Wednesday, March 30, 2011

Child Protection Proceedings in the Children's Court (WA) (Part 2)

This is Part 2 of our discussion about "Care & Protection Orders" or Child Welfare proceedings initiated by DCP pursuant to the Children & Community Services Act 2005.  Where a Protection Order is made, it has the practical effect of making DCP legally responsible for your children.

Usually, these proceedings commence with DCP making an application for protection, supported by an affidavit prepared by the responsible case worker.  If children are placed in foster care or in a departmental placement as a result of this, then this is an executive act for which the Director-General of DCP, and the Minister for Child Protection, are ultimately responsible.

Importantly however DCP are not a law unto themselves. As soon as an application for protection is made the matter must be brought before the Magistrates Court of WA as soon as practicable.  Unless there are good reasons for not doing so, usually the Magistrates Court will make an Interim Protection Order, until the matter is resolved by agreement or by a hearing before a Magistrate. 

In most cases, it is advisable to work with DCP in order to try and get the Protection Order withdrawn or perhaps reduced in its term.  Sometimes DCP will agree to reduce the length of time children may be subject to a Protection Order (e.g., from until the child turns 18, to only two years).  Other times DCP will agree to a Supervision Order instead of a Protection Order (i.e. with your children being returned to you subject to monitoring by DCP).

However usually for this to occur it will be necessary for you to comply with whatever requirements DCP seeks to have you meet (e.g., such as drugs/alcohol counselling, urinalysis, anger management, stable accommodation and parenting courses).

If you are unwilling to meet these requirements, but you still oppose the making of a Protection Order, the matter must invariably go to a hearing before a Magistrate for final determination.

Family Court & Magistrates Court

It should be noted that Child Protection proceedings in the Magistrates Court of WA are very different to proceedings in the Family Court of WA for contact (i.e. visits with children), and residence (i.e. who children live with).

In the Family Court of WA it is possible for parents of children to apply for orders concerning these matters (and anything else to do with the children), where they are unable to agree such matters with the other parent.

In Child Protection proceedings before the Magistrates Court of WA, this is not usually the case.  Where children are subject to an Interim or Final Protection Order - DCP is legally responsible for the children, and the Magistrates Court of WA has no general power to make formal orders for contact and residence.  Furthermore, where there is a Protection Order in place, there is a legal restriction barring application to the Family Court of WA for such orders. 

For this reason, it is generally advisable to comply with DCP's requests because only by negotiation can we obtain outcomes you want (e.g. such as more time visiting with your children, or to ultimately have them returned to your care).

Hearings as to Protection Matters

If you dispute the need for a Protection Order to be made, on either an interim or final basis, or if you dispute any of the terms of the Protection Order (e.g. such as the length of time) - then the matter must go to a final hearing before a Magistrate.

If this happens, DCP will prepare extensive affidavit evidence detailing all of the incidents of abuse or neglect that they had kept records about.  You may experience some difficulty in countering much of this evidence with anything other than your own testimony or affidavit evidence (and this may not be capable of being independently substantiated).

Furthermore the Magistrates Court can inform itself in any way it sees fit, without regard to strict rules of evidence.  Often this means that there is material in DCP's affidavit which you may well disagree with, but which still ends up before a Magistrate to consider amongst the weight of evidence.

Generally it is the case that the Magistrate at the Protection Order hearing will be unlikely to take any chances with the welfare of a child, but rather would be more inclined to err on the side of caution and make a Protection Order than run the risk of not doing so and leaving a child potentially at risk.  You must have a particularly compelling case to succeed in opposing a Protection Order.

It should also be noted that the hearing in relation to a Protection Order is a civil proceeding, and not a criminal proceeding.  In other words, the Court is not looking to punish you for any suggestion of wrong doing, but rather, concerned with what is best for the child concerned.  This means, however, that the Magistrate need only be satisfied on the balance of probabilities (i.e. that it is more probable than not) that a child needs to be protected - in order to make this order.  This is a much lower burden of proof than that required in criminal matters, where the case must be proven beyond reasonable doubt.

It does mean, however, that there is a very low threshold for DCP to meet in order to succeed in establishing their case for protection. 

Legal Aid Funding

It should also be borne in mind that if Legal Aid is funding your matter, then this funding is not unlimited.  It is an unfortunate fact that Legal Aid is not able to fund every respondent to a Child Protection application, and many people who apply for assistance are refused.

Furthermore, it is likely that Legal Aid will not be able to expend the considerably larger sums of money needed to fund the Final Order hearings, and they tend to prefer instead to fund parties who are prepared to engage with DCP and negotiate the best possible outcome for the future.

It is unlikely therefore, due to funding constraints, that Legal Aid will grant further aid for Final Order hearing unless the circumstances of your case are so particularly compelling that it ought to be treated as exceptional.  Therefore, if you are intent on proceeding to a Final Order hearing, you may have to do so unrepresented or fund the cost of representation at the hearing yourself.

For this reason, once again it is in your best interests to comply with whatever DCP requires of you and to complete whatever courses or programs are set for you - often irrespective of whether you agree with the need to do so or not.

While this may be a source of anguish for you (particularly when these courses or programs cannot readily be organized for you), and I also understand that sometimes DCP caseworkers do not make such compliance very easy for you.  Nevertheless, in the vast majority of cases, working with DCP is the only viable option that can be recommended. 

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