Orders in care and protection matters
The Children’s Court may make a range of orders to ensure the safety, welfare and wellbeing of a child or young person.
Family and Community Services (FACS) can and should make a care application to the Children’s Court if there are reasonable grounds to believe that a child or young person is in need of care and protection.
Before the court makes an order, FACS must submit a care plan. As far as possible a care plan should be made with the agreement of the child or young person and their family.
The Children’s Court must take into account the interests of any siblings of the child to which the care plan relates in determining what orders are made.
Often expert assessments, such as those provided by the Children’s Court Clinic, will assist the court in making its decisions.
This section provides more information about:
- emergency care and protection order
- assessment order
- parent responsibility contract
- removing a child or young person or assuming care responsibility
- other care orders.
Emergency care and protection order
In situations where there is an urgent need to protect a child or young person, FACS can apply to the Children’s Court for an emergency care and protection order. The Children’s Court may make an emergency care and protection order when satisfied that the child or young person is at risk of serious harm.
The emergency care and protection order places the child or young person in the care responsibility of the Director-General, or the person specified in the order. It has effect for a maximum of 14 days and can be extended once only, for a further maximum of 14 days.
The Children’s Court may dismiss an application for an emergency care and protection order if it finds the child or young person is not at risk of serious harm.
An application may be filed with the Children’s Court to assess:
- a child or young person’s physical, psychological, psychiatric or other medical needs
- a person’s capacity for parental responsibility.
Parent responsibility contract
A parent responsibility contract is a voluntary agreement between FACS and one or more primary carers of a child or young person. It aims to improve the parenting skills of the carers and encourage them to take specific action such as attending a support service.
A parent responsibility contract is not a court order. It is a tool to support the attainment of a case plan goal and it specifies actions to be undertaken e.g. counselling or drug testing.
If an agreed target in a parent responsibility contract is breached, a contract breach notice may be filed in the Children’s Court where it will be presumed by the court that the child or young person is in need of care and protection. The onus is then on the primary carer to rebut this presumption.
Parent responsibility contract are time limited to periods not exceeding six months and can only be entered into once within any 12 month period with the same primary carer.
Removing a child or young person or assuming care responsibility
Removal of a child or young person from their parents or carers is only considered where there are reasonable grounds to believe that:
- the child or young person is at risk of serious harm, and
- the risk is immediate, and
- less intrusive actions are insufficient to reduce the risk of serious harm.
A child or young person may be removed with or without a search warrant. Where a child or young person is at risk of serious harm and it is not in their best interests to be removed from the premises where they are currently located (such as a hospital, respite care, or other service), FACS may assume their care responsibility instead of removing them.
Assuming care responsibility occurs by serving an order for assumption in hospital or other premises on the person who appears to be in charge of the premises, whether or not they are a parent of the child or young person. The order does not cease to have effect merely because the child or young person is transferred to different premises.
Exercising this power ensures that a child or young person is not returned to an environment where they are in immediate risk of harm or further abuse.
Where a child or young person has been removed or their care responsibility has been assumed the following actions occur:
- information is provided to the child or young person and carer
- parents or usual carers are kept informed
- the child or young person is informed they may apply for discharge
- a placement is arranged
- the matter proceeds to the Children’s Court within 3 working days.
Other care orders
A care application may be made to a Children’s Court by FACS where there are reasonable grounds to believe that a child or young person is in need of care and protection.
There are a number of different care orders that can be sought. They include:
Order prohibiting act by a person - this order prohibits any person, including a parent of a child or young person, from doing anything that could be done by the parent in carrying out his or her parental responsibility. This includes taking a child or young person out of the state or country, disciplining a child or young person in a particular manner, consenting to an unusual medical procedure that is highly likely to be detrimental or leaving a child or young person in the care of a particular person.
Order for supervision - this is considered where a child or young person is assessed to be in need of care and protection, the concerns do not prevent the child or young person from residing with their family or usual carers but close monitoring and/or direction of the child or young person is required.
Order accepting undertakings - this is a formal promise to the court by a child, young person or their birth parent(s) to act, or to refrain from acting, in a particular manner.
Order for the provision of support services - this requires a service provider to deliver services to the family.
Order to attend therapeutic or treatment program - such orders can be made to facilitate appropriate therapy and intervention where a child under the age of 14 years has displayed sexually abusive behavior.
Order for contact - this may be applied for by any party to proceedings to direct contact between a child or young person and any other person who is significant to them, including requirements such as minimum contact and supervision. Orders for contact are only sought when informal arrangements are inappropriate because previous contact arrangements have failed, or because current arrangements cannot be resolved by agreement.
Order allocating parental responsibility - where a child or young person is in need of care and protection the court may make an order allocating parental responsibility, or aspects of it. The specific aspects of parental responsibility that may be allocated include, but are not limited to, the child or young person’s:
- contact arrangements
- education and training
- religious upbringing
- medical treatment.