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Crown Solicitor's Office

The safety, welfare and well-being of children: upcoming amendments to the Children and Young Persons (Care and Protection) Act 1998 and the Adoption Act 2000

Monica Neville, Barrister, Sir James Martin Chambers

This paper will look at the most significant reforms to child protection legislation since the enactment of the current Act – Children and Young Persons (Care and Protection) Act 1998 otherwise known as the Care Act or Children and Young Persons Act.  

The amended Care Act (also referred to in the paper as the "new Act") will commence on 29 October 2014.

The new Care Act seeks to provide for three key reforms, outlined in the second reading speech as follows:

  • Placement principles – a hierarchy of preferred placement options for children who come into contact with the child welfare system.
  • Legal framework to build and improve parenting capacity – to try and keep families together and build on skills that parents may lack or to give them the capacity to resume care of their children.
  • Timeliness of decision making to restore a child to its parent's care.

Placement principles
The main reform has been the introduction of placement principles in relation to children who come into contact with the child welfare system.  Whilst the current Care Act includes placement principles for Aboriginal and Torres Strait Islander children at s. 13, the amended Act prescribes placement principles and a hierarchy of preferred care orders for all children who cannot live with their parents.

The placement principles introduced by the new Act for non-Aboriginal and non-Torres Strait Islander children are found at s. 10A and provide as follows:

  • The child should be placed back with the parent/s to preserve the family relationship; s. 10A (3) (a).
  • If this is not possible there will be an order for Guardianship by a relative, kin or other suitable person; s. 10A (3) (b).
  • Adoption s. 10A (3) (c).
  • An order for parental responsibility to the Minister s. 10A (3) (d).

The new Act prescribes slightly different principles in relation to Aboriginal or Torres Strait Islander children. Section 10A (3) (e) provides:

  • The child should be restored to the care of his or her parents to preserve the family relationship.
  • If this is not possible, the child should be placed in the guardianship of a relative, kin or other suitable person.
  • If this is not possible, an order for parental responsibility to the Minister.
  • If this is not possible, adoption.

The current, placement principles for Aboriginal or Torres Strait Islander children found at   s. 13 of the Care Act will remain in place and will apply when:

  • determining applications for a guardianship order; and
  • when considering whether permanency planning principles have been adequately addressed.

The new orders

The new Act introduces provisions giving the Court power to make Guardianship Orders and Parent Capacity Orders.

Guardianship Orders section 79A

A "guardian" is defined in the new Act as someone who has been allocated parental responsibility in all aspects for a child who is in statutory out of home care or for a child who is found to be in need of care and protection. A guardian can be a relative, kin or some other suitable person. Guardianship Orders can be made in respect of children who are in statutory out of home care or in respect of children who are found to be in need of care and protection.

Section 79A (3) provides that a court must not make a Guardianship Order unless satisfied that:

  • There is no realistic possibility of restoration of a child to his/her parents.
  • The prospective guardian will provide a safe, nurturing, stable and secure environment.
  • Section 13 placement principles are observed for Aboriginal and Torres Strait Islander children; and
  • Where a child is over 12 years of age, that the child has given consent.

Other interesting things to note about Guardianship Orders: –

  • cannot be made as an interim order, it must be a final order ­— s. 79A (7); and
  • may allocate parental responsibility to more than one person jointly — s. 79A (4).

Who can make an application for a Guardianship Order?

There are three categories of people who can bring an application:

  • The Director-General as of right; s. 79B (1) (a).
  • A responsible designated agency, with written consent of the Director General; s. 79B (1) (b).
  • An authorised carer assessed to be suitable, with the written consent of Director General; s. 79B (1) (c).

Parent capacity orders

A parent capacity order ("PCO") (defined at s. 91A of the new Act) is an order requiring a parent or primary caregiver to attend a program/service/course/therapy/treatment. Its aim is to provide orders that assist parents to build or enhance parenting skills.

A PCO is not a "care order" and is specifically excluded from the definition of care order found at s. 60 of the Act. This is significant, as it means the Court is not required to make a finding that a child is in need of care and protection before making a PCO – see s. 71.

To make a PCO, a court must be satisfied that:

  • there is an identified deficiency in parenting capacity that has the potential to place the child at risk of significant harm and that it is reasonable and practicable to require compliance with the order: s 91E (1) (a); and
  • the parent/primary care giver is unlikely to attend or participate (in the program etc.) unless the order is made: s 91E (1) (b).

Parenting capacity orders may be made:

  • whether or not a care application or care order has been made ­— s. 91E (2);
  • at any stage in care proceedings ­— s. 91E (2); and
  • by consent — s. 91F.

A PCO will have effect for the period specified in the order. This period may be referable to a fixed period of time or the occurrence of some event in the future: s 91G.

Section 91(I) provides a right of appeal against the making of a PCO to the District Court, restricted to a question of law only. This is in contrast to the broader appeal provisions in relation to other orders found at s. 91 of the Act (that is, an appeal as of right on the ground that a party is dissatisfied with the order).

Timely decision making

The key reforms include the introduction of time limits for the determination of matters. The Children's Court will now be required to determine whether or not it accepts an assessment by the Director General as to whether or not there is a realistic possibility of restoration of a child or young person to the parents within the following timeframes: 

  • for children under two years of age – within six months of interim order allocating public responsibility — s 83 (5) (a); and
  • for children over two years of age — within 12 months of interim order allocating parental responsibility — s 83 (5) (b).

HOWEVER: having regard to the circumstances of the case, and if appropriate and in the child's best interests, determination of this issue may occur after the applicable period has passed: s. 83 (5A).

Supervision orders

If there are special circumstances warranting it and it's appropriate to do so a supervision order may exceed 12 months but not more than 24 months: s. 76 (3A).

Contact orders

An application for contact orders may now be made:

  • by any party to current proceedings: s 86 (1A) (a); and
  • with leave  — by any person who was party to previous proceedings: s 86 (1A) (b);
  • with leave  — on application by any person with sufficient interest in the welfare of the child; s. 86 (1A) (c).

The test for granting leave is whether or not there has been a significant change in relevant circumstances since a final order was made: s 86 (1B).

In relation to supervision of contact, the amended Act provides that the Court must not make an order requiring the Director-General (or his/her employee) to supervise contact where a Guardianship Order is made: s 86 (2).

A further significant amendment to contact orders is that where a court finds that there is no realistic possibility of restoration of a child to his/her parents, a contact order may be made for a maximum duration of 12 months: s 86 (6).

The Act also introduces the capacity to vary a contact order by agreement. This requires the agreement to:

  • be in writing;
  • be signed by affected parties (including by an Independent Legal Representative or Direct  Legal Representative if made less than 12 months after contact order made); and
  • be registered within 28 days – effective only if and when registered: S. 86A.

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