling reports made to it, raising concerns about children not yet born.
It highlights that DCJ failed to adopt appropriate policies, processes, tools, and guidance for staff, resulting in pre-natal reports being closed without allocation to caseworkers, powers used to investigate without consent, and statutory decisions being pre-emptively made before children were born.
The Department of Communities and Justice (DCJ) receives, assesses and responds to reports that raise child protection concerns about children and young people suspected to be 'at ‘risk of significant harm’ (ROSH). In February 2026, we published a report concerning our investigation into DCJ’s handling of ROSH reports - ‘No Capacity to Allocate’. The investigation made findings of wrong conduct by DCJ in relation to its practice of closing ROSH reports without allocation to a caseworker and/or on the stated basis of resource constraints or ‘no capacity to allocate’.
Arising from that investigation were concerns about DCJ’s practices relating to reports received about children not yet born, which we have referred to as ‘pre-natal reports’.
We decided to separately investigate whether DCJ’s policies, tools and practices for the management of pre-natal reports, including how they are received, screened, triaged, and allocated, align with the Children and Young Persons (Care and Protection) Act 1998 (Care Act). This report sets out our findings and recommendations concerning DCJ’s handling of pre-natal reports and should be read in conjunction with our No Capacity to Allocate report.
Section 25 of the Care Act provides that a person who has reasonable grounds to suspect, before the birth of a child, that the child may be at risk of significant harm after his or her birth may make a pre-natal report to DCJ.
DCJ’s powers to assess, investigate or determine whether a child is at ROSH, or in need of care and protection, are not enlivened by a pre-natal report made prior to the child’s birth. Instead, the original goal in responding to a pre-natal report under the Care Act is to provide assistance and support for pregnant women[1] to reduce the likelihood of children needing to enter out-of-home care after birth. Engagement with DCJ prior to a child’s birth is voluntary.
However, amendments to the Care Act in 2006 added an explicit recognition that pre-natal reports also serve a ‘child protection’ purpose, by providing that a pregnant woman’s lack of engagement with support services during pregnancy may provide a basis on which to consider the child to be at ROSH following birth.
There is no express statutory obligation on DCJ to act on a pre-natal report, but DCJ must record all pre-natal reports received and record significant action taken as a direct consequence of the report. Those actions may include:
Our investigation found that DCJ closes a significant number of pre-natal reports without allocation and without referrals to support services, because of ‘no capacity to allocate’.
We also found that, while DCJ’s Pre-natal Casework Policy refers to an ‘active efforts’ requirement in respect of its handling of pre-natal reports, there is some ambiguity in the Act as to whether the legislative requirement that DCJ make ‘active efforts’ to prevent the child entering out-of-home care applies to its handling of pre-natal reports.
Our investigation further found that investigatory powers and other interventions prior to the birth of a child have been exercised on a non-voluntary basis, and that determinations that a child was at ROSH or in need of care and protection (‘ROSH’ and INOCAP’ decisions) have been made before the birth of a child. These types of statutory decisions cannot lawfully be made before a child is born.
We also found that DCJ has been using inappropriate tools and processes for pre-natal decision-making, including the inappropriate use of the Structured Decision Making (SDM) Mandatory Reporter Guide (MRG), the SDM Screening Response and Priority Tools (SCRPT), and the SDM Safety Assessment tool. This has led to DCJ screening in pre-natal reports as ROSH reports, and unborn children being treated as a ‘subject’ in safety assessments, thereby intermingling pre-natal and ROSH concerns.
We concluded that a review of pre-natal policies and practices is required.
We made the following findings of wrong conduct by DCJ under s 26 of the Ombudsman Act 1974:
Since we commenced our investigation, DCJ has told us that it made progress towards a review of relevant policies. It told us that it has also provided interim guidance to caseworkers and implemented some practice changes. As such, our recommendations focus on setting a timeframe for the finalisation of this review, of no later than June 2027, and identifying some key considerations that should be applied in the review. We have also recommended that consideration be given to legislative change to clarify that the principle of ‘active efforts’ (to avoid a child entering out-of-home care) applies when DCJ is handling pre-natal reports.
8. This report should be read in conjunction with our No Capacity to Allocate report, including in so far as that earlier report:
9. Where necessary, the above parts of our previous report have been supplemented in this report (eg in section 2 below) with further details relating specifically to pre-natal reports. Cross-references to the No Capacity to Allocate report are included where necessary.
10. The methodology for this investigation is generally set out in section 1.4 of our No Capacity to Allocate report.
11. Of relevance to this report, the methodology included a desktop review of earlier system reviews, coronial inquests, legislation and decisions of courts and statutory bodies, published DCJ data and the Ombudsman’s own complaint holdings. The investigation team also undertook a wide range of information gathering activities such as issuing formal notices requiring production of documents and information, meetings and briefings with agencies and staff, and compulsory witness interviews.
12. A survey of DCJ staff included questions related to pre-natal reports.[3] In addition, our sampling reviews of triage records closed by DCJ with the label ‘no capacity to allocate’ in June 2023 included a small number of pre-natal reports.[4]
13. Consistent with our earlier report, this report comments on DCJ’s legal, policy and practice settings as they stood in April 2024. Post-April 2024 changes and their implications are noted where relevant.
14. We provided a copy of our provisional findings and recommendations in respect of this report to DCJ on 18 May 2026 and 21 July 2026.[5] DCJ officers provided comments in a meeting on 12 June 2026 and the Secretary made a written submission on 11 August 2026. These have been considered in preparing this report.
15. On 20 August 2026, in accordance with s 25 of the Ombudsman Act 1974, we consulted with the responsible Minister, the Honourable Kate Washington MP, Minister for Families and Communities about our intention to make this report.
16. In accordance with s 26(3) of the Ombudsman Act 1974, on 21 August 2026, a copy of the final report was provided to:
17. Section 25 of the Care Act provides that:
A person who has reasonable grounds to suspect, before the birth of a child, that the child may be at risk of significant harm after his or her birth may make a report to the Secretary.
18. As explained in our No Capacity to Allocate report, pre-natal reports are one of 6 statutory report types, which DCJ collectively refers to as ‘concerns reports’:
19. Section 25 has been a part of the Care Act since its introduction. In its original form, it included the following drafting note: [7]
Note.
The intention of this section is to provide assistance and support to the pregnant woman to reduce the likelihood that her child, when born, will need to be placed in out-of-home care. The principle is that of supportive intervention rather than interference with the rights of pregnant women.
20. That note goes some way to explaining why pre-natal reports are decoupled from the provisions of the Care Act that provide for DCJ’s statutory authority and duty to investigate, and to undertake other non-consensual interventions.
21. When the Bill for the Care Act was introduced, the Minister explained that:[8]
There is a provision [in the Bill] for reporting before the birth of a child, that the child may be at risk of harm after his or her birth. This has been introduced in order to provide assistance and support for the mother. It does not give rise to any right for the department to intervene in the life of the pregnant woman or to interfere with her rights in any way, nor does it put any onus on the woman to accept the assistance and support offered by the department. This provision is designed to minimise the likelihood that the child, when born, will need to be placed in out-of-home care. It is a preventative measure to prevent abuse and to try and keep children with their parents.
22. In 2006, following the passing of the Children and Young Persons (Care and Protection) Miscellaneous Amendments Bill 2006 (the 2006 Amendment Act), the note to s 25 was amended to express its intention as follows:
Note.
The intentions of this section are—
(a) to allow assistance and support to be provided to an expectant parent to reduce the likelihood that the parent’s child, when born, will need to be placed in out-of-home care, and
(b) to provide early information that a child who is not yet born may be at risk of [significant][9] harm subsequent to his or her birth, and
(c) in conjunction with section 23(f) and section 27, to provide for mandatory reporting if there are reasonable grounds to believe that the child is at risk of [significant][10] harm subsequent to his or her birth.
23. The 2006 Amendment Act also inserted a new paragraph (f) to section 23(1), as follows:
[For the purposes of this Part and Part 3, a child or young person is at risk of [significant][11] harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent of any one or more of the following circumstances…]
(f) the child was the subject of a pre-natal report under section 25 and the birth mother of the child did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical, the risk factors that gave rise to the report.
24. In the Second Reading speech, the Minister referred to 104 child deaths having been reported in 2005, and noted that 16 of those children had been the subject of a pre-natal report. The Minister suggested that some of those deaths may have been prevented had the relevant amendments included in the 2006 Amendment Act been in place.[12] These included deaths that had been the subject of report by the Ombudsman in its function of reviewing ‘reportable child deaths’,[13] and concerns the Ombudsman raised about DCJ’s conduct after being put on notice (including by pre-natal reports) that a child was likely to be at ROSH immediately or soon after their birth.[14]
25. The Minister noted that the suite of amendments was together intended to strengthen reporting and information sharing requirements by:
26. The effect of the 2006 amendments is that, while the original purpose of pre-natal reporting to ‘support parents’ remains, it is now explicitly recognised that pre-natal reports also serve (and are intended to serve) a ‘child protection’ purpose. That includes by providing early awareness to DCJ of potential ROSH upon birth and facilitating DCJ’s early post-birth intervention, which may include assuming care responsibility for the child, where this is necessary.
27. Despite these changes, the acceptance of support, referral or any other intervention by DCJ following a pre-natal report remains legally voluntary. That said, by explicitly linking a birth mother’s engagement (or lack of engagement) with support services following a pre-natal report with a potential decision as to whether the child, when born, is at ROSH, the current provisions have shifted away from the 1998 Act’s intention that there should not be ‘any onus [put] on the woman to accept the assistance and support offered by the department’.[16]
28. DCJ’s power to investigate, assess and determine whether a child is currently at ROSH (s 30), to act where a child is in need of care and protection (INOCAP) (s 34), or to seek care orders under Chapter 5 of the Care Act apply when there is a ‘child or young person’, and are not enlivened by a pre-natal report made before the birth of a child.
29. The term ‘child’ in the Care Act necessarily refers to a child who has been born. Where the intention is to refer to an unborn child, the Act expressly extends the definition of ‘child’ for a limited purpose or provides an alternative subsection or paragraph dealing with an unborn child (alongside a subsection or paragraph dealing with a ‘child’ or ‘young person’).[17]
30. Unlike circumstances where a ROSH report is made by reference to paragraph (f) of section 23, there is no express statutory obligation on DCJ to undertake any assessment and investigation of a pre-natal report per se. As such, the failure to act on receipt of a pre-natal report including closures labelled with ‘no capacity to allocate’ will not necessarily mean that DCJ is failing to meet its statutory responsibilities under the Care Act.[18]
31. However, section 28 of the Act – which requires the Secretary to make records of any reports received and any action taken as a direct consequence of the report that has a significant effect on the child or young person to whom the report relates – applies.
32. The kinds of actions that may be open to DCJ to lawfully consider when it receives a pre-natal report include:
33. Following a pre-natal report – and particularly if the expectant parent has not engaged successfully with support services – DCJ may begin to prepare itself for the likelihood it will need to respond to a child who may be at ROSH and/or in need of care and protection after their birth.
34. DCJ can also exchange/request information from other agencies under Chapter 16A of the Care Act or direct prescribed bodies to provide information. This information exchange may be for the purposes of providing parental support, as well as in preparation for (post-birth) child protective actions.
35. Upon the birth of the child, DCJ may receive a ROSH report if current concerns exist for the safety, welfare or well-being of the child because of the presence, to a significant extent, of a variety of circumstances, one of which is the circumstance described in s 23(1)(f). Any person may make such a report (including staff of DCJ itself). Some mandatory reporters are required to do so if they have formed such a suspicion. If a ROSH report is received, this will trigger DCJ’s statutory authority and obligation to assess and investigate under s 30. A ROSH report can only be made after the child is born, although it can be made immediately upon the birth.[23]
36. Once a child is born, DCJ can also form the opinion that the child is in need of care and protection and, if so, take action under s 34, which may include seeking care orders. DCJ may also consider using emergency removal powers,[24] including to assume care responsibility for a child in a hospital.[25] An opinion that a child is in need of care and protection (and a decision as to the action that should be taken if they are) will typically be made following the receipt and assessment of a ROSH report, but can lawfully be made in the absence of such a report.[26]
37. Unlike ROSH reports, DCJ does not have a statutory duty to assess and investigate each pre-natal report it receives. Appropriately, however, DCJ’s Triage Policy requires triage officers to consider prioritising pre-natal reports and ‘consider in consultation with NSW Health, suitable responses such as access to early casework support and early intervention services’. The Pre-natal Casework Policy requires triage officers to consider urgent allocation if a pregnant woman is more than 37 weeks gestation or in critical danger; otherwise, if the family cannot be allocated, a service referral ‘must’ be made.
38. The triage outcomes can be to allocate (to a caseworker for a face-to-face assessment or other response), transfer (to another CSC or unit) or to close with recorded reasons and with or without a service referral. Matters that cannot be allocated within set response timeframes are brought to a Weekly Allocation Meeting (or equivalent peer review). The policy allows closure if a pre-natal report remains unallocated at 28 days from receipt at the Helpline unless ‘exceptional circumstances’ are approved by the Director Community Services. In our No Capacity to Allocate report we recommended that DCJ should abolish the policy that allowed the closure of reports that remained unallocated 28 days after receipt. DCJ accepted this recommendation for implementation by the second half of 2026 as part of the new prioritisation policy and process.[27]
39. DCJ data for 2023-24 shows that, of the 5,007 pre-natal reports it received:
40. While the proportion of pre-natal reports that are closed with the label of ‘no capacity to allocate’ is significant, it is comparatively less than the proportion of ROSH reports closed on this basis (in 2023-24, 64% of ROSH reports were closed due to ‘no capacity to allocate’, with only 33% allocated to a caseworker).
41. When a pre-natal report cannot be allocated, DCJ’s Pre-natal Casework Policy states that triage officers must refer expectant parents to services before closing the pre-natal report. In our sample review of triage closures without allocation and with the label ‘No Capacity to Allocate’,[29] there were 11 pre-natal reports. None of them recorded that any referral had been made before closure.[30] One typical case study is described below.
Case Study 1: Jess’s[31] case |
In one of several similar pre-natal report cases that we reviewed in the sample of cases closed due to no capacity to allocate, the reporter was concerned that the pregnant woman, Jess, was using 'ice'. They reported that Jess was living with another drug user and was being threatened with physical assault. Although the case was marked as a priority, it was closed due to no capacity to allocate without any referral to support services. No further action was taken after the birth of the child. |
Changes made since the start of our investigation |
In its submission, DCJ informed us that a new prioritisation policy and process was implemented in July 2026, which ensures consideration of referral options where a pre-natal report is closed without face-to-face assessment. This includes an additional requirement that if a pre-natal report is not allocated, the prioritisation team notifies the NSW Health Child Wellbeing Unit (CWUs) and requests, where appropriate, that health services are provided to that unborn child’s family. Health CWUs are requested to advise DCJ about any services provided. |
42. In exercising any function under the Care Act, the Secretary must act in accordance with both:
43. Consistent with the other provisions of the Care Act, the reference in s 9(1) to a ‘particular child or young person’ appears to refer only to such a child or young person then in existence. This means that the paramountcy principle will only be enlivened when a child has been born and there is, in fact, a particular child whose safety, welfare and well-being is at stake. That is appropriate given the legislative purpose of the paramountcy principle, and the different considerations that apply during pregnancy, including with respect to the dignity and bodily autonomy of pregnant women.
44. Of course, even if the paramountcy principle (as a statutory requirement) does not apply to decisions made by DCJ when considering and responding to pre-natal reports, this does not mean that the (future) safety, welfare and well-being of the yet-to-be-born child will not be treated as of utmost importance when responding to a pre-natal report.
45. A potentially greater source of confusion surrounds the second principle – the making of active efforts to prevent a child from entering out-of-home care. Again, read consistently with the Act, the fact this provision refers only to children, and is not expressly extended to unborn children, indicates that it is enlivened only in respect of children who have been born.
46. That said, DCJ’s policy currently refers to this ‘active efforts’ requirement in respect of its handling of pre-natal reports. It does so by suggesting that any actions taken in response to a pre-natal report (such as offering supports or service referrals before a child is born) can be a way of demonstrating that active efforts were taken in compliance with this principle. [34]
47. In our view, consistent with the policy objectives of the Act[35] and the intent of s 25,[36] it would be useful to clarify that the active efforts principle applies directly to any functions exercised by DCJ prior to the birth of the child.
48. Internal DCJ documents indicate that DCJ has assumed that it held all the same powers in relation to risk and safety assessments before a child’s birth (following a pre-natal report) as it does after the child is born (following a ROSH report). For this reason, consent from the expectant parent to engage with DCJ in undertaking such assessment has been neither routinely sought nor documented.
49. DCJ’s policies have also not directed workers to the need to obtain and record consent from expectant parents before undertaking pre-birth assessments and related activities, including more intrusive interventions such as participation in interviews, home visits, drug tests or other casework.[37]
50. Any engagement by prospective parents with DCJ following a pre-natal report is, if there are no other children in the household, as a legal matter, entirely voluntary. DCJ has no statutory power to compel parents to engage with it, including to attend interviews, permit home visits, respond to questions, undertake drug testing or accept service referrals.
51. There is, of course, an unavoidable practical tension here, both for families and caseworkers: while section 25 provides for entirely voluntary engagement before birth, section 23(1)(f) means that any non-engagement can be treated later as a factor justifying the view being later formed (after the child is born) that there are concerns for the child’s safety, welfare or well-being.[38]
52. However, that tension makes it more imperative that DCJ be clear at the time of the pre-natal report that the expectant parent’s consent to any engagement is both sought and is required. Obtaining informed consent will include informing the expectant parent that they have the right to decline to engage, while also informing them that any refusal might be a relevant matter to be taken into account in the future when assessing whether the child, once born, may be at ROSH.
Changes made since the start of our investigation |
In September 2024 DCJ made interim changes to its pre-natal policy, which now expressly provides that:
|
53. A decision that a child is at ROSH or is INOCAP – what DCJ refers to as ‘statutory decisions’ – cannot lawfully be made before that child is born.
54. However, internal DCJ documents indicate that the application of ROSH related processes, tools and labels to pre-natal reports has meant that caseworkers have routinely completed SDM Safety (and until recently SDM Risk Assessments) and in some cases record ROSH ‘substantiation’ decisions before the birth of a child. Other DCJ materials also described a practice of making ROSH and INOCAP decisions for unborn children during pre-natal casework.
55. In the 2023-24 financial year, DCJ advised it received 5,007 ‘concerns reports related to pre-natal reports’. Of these, 3,472 (69%) were screened-in as ROSH, and 1,535 (31%) were screened-in as non-ROSH.
56. The data indicates that the practice of making both ROSH and INOCAP decisions for unborn children was not uncommon. In 2023-24, 79% (or 912) of the 1154 pre-natal reports that had a completed field assessment were recorded as ‘substantiated’ ROSH reports. 201 (17%) had a recorded case closure reason of ‘in need of care and protection’.
57. The making of a purported ROSH and INOCAP determination before a child is born is not aligned with the powers conferred by the Care Act. Most importantly, DCJ’s authority to act in circumstances of ROSH or INOCAP will not be enlivened by any such pre-emptive ‘determination’. That is, when a child is born, DCJ cannot simply rely and act on any pre-natal determination. Instead, after the child is born, DCJ must actively make a determination.
58. This does not mean that, upon receipt of a pre-natal report, DCJ cannot form any views about the potential risks that will be faced by the child once born. Clearly it can and must do this, including for the purpose of considering what supports should be offered to the expectant parents to try to avoid those risks.
59. At least since 2006, it is also clear that DCJ can and should consider potential future risks to ensure that DCJ itself will be well-placed, in appropriate circumstances, to make any necessary child protection decisions, and if required to take consequential action, upon the child’s birth. That is, DCJ can and should where necessary ensure that it will be in a position to make expeditious and effective decisions (including whether a child is INOCAP) upon the birth of a child.
60. However, DCJ cannot pre-emptively make the requisite statutory decision prior to the birth, and merely act upon it post-birth. Those decisions can and should only be made upon or after the birth, based on an assessment undertaken at that time of the relevant circumstances at that time. This does not prevent such decisions being made quickly, or action being taken as promptly as may be necessary.[40]
61. Even where a new determination is formally made post-birth, having already made a ‘decision’ prior to birth pre-empts, and risks biasing, later judgments that can and should be made upon birth (an issue that DCJ has acknowledged).[41] A ROSH determination made pre-birth may predispose case workers towards escalation immediately upon birth; on the other hand, a non-ROSH determination can create a false sense of safety.
Changes made since the start of our investigation |
In September 2024, DCJ issued interim guidance to case workers to make it clear that there was no statutory power to make ROSH and INOCAP determinations for unborn children. As a workaround to the existing system design, DCJ required case workers to record all pre-natal reports as ‘not substantiated’ and directed them not to make INOCAP records prior to the birth of a child. The guidance was introduced to make clear that ROSH and INOCAP determinations cannot be made until after the child is born.[42] The workaround to the workflow is a step in the right direction pending finalisation of DCJ’s current review and development of a revised Pre-natal Policy. |
62. The two issues discussed above can be viewed as part of – and may in part be driven by – the fact that DCJ did not design and implement a proper system for dealing with pre-natal reports in accordance with the Care Act. Instead, it conflated pre-natal reports with ROSH reports and has been shoe-horning the former into the tools and processes designed to apply only to the latter.[43]
63. Another consequence of this approach may be that it risks downplaying the element of the pre-natal reporting regime that focuses on offering assistance and support to expectant parents, by channelling the department’s response towards a narrow investigative approach.
64. Other particular aspects of this approach include:
When a mandatory reporter has a concern about an unborn child, they are encouraged to run the SDM Mandatory Reporter Guide (MRG) before taking any action. The MRG produces a recommendation (for example, lodge a report, contact a Child Wellbeing Unit or seek local supports).
The MRG is designed to support consideration by mandatory reports as to whether they need to make a (mandatory) ROSH report, not their decision to make a pre-natal report.
Pre-natal reports are made to the Helpline (by phone or eReport), in the same way as a ROSH report. At the Helpline, all incoming ‘concerns reports’, including any pre-natal reports, are screened using the SDM Screening Response and Priority Tools (SCRPT).
However, SCRPT is designed for reports about a particular child and their current risks, and whether these meet the ROSH threshold factors in s 23 of the Care Act. It is not designed for the purpose of screening pre-natal reports. The SCRPT screening criteria assumes a child/young person exists, and requires consideration of observed harm/incidents (that is, those that have occurred or are now occurring, not those that are anticipated in future).
Because of this, DCJ has needed to ‘override’ some aspects of the screening process for pre-natal report.
SCRPT requires caseworkers to select:
DCJ has modified the application of SCRPT so that, in the case of a pre-natal report, the words ‘pre-natal report’ are automatically listed as the type of harm (even though, clearly, that is a report type, and not a harm type). The extent of harm for a pre-natal report also automatically defaults to ‘risk of significant harm’.
Once the pre-natal report is screened-in, a ‘ROSH-pre-natal’ outcome is recorded in the SCRPT decision record in ChildStory. As with ROSH reports, the Helpline assigns a response timeframe (less than 24 hours, 72 hours or 10 days) and transfers it to a Community Service Centre (CSC) or, if relevant, another unit.[44]
At the CSC, pre-natal reports move through a triage process under the (standard ROSH report) Triage Policy. A triage officer confirms priority, checks any policy overrides,[45] reviews history and any open cases, and – where needed – seeks limited additional information, including through information exchange under Chapter 16A of the Care Act.[46]
When a pre-natal report is allocated for a field assessment, the caseworker visits the expectant parent(s) to complete an SDM Safety Assessment for the unborn child to assess whether the baby is likely to be in immediate danger of serious harm at birth and what, if any, protective steps are needed.
(See paras 48-52 above in relation to issues regarding consent to these assessments.)
The SDM Safety Assessment tool is not designed to develop pre-birth assistance and support. Evident Change (the tool’s developer) has confirmed that no other jurisdiction uses the SDM Safety Assessment for pre-natal casework. Caseworkers have also reported that they find it challenging to apply a SDM Safety Assessment to an unborn child.[47]
During the SDM Safety Assessment, the caseworker considers standardised factors across 3 areas - child vulnerabilities, critical dangers, and caregiver and child protective abilities – and records a safety decision:
If the assessment indicates the newborn child would not be safe at birth, caseworkers are expected to plan protection action with the parents and the hospital to manage the birth respectfully and safely.
If the dangers are resolved during the pregnancy or upon birth, another SDM Safety Assessment must be completed before closing the case.
Changes made since the start of our investigation |
Interim policy changes have clarified that the SDM Safety Assessment must not record ‘dangers’ for an unborn child, but it may still be used to guide discussion with the parents. While this is a step in the right direction, the SDM Safety Assessment was designed to detect immediate serious danger to children and trigger protective action. It was not designed or validated to assess risk to a child who has not yet been born or to specifically guide pre-birth support. The appropriate approach would be to develop a pre-natal specific assessment, that: separates pre-birth support from post-birth statutory decisions; ensures that there is no purported making of ROSH/INOCAP determinations before birth; and that makes clear that any casework with expectant parents requires consent. |
Where a pre-natal report has been received, DCJ can issue a high-risk birth alert (HRBA) to the Local Health District or Speciality Network in accordance with information-sharing provisions in Chapter 16A of the Care Act. A HRBA will be issued if at least one of a list of specific circumstances are present. These include that the pregnant woman:
Other indicators include if the expectant mother is under the parental responsibility of the Minister, there is history of abuse or neglect of the unborn child’s siblings, a sibling of the unborn child has died in circumstances reviewable by the Ombudsman, there is serious and persistent substance use, unmanaged mental illness, or suicide risk, or the expectant mother is victim of domestic violence involving serious injury, hospitalisation, or use of a weapon.
The purpose of a HRBA is to require the health provider to then make a notification to DCJ when the birth is imminent.[49]
These HRBA notifications are made to the DCJ Helpline and always screened in as a ‘ROSH report’.[50] This happens even if the birth has not yet occurred (as is intended to be the case). As discussed above, a report or notification given prior to birth is not and should not be recorded as a section 24 or 27 ROSH report.
Any HRBA notifications received after the child is born are also screened in as ROSH reports.
In DCJ’s submission to this investigation, it told us that this is appropriate as ‘the purpose of a HRBA is to enable [providers] to make a [mandatory ROSH report] at the birth of the child’. It said that the notification that is given to DCJ by providers ‘almost always meets s 23(f) [an element of the Care Act’s definition of ‘at ROSH’], unless the reporter also provides information that the risk has been reduced.’ As such, DCJ says that such a HRBA notification is properly regarded as a ROSH report.
We do not accept this submission as an accurate characterisation of the HRBA process or its purpose. HRBAs and the ensuing notifications made by providers are actions taken under the information sharing provisions of Chapter 16A of the Care Act, and not pursuant to the mandatory ROSH reporting provisions of s 27 of the Act. They can occur in circumstances where no ROSH report is warranted.
Even if a mandatory ROSH report is warranted in some (perhaps many) cases of HRBA births, that is something the provider should, if they have formed the view that such a report is required,[51] do clearly, and distinctly from simply giving notice to DCJ of a birth that DCJ has asked to be made aware of.
Changes made since the start of our investigation |
In its Pre-natal Policy Review Consultation Summary, DCJ acknowledged that stakeholder feedback on HRBAs demonstrated substantial differences in how they are understood and used, which also highlighted that greater clarity is required.[52] In its submission, DCJ told us that it is “currently undertaking reform to the current High Risk Birth Alert (HRBA) process in partnership with AbSec and ALS, NSW Health, Centre for Aboriginal Health, and the Aboriginal Health and Medical Research Council”. DCJ advised that it “will settle required changes to the High Risk Birth Alert (HRBA) name, form, and process to safeguard use and better distinguish when DCJ is seeking to provide information about an unborn child to facilitate the provision of support, and when DCJ is advising health services that action is needed due to serious risks to the child when born”. |
DCJ policy generally required that, following the SDM Safety Assessment, an SDM Risk Assessment be completed for the unborn children (unless the Safety Assessment found the unborn child ‘safe’ and there were no other children in the household). Again this tool was not intended for this purpose.
The SDM Risk Assessment is an actuarial – or data-driven – tool that estimates the likelihood a family will be re-reported to a child protection agency within the next 12-18 months. It scores answers on two checklists (an ‘abuse’ index and a ‘neglect’ index), totals the points and uses the total score to classify the family – not the individual child – as low, moderate, high or very high ‘risk’ (e.g., a total score of 8-9 = ‘very high’ risk). Case workers are able to raise (but not lower) the initial risk level by manual overrides (to ‘very high’ in serious cases or otherwise up one level at their discretion).
The final risk level guided decisions – via a risk-based open/close guide – about whether to keep the case open for ongoing casework or close it.
One particular concern with the use of SDM Risk Assessment here is that, even if it is used only after the birth a child, it leans heavily on the number and content of prior screened-in reports, including any pre-natal reports, when assigning the risk level.[53] Noting that DCJ has been treating any pre-natal report (including any HRBA notification) as a ‘ROSH report’, this means that, in the case of newborns who were subject to pre-natal reports and casework, 2 or 3 items in the risk tool can apply straight away.[54] In neglect cases with 3 or more pre-natal reports, the score can begin at ‘high’ risk.[55]
In our No Capacity to Allocate report we raised broader concerns about the SDM Risk Assessment tool, including the practice of adopting its outputs as de facto INOCAP decisions.[56] The practice meant that any increase in scores increases the likelihood of a child being considered to be INOCAP, leading to interventions under s 34 of the Care Act, including potentially an entry into care.
Relying on the SDM Risk Assessment tool did not account for the type or quality of pre-birth support, penalised families with many mandatory reporters in their network or whose reports were closed without support, and risked disproportionate impacts on Aboriginal families.[57]
Changes made since the start of our investigation |
As noted in our No Capacity to Allocate report,[58] on 12 September 2024, DCJ replaced the SDM Risk Assessment and SDM Risk Reassessment with an interim approach to risk assessment until an Aboriginal-led, co-designed assessment process is developed. |
65. Whenever a household is safety assessed, all children in the household are listed as a ‘subject’. For every such subject, the system creates a mandatory ‘Judgements & Outcomes’[59] tab that must be completed before the record can be closed. The policy stated that no subject can be marked ‘safe’ if a danger is identified in the household.
66. For these purposes, where there is an expectant parent in the household, any unborn child is automatically included by DCJ as a separate ‘subject’. Similarly, during field assessments of ROSH reports about older siblings, unborn children are automatically listed as ‘subjects’.
67. While administratively convenient, this leads to a co-mingling of information and concerns that can obscure who, or which risk, a decision relates to and which statutory power (if any) are applicable. It can also lead to confused or inappropriate decisions, such as:
68. We observed this practice in our sample review of DCJ’s records, where pre-natal concerns about an unborn child were combined with ROSH concerns about a child who had been born in the one record. Typically these involve siblings, but other cases included pre-natal concerns being mixed with concerns about the pregnant woman’s sister (a young person), or with concerns about another pregnant young woman living in the household.
Changes made since the start of our investigation |
DCJ has instructed caseworkers to manually change the unborn child/children from a ‘subject’ to a ‘subject related participant’ from the parties section in the field assessment record. The subsequent assessments will not include the unborn child as a subject and will focus on the born children.[60] [61] |
69. Key policy documents that have guided day-to-day practice include:
70. The Pre-natal Policy and Mandate were first published in 2008 and last reviewed in 2011.
71. Between 2011 and 2022, there have been multiple attempted reviews of the Pre-natal Policy. However, according to advice received from DCJ, none was finalised due to significant sensitivities and divergent stakeholder views on the Government’s role in protecting unborn children, which led to lack of consensus on the final approach. DCJ has also acknowledged that limited consultation occurred with Aboriginal stakeholders within DCJ and externally in past reviews and consultations between 2016 and 2022.[65]
Current status of the Pre-natal Policy Review |
DCJ is currently undertaking another policy review of the Responding to Pre-natal Reports Policy and the Assessing and Case Planning with Expectant Parents Casework Practice Mandate. The current policy review commenced in 2023. It builds on insights from the Family Is Culture (FIC) recommendations, previously attempted pre-natal policy reviews, as well as the expansion of Pregnancy Family Conferencing (PFC), SDM Assessment review and consultations about active efforts. In July 2024, DCJ circulated a Discussion Paper, Pre-natal Policy Review: Supporting Expectant Parents to Keep Their Newborn Baby Safe. On 24 September 2024, DCJ issued interim guidance to caseworkers who work with expectant parents, including:
In August 2025, DCJ published factsheets for parents and professionals:
In December 2025 DCJ published a Consultation Summary – a consolidated report on stakeholder feedback on the Discussion Paper. The Consultation Summary was released in March 2026. Currently, DCJ is continuing to consider feedback to inform the next stages of the Pre-natal Policy Review. |
72. I make the following findings of wrong conduct under s 26 of the Ombudsman Act:
73. I make the following recommendations:
That DCJ:
In this report our use of certain sex-based terms (e.g. pregnant or expectant ‘women’ or ‘mother’) may include - and is not intended to exclude - people who do not identify as such. We acknowledge and respect that individual parents and families may use different words to those used in this report (e.g. transgender men, intersex people, non-binary and gender diverse people).
The Care Act defines a child as under 16, and a young person as 16 to 18. For simplicity, we also use child or children to refer to any person aged under 18.
See para 26 and Appendix A-4 of our No Capacity to Allocate report.
As outlined in our No Capacity to Allocate report, we reviewed the first 380 triage records that were closed during June 2023 with the no capacity to allocate label. This included 11 pre-natal reports (3%, 11 of 380).
s 24(2) Ombudsman Act 1974.
A difference is that, while any person may report to DCJ the homelessness of a child under s 120, a person may do so in respect of a young person under s 122 only with the consent of that young person.
The Care Act (s 6) states that Notes and diagrams included in this Act are explanatory notes and do not form part of this Act. Notes are interpretation aids only: Interpretation Act 1987 s 34.
NSW Parliament (Hansard), the Hon. Mrs Lo Po’, Minister for Community Services, ‘Children and Young People (Care and Protection) Bill 1998 – Second reading speech’, 11 November 1998, available at https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1323879322-93392.
‘Significant harm’ inserted and replaced ‘harm’ in January 2010 by the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009.
Same as above.
Same as above.
NSW Legislative Council Hansard Children and Young Persons (Care and Protection) Miscellaneous Amendments Bill 15 November 2006 http://bulletin/prod/parlment/hansart.nsf/8bd91bc90780f150ca256e630010302c/99854c..
Under Part 6 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 the Ombudsman reviews and reports on the deaths of children in circumstances of, or suspicious of, abuse or neglect.
NSW Ombudsman Report of Reviewable Deaths in 2005, Volume 2 - Report of Reviewable Deaths in 2005 Volume 2: Child Deaths.
As part of these same amendments, section 106A was added to the Care Act to specify that proceedings in the Children's Court are to admit any evidence of a parent's past history in relation to the removal of other children. This further indicates the broad intention of the 2006 amendments to facilitate earlier and more effective intervention where a risk of harm, and a need for care and protection, arose for a child immediately upon birth.
This is not to suggest that paragraph (f) of s 23 of the Care Act can, or is intended to, operate in any sense as a coercive or punitive mechanism.
For example: s 245B(3), which extends the meaning of ‘child’ in Chapter 16A to ‘an unborn child’ (the subject of a pre-natal report etc).
s 248(1A), which provides that information about an ‘unborn child’ may be furnished ‘under this section in the same way as information about a child or young person or class of children or young persons may be furnished’.
s 38A(1)(b), which refers expressly to the ‘expectant parents’ of an ‘unborn child’ (in contradistinction to s 38A(1)(a), which refers to the primary care-givers for a ‘child or young person’).
Compare our findings in the No Capacity to Allocate report, in which we found, among other things, that DCJ’s practice of closing a large number of ROSH reports on the basis of ‘no capacity to allocate’ and without proper assessment and investigation meant it was failing its statutory responsibilities under the Care Act: see Findings at section 10.1.
DCJ, Draft Program Specifications – Family Preservation Program (Version 1.1, June 2025), p.28.
DCJ, Fact Sheet, Prenatal Casework – Factsheet for Parents working with DCJ, August 2025.
These are aimed at improving the parenting skills of the expectant parent and reducing the likelihood that the child will be at ROSH after birth.
The Children’s Court has reported that there were only 16 PRC lodgements in the 2024 calendar year. It is not clear whether any of these related to expectant parents: Children’s Court of NSW – Annual Review 2024, p. 15.
DCJ might separately receive notification of an imminent ‘high risk birth’, which may put DCJ on notice of the need to plan for a potential child protection response following the birth: see paragraph 64(e) below.
See Care Act ss 43, 46.
Care Act s 44.
No Capacity to Allocate report, para 70 and Appendix A-2y.
DCJ also noted that the original intent of the policy was not arbitrary closure after 28 days, however acknowledged it has been applied beyond its original intent.
We asked DCJ to provide the number of ‘s 25 pre-natal reports’ received for 2023-24. DCJ did not provide a discrete count of s 25 pre-natal reports. Instead, it provided the number of ‘concerns reports related to prenatal reports’. These were identified by including concern reports that included pre-natal issues in any Helpline assessed issue (primary issue and other issues), and the age of the child at contact was less than ‘0’. It is unclear whether this methodology captures all and only s 25 pre-natal reports. The data should therefore be treated as indicative and may under- or over-count the number of s 25 pre-natal reports received.
The figure differs from DCJ’s Annual Statistical Report 2023-24, which records 4,152 ROSH reports where ‘Prenatal report’ was the primary Helpline assessed issue, although the measures are not directly comparable.
See paragraph 27 and Appendix A-4 of No Capacity to Allocate report.
In 6 of these cases, the case file included information suggesting that other services may have already been involved. There is, though, nothing on those files to indicate that any further referral step was taken, or other contact made, in respect of those services prior to closure of the pre-natal report.
Not her real name.
s 9(1) Care Act.
s 9A Care Act. This includes ensuring that active efforts are culturally appropriate: s 9A(3)(e).
Active effort during prenatal engagement can be demonstrated by referrals to independent legal advice, PFCs, and PRCs where appropriate: DCJ, Working with expectant parents and their unborn children: during the interim period, Frequently Asked Questions, August 2025.
s 8 Care Act.
The note to s 25 states that one of its intentions is ‘to allow assistance and support to be provided to an expectant parent to reduce the likelihood that the parent’s child, when born, will need to be placed in out-of-home care’.
Interim pre-natal changes.
s 23(1)(f) Care Act.
DCJ, Fact Sheet, Informed Consent for Prenatal Casework, Fact Sheet for Professional Working with DCJ, August 2025.
Including, if necessary, utilising emergency powers under s 43 and s 46 of the Care Act.
DCJ, Prenatal Policy Review: Discussion Paper (2024) pp.28-30.
DCJ, Working with expectant parents and their unborn children: during this interim period – FAQs (September 2024), p.5.
Our No Capacity to Allocate report found that there are also problems with the tools and processes as they apply to ROSH reports. See for example, paras 20, 197, 203 and section 9.
DCJ, A paper to seek endorsement of the SDM Screening assessment as part of the Better Decisions for Children Project (June 2023), p.13.
A policy override allows caseworkers or delegates to vary standard rules if the unique circumstances require it. This includes, here, any override under the Pre-natal Casework Policy.
Chapter 16A allows prescribed bodies (government and non-government) the authority to share relevant information about children and young people (including an unborn child who is subject of a pre-natal report under s 25) to collaboratively promote their safety, welfare and wellbeing. This information sharing does not require consent from the related person(s).
DCJ, Working with expectant parents and their unborn children: during this interim period – FAQs (September 2024), p.3.
The safety plan is not the case plan. A safety plan permits a child/young person to remain home during the course of the investigation/assessment/ongoing work.
Or upon the actual birth, if for practical reasons a notification of imminency was not able to be provided.
Including as a pre-natal report, if prior to birth.
That is, to consider whether they have reasonable grounds at that time to suspect the child just born is at ROSH: s 27(2) Care Act.
DCJ, Prenatal Policy Review Consultation Summary, December 2025, p. 17-18.
These measures are: N1 & A1 (current report is for neglect/abuse): includes pre-natal reports about lack of prenatal care and reports about physical abuse of an unborn child; N2 & A2 (number of prior screened-in reports for neglect/abuse (whether substantiated or not)): pre-natal reports are not in the list of reports to be excluded; N3 & A3 (household has previously received ongoing statutory child protection casework): this would include casework in response to a pre-natal report; N4 (number of children in household): includes an unborn child; A4 (prior injury resulting from abuse/neglect): includes to an unborn child; N5 (age of youngest child in household): includes an unborn child; A5 (parent’s assessment of incident): includes where an expectant mother justifies abuse/neglect of her unborn child; N9 & A10 (characteristics of child): includes of an unborn child, including an ‘in utero diagnosis of a disability’ (N9) and (A10): – SDM SARA Manual.
These are: N2 & A2: 1 or more prior screened-in pre-natal reports about neglect/abuse (scored up to 2-3); N3 & A3: previous pre-natal casework (scored up to 1); N5: child under 2 in the home (scored up to 1).
Based on the highest answers to N2 (= 3), N3 (= 1) and N5 (= 1) totalling 5 or a ‘high’ risk level.
See paragraphs 315-333 of our No Capacity to Allocate report.
28% of children reported in pre-natal reports in 2024/25 were Aboriginal (Prenatal Policy Review – Review Progress and Next Steps May 2026, p.3), down from 35% in 2022/23 (DCJ, Prenatal Policy Review Consultation Summary, December 2025, p. 4).
See No Capacity to Allocate report, section 3.1, p. 28.
In ChildStory, a Judgement and Outcome (J&O) is automatically created based on the issues identified in Helpline assessments. One J&O is created for each issue and each subject of the Helpline assessment and any issues that are selected as ‘not assessed’ transfer to subsequent field assessments when they are launched: DCJ, ChildStory Knowledge Article, Complete Judgements & Outcomes.
DCJ, Working with expectant parents and their unborn children: during this interim period – FAQs (September 2024), p.9.
In September 2025, interim guidance was published for working with expectant parents who are children or young people. A new information pack, Working with Expectant Parents, has been added to a range of interim prenatal fact sheets, frequently asked questions and other advice that is available to DCJ practitioners on Casework Practice. The guidance reminds practitioners of their statutory obligation to assess suspected risk of significant harm when working with expectant children or young people.
DCJ, Sibling Case Coordination Mandate, Transfer of a child or family between teams, CSCs, Interstate OOHC and JCPRP Mandate, Sibling Safety Policy and Unaccompanied Children and Young People 12-15 Years Accessing SHS Policy (2021).
NSW Ombudsman, Report of Reviewable Deaths 2005 (Volume 2), pp.18-19, Recommendation 10.
DCJ, Case Closure Reason Matrix, Assessing and Case Planning with expectant parents (pre-natal) Mandate and Removal or Assumption of a Child Mandate.
DCJ, Prenatal Policy Review: Discussion Paper (2024) p.11.
We acknowledge the traditional custodians of the land on which we work and pay our respects to all Elders past and present, and to the children of today who are the Elders of the future.
Artist: Jasmine Sarin, a proud Kamilaroi and Jerrinja woman.