Children in need of care and protection

Contributed by Anna Copeland, Alexa Morcombe, Stephen Walker and Judith Kenny and current to 1 September 2005

In 2004, after decades of discussion, a new Act finally was passed by the Western Australian Parliament to replace the outdated provisions of the Child Welfare Act 1947 (WA) (“the current Act”).

The Children and Community Services Act 2004 (WA) (“the new Act”), provides an entirely new legislative framework for orders concerning protection and care of children. It was assented to in October 2004, but its principal provisions have not yet come into operation, and it is anticipated that they will not do so until 2006.

Accordingly, this section outlines the provisions of both the current Act and the new Act.

CHILD WELFARE ACT 1947

Definition of child in need of care and protection

A child is defined by Section 30 of the current Act as being in need of care and protection if the child meets one of a number of definitions, the most commonly used of which are that the child:

• has no sufficient means of subsistence apparent and his or her near relatives are in indigent circumstances or are otherwise unable or unwilling to support the child, or are dead, unknown, cannot be found, are out of the jurisdiction or in custody;
• has been placed in a subsidised centre or facility and the near relatives have not contributed regularly towards the maintenance of the child;
• is under the guardianship or in the custody of a person whom the court considers is unfit to have that guardianship or custody;
• is not being maintained properly or at all by a near relative or is deserted;
• is found in any place where any drug is used and is, in the opinion of the court, in need of care and protection by reason thereof;
• is ill-treated, or suffers injuries apparently resulting from ill treatment;
• lives under conditions which indicate that the child is lapsing or is likely to lapse into a career of vice or crime; or
• is living under such conditions, or is found in such circumstances, or behaves in such a manner, as to indicate that the mental, physical or moral welfare of the child is likely to be in jeopardy.

An application to have a child declared uncontrolled is dealt with in a way similar to a care and protection application, but such applications are rare. The Act does not define an uncontrolled child.

Other than in situations of great urgency, or where there has been a long history of unsuccessful attempts to work with the parents, an officer of the Department for Community Development (as it is currently called) will generally work with the family over a period of months to improve the care of the child. This may involve provision of assistance such as support in the home, expert assessment of the child, or day care services.

Some agencies have protocols for the reporting of non-accidental injury to children but currently there is no legislation for compulsory reporting.

People who are aware of a child being maltreated may report the matter to the Crisis Care Unit (which in fact is part of the Department) or to an office of the Department (see contact details at the end of this chapter).

The Parent Help Centre (again part of the Department) provides counselling and assistance for parents who are concerned about their own treatment of a child. Princess Margaret Hospital also has a unit which specialises in helping maltreated children and their families.

Applications under the current Act

There are two ways in which the guardianship of children in need of care can be transferred from their parents to the Director-General of the Department:

• The first is by an application to the Children’s Court, under sections 29 and 30 (or under section 32 in relation to an uncontrolled child) of the current Act;
• The second, which is a rarity, is by the Minister making an order under sections 47A, 47B or 47C of the Act (“Ministerial committals”, discussed further below).

APPREHENSION OF A CHILD

An authorised officer of the Department or a police officer who reasonably suspects that a child in need of care and protection is at a particular place may obtain a warrant from a Justice of the Peace authorising him or her to enter the place, by force if necessary, and investigate. A person who refuses to allow the officer to enter or hinders or obstructs him or her commits an offence.

Such an officer may, without warrant, “apprehend” any child who appears or is suspected to be in need of care and protection or uncontrolled (s.29).

Pending the hearing of the application the child may either be taken home and left with a near relative, placed with a respectable person who is prepared to care for the child, or placed in a departmental centre or facility. The Children’s Court has power under s.29(3aa) to order that the child be allowed to live at home, or be placed in the care of a specified suitable person or in a departmental facility or other suitable place as approved by the Director-General, and to make orders as to access.

A Departmental officer interviewing parents will ask questions and take down the answers, which may be used in evidence. If the parents wish to contest the case, they may not wish to answer questions before getting legal advice. Their unwillingness will be recorded and the Department will usually have other sources of information. Naturally, a refusal to answer questions may be regarded with suspicion by the officer, so if there is nothing to hide it may help to discuss the matter to prevent further enquiries.

PROCEDURE

The original application is filed in the Children’s Court and copies served on the respondents, who typically are the parents but may include any other person alleged to have contributed to the child being in need of care and protection.

The normal procedure is that the first hearing is a sighting, when the Magistrate sees the child. If the respondents are not contesting the application an order may be made at that stage.

In practice, the Children’s Court is likely at the first sighting to make various directions, including for the provision by the Department of particulars (and, at least in theory, responses by respondents), and a pre-trial conference. The court also may deal with issues of interim placement and contact, although when such an issue is raised the court may simply list the case for an expedited final hearing, rather than grappling with contested issues of fact without the benefit of a fully contested trial.

Many cases will be resolved before going to a hearing, perhaps with the assistance of pre-trial

conferences presided over by a Magistrate, or informal conferences convened by the Department’s and the Respondents’ lawyers.

THE HEARING

At the trial the evidence called by the Applicant (who will be the social worker who apprehended the child) is likely to include evidence of the Applicant, of other workers from the Department and from other agencies (both governmental and non-governmental) who have been involved in the case, teachers, relatives, friends and neighbours.

Unlike most other court proceedings, in a care and protection hearing the court can (and arguably must) admit in evidence any relevant statement, whether oral or otherwise, voluntarily expressed or necessarily implied, and whether made in the presence of a party to the proceedings or not (s.30(3)(a)). The limits to the fair and practical use of this provision have been explored in a number of Supreme Court appeals, but have not been clearly defined. However, in practice the court may be unlikely to place great weight on untested hearsay evidence which goes to the heart of the allegations and the Department’s case.

The standard of proof required is the satisfaction on the balance of probabilities with regard to the consequences of making or refusing to make an order and not (as in the case of criminal charges) beyond reasonable doubt (s.30(1)).

FURTHER INFORMATION

Parents should obtain from the Court Registry copies of a pamphlet prepared for the use of unrepresented litigants, and of the relevant Practice Direction, which spells out the relevant procedures. The Court’s contact details are provided at the end of this chapter.

DECLARATIONS AND ORDERS

Although it is not entirely clear, in that various Supreme Court decisions on appeal deal with the issues in different ways, it would seem that if the court hearing the application is satisfied to the appropriate standard that the child is in fact in need of care and protection, it nevertheless has a discretion to exercise, namely whether it is appropriate to declare the child to be in need of care and protection.

If a declaration is made the Court may order either that the child:

• be committed to the care of the Department; or
• be placed under the control of the Department, until he or she attains 18 years, or during such shorter period as the court may think sufficient (s.30).

A child committed to the care of the Department is a ward. A child placed under the control of the Department does not come under the guardianship of the Director-General, but in other respects is treated as if he or she is a ward.

Powers of Director-General as guardian

The powers of the Director-General are set out in section 10 of the current Act. He or she is the guardian and has the care and management and control of the persons and property of all wards, and as well has the supervision and control of all children placed under control.

More specifically, the Director-General may place the child in a suitable facility, which may be a departmental or non-governmental centre. Many children, however, are placed with relatives or with foster parents.

Usually steps are taken to maintain contact with the parents, often with a view to reunification, which can occur administratively during the currency of the order.

The Minister, or even a senior officer of the Department, has the power to extend a period of wardship, without the matter returning to the court. In such a case, parents dissatisfied with the decision have the right to seek review in the Children’s Court.

Release from wardship

A parent, guardian or near relative of a ward or of a child under control may apply to the Minister at any time for the child to be released. If the Minister refuses to release the child, the person applying may apply to the Children’s Court for the child to be released under section 47(2) of the current Act.

The court will then hear evidence from the applicant and the Department and may grant the application, either with or without conditions, or refuse the application. In such a hearing the issue is not whether the child remains in need of care and protection, but rather which outcome will be in the best interests of the child.

Ministerial committals

There are two circumstances in which the Minister may commit a child to the care of the Department, namely if the child:

• is placed in the care of a person or body and no maintenance is paid by the person responsible for payment (s.47A); or
• is left without a parent or guardian or the parent or guardian cannot be found (s.47B).

However, a parent or near relative may apply to the Children’s Court for cancellation of the order. There is no time limit within which to bring such an application.

A parent may apply to the Minister for a child to be committed to the care or control of the Department, and if the Minister considers that it is in the child’s interest to be committed or placed under control, he or she may make an order for a period or until the child reaches a particular age (s.47C).

Because such an administrative transfer of a child’s guardianship to the Department involves a loss of fundamental rights for both parents and child, these provisions appear to be anomalous, and for many years have rarely been used.

Making decisions about wards

Case conferences to make significant decisions affecting the welfare of a ward (or child under the control of the Department) should be held at least once each six months.

In practice, parents, and others (including foster parents) with knowledge of the child’s situation and needs, are invited to attend and have input into the conference. Sometimes, the chairperson permits legal representation, and other support for parents.

Case conference plans are initially prepared by the case manager and are settled at the conference. If a person disagrees with decisions in the case conference plan, he or she should discuss his or her concerns with the person who chaired the Case Conference. If the person still believes that there are good reasons for having the plan changed, he or she can ask to have the decisions of the case conference reviewed by the Case Review Board.

Case Review Board

The Case Review Board was created by the Department to provide a mechanism of review of important case management decisions, such as whether at a particular time to return or not to return wards to a parent or parents, or to make another kind of placement.

The Board has no authority to review decisions made by the courts, the Minister or the Director General.

Although the Board has no statutory basis, it has a measure of distance, and of practical independence, from the local officers who have made the decisions under review. It has three members, two from outside the Department, who have been selected for their relevant knowledge, one of them being a legal practitioner. The third member is the principal social worker of the Department.

As it has no legal powers, the Board will make a recommendation to the Department, based upon what it thinks will be in the best interests of the child.

That recommendation often will have as its focus the terms of the case conference plan formulated by the Department. It may recommend that some or all of the important elements of it be varied or reversed. It may also recommend that a new case conference be held and a new plan made.

Both the child and a person who has a close personal relationship with the child (such as a parent, grandparent or foster parent) can apply for a review.

The Case Review Board will not deal with every kind of concern a person may have about the way a case was handled. If a person has a complaint about an officer’s behaviour, he or she should complain to the local supervisor, the regional director, the Consumer Advocate (see below), or the State Ombudsman.

Assistance regarding reviews can be obtained from welfare agencies, community law centres or Legal Aid. The completed application can be given to the local Departmental office, or sent to the secretary for the Case Review Board, but must be received within 14 days of the case conference taking place.

The chairperson of the Board decides, upon receipt of the application, whether a review will in fact be conducted. That decision will depend on whether the applicant can show that:

• he or she has a close relationship with the child;
• his or her reasons for disagreeing with the conference plan relate to the best interests of the child; and
• he or she has already discussed their concerns with the conference chairperson.

If the request for a review is successful a hearing will be held within 30 days. If it is not successful, the applicant will be advised within 14 days.

At a hearing the applicant can put his or her case in person, or by telephone if appropriate. The officers involved in the case will have an opportunity to appear, and the child’s views may also be sought. The hearing is conducted in an informal way.

Consumer Advocate

This position exists to provide an alternative dispute resolution process for disputes between the Department and those affected by its decisions.

The process is an informal one that does not require any forms, but can be activated by telephoning the Consumer Advocate. Matters such as the refusal of financial assistance, or complaints about the way a staff member treated a customer, may usefully be pursued in this way. The emphasis is on a speedy informal resolution to the dispute.

While resort to the Consumer Advocate may have some benefits to a parent, the person complaining needs to be aware that the Consumer Advocate is an employee of the Department, and records of the statements and allegations made by a complainant will find their way onto the departmental file, and may in fact be used as evidence in proceedings in the Children’s Court.

CARE AND PROTECTION ORDERS IN THE FAMILY COURT

The Family Court has the same powers as the Children’s Court to declare a child in need of care and protection when the child is the subject of proceedings in that court (s.36(7) Family Court Act 1997 (WA)). That power has rarely been exercised.

However, the Family Court may not order the release of a ward or a child from any departmental or other facility unless the child is a ward as a result of an order of the Family Court.

The Director-General may intervene in the Family Court proceedings and apply to have the child committed to the care of or placed under the control of the Department.

THE CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA)

As stated in the Second Reading Speech, the new Act introduces new grounds for statutory intervention, as well as an expanded range of orders to protect children from harm. It effects very significant changes to the current system, and replaces a handful of sometimes enigmatic and always outdated provisions with a detailed and codified system of objects, principles, powers and procedures.

Part 2 of the new Act sets out the objects and principles to which regard must be had by a person or a court when performing a function or exercising a power under it. The overriding principle is that the best interests of the child must always be the paramount consideration. The Act sets out the matters which must be taken into account in determining what is in a child’s best interests, some of those matters having some similarity to the factors considered in Family Court proceedings concerning children.

Part 4 deals with the “protection and care” of children.

Definition of child in need of protection Section 28 provides that a child is in need of protection if:

(a) the child has been abandoned by his or her parents and, after reasonable inquiries –
(i) the parents cannot be found; and
(ii) no suitable adult relative or other suitable adult can be found who is willing and able to care for the child;
(b) the child’s parents are dead or incapacitated and, after reasonable inquiries, no suitable adult relative or other suitable adult can be found who is willing and able to care for the child;
(c) the child has suffered, or is likely to suffer, harm as a result of any one or more of the following –
(i) physical abuse;
(ii) sexual abuse;
(iii) emotional abuse;
(iv) psychological abuse;
(v) neglect,
and the child’s parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
(d) the child has suffered, or is likely to suffer, harm as a result of –
(i) the child’s parents being unable to provide, or arrange the provision of, adequate care for the child; or
(ii) the child’s parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.

The critical departure from the provisions in section 4(1) of the current Act is that instead of listing activities and circumstances which would warrant a child being deemed to be in need of protection, the new Act focuses on harm as a result of any abuse.

The key concepts of harm and neglect are defined as follows:

Neglect is defined as including a failure by a child’s parents to provide, arrange or allow the provision of adequate care or effective medical, therapeutic or remedial treatment.
Harm is defined to mean, in relation to a child, any detrimental effect of a significant nature on the child’s well-being.

Applications under the new Act

REMOVAL OF A CHILD

A warrant from the Children’s Court will be required before a child can be taken into the provisional protection and care of the CEO of the Department, except in emergency situations when the child is at immediate and substantial risk (see section 37).

When a child is taken into provisional protection and care, whether by a warrant or by use of the power in section 37, then any protection application must be made as soon as practicable, but in any event within two days (other than in a prescribed area, which presumably will be limited to a remote place outside easy reach of a court).

When a warrant has been issued, a protection application is the only option open to the Department (although presumably, if upon further investigation it was concluded that an application should not be pursued, it could be withdrawn subsequently).

Where the section 37 power has been exercised, if the CEO decides not to make a protection application or other application under Part 4, then he or she must ensure that as soon as practicable the child is returned to or placed in the care of a parent, a person who was providing day-to-day care, or, with the consent of a parent, any other person.

Court procedure

Protection proceedings should be conducted with as little formality and legal technicality as possible (s.145).

The new Act makes specific provision for the making of interim orders (s.133), reports from professionals about the child (ss.138-142) and pre-hearing conferences (s.136-137).

The court is able to inform itself on any relevant matter and is not bound by the rules of evidence. In particular, the rule against hearsay does not make evidence inadmissible if the matter is relevant to the protection proceedings; however, the court may give weight as it thinks fit to evidence admitted in that way.

Essentially these provisions appear designed to permit the continuation of the current practice of the court in respect of the treatment of relevant hearsay evidence.

Representation

The new Act also provides the Children’s Court with a discretionary power to order that a child be separately represented, and this too is a departure from the current system. If a separate representative is appointed for a child who is too young to give instructions, the separate representative must act in the best interests of the child.

Orders

The new Act provides for more flexible options for court orders to meet the needs of children and their families in circumstances in which parents and family members are not able to safely meet those needs. Without doubt, this legislation does create more available dispositions than are open under the Child Welfare Act 1947.

In contrast to the limited orders available under the current regime, four types of court orders will be available under the new Act:

PROTECTION ORDER (SUPERVISION)

This type of order is the least drastic of those available. It provides for the supervision of the well-being of a child by the CEO for a specified period of up to two years. Importantly, such an order does not affect the parental responsibility of any person, except to the extent necessary to give effect to the order. The court may extend the order if satisfied that it is in the best interests of the child to do so, for up to a further two years, but only one extension is possible.

PROTECTION ORDER (TIME-LIMITED)

This order will give the CEO parental responsibility for the child for up to two years in the first instance. The CEO may apply for an extension of the order, but only after completing a review of the care plan for the child. There may be more than one extension, each of which can be for up to two years.

PROTECTION ORDER (UNTIL 18)

An order of this kind will give parental responsibility for a child to the CEO until the child reaches 18 years. Before making such an order, the court must be satisfied that long-term arrangements should be made for the well-being of the child.

PROTECTION ORDER (ENDURING PARENTAL RESPONSIBILITY)

This is an order that transfers parental responsibility for a child from the parents to someone other than the CEO, such as a relative or carer, until the child turns 18 years of age. The court has the power to order ongoing payment of subsidies to achieve continuing financial support to the carers. This type of order is designed to provide a mechanism for grandparents, for instance, to have lawful parental responsibility for their grandchildren when the court has determined that they are in need of protection.

By section 45, the court, having determined that a child is in need of protection and care, may make any of the protection orders available under Part 4 of the Act.

A significant statement of principle (described in the heading as the “no order principle” is contained in section 46. This states that the court must not make a protection order in respect of a child unless it is satisfied that making the order would be better for the child than making no order at all.

Application to change orders

Section 67 allows any party to the initial proceedings to apply to the court for the revocation of a protection order. On hearing such an application, the court may, if satisfied that it is in the best interests of the child to do so, confirm the order, revoke it, or revoke it and make another protection order.

Review of administrative decisions

A two-tiered mechanism for review of case planning decisions is provided by the new Act.

The first tier is a case review panel to be established by the CEO. It appears likely that this panel will have many similarities to the current Case Review Board, but one difference is that no departmental officer can be a member of the panel.

The second tier of review is the recently established State Administrative Tribunal. This will provide a completely independent review, one with the power to vary decisions under review, rather than merely a power to make recommendations to the CEO. For information about applications and procedure in the Tribunal, see CHALLENGING GOVERNMENT DECISIONS.