Protection & Care - Going to Court

Contributed by JessicaPeake and TamekaBrown and current to 27 July 2018

When the Department makes an application to take a child into care, the matter is dealt with in the Children's Court of Western Australia.

The Department are required to serve a copy of their Application and Affidavit on both parents of the child or anyone else who has a direct or significant interest in the child's well-being and is a party to proceedings (such as a grandparent the child has been living with) as soon as practicable after filing.

Parties to Proceedings

When the matter goes to Court, there can be a number of parties involved. These will include:
  • the Department - the Caseworker will be there, represented by a lawyer for the Department;
  • the Parent(s) - the mother and father or each child involved in proceedings are included as parties and are able to take part;
  • the Carer(s) - if the children were with a non-parent carer (such as a grandparent) the carer may be invited to attend or can apply to, alternatively a Carer may apply to be included as a party to proceedings because they want to make an application of their own for orders concerning the child;
  • Child Representative - a representative (lawyer) appointed to act in the child's best interests or sometimes on their instructions.
When you are waiting to go into Court, consider what you want to happen. The caseworker may want to adjourn the matter to allow parents more time to organise a program or counselling. Discuss how long this adjournment should be. Parents can also negotiate the proposed order, placement of the child or issues around contact during the adjournment period.

Documents Filed by the Department

Throughout Children's Court proceedings, parents can expect to receive a few different types of court documents, most from the Department. These may include:
  • application documents;
  • affidavits;
  • Section 143 Written Proposals;
  • Parenting Capacity Reports; and/or
  • Neuropsychological Reports.

Application & Affidavit

When a child is removed, the Department must serve an application for each child removed and an affidavit explaining the basis for the child's removal.

When the parent(s) receives the documents they need to read through the affidavit very carefully and take note of anything they do not agree with.

It is recommended that a parent seek legal advice as soon as possible after being served with documents by the Department.

Any other written applications made throughout the Children's Court proceedings will also be served on all parties and must be accompanied by an affidavit. However, sometimes the Magistrate will entertain oral applications on the spot at a first mention or other court listings, i.e. for contact arrangements.

Section 143 Written Proposal

The purpose of the Section 143 Written Proposal is to outline the proposed arrangements for the well-being of the child. It should include plans for securing long-term stability, security and safety in their relationships and living arrangements (s. 143 of the Act).

The content of a Section 143 Written Proposal will be informed by meetings held between the Department and the parent(s) and any other information obtained by the Department in the investigations.

Essentially the Section 143 Written Proposal operates as the parent's roadmap for working with the Department and it is what they need to work to and what the Department will constantly refer back to after any Protection Order is made. The parent(s) will need to keep following what is in the Proposal until the child comes back into their full time care or the Department apply back to the Court for a different order to be made.

This is why it is so important to make sure the parent(s) is happy with the Proposal and what is set out in it is actually doable and if there are any issues they are negotiated with the Department before anything is made final.

Parenting Capacity Report

The Department may want a Parenting Capacity Report. As part of this report, parents will need to meet with a psychologist or other professional as arranged by the Department. In some circumstances, the person appointed to do the report can be negotiated.

The purpose of completing the report is to:
  • provide the Department with an objective professional opinion on the parent's capacity to provide appropriate, permanent care and protection (safety) to their child;
  • enable the Department to make key decisions about whether to apply for a protection order, reunification, permanency planning or the need to revoke and replace a protection order; and
  • determine which support services may assist a parent in the process of reunification or intensive family support.

Neuropsychological Report

Sometimes the Department will require a parent to undergo assessment for a neuropsychological report.

A neuropsychological report is often used to support the provision of services and care to assist a parent in the process of reunification or intensive family support. It can also be extended to look at parenting capacity.

Again the Department will nominate a professional psychologist for this purpose.

Responding to the Department's Application & Affidavit

If a parent is unhappy with the information contained in the Department's affidavit, application or an action taken by the Department, they can lodge a response which will allow the Court to hear the parent's position and can cover any changes the parent has already made since the child was taken into care.

A Response Kit and the necessary forms can be downloaded from the Children's Court website.

Legal Aid WA have also developed a helpful video explaining when and why a response should be filed, as well as an example response affidavit. Both are available on their website.

Attending Court

When a Court date is set, it is important for the parent(s) to attend each and every time if they want to have a say and be a part of proceedings. When the parents do not engage in the court process, the Department can ask the Magistrate to make the order 'ex parte' (without the parent). Once an order is made this way it is hard to get it overturned.

Most matters are heard in the Perth Children's Court, however children taken into care outside of the Perth metropolitan area can have their matters heard in the local Magistrate's Court.

On the court date, the parents should try get to Court around 15 minutes before the time it is listed to make sure they are prepared and ready and do not miss the matter being called.

Matters are called by the child's family name and not the names of the parents.

It is important to bow to the Magistrate upon entering the Court room before heading to the bar table.

As the parents are generally the Respondents they sit on the left hand side of the bar table. The Department Caseworker and their lawyer will be seated furthest right and if there is a Child Representatives they will sit in the middle of the parents and the Department.

When speaking with the Magistrate it is important to stand and be polite and speak clearly so what is said can be heard.

Magistrates need to be addressed as 'your honour'.

Many of the Court appearances will result in brief 'adjournments' so certain paperwork can file, meetings or attendance at programs can happen, etc. This will mean the matter can be coming back to Court frequently for brief hearings over an extended period of time.

Safety at Court

If anyone is concerned about their safety when attending Court, they can speak with the Court's security staff when they first arrive at the Court and be shown to a safe waiting area or be escorted in and out of the Court room and Court building.

Arrangements can also be made for a parent to appear by telephone or by video link from another Court room if the issue is raised with the Magistrate or Court Registry.

Signs of Safety Pre-Hearing Conference

A Signs of Safety Pre-Hearing Conference (SOS Pre-Hearing Conference) can be requested by the parents or the Department. This happens in conjunction with the Court proceedings.

The purpose of the SOS Pre-Hearing Conference is to encourage the parties to work through the issues in a less adversarial and more informal process, with all concerned parties involved. It can also be useful if the Department needs to complete tasks to assist a parent address concerns or make contact arrangements.

The SOS Pre-Hearing Conference will be run by a trained "Convenor" (from Legal Aid WA, the Department or other private provider).

Following a SOS Pre-Hearing Conference, the Convenor prepares a report which is returned to the Court and placed on the Court File.

The results of the Conference should be clear and easily understood by all in attendance and outline:
  1. what the Department is concerned about;
  2. what is working well in the family; and
  3. what needs to happen to minimise the risk to the children.

The Department Caseworker will complete a SOS Pre-Hearing Conference Outline which will list information such as the Department's involvement in the matter, their concerns and plans, as well as what they think needs to happen. This will be provided to parents at least 10 working days before the SOS Pre-Hearing Conference.

If there is a Child Representative, they will also submit a Conference Outline setting out any instructions they have from the child, their thoughts on the Department's plans and any safety issues that may need to be implemented. This will be provided to parents at least three working days before the SOS Pre-Hearing Conference.

The parents will then each need to complete a Conference Outline in response to the Department's. This document needs to be provided to all other parties at least three working days before the SOS Pre-Hearing Conference.

The SOS Pre-Hearing Conference Outlines can be found on the Children's Court website.

Pre-Hearing Conference

The purpose of a Pre-Hearing Conference is to give the parties another chance to talk about and reach agreement in relation to any matter in the protection application. It may be possible to reach agreement some or all matters and there may be more than one Pre-Hearing Conference.

If an agreement cannot be reached on all the issues at the Pre-Hearing Conference, the Court will set a day for the matter to go to trial.

In setting the matter for trial, the Magistrate may want to know how long it is expected the trial will run (how many days) and how many witnesses might be called. They can also set specific dates by which the Department or other parties need to file trial affidavits or other documents.

Review Hearing

Any matter which has been set down for a trial date is also listed for a Review Hearing before the President of the Children's Court.

The idea of a Review Hearing is to come to an agreement, or at least reduce the number of issues that are in dispute. This can then make the trial shorter and allows the Court to focus on only the remaining issues.

The Court send a letter our stating the date and time of the Review Hearing. However, it is always good to contact the Children's Court and double check the date and time are correct the week before.

Before the Review Hearing date, all parties must complete, file and serve on everyone a Review Certificate (Form PCREV) at least three working days before the date of the hearing.

The Review Certificate Form can be found on the Children's Court website.

Trial

Where an order cannot be agreed and the negotiations at all pre-hearing steps have been unsuccessful, the matter will go to trial.

At trial, the Department will need to prove on the balance of probabilities (more likely than not) that the child is in need of care and protection and the making of a Protection Order will be in the child's best interests.

The Department will require evidence to support its application, such as affidavits from the Department and witnesses and reports. The parent(s) can also file trial material as evidence to show why the child is not in need of protection or may be in need of protection but under a different type of Protection Order. Where there is a Child Representative they may too provide evidence to the Court arguing either way.

Where relying on witness affidavits, the witnesses must attend the trial so they can be available for cross examination by the other parties.

After the Court has heard the evidence, it may decide to:
  • dismiss the application;
  • make the Protection Order sought; or
  • make a different type of Protection Order.
Legal Aid WA have two useful information guides to assist with trial:
  1. Preparing for a final hearing in a protection and care matter in the Children's Court of WA; and
  2. Representing yourself at a final hearing for a protection and care matter in the Children's Court of WA.

Consenting, Opposing or 'Neither Consenting, Nor Opposing'

If a parent is agreeable to a Protection Order being made they can consent to the Department's application and the Court proceedings will be quickly finalised. A parent can choose to consent to an order at any time during the proceedings.

Where a parent opposes (and continues to oppose) the application by the Department for a Protection Order, the matter will eventually be set for trial.

The other option is to 'neither consent, nor oppose' the order. This means that a parent is not consenting directly to the Protection Order being made, but also that they are not opposing it and pushing for the matter to go to trial. A bit like they are sitting on the fence and letting the Court decide. Again this can happen at any time during the proceedings.

Revocation of Orders

If a Protection Order has been made for a child, any party to the initial proceedings can apply to the Children's Court for the Order to be revoked (cancelled) at any time (s. 67 of the Act).

The party may also apply to revoke a one type of Protection Order and replace it with another type. The most common scenario is the Department applying for a Protection Order (time-limited) to be revoked and a Protection Order (until 18) made in its place (s. 68 of the Act). A carer, in certain circumstances, may also apply for a Protection Order to be revoked and replaced with a Protection Order (special guardianship) (s. 69A of the Act).

Section 69 of the Act sets out the requirements for applications for extension, variation, revocation or replacement of a Protection Order.

Appealing Orders

If a party is unhappy with a decision made in the course of Children's Court proceedings, they can appeal the decision to the Supreme Court of Western Australia.

It is recommended that any party wanting to appeal a decision seek legal advice as early as possible after the decision is made.

Care Plans

After an Order is made, Care Plans and care arrangements must be prepared and implemented as soon as possible. This must occur as part of the child's provisional care plan, within seven working days of the child being taken into provisional protection and care, or care plan, within 30 working days after a protection order is granted (see the DCP manual).

Care Plans need to be reviewed regularly. This should happen every six months if the child is under two years of age and every 12 months for children over two years of age. As children grow, their needs change, and the plans should reflect this.

Where a parent or carer is not happy with the content of a Care Plan there is a process for review. Details about the review process will be provided by the Department with the Care Plan. It is important that the parent or carer respond with the correct form seeking review within the time specified by the Department. Where a parent is unable to do so, they can request an extension of time.

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