Care and Protection

Contributed by Marilyn Wright and Anna Theodore, Legal Aid ACT and current to March 2022

A Starting Point

It is a given that all children have the right to be safe and receive care and support.

According to the United Nations Convention on the Rights of the Child, every child has the right to protection from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has care of the child (article 19). The convention also sets out that the child has the following rights in relation to decisions or actions designed to protect them:

• the best interests of the child must be a primary consideration (article 21);
• the child has a right not to be subjected to arbitrary or unlawful interference in their privacy, family, home or correspondence, or unlawful attacks on their honour or reputation (article 16);
• the child has a right not to be separated from their parents against their will except when competent authorities, subject to judicial review, determine, in accordance with applicable law and procedure, that it is necessary in the child’s best interests (article 9);
• a child separated from parents has the right to maintain their identity, personal relationships and direct contact with their family, except where this is contrary to their best interests (articles 8, 9);
• a child capable of forming their own views has a right to express those views freely in all matters concerning the child, and to have them given due weight according to the child’s age and maturity. In particular the child is entitled to be heard in any judicial or administrative proceedings concerning them (article 12).

In the Australian Capital Territory (ACT), Child and Youth Protection Services (CYPS) has been given the legal authority to facilitate government services to ensure the care and protection of children and young people who are believed to be at risk of harm. This service aims to ensure that children are protected and that issues of risk are resolved.

The relevant Legislation governing this area is the Children and Young People Act 2008 (ACT) (The Act) (other significant legislation regarding children and “best interests” is the Family Law Act 1975 (Cth))

When are children and young people in need of care and protection?

A child or young person may be in need of care and protection if:

• the child or young person has been or was being abused or neglected or was at risk of abuse and neglect;
• there was no person with parental responsibility for the child or children who was willing and able to protect the child from abuse and neglect or the risk of abuse or neglect.

What is abuse?

According to s 342 of The Act, abuse of a child or young person means;

• Physical abuse; or
• Sexual abuse; or
• Psychological abuse that causes significant harm; or
• Emotional abuse (including psychological abuse). An example of emotional abuse may be a child or young person witnessing family violence causing significant harm to the wellbeing or development of the child or young person (s 342 Children and Young Person Act 2008).

What is neglect?

The Act defines neglect of a child or young person as the failure to provide the necessities of life if the failure caused, or is causing, significant harm to the wellbeing or development of the child or young person (s 343 Children and Young Person Act 2008). Examples of “necessities of life” include food, clothing, shelter and health care treatment.

What if there is a report to CYPS?

Initially, CYPS may become involved with a family following a report made to their office about concern for a child/children. CYPS will often investigate that report to determine if there is any validity to that report or if the situation will require a more thorough and in-depth examination. Such an investigation may be confronting for a parent and they may wish to seek legal advice. It is important that a parent participate in that investigative process to the best of their ability. They may also wish to keep records and documents about that investigation and the conversations they have with CYPS during that period.

In the initial stages of an investigation, there is usually no Court proceedings that have been started and solicitors will not be involved however it is always prudent to obtain legal advice and ensure support workers from appropriate agencies are approached (support agencies may include disability services, Winnunga Nimmityjah Aboriginal Health Service, Health Services, among others). An investigation is usually run by CYPS and the parents will be in communication with a case worker and sometimes, a team leader.

CYPS can apply to the ACT Children’s Court for a Care and Protection Appraisal or Care and Protection Assessment that requires you to participate in that investigative process.

CYPS may decide that they have concerns for a child/children and consider them to be in need of care and protection. If so, they will then decide if emergency action is required or if they need to make an application with the ACT Children’s Court for a Care and Protection Order.

In some situations, CYPS may decide that a children/children are at immediate risk and will remove that child/children from that environment. That process is called Emergency Action. Following that event, CYPS must make a quick application to the ACT Children’s Court.

If CYPS starts a court proceeding, it is common for a solicitor to be appointed as the child/children’s legal representative. The Children’s Lawyer is there to act in the child’s best interest. It is important for a parent to seek legal advice and legal representation as soon as possible if an application is made by the Department.

It is important to note that just because emergency action has been taken and/or a Court application has been made by CYPS, there is still a process to be followed before a decision is made. A final decision about a care and protection application will not be made at the first court date and all parties will have a chance to review and oppose any application made by CYPS.

What Is a Care and Protection Appraisal and a Care and Protection Assessment?

Sometimes, CYPS might want to conduct a Care and Protection Appraisal. An ‘appraisal’ is a thorough look at a child and their circumstances. CYPS might want to:

• Meet the child;
• Examine the child, parents or some other person who is related to the child;
• Interview the child, parents or some other person who is related to the child;
• Talk to someone about the child, parents or some other person who is related to the child;
• Ask someone (including an organisation) about the child, parents or some other person who is related to the child;
• Ask the child, parents or some other person who is related to the child to attend a meeting at a particular place or time so CYPS can complete their appraisal;
• Ask the child, parents or some other person who is related to the child, to comply with any arrangements CYPS makes to complete that appraisal.

Once an appraisal is complete, CYPS will have more information about what is happening with the child and this can help CYPS to decide what future action is required (for example, whether to apply to the Court for care and protection orders, or whether to amend an application for care and protection orders in some way). CYPS can apply to the Court for an order requesting that a person comply with an appraisal. That application will be heard as soon as possible.

A Care and Protection Assessment is different than an appraisal because it is an exam done by an authorised assessor. That exam could be medical, dental, physical, psychological, psychiatric or could be an examination of a person’s ability to parent. The personal conducting that examination might be a doctor, dentist, psychologist, psychiatrist or anyone else that CYPS decides is ‘suitably qualified’ to conduct the assessment. An assessment often happens once CYPS has made an application for a care and protection order in relation to a child/children. Parents and anybody else that CYPS identifies as needing to be assessed are encouraged to participate. An assessment can be an opportunity for a person to show CYPS (and the Court) that the person is able to address CYPS’ concerns. A failure to participate or attend appointments for this assessment may negatively affect any parent’s (or any other relevant person’s) argument against a care and protection application.

What is Emergency Action?

If CYPS have decided that a child is in need of care and protection they may take steps to remove the child from their parents care immediately. This is called ‘Emergency Action’. This will be an extremely confronting and stressful event for a parent or caretaker. This process means that the child/children are removed from the care of a parent (or someone who has care of the child) and that the daily responsibility for the child/children is transferred to the police or to the Director-General of CYPS.

Immediately following Emergency Action, CYPS will be required to apply to the Children’s Court for a care and protection order. In the application, CYPS will outline what orders they are seeking including:

• The length of time of the Care and Protection order (12 months, 2 years or 18 years);
• Who is to have parental responsibility (e.g.CYPS or CYPS and one/both parents);
• Any requirements CYPS wants to make for the parent (e.g. Urinalysis testing etc).

CYPS must file that application and give reasons for their application. They are required to give a copy of all their documents to each parent and to anyone else who is a party to the proceedings. There will be an initial hearing by the Children’s Court where a Magistrate (judge) will make an interim order and review the reasons for the decision to take emergency action.

Parents are invited to attend and may be able to make submissions about why a child/children should be returned to their care and not kept under emergency action.

The Court will then adjourn the application for a case management conference.

I got documents from CYPS – What are they?

When CYPS makes an application to court, they will file three documents. The first is an Initiating Application which describes orders CYPS is asking the Court to make. It may be for a Care and Protection Orders for 12 months, 2 years or 18 years. If CYPS changes the orders they are seeking, they will file an Amended Initiating Application and give all parties a copy.

The second document will be an affidavit. An affidavit is a sworn statement that everything a person says in that document is true to the best of that person’s knowledge. Usually, the case worker who is in charge of the care matter will write the affidavit. They are often also the person who have made the decision to take Emergency Action and take the child/children into CYPS’ care. They will use the affidavit to tell the Court why they think the child/children are in need of care and protection, the history of the care matter from there point of view and any other factor they think will help the Court to make a decision about the Care and Protection application.

The third document is a care plan. This document will tell all the parties what CYPS is intending to do to assist the child/children. For example, it will list any special medical needs or appointments they intend to take the children to. It will also tell the parties what contact, if any, CYPS is recommending the parents and/or the extended family have with the child/children. If CYPS believe restoration of the child/children to a parent’s care is possible, the Care Plan will detail a 4-Step process (including what CYPS will ask the parents to do) to try to complete restoration happen within a 12 month or 2-year period.

What Happens if a party does not agree with the Care and Protection Application?

A party to these proceedings may not agree with a Care and Protection application. In that case, they will be given time to make a cross-application to the Court that will detail the alternate orders that they want the Court to make. For example, they could ask that a Care and Protection order be made for 12 months, rather than 2 years. A party could ask that no Care and Protection orders are made and the child/children are immediately returned to their care.

If a party wants to make a cross application, they will be given a filing date (at a case management conference explained below). This date will be after CYPS will be required by the Registrar to file and give the parties a copy of their evidence.

With a cross-application, the party will also need to file an Affidavit in support of their application. The affidavit will be the opportunity to provide the Court with their evidence that may oppose CYPS’ evidence or provide

Children’s Legal Representative

After CYPS has filed an application with the Children’s Court for a Care and Protection order, a legal representative will be appointed for the child/children.

The role of the children’s representative is to ensure that the best interest of the child is considered and advocated for. The children’s representative is not a legal representative of CYPS and may disagree with the applications made by CYPS and either parent.

The children’s representative may meet with the child/children, depending on the age and maturity level, to gain an understanding of the wishes of the child/children. The children’s representative will speak with the legal representatives for all parties. If a parent is self-represented, that parent may directly contact the children’s representative to discuss an issue in the proceedings, but a children’s representative will not provide that parent with any legal advice.

What is a Case Management Conference?

The Court is very focused on care and protection matters moving through the Court as quickly and efficiently as possible, due to the nature of these proceedings. The Court does not want to have an application sitting in a hearing list for a long time. After an emergency action or initial hearing the Court will list the matter for a case management conference.

A case management conference is used for the Court to check on the progress of a CYPS application. At a conference, all parties will be present including CYPS and their solicitors, a legal representative for the child/children, parents and their solicitors (if any). It is run by a Registrar of the Court.

During these conferences the Registrar will check:

1. If there is consent to the CYPS application for care and protection orders;
2. What steps CYPS is taking in order to prepare their evidence for a hearing (E.g. CYPS arrange for a family report, when they expect to file their documents);
3. A,ny other matter that is brought to their attention by a party (e.g. if an extended family member has applied to be a party to the CYPS application, the Registrar will deal with that application if there is consent).

The Registrar will commonly make orders for all the parties to file their evidence. They will require that CYPS files their material first because they have made the application. Both parents will be given time to file a cross application (or response) after CYPS have filed all their evidence. The Registrar will also give time limits for the parties to file their subpoena material.

It is common for there to be multiple case management conferences during the application. Where a parent is self-represented, they are encouraged to participate in these conferences. If a self-represented parent has any questions about the process, the Court registrars will make sure they understand what is happening or what has been ordered at the conference. Court Registrars cannot give a parent legal advice but they can explain the process.

What is a Listing Hearing?

A listing hearing occurs when there is no agreement by all parties about the CYPS application and the application has progressed through the case management system where all parties have filed any evidence they want to rely on at a final hearing.

In that situation, the parties will go into Court and a Magistrate will list the application for a final hearing. This will be a trial-like situation where the Magistrate will make a final determination about the CYPS application for care and protection orders. The Magistrate will want to know from all the parties about how long they expect the hearing to last, how many witnesses there will be and anything else that might affect the length of the hearing.

The Magistrate may also give final directions for all parties to ensure that all their evidence will be available on the day of the hearing.

An extended family member wants to take care of the child – how can that happen?

In some families, extended members will want to take care of a child if CYPS have taken emergency action or if they have their own concerns for the child.

CYPS will often undertake a kinship assessment to determine if any extended family members are considered appropriate carers. Where possible, CYPS will attempt to ensure that a child is placed with their family members. A child/children will be placed in foster care if there are no extended family members or CYPS has decided that those remaining family members are not able to care for the child/children.

If CYPS does not grant kinship care to a family members, they can appeal that decision to the Administrative Appeals Tribunal. In some circumstances it may be appropriate for an extended family member to apply to be a party to a care and protection proceeding, however that family member should obtain legal advice before making that application.

Communities with strong cultural links

If an Aboriginal or Torres Strait Islander child or young person is taken into care, then it is a principle of the Act that the child or young person be placed in care, in order of priority, with

• a member of their family (kinship carer);
• a member of their community who has a relationship of responsibility for the child or young person according to local custom and practice;
• a member of their community;
• a person of the child or young person’s cultural background;
• A non-Aboriginal or Torres Strait Islander carer who the director-general believes is sensitive to the child’s needs; and capable of promoting the child’s ongoing contact with his or her Aboriginal and Torres Strait Islander family, community and culture; and if family reunion or continuing contact with the child or young person is considered, the carer to live close by to the Aboriginal and Torres Strait Islander family and community.

This Principle was developed in recognition of the devastating effects of forced removals.

What is an Aboriginal and Torres Strait Islander Cultural Plan?

An ATSI Cultural Plan means a care plan developed for Aboriginal and Torres Strait Islander children and young people by the director-general that includes proposals for the preservation and enhancement of the identity of the child and young person as an Aboriginal and Torres Strait Islander person.

What happens at a final hearing?

A final hearing is the final opportunity for CYPS, the child’s legal representative, and each parent (or any other person who is a party to the application) to present their argument to a Magistrate about whether a child/children should or should not be the subject of a care and protection order. Every person and every party will be given an opportunity to present their evidence (if any) and make their final submission to the Magistrate.

The usual order of a hearing is:

1. The Magistrate will ask for a preliminary view of the application from each person. This is to help define the issues. For example, if all parties agree that a care and protection order should be made, but disagree about how long that order should be for, the hearing will only deal with the argument about the length of the order.
2. CYPS will present their evidence. This is often through calling the team worker, team leader and expert into the witness box to give evidence.
   CYPS will present their evidence in chief by asking their witnesses questions.
   Then, all other parties, including the child representative and the parents (or the parent’s solicitors) will then have an opportunity to ask the witness questions under cross-examination.
   CYPS will then have a final opportunity to ask their witnesses questions again if they want to clarify any issues that come up under cross-examination.
3. The parents will then have an opportunity to present their evidence if they disagree with the application. The parent will enter the witness box. If a parent wants to introduce evidence from a witnesses, the witness will need to be called to enter the witness box.
   If a parent has a solicitor, their evidence in chief is presented by the solicitor asking them questions. If a parent is self-represented, they will be able to make a statement to the Court with their evidence.
   After the parent gives their evidence, all other parties (including CYPS and the child’s representative) will have the opportunity to cross-examine the parent’s evidence by asking them questions.
   Once the other parties have asked all their questions, the parent will have an opportunity to make their final statement if they want to clarify anything.
   A parent is not required to give evidence if they do not want to. If they do not give evidence, the other parties cannot question them under cross-examination.
4. After all the evidence of all parties has been presented to the Magistrate, the Magistrate might then ask that each party make their final submission about the application. CYPS will go first because they are the applicant. Every party will have an opportunity to make that submission.
5. The Magistrate will make their decision. If a hearing is particularly complex, the Magistrate might reserve their decision and all parties will have to come back to Court on another day to hear that decision.
6. If a party disagrees with the Magistrate’s decision, they have a brief period of time where they can appeal that decision.

Representing Yourself at Court

It is common for people in care and protection matters to represent themselves at Court proceedings, both in Case Management Conferences before Registrars and in hearings before Magistrates. Magistrates and solicitors are aware that self-represented litigants are often unfamiliar with law and can be intimidated by this process, with no other option but to represent themselves. The Court must ensure that you receive a fair hearing. All involved in a matter must comply with the processes of the Court.

Solicitors have a duty to the court and to people who are acting against them to be honest with all their dealings with the Court and other people in a matter. A solicitor has a duty not to make a false statement to an opponent, whether or not they are self-represented. If they do make a mistake they must take steps to correct that mistake. They must also include the self-represented party in any communications made to the Court.

In Child Protection matters, a Court can order that parental responsibility be transferred away from biological or adoptive parents and placed with someone else. This may be another family member such as a grandparent, adult sibling, aunt or uncle. It may also be a step-parent, close family friend, foster carer or the CEO of the Department of Children and Families.

Appealing a Decision of the Children’s Court

A party to any Court proceedings may appeal to the Supreme Court against any order or decision of the Court other than for a temporary order.

A person wishing to appeal against a decision of the court must do so by filing a notice of appeal with the Registrar of the Supreme Court within 28 days from when the original decision was made.

The appeal court will intervene where the Children’s Court has made an error of law or has made a finding of fact that is clearly wrong, where the court has excercised a discretion on a wrong principle or in a way that is clearly wrong.

Appeals to Supreme Court - care and protection chapters (s 836 Children and Young Persons Act 2008)

An appeal is in the nature of a rehearing. This means that it is conducted on the evidence before the Children’s Court together with any further evidence at the time of the appeals court hearing. Prior to lodging an appeal in the Supreme Court, it is critical to obtain legal advice.