Protection & Care - Introduction

Contributed by JessicaPeake and TamekaBrown and current to 27 July 2018

Children in Care

What may be known as 'DCP', 'Welfare' or 'the Department' refers to the Department of Communities, Child Protection and Family Support Division. It is a government department whose role is to protect the welfare of children and families. The Department has the power to remove a child from their family if they believe there is a risk to that child.

For the purpose of these sections, "protection and care", "care and protection" and "child protection" are all interchangeable terms.

The Aim of WA's Child Protection Laws

The Child and Community Services Act 2004 ('the Act') sets out the laws surrounding Child Protection in Western Australia.

As set out in section 6, the purpose of the Act is to:
  • to promote the wellbeing of children, other individuals, families and communities;
  • to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children;
  • to encourage and support parents, families and communities in carrying out that role; and
  • to support and reinforce the role and responsibility of parents in exercising appropriate control over the behaviour of their children.
The Department may become involved with a family when there is 'need for the protection and care of children' in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care.

The Act considers the Department's role to be the promotion and safeguarding of children's wellbeing. The preferred way of doing this is to support the child's parents, family and community in the care of the child (s. 9 of the Act).

The desire to support parents and family must also be balanced with the importance of the child's wellbeing. As outlined in section 9 of the Act, this means:
  • every child should be cared for and protected from harm;
  • every child should live in an environment free from violence; and
  • that every child should have stable, secure, safe and appropriate relationships and living arrangements, while taking into account -
    • any disabilities of the child, and any difficulties or discrimination that may require additional support; and
    • cultural, ethnic and religious values and traditions relevant to the child.
The Act states intervention should only be taken where there is no other reasonable way to safeguard and promote the child's wellbeing (s. 32 of the Act).

If the child is removed, the child should be encouraged and supported in maintaining contact with the parents, siblings and other significant people. In line with the Department's internal policies, the child's care should be planned as soon as possible to ensure long term stability, preferably with the parent's involvement, known as Permanency Planning. This is not a requirement as set out in the Act.

Making Reports to the Department

The Department may be notified around potential abuse because of:
  • Police involvement - where an incident involving Police occurs and children are present, the Department will automatically be notified;
  • anonymous community reports;
  • Mandatory Reporting - all doctors, nurses, midwives, teachers, police officers and boarding supervisors are required by law to report all "reasonable beliefs" of child sexual abuse to the Department; and
  • child disclosure - such as where a child tells someone about what is happening at home.
The Department will get involved for a number of reasons, usually if they are concerned about a child being likely to suffer:
  • Physical Abuse - may include beating, shaking, excessive discipline or physical punishment, inappropriate administration of alcohol or drugs.
  • Sexual Abuse
  • Emotional abuse and Psychological Abuse - can include threatening, isolating, withholding nuture, belittling, teasing, humiliating, bullying, ignoring and inappropriate encouragement.
  • Child Neglect - failure of the caregiver to meet a child's basic physical, medical and/or emotional needs.
The Department can also remove a child if a parent or non-parent perpetrates abuse on the child and the other parent is unable to protect the child from further harm. This may apply to a parent who is experiencing family violence, where they are unable to protect the child from their violent partner.

Keeping a Child in Hospital

If a child under six years of age is brought into hospital and that child is under six years of age, and the person in charge of the hospital believes the child needs protection, the child may be kept in the Hospital (s. 40 of the Act) and this can happen without a parent's consent.

The child may be kept for:
  • observation;
  • assessment;
  • treatment; or
  • otherwise to safeguard or promote the wellbeing of the child; and
  • for not more than two working days.
When a child is kept in Hospital, the Department must be notified as soon as possible. The child may not be removed from the hospital without the consent of the Department or the person in charge at the hospital (s. 40 of the Act).

Returning a Child not in Care

If a parent is worried about their child, the Department (and Police) have the power to return the child home, without a warrant, if the child is not being supervised by a parent or capable adult, and the child's wellbeing is at risk. The risk to wellbeing may depend upon where the child is, their behaviour, their vulnerability, if they have not been attending school or for any other reason (s. 41 of the Act).

Talking to a Child

If the Department believes it to be in the 'best interests of the child' for an officer to speak with a child before a parent is made aware of an investigation, the Department may do so (s. 33 of the Act). If the Department believes a parent being told about the investigation would jeopardise the investigation, the Department may also speak with the child.

The Department can speak with the child at school, hospital or any other place where the child is in care (such as a day care) for as long as necessary and the Department will notify the place providing the care (s. 33 of the Act).

The parent must then be informed the Department has met with the child and the reasons for it unless it is likely to put the child at further risk of harm or jeopardise an investigation where someone is likely to be criminally charged. A child may also request the parents not be told and the Department will do so provided it agrees this to be in the child's best interests.

Best Interests of the Child

In determining what is in the best interest of a child, section 8 of the Act sets out what must be taken into account:
a) the need to protect the child from harm;
b) the capacity of the child's parents to protect the child from harm;
c) the capacity of the child's parents, or of any other person, to provide for the child's needs;
d) the nature of the child's relationship with the child's parents, siblings and other significant people in the child's life;
e) the attitude of the parents towards the child, and their parental responsibility;
f) depending on the child's age or maturity, the Department may consider any wishes or views expressed by the child;
g) the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from --
I. the child's parents; or
II. a sibling or other relative of the child; or
i. a carer or any other person (including a child) with whom the child is, or has recently been, living; or
ii. any other person who is significant in the child's life;
h) the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
i) the child's age, maturity, sex, sexuality, background and language;
j) the child's cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);
k) the child's physical, emotional, intellectual, spiritual and developmental needs;
l) the child's educational needs;
m) any other relevant characteristics of the child; and
n) the likely effect on the child of any change in the child's circumstances.

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