Children, Youth and Families Amendment (Permanent Care and Other Matters) Bill 2014

Introduction Print

EXPLANATORY MEMORANDUM

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BILL LA INTRODUCTION 6/8/2014

Clause Notes

Clause 1states the purposes of the Bill. The main purposes of the Bill include amending the Children, Youth and Families Act 2005—

  • to make further provision for the protection and permanent care of children;
  • to abolish the Youth Residential Board and transfer its functions to the Youth Parole Board;
  • to provide for group conferences where the Children's Court is considering making certain youth justice orders; and
  • to further improve the operation of the Principal Act.

The Bill also amends the Commission for Children and Young People Act 2012 in relation to inquiries by the Commission, and makes consequential amendments to other Acts.

Clause 2is the commencement provision. It provides that Parts 1, 9, Division 4 of Part 10 and Part 11 of the Bill come into operation the day after Royal Assent is received. The remaining provisions will come into operation on a day or days to be proclaimed, or, if not proclaimed sooner, on 1 March 2016. This allows time to prepare for the implementation of the extensive changes to the child protection system made by this Bill.

Clause 3states that the Children, Youth and Families Act2005 is called the Principal Act in this amendment Bill.

Clause 4amends section 3(1) of the Principal Act to repeal definitions that are no longer required, inserts new definitions and makes consequential amendments to existing definitions as required bythe changes to the child protection provisions made by Part 2 of this Bill.

Care by Secretary order, family preservation order, family reunification order andlong-term care order means an order of the same name referred to in section 275 of the Principal Act (as amended by Part 2 of this Bill).

Parental responsibility means all the duties, powers, responsibilities and authority in relation to a child that parents ordinarily have by virtue of law or custom. This term replaces the concept of "custody" and "guardianship".

In the definition of care, the words "custody of" will be substituted with "parental responsibility" so that care, in relation to a child, will now mean the daily care and control of the child, whether or not involving parental responsibility.

In the definition of contact, the words "custody of" will be substituted by "care of" so that contact means contact (via visits or communication) between a child and a person who does not have care of the child.

In the definition of parent, the reference to "custody" is amended to "parental responsibility".

Clause 5repeals sections 4 and 5 of the Principal Act. Section 4 of the Principal Act specifies the rights and responsibilities of a person who has guardianship over a child. Section 5 of the Principal Act specifies the rights and responsibilities of a person who has custody of a child. These sections are no longer necessary as the Bill replaces the concept of "custody" and "guardianship" with "parental responsibility".

Clause 6amends section 10 of the Principal Act, which contains the best interests principles that apply to all decisions and actions in relation to a child.

Subsection 10(3)(f) is amended to replace the word "stability" with "permanency", which includes the concept of permanency of care in the best interest principles.

Subsection 10(3)(p) is repealed and replaced with new subsection 10(3)(fa), which requires consideration of the desirability of making decisions as expeditiously as possible, asan addition to the existing principle regarding the possible harmful effect of delays, in making decisions or taking actions.

Clause 7substitutes a new section 16(1)(g) into the Principal Act. Newsection 16(1)(g) provides that the Secretary's responsibilities will include providing, or arranging the provision of services to assist in supporting a person under the age of 21 years to gain the capacity to transition to independent living. This responsibility will exist where the Secretary has had parental responsibility for the person, and when this responsibility ends, the person will be of an age to live independently, or intends to live independently.

New section 16(1)(g) reflects the previous position but replaces the concepts of "custody" and "guardianship" with "parental responsibility".

Clause 8amends section 19(1)(c) of the Principal Act to substitute "custody and guardianship of" with "parental responsibility for" so that the Secretary may authorise the person in charge of a registered community service or any person acting in that role to approve, on behalf of the Secretary, persons as suitable to have parental responsibility for a child.

Clause 9substitutes a new heading to Division 2 of Part 4.3 of the Principal Act to reflect the replacement of the terms "guardian" and "custodian" with "parental responsibility".

Clause 10amends section 172 of the Principal Act to reflect the replacement of the terms "guardian" and "custodian" with "parental responsibility". The Secretary's powers in section172(1) apply in relation to a child for whom the Secretary has sole parental responsibility, and those in section172(2) and (3) apply in relation to a child for whom the Secretary has parental responsibility.

Clause 11replaces the concepts of "custody" and guardianship" with "parental responsibility" in section 173 of the Principal Act, to specify that the Secretary's powers regarding placement of children in section 173(2) apply in relation to a child for whom the Secretary has parental responsibility under the Principal Act or the Adoption Act 1984.

Clause 12amends sections 175A and 175B of the Principal Act (regarding the decisions that can be made in relation to a child) to refer to parental responsibility and the new protection orders.

Clause 12 also inserts new section 175Cwhich provides that the Secretary must work with and engage any parent of the child with whom the child is intended to be reunified, to the fullest extent possible when making case planning decisions for a child who is on a specified child protection order. The Secretary must not make a decision about a major long-term issue in relation to the child if a parent with parental responsibility for the child disagrees with the decision, unless the decision is about a major long-term issue that the Secretary is expressly authorised to make under the Principal Act. The Secretary may make a decision on an issue in relation to the child that is not a major long-term issue without the agreement of a parent of the child.

Clause 13inserts a new section 262(5A) into the Principal Act. Thissection states that an interim accommodation order must not be made in respect of a child if the Court is satisfied that a protection order or a permanent care order could be made in respect of the child. Section 262 is also amended to reflect the new child protection orders that may be made under Part 4.9 of the Principal Act (as amended by Part 2 of this Bill).

Clause 14inserts a new section 263(fa) into the Principal Act, to allow an interim accommodation order to include a condition for the placement of a child with a disability service provider within the meaning of the Disability Act 2006 if the child is receiving disability services under that Act.

Clause 15amends section 274(b) of the Principal Act to replace "custody of" with "care of" to reflect the new terms.

Clause 16substitutes new sections 275(1)(b) to (h) into the Principal Act to update the references to child protection orders that the Court may make if the Court makes a finding under section 274 that a child is in need of protection or there is a substantial and irreconcilable difference between the child and a person with parental responsibility for the child.

The amendments to Part 4.9 of the Principal Act are intended to remove complexity of court processes and case plan decisions, and to reflect an intention that the Court consider whether the child may safely remain in the care of the child's parents, may be reunified with the child's parents, or should be cared for by the Secretary.

Clause 17substitutes a new section 276(1)(b) into the Principal Act so that the Court must not make a protection order unless the Court is satisfied that the child cannot be sufficiently protected without one. Previously, the Court could not make a protection order unless satisfied that the Secretary had taken all reasonable steps to provide services necessary in the best interests of the child.

Subclause (2) substitutes a new section 276(2) into the Principal Act, so that the Court must not make a protection order which removes the child from the care of the child's parents unless the Court has considered an order allowing the child to remain in the care of the child's parents and has rejected such an order as being contrary to the best interests of the child. Previously, the Court was not able to make such an order unless satisfied that all reasonable steps had been taken by the Secretary to provide the services necessary to enable the child to remain in the custody of the child's parents.

Clause 18inserts a new section 276A into the Principal Act, which requires the Court, when deciding to make a protection order, tohave regard to certain matters. The Court must have regard to advice provided by the Secretary about—

  • the objectives of any case plan prepared by the Secretary;
  • the arrangements in place for the care of any siblings of the child who are under 18 years of age; and
  • the age of the child and period the child has spent in out of home care during the child's life (whether or not this is a consequence of a court order).

When deciding to make a protection order that has the effect of conferring parental responsibility for the child on the Secretary, section 276A(3) requires the Court to have regard to advice provided by the Secretary about—

  • the likelihood of the child's parent permanently resuming care of the child during the period of the protection order;
  • the outcome of any previous attempts to reunify any child with the child's parent;
  • the desirability of making an early decision about the future permanent care arrangement for the child if the child's parent has previously had another child permanently removed from his or her care;
  • any benefits to the child of making a care by Secretary order to facilitate alternative arrangements for the permanent care of the child if the child is in out of home care under a protection order for a cumulative period of 12 months; there appears to be no realistic prospect of the child being able to safely return permanently to the care of the child's parents within a further period of 12months; and there are no permanent care arrangements already available for the child; and
  • the desirability of making a permanent care order if the child is placed with a person who is intended to have permanent care of the child.

In determining a cumulative period, new section 276A(4) requires the Court to apply section 287A(4) so that certain periods are disregarded.

Clause 19substitutes a new section 277 into the Principal Act, which requires the applicant in respect of specified applications in relation to child protection orders or undertakings to serve a copy of the application on any person by or on behalf of whom the application could have been made, and the applications regarding the extension of the period of a family preservation order, family reunification order or a care by Secretary order, tothe child and child's parents.

This amendment substantively reflects the previous section 277 with amendments to reflect the new types of protection orders that may be made under Part 4.9 of the Principal Act, as amended by Part 2 of this Bill.

Clause 20substitutes a new heading to Division 3 of Part 4.9 of the Principal Act as "Family preservation order" as a consequence of the new child protection orders that may be made under the Principal Act.

Clause 21amends section 280 of the Principal Act to update the referencesto the child protection orders in the heading and in section 280(1) and (2), and substitutes seven new subsections for sections 280(1)(b), 280(3) and 280(4).

New section 280(1)(b) provides that a family preservation order does not affect a person's parental responsibility for the child.

New section 280(3) provides that if the Court makes a family preservation order with a term that exceeds 12 months, the Court must direct the Secretary to review the operation of the order before the end of the first 12 month period.

New section 280(4) states that after conducting the review under section 280(3), the Secretary may end the family preservation order if the child's parents and the child (if aged 10years or older) agree.

New sections 280(5) and 280(6) provide that if the Secretary decides to end the family preservation order under section 280(3), the Secretary must notify the Court and the order will end on the latter of: 12 months after it was made, or on the date of the Court notice.

New section 280(7) requires the Secretary to notify the Court, the child if aged 10 years or older, the child's parent and other persons directed by the Court if the family preservation order ends under new section 280(6).

Previously, sections 280(3) and (4) provided that a supervision order would end at the end of the first 12 month period unless the Secretary notified the Court, the child and other person's directed by the Court, that it was in the child's best interests for the supervision order to continue.

Clause 22amends section 281 of the Principal Act to update the references to child protection orders, and inserts 2 new subsections.

New section 281(1) provides that a family preservation order may include conditions to be observed by the child in respect of whom it is made or the parent of that child.

New section 281(1A) provides that the conditions which may be included on a family preservation order are conditions that the Court considers are in the best interests of the child, are reasonably capable to be carried out by each person who will be subject to the condition, and promotes the continuing care of the child by the child's parent.

Previously, the Court could include conditions on a supervision order to be observed by the child and child's parents which were in the best interests of the child.

Clause 23amends section 282 of the Principal Act to update the references to child protection orders.

Clause 24repeals Divisions 4 and 5 of Part 4.9 of the Principal Act, to reflect that custody to third party orders and supervised custody orders may no longer be made under the Principal Act.

Clause 25substitutes a new heading to Division 6 of Part 4.9 of the Principal Act to refer to family reunification orders as a consequence of the new child protection orders which may be made under the Principal Act.

Clause 26substitutes a new section 287 into the Principal Act regarding family reunification orders.

Section 287(1) states that a family reunification order—

  • confers parental responsibility for the child, and responsibility for the sole care of the child, on the Secretary;
  • subject to Division 6 of Part 4.9 of the Principal Act, remains in force for the period specified in the order, such period not to exceed 12 months;
  • may include any condition that Court considers to be in the best interests of the child, to be reasonably capable of being carried out by each person who will be subject to the condition and will promote the reunification of the child with the child's parent (under section 287(3), this may include a condition concerning contact between the child and child's parent, or child and another person significant to the child); and
  • must provide that the Secretary may direct that the child's parent is to resume parental responsibility for the child to the exclusion of the Secretary if the Secretary is satisfied that this is in the child's best interests.

Section 287(2) provides that, except as provided for in the Principal Act or by Court order, conferral of parental responsibility on the Secretary (pursuant to a family reunification order) does not affect the parental responsibility of any other person for the child in relation to making decisions regarding major long term issues.

Clause 27inserts a new section 287A into the Principal Act, to provide forthe period of a family reunification order to be determined. The section applies in respect of a child who is or has been in out of home care as a result of an interim accommodation order, family reunification order, care by Secretary order, long-term care order or therapeutic treatment (placement) order.

New section 287A(2) provides that if a child has been in out of home care for less than 12 months under one or more of the above orders, the period of the family reunification order must not have the effect that the child will be placed in out of home care for a cumulative period of more than 12 months from the date the child was first placed in out of home care under the first of those orders.

New section 287A(3) states that if the child has been in out of home care for 12 to 24 months under one or more of the above orders, the period of the family reunification order must not have the effect that the child will be placed in out of home care for a cumulative period of more than 24 months from the date was first placed in out of home care under the first of those orders.