[last updated 6 January 2004]
1 Objects of legislation
Section 3 of the Children's Protection Act provides:
(1) The object of this Act is to provide for the care and protection of children and to do so in a manner that maximises a child's opportunity to grow up in a safe and stable environment and to reach his or her full potential.
(2) The administration of this Act is to be founded on the principles that the primary responsibility for a child's care and protection lies with the child's family and that a high priority should therefore be accorded to supporting and assisting the family to carry out that responsibility.
2 Principles to be observed in dealing with children
Section 4 of the Children's Protection Act provides:
(1) In the exercise of powers under this Act in relation to a child-
(a) the safety of the child is to be the paramount consideration; and
(b) the powers must always be exercised in the best interests of the child.
(2) Serious consideration must, however, be given to the desirability of-
(a) keeping the child within his or her family; and
(b) preserving and strengthening family relationships between the child, the child's parents and other members of the child's family, whether or not the child is to reside within his or her family; and
(c) not withdrawing the child unnecessarily from the child's familiar environment or neighbourhood; and
(d) not interrupting unnecessarily the child's education or employment; and
(e) preserving and enhancing the child's sense of racial, ethnic, religious or cultural identity, and making decisions and orders that are consistent with racial or ethnic traditions or religious or cultural values.
(3) If the child is able to form and express his or her views as to her own views as to his or her ongoing care and protection, those views must be sought and given serious consideration, taking into account the child's age and maturity.
(4) All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.
3 Aboriginal and Torres Strait Islander children - Section 5
Section 5 requires that no decision or order may be made under the Act about where or with whom such a child will reside unless consultation has first been had with a recognised Aboriginal or Torres Strait Islander organisation. It also requires that the court have regard-
(a) to the submissions made by or on behalf of a recognised Aboriginal or Torres Strait Islander organisation consulted in relation to the child; and
(b) where there has been no such consultation-to Aboriginal tradition and cultural values (including kinship rules) as generally expressed by the Aboriginal community, or to Torres Strait Islander traditions and cultural values (including kinship rules) as generally expressed by the Torres strait Islander community, as the case may require; and
(c) to the general principle that an Aboriginal child should be kept within the Aboriginal community and a Torres Strait Islander child should be kept within the Torres Strait Islander community.
4 Voluntary Custody Agreements - Section 9
The guardians of a child and the Minister may enter into a "custody agreement" under which the Minister will have the custody of the child while the agreement has effect. The Court is not involved in these.
5 Children "at risk" - Section 6(2)
A child is at risk if
5.1 the child has been or is being abused or neglected
5.2 if a person with whom the child resides (whether it is a guardian of the child or not) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or has killed, abused or neglected some other child and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person.
5.3 the guardians of the child are unable or unwilling to maintain the child or to exercise adequate supervision and control over the child or are dead, have abandoned the child, or cannot, after reasonable inquiry. be found.
5.4 the child is of compulsory school age but has persistently absent from school without satisfactory explanation of the absence, or
5.5 the child is under 15 years of age and is of no fixed address.
6 Guardian - Section 6(1)
The term "guardian" has been extended to include "any other person who stands in loco parentis to the child and has done so for a significant length of time".
7 Removal of Children in Danger - Sections 16 - 18
Police and authorised department of Family and Community Services workers have the power to remove a child from dangerous situations (Section 16) or from the care of the guardian if at risk (Section 17). Section 18 requires the Minister to bring an application within the next working day if the child is not returned to the child's guardian.
8 Warrants - Section 19
A police officer may apply for a warrant to enter, break into, remain in and search any premises or place, seize any items, take photographs, films, videos or require a person to furnish information. The warrant provisions are set out in detail and must be issued by a Magistrate pursuant to section 19.
Police can only exercise the powers without a warrant if they believe on reasonable grounds that delay would prejudice the investigation and the safety of the child to whom the investigation relates.
It is proposed that initially the police will be directed to the Magistrates who are principal judiciary of the Youth Court for the issue of such warrants, but if they are unavailable, other Magistrates will be approached. The provisions of section 19 set out the procedure to be followed for the issue of warrants by telephone or otherwise.
The relevant provisions are contained in section 19(8) to (12):-
(8) An application for the issue of a warrant under this section may be made personally or by telephone.
(9) A magistrate must not issue a warrant under this section unless satisfied on information given on oath, personally or by affidavit, that there are reasonable grounds for the issue of a warrant.
(10) An application must not be made by telephone unless the applicant is of the opinion that the warrant is urgently required and there is insufficient time to make the application personally.
(11) The following provisions apply in relation to an application made by telephone:
(a) the applicant must inform the magistrate of his or her name and rank and the magistrate, on receiving that information, is entitled to assume, without further inquiry, that the applicant has the authority to make the application;
(b) the applicant must inform the magistrate of the grounds on which the issue of the warrant is sought;
(c) if it appears to the magistrate from the information furnished by the applicant that there are proper grounds for the issue of the warrant, the magistrate must inform the applicant of the facts that, in the magistrate's opinion, justify the issue of the warrant and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts;
(d) if the applicant gives such an undertaking, the magistrate may then make out and sign a warrant, noting on the warrant the facts that justify, in his or her opinion, the issue of the warrant;
(f) the magistrate must inform the applicant of the terms of the warrant;
(g) the applicant must as soon as practicable after the issue of the warrant forward to the magistrate an affidavit in accordance with his or her undertaking.
(12) A magistrate by whom a warrant is issued under this section must file the warrant, or a copy of it, and any supporting affidavit in the Youth Court.
9 Investigation and Assessment Orders - Sections 20 - 25
9.1 Orders can be made under Division 4 (sections 20 et seq.) as follows
(a) an order authorising examination and assessment of the child;
(b) an order authorising the Chief Executive Officer to require-
(i) any person to answer, to the best of the person's knowledge, information or belief, questions put by an employee of the Department authorised by the Minister to exercise the power to question; or
(ii) any person who has examined, assessed or treated a party to the proceedings (other than the child), or the agency for whom the person works, to furnish the Chief Executive Officer with a written report of that examination, assessment or treatment;
(c) an order granting custody of the child to the Minister;
(d) an order directing a party to the application who resides with the child to cease or refrain from residing in the same premises as the child;
(e) an order directing a party to the application to refrain from having contact with the child;
(f) such ancillary orders as the Court thinks fit.
9.2 Such orders can have effect for any period not exceeding four weeks specified in the order and can only be extended once an then only by the Senior Judge.
10 Family Care Meetings. - Sections 27 - 36
These meetings must be held before Care and Protection proceedings are commenced by the Minister (but are not necessary before the Chief Executive Officer applies for an Investigation or Assessment order). These Family Care Meetings will be convened and chaired by Care and Protection Co-ordinators employed by the Courts Administration Authority and will be meetings of the child, the guardian, other appropriate persons and the departmental officer concerned with a view to agreeing upon arrangements to protect the child without proceeding to court.
11 Care and Protection proceedings. - Section 37 - 44
11.1 Applications - section 37(2)
There are two situations in which the Minister may apply to the Youth Court for an order-
(a) if the Minister is of the opinion that a child is at risk, and that an order should be made to secure his or her care and protection.
(b) if the Minister is of the opinion that proper arrangements exist for the care and protection of a child and that the child would be likely to suffer significant psychological injury if the arrangements were to be disturbed and that it would be ion the best interests of the child fore the arrangements to be the subject of an order.
11.2 Power of Court - section 38
If the Court finds that the grounds of the application have been made out, and an order should be made, it may exercise any one or more of the following powers:
(a) the Court may require any guardian of the child, or the child, to enter into a written undertaking (for a specified period not exceeding 12 months) to do any specified thing, or to refrain from doing any specified thing and, if the Court thinks fit, require the child to be under the supervision of the Chief Executive Officer or some other specified person or authority for the duration of the undertaking.
(b) the Court may grant custody of the child, for a specified period not exceeding 12 months, to one of the following persons:
(i) a guardian of the child;
(ii) some other member of the child's family;
(iii) the chief executive officer of a non-government organisation that holds a licence under the Family and Community services Act 1972 to provide facilities for the residential care of children, for placement of the child in such of those facilities as the officer from time to time thinks appropriate;
(iv) the Minister;
(v) any other person that the Court thinks appropriate in the circumstances of the case;
NOTE
If a the Court finds that a child is at risk because a person other than a guardian with whom the child resides has abused, neglected or threatened the child, the Court cannot make an order removing the child from the guardianship or custody of the guardians with whom the child resides unless satisfied that they knew, or ought to have known, of the abuse, neglect or threats. (section 38(3) )
(c) the Court may place the child, for a specified period not exceeding 12 months, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(d) the Court may place the child, until the child attains 18 years of age, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
The Court should not, as a general rule, consider making such an order unless satisfied that no other order would, in all the circumstances of the case, be appropriate; but should, in the interests of securing a settled and permanent living arrangement for the child, consider making such an order if some other order, or a number of orders in total period, has been, or will have been, in force for a period of 2 years. (section 38(2) )
(e) the Court may direct a party to the application to do one or more of the following:
(i) to cease or refrain from residing in the same premises as the child;
(ii) to refrain from coming within a specified distance of the child's residence;
(iii) to refrain from having any contact with the child except in the presence of some other person;
(iv) to refrain from having any contact at all with the child.
(f) the Court may make consequential or ancillary orders-
(i) providing for access to the child; or
(ii) providing for the way in which a person who has custody or guardianship of the child under an order of the Court is to deal with matters relating to the care, protection, health, welfare or education of the child; or
(iii) dealing with any other matter.
Section 44 creates an offence of contravention of an order punishable by division 8 imprisonment = 3 months
11.3 Adjournments - Section 39
11.3.1 The hearing must commence within 10 weeks of the application being lodged. (section 39(a) )
NOTE
There is a ...difference between a "general power of adjournment" as expressed ... in section 39 ... and the "special power of adjournment" or what might be called a "stay" of the trial or further proceedings as contemplated in the decision of A v Minister for Community Welfare and Crowe (1988)142 LSJS 254
A stay was granted in order that criminal proceedings against a father in relation to sexual offences that were the subject of the section 38 application, be completed in the District Court.
In re DJW, JW, and SW Judge Dawe 15 June 1994 Judge Dawe 15 June 1994
11.3.2 Orders set out in 11.2 may be made to have effect during the period of an adjournment. (section 39(b) )
11.4 Procedural matters - Section 45 - 50
11.4.1 The Court is not bound by the rules of evidence. (section 45(1) )
11.4.2 A fact to be proved is to be proved on the balance of probabilities. (section 45(2) )
11.4.3 Parties and service.
The parties to any application are the applicant, the child and each guardian.
The application is to be served personally on each party, but only on the child if the child is of or above the age of 10 years.
If it is not practicable to serve the application personally, other than in the case of a child, or if the whereabouts of a party cannot, after reasonable enquires, be ascertained, the application may be served by post to the last known place of residence or employment or in any other manner authorised by the Court.
Applications for an investigation and assessment order must be served 3 working days prior to the application, and all other applications 5 working days prior. (this requirement may, for proper reason, be dispensed with.)
(section 46)
11.4.4 Joinder
If the Court proposes to make an order in either an investigation and assessment application or Care and Protection proceedings that is to be binding upon a person who is not a party to the proceedings, the Court may join that person and must allow him or her a reasonable opportunity to make representations to the court as to why such an order should not be made. (section 47)
11.4.5 Representation
The Court must not hear an application under the Act unless the child is represented by a legal practitioner or the Court is satisfied that the child has made an informed independent decision not to be represented. This applies to all applications under the Act (including an Investigation and Assessment order. (section 48)
11.4.6 Costs
If the Court dismisses an application under the Act by the Chief Executive Officer or the Minister, the Court may make such order for costs against the Crown in favour of any other party to the proceedings as the Court thinks fit. (section 50)