Child Protection Proceedings
in the
Children’s Court of Victoria
Overview
Magistrate Jennifer Bowles
August 2013
INDEX
Introduction 1
Commencement of Protection proceedings 1
Grounds for a Protection application 1
Jurisdiction 2
Child 2
Service 3
Protection application by notice 3
Protection application by apprehension 4
Irreconcilable difference application 4
Proof of service 4
Substituted service 5
Dispensation of service 5
Parties 5
Joinder applications 7
Interpreter 7
Bail Justice 7
Submissions Contests 7
Interim Accommodation Order 8
Best Interests Principles 8
General 8
Aboriginal children 10
Interim Accommodation Order placement 13
Secure welfare 13
IAO to hospital or declared parent and baby unit 13
IAO placement details 13
Undertaking 14
What are protection orders? 14
Proof of the Protection application 15
“Likely to suffer harm” 15
What is “significant damage” and “significant harm” 16
Protection orders 16
Undertaking 17
Interim Protection order 17
Supervision order 18
Custody to Third Party order 19
Supervised Custody order 20
Custody to Secretary order 21
Guardianship to Secretary order 21
Long-term guardianship to Secretary order 22
Permanent Care order 23
Variation, breach and extension application 25
Therapeutic Treatment/Placement order 25
Children’s Court Clinic 25
OVERVIEW OF FAMILY DIVISION (CHILD PROTECTION) PROCEEDINGS IN THE CHILDREN'S COURT
INTRODUCTION
The purpose of this Paper is to provide a brief overview of the legislation governing proceedings in the Family Division of the Children's Court. (Child Protection). A more detailed analysis can be found in the research materials edited by Magistrate Peter Power on the Children’s Court website.
The Cummins Report “Protecting Victoria’s Vulnerable Children Inquiry” was tabled on 28 February 2012. I have referred to the Report throughout this Paper.
Commencement of Protection Proceedings
If a protective intervener is satisfied on reasonable grounds that a child is in need of protection, s/he may
(a) serve a notice under s.243 directing that the child appear or be produced before the Court or
(b) take a child into safe custody (apprehension) with or without a s.241 safe custody warrant.[1]
A Family Division proceeding is commenced by filing an application with the appropriate registrar.[2]
Grounds for a Protection Application
A child is in need of protection if any of the following grounds exist –
(a) the child has been abandoned by his or her parents and after reasonable enquiries –
(i) the parents cannot be found; and
(ii) no other suitable person can be found who is willing and able to care for the child;
(b) the child's parents are dead or incapacitated and there is no other suitable person willing and able to care for the child;
(c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(d) the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(e) the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(f) the child's physical development or health has been, or is likely to be, significantly harmed and the child's parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.[3]
For the purposes of subsections (1)(c) to (1)(f), the harm may be constituted by a single act, omission or circumstance or accumulate through a series of acts, omissions or circumstances.[4]
Jurisdiction
For the purposes of this Act it does not matter whether the conduct constituting a ground referred to in section 162 occurred wholly or partly outside Victoria.[5]
Child
For the purposes of Family Division proceedings, a child is defined as a person who is under 17 years, or if the child is subject to a protection order it continues in force until the eve of the child's 18th birthday.[6]
This means that if a person comes to the attention of DHS, the person has turned 17 and there is not an order in place, DHS will not be able to issue a protection application to seek a protection order in respect of that person. The Cummins Report recommended that the definition of child be amended to make it possible for protection applications in respect of any child under the age of 18 years.[7]
SERVICE
Difficulties are often encountered by the DHS in locating and identifying certain parties. It is essential that persons who are required to be served are served in accordance with the Act. Section 594 prescribes the modes of service of applications and notices under the Act and section 593(1) prescribes the service of documents when there is no other provision made.[8] In the event service cannot be effected or there are exceptional circumstances, an application must be made to dispense with service.
Protection application by notice
DHS has to serve in accordance with section 594 (see below)
(a) the child's parent and
(b) the child, if the child is of or above the age of 12 years.[9]
Section 594 provides that if the Act requires a notice of an application or hearing to be served on a child or a parent or other person in accordance with s.594, the notice may be served
(a) the posting, not less than 14 days before the hearing date stated in the notice, a true copy of the notice addressed to the parent or the child or the person (as the case requires) at the last known place of residence or business of the parent of a child or the person; or
(b) by delivering, not less than five days before the hearing date stated in the notice, a true copy of the notice to the parent or the child or the person (as the case requires); or
(c) by leaving, not less than five days before the hearing date stated in the notice, a true copy of the notice for the parent of a child or the person (as the case requires) at the last known place of residence or business of the parent or the child or the person with a person who apparently resides or works there and who apparently is not less than 16 years of age.[10]
Protection application by apprehension
DHS has to give to
(a) the child's parents, unless they cannot be found after reasonable inquiries; and
(b) the child, if the child is of or above the age of 12 years –
a written statement containing the prescribed information relating to the taking of the child into safe custody.[11]
Irreconcilable difference application
The applicant (a person who has custody of the child or a child) must cause notice of the application to be served –
· on the child's parent or child (as the case requires) in accordance with section 594 and
· on the Secretary to the DHS at least five days before the hearing of the application. [12]
With the leave of the court, the Secretary may appear or be represented at the hearing and may call and examine or cross-examine witnesses and make submissions.[13]
Proof of service
Service of a document may be proved by –
(a) evidence on oath or
(b) affidavit or
(c) declaration.[14]
The evidence of service must identify the document served, time and manner in which service is effected.[15]
In the absence of evidence to the contrary, the presumption is that service was effected if there was compliance with sections 595(1) and (2).[16]
Substituted service
Substituted service may be ordered by the court if evidence is received on oath or by affidavit that service cannot be promptly effected.[17]
Dispensation of service
If the Act requires document/s to be served on a particular individual, DHS may apply to the court and if the court is satisfied by oath or affidavit that -
(a) the individual cannot be located after the DHS has made reasonable efforts to discover his/her location or
(b) there are exceptional circumstances,
the court may make an order to dispense with service. [18]
PARTIES
· Secretary to the Department of Human Services;
· Parent –
(a) father and mother of the child and
(b) spouse of father and mother of child and
(c) domestic partner[19] of father or mother of the child and
(d) a person who has custody of the child and
(e) a person whose name is entered as the father of the child in the register of births maintained by the Registrar of Births, Deaths and Marriages and
(f) a person who acknowledges he is the father of the child pursuant to section 8 (2) Status of Children Act 1974 and
(g) a person in respect of whom a court has made a declaration or a finding that the person is the father of the child.[20]
· Child –
Since 27 March 2013 a child aged 10 years or more must be legally represented.[21] The legal practitioner must act in accordance with any instructions given or wishes expressed by the child so far as it is practicable[22] to do so having regard to the maturity of the child.[23]
The court may determine that a child aged 10 years or more is not mature enough to give instructions to a legal practitioner considering the child’s ability to communicate his/her own views, ability to give instructions in relation to the primary issues in dispute and any other matters the court considers relevant.[24] In that case, the legal practitioner must –
(a) act in accordance with what s/he believes to be in the best interests of the child; and
(b) to the extent it is practicable to do so, communicate the instructions given or wishes expressed by the child to the court.[25]
In exceptional circumstances, the court may determine that it is in the best interests of a child who is aged under 10 years, to be legally represented.[26] In that case, the legal representative will act on the best interests model referred to above.[27]
· A person who is joined as a party.
Joinder applications
A person may seek to be joined as a party to the proceedings. The court must allow “as far as practicable” a person who has a “direct interest in the proceedings” to fully participate in the proceedings.[28]
Interpreter
If the court is satisfied that a child, parent or any other party to the proceeding has difficulty communicating in the English language which impacts upon their ability to understand and participate in the proceedings, the court must not hear and determine a proceeding without an interpreter.[29]
Bail Justice
The DHS is required if it takes a child into safe custody (apprehension) to take the child before the court “as soon as practicable and in any event within one working day after the child was taken into safe custody.” At the Melbourne Children’s Court there is a 2 pm deadline after which the child must be taken before a bail justice. The bail justice will make an interim accommodation order. That order remains in force to the next sitting day of the court. It is then necessary for the court to determine whether there will be an interim accommodation order and if so, to whom. Even if the court makes an interim accommodation order to the same person as the bail justice did, it is necessary for a new interim accommodation order to be made and for the court not to extend the order made by the bail justice.
SUBMISSIONS CONTESTS
When DHS has commenced proceedings by safe custody (apprehension) and agreement cannot be reached by the parties as to where the child is to be placed, the court will conduct an urgent hearing which is referred to as a submissions contest. The procedure is referred to by Beach J in Grandell v Hartrick.[30]
In order for the matter to proceed as expeditiously as possible, it is important to make an order for the department to release the notes upon which it is relying to support the apprehension when it is requested and/or when it becomes apparent that agreement cannot be reached. The usual order is for the notes to be released to legal practitioners or if a party appears in person, to that party, no copies are to be made and the notes are to be returned to the DHS’ legal practitioner at the conclusion of the proceedings.
The IAO is generally made for 21 days, during which time DHS will conduct enquiries and prepare a report.
INTERIM ACCOMMODATION ORDERS (IAO) [31]
An Interim Accommodation Order is a placement Order. It is an interim order. The protection application has not been proved. There is sometimes a dispute concerning to whom the IAO should be made for example, the mother or the grandmother with whom the mother and child will reside. In my view it should be made to the person who will have the primary care of the child. If the care is to be shared and one of those people is a parent, I would make the order to the parent as s.10(3)(b) provides for intervention into the parent/child relationship to be limited to that necessary to secure the safety and wellbeing of the child,