Saturday, March 26, 2011

Child Welfare Proeedings in Children's Court - Care & Protection Orders

The Department of Child Protection (DCP) is a  State Government Department (WA) concerned with the welfare of children. Most of us would accept (on some level) that there is a need to intervene where children are exposed to physical, sexual or emotional abuse; to neglect or substance abuse; or in cases where their parents are simply unable to fulfil their responsibilities as parents.

While the need to intervene is generally accepted, just how that intervention should work and for how long, is a matter that is still left to the Children's Court to decide. Moreover, not every case is the same, and not every parent whose children are the subject of these applications is necessarily a bad parent - some are, like the children concerned, simply the victims of unfortunate circumstances.

The purpose of this article is to provide you with some broad general information in relation to the Care & Protection proceedings (Western Australia only) - and what jurisdiction DCP has

The Care and Protection jurisdiction of the Children's Court is a civil jurisdiction. The action taken in this court is not called a "charge" or "complaint" but an application.

Under the Children and Community Services Act 2004 if an officer of the Department for Child Protection (“DCP” - formerly the Department for Community Development “DCD”) believes that a child is in need of protection, they can either:

·                make an ex parte application to the court for the issue of a warrant; or
·                where there is an immediate and substantial risk to a child’s wellbeing an officer will take the child into provisional protection and care.

Once the child is in provisional protection and care, DCP must apply for a Protection Order or return the child to the parents or carers within two working days.

The Act provides for four types of protection orders, being:

·                Protection order (supervision): The child will not be removed from the family but there will be special supervision by DCP. There may be conditions imposed on the parents and the child. Conditions can be changed, added or replaced. The parents will retain parental responsibility for the child. DCP can apply to have this kind of order extended. Parents can apply to have this kind of order revoked or varied.

·                Protection order (enduring parental responsibility): The child will be removed from the family and placed with a carer, other than DCP until they are 18. This could be a relative.  Parents can apply to have this kind of order revoked. There may be conditions about contact. Conditions can be changed, added or replaced.

·                Protection order (time limited): The child will be removed and placed with DCP for up to two years. The child will generally be in foster care. DCP can apply to have this kind of order extended. Parents can apply to have this kind of order revoked.

·                Protection order (until 18): The child will be removed and placed with DCP until they are 18. The child will generally be in foster care. Parents can apply to have this kind of order revoked.

Once the application is made, DCP will generally have the child in provisional protection and care until the court can decide on the matter. A party may also apply for an interim order, pending the determination of the matter.
Sometimes the parents or carers will not challenge the application and the Magistrate will make an order "by consent". This quite often happens when the parent acknowledges that they are not able to take proper care of their child. For example, the parent may be suffering from some mental disability or have found they can't cope with looking after the child.

If the application is challenged by the parent or carer, then the matter is resolved at a pre-hearing conference or a hearing. The pre-hearing conference is an opportunity for all parties to discuss the case and try to reach agreement. If no agreement is reached a final hearing will be held. This hearing is similar to a trial in a criminal court: all parties give evidence and the magistrate decides on the validity of the evidence.

Once an order is made, DCP will work with the family within the terms of the order. There may also be conditions to be followed under the order. The court has the power to extend, vary, revoke or replace the order or the period of the protection order. Should a parent or carer wish to have the child released from the protection order they may apply to the court for revocation of the protection order.

Practice Direction 1 of 2006 deals with court procedure for protection applications. It was issued by Children’s Court President His Honour Judge Denis Reynolds on 23 February 2006.

Proceedings commenced prior to 1 March 2006 will be determined under the previous legislation for care and protection matters, the Child Welfare Act 1947.

Need of protection

Under the Act, Section 28 (2) states 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.


PART 2 NEXT WEEK

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