Child protection orders are granted by the Children’s Court on request from the Department of Human Services (DHS). The Victorian Child Protection Service is targeted to children and young people at risk of harm where families are unable or unwilling to protect them.
From 1 March 2016, there will be substantial chages to this area of law; most notably:
•the number of protection orders available to the court will be reduced to four;
•the majority of children who have by court order been out of parental care for an aggregate period of more than 12 months will be on new care by secretary orders. These orders have no provision for the court to make conditions. Consequently, children on such orders will have any contact with biological family entirely at the discretion of the Department of Health and Human Services (DHHS).
Overall, the changes will result in a considerable increase in DHHS power and a reduction in the power of the court.
The DHHS may apply to the Children’s Court for protection orders. The grounds upon which the DHHS can apply for these orders, as set out in section 162 of the CYFA, are:
a the child has been abandoned by his or her parents and, after reasonable enquiries
ithe parents cannot be found; and
iino 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.
Section 162(2) of the CYFA provides that harm may be constituted by a single act or omission or by the accumulation of a series of acts or omissions.
The Supreme Court, in the case of Director-General of CSV v B (unreported, 11 December 1992) considered the grounds for a protection application. That case related to an allegation of significant damage to emotional or intellectual development. The judge stated that it was not necessary for the damage to be lasting or permanent; the damage needed to be “important or of consequence” to the child’s emotional or intellectual development.
Section 183 of the CYFA allows anyone who reasonably believes that a young person is in need of protection to report the circumstances to the DHHS or to the police. This report will not be held to be a breach of professional ethics or a departure from accepted standards of professional conduct if it is made in good faith; nor will a person reporting in good faith be liable to any action for damages or other legal proceedings for having done so.
The report is only admissible as evidence in proceedings before a court or tribunal with the written consent of the reporter. The person or agency to whom the report is made must not disclose the name of the person making the report to anyone else without the written permission of the reporter.
If there has been a protective intervention report of suspected abuse, DHHS must investigate the subject matter of the report (s 205 CYFA). The protective intervener (i.e. the DHHS worker) must inform the child and parents that information given may be used in a protection application.
If the protective intervener is satisfied on reasonable grounds that a young person is in need of protection, they must record that information in the Children at Risk Register. An appeal can be made to the Victorian Civil and Administrative Tribunal (VCAT) against a decision to record a case in the register (s 333(b) CYFA).
Any parent considering entering a voluntary agreement with DHHS should obtain advice from a lawyer who is experienced in dealing with Children’s Court matters (see How legal aid can help, and Legal services that can help, for contact details).
A number of professionals must report to DHHS cases of suspected child physical or sexual abuse that they become aware of in the course of their employment. Failure to report such suspected abuse constitutes a summary offence, which is punishable by a fine of up to $1,000 (s 184 CYFA).
At the time of writing (June 2015), pursuant to CYFA (s 182) the professionals mandated to report suspected child abuse are: doctors, nurses, teachers, police officers, childcare workers, youth and child welfare workers, psychologists, youth justice officers, and youth parole officers. Further classes of professionals may be added to the list of mandatory reporters. DHHS can provide an up-to-date list of professions.
The CYFA (ss 228–239) contains provisions that allow DHHS to apply for an order to investigate whether a child is in need of protection. An application can be made without notice with the leave of the court. An order can last for up to 10 days if obtained without notice and for up to 21 days if obtained with notice. It may authorise a child’s parents to be interviewed or for a child to be medically examined. A report must be provided to the court setting out the results of the procedure. In practice these provisions have not been utilised by DHHS.
Only DHHS initiates protection applications. Prior to the court hearing, a protection application may be commenced in two ways:
1 In urgent cases, the protective intervener (i.e. the DHHS worker) may, with or without a warrant, take the young person into emergency care. The young person must be taken to a Children’s Court no later than 24 hours after they have been taken into care (s 242 CYFA).
2 In non-urgent cases, DHHS issues a notice to the child’s parents that a protection hearing will take place. The notice must be posted 14 days before the hearing or delivered five days before the hearing (s 243 CYFA).
In 2013 the CYFA was changed to provide that only young persons 10 years of age or older are able to be represented in the usual way by a lawyer. The young person should have separate representation from that of their parents. If it is impossible to obtain legal advice before the hearing date, help should be sought at court from VLA’s duty lawyer service (see “VLA’s duty lawyer service” in How legal aid can help, and also see Legal services that can help).
In order to prevent lengthy delays in the hearing of protection applications, there is a dispute resolution procedure for contested cases. The procedure is called a conciliation conference.
An independent convenor conducts the conciliation conference, which may be attended by DHHS, the young person’s parents, possibly the young person, relatives, a member of the family’s ethnic community and legal representatives. The intention is to reach an agreed settlement that ensures the safety and well-being of the young person. Any settlement has to be ratified by the Children’s Court.
The CYFA provides for three types of reports in the Family Division:
1 protection reports;
2 disposition reports; and
3 additional reports (ss 553–562 CYFA).
Protection and disposition reports are prepared by DHHS. The magistrate may request additional reports from DHHS, the Children’s Court Clinic, or from a specified person.
A protection report, which would be provided before the grounds of the protection application are proved, must only deal with matters relevant to the question of whether the young person is in need of protection (s 555 CYFA).
A subsequent disposition report will include, among other matters, a draft case plan, if necessary (s 558(a) CYFA).
If the report recommends that the young person be removed from home, it must detail the steps taken by DHHS to provide the services necessary to enable the young person to remain at home (s 558(c) CYFA). There are provisions regarding access by the young person and their parents to Family Division reports (ss 556, 559 CYFA). Access may be withheld from the young person or the parents if it is deemed prejudicial to the physical or mental health of the young person or their parents. A report cannot be withheld from a lawyer representing the young person or their parents.
If a case is adjourned, the young person is usually placed on an interim accommodation order. Such an order can take five forms:
1 the release of the young person on their own undertaking;
2 the release of the young person to a parent;
3 the placement of a young person with a suitable person (following a report from DHHS);
4 the placement of a young person in an out-of-home care service (e.g. a DHHS short-term unit or placement via a foster care agency); or
5 the placement of a young person in a secure welfare service; a young person can only be placed in a secure welfare service if there is substantial and immediate risk to the child; and NOT because there is no other adequate accommodation.
Unless a young person is released on their undertaking, or to their parents (as in (1) or (2) above), an adjournment cannot exceed 21 days. The court has the power to extend an interim accommodation order to a suitable person or a community service (as in (3) and (4) above) for up to 21 days at a time, if satisfied that it is in the best interests of the young person.
In respect of a secure welfare service placement, the court can extend the order for up to 21 days on one occasion if exceptional circumstances exist (s 267(2)(c) CYFA).
Conditions, including that of access, can be placed on an interim accommodation order. A young person’s whereabouts may be withheld from a parent if special circumstances exist, or if the young person’s safety or well-being is in jeopardy (s 265 CYFA). An appeal may be made to the Supreme Court regarding the making or dismissing of an application for an interim accommodation order (s 268 CYFA).
A magistrate who finds a protection application proven can then make a protection order or an interim protection order.
There are seven types of protection orders under the CYFA, as follows:
1 An undertaking: This may be for up to six months, or for 12 months in special circumstances. This is the least intrusive option and would not involve statutory supervision (s 278).
2 Supervision order: This may be for up to 12 months or, in special circumstances, two years. There are provisions for breach proceedings (ss 280–282) and for extensions (s 293(1)(a)).
3 Custody to a third party order: This can be made for a period of up to 12 months. The third party cannot be an employee of DHHS in an official capacity, or a person employed by a community service in an official capacity, or a parent. The magistrate may impose conditions, but none that involve DHHS. There are provisions for an application to vary (ss 300–302) or revoke (ss 303–310) such an order.
4 Supervised custody order: This is similar to a custody to a third party order, but involves supervision by DHHS. In making this order, a magistrate must consider that the ultimate objective of the order is to reunite the young person with their family. There are provisions for this order to be varied (ss 300–302), extended (s 293(1)(b)) or revoked (ss 303–310).
5 Custody to secretary order: This can be made for a period of up to 12 months but can be extended. The order grants sole custody of the young person to the secretary of DHHS but does not affect the guardianship of the young person. A magistrate may attach conditions to the order, and applications may be made to revoke (ss 303–310), extend (s 293(1)(c)) or vary (ss 300–302) the order.
6 Guardianship to secretary order: This may be for a period not exceeding two years. This disposition is similar to a wardship order under the previous Children’s Court Act 1906 (Vic) but is more limited. If the initial guardianship order exceeds 12 months, the secretary of DHHS must review it after 12 months. The order can be extended by the court in certain circumstances. Application may be made for the revocation of a guardianship order (s 305).
7 Long-term guardianship to secretary order: The CYFA contains provisions enabling the court to make an order, for a child aged 12 or over, that may last until the child is 18. The order is only to be made when there is proposed continuity of carers for the duration of the order, and when the child consents. Application may be made for revocation of a long-term guardianship order (s 306).
All the protection orders may continue in force after the young person turns 17, but cease to be in force when the young person turns 18.
A magistrate may make an interim protection order for up to three months, pending the decision to make a final protection order (s 291 CYFA). An interim protection order involves supervision by DHHS, which may initiate breach proceedings in court if the order is not complied with. The young person and the parent or caregiver have the power to apply for variation or revocation of the interim protection order.
In making a finding or a protection order, a magistrate must make decisions in the best interests of the young person. Other considerations a magistrate must take into account include:
•giving “protection and assistance to the family as the fundamental group unit of society”;
•for Aboriginal or Torres Strait Islander children, the need to maintain cultural identity;
•the preservation of child–family relationships;
•minimum disruption to education and employment; and
•the child’s wishes (but with the child’s age, maturity and other relevant considerations affecting the weight to be given to those wishes).
Under the CYFA (s 319), an application may be made for a permanent care order. This order can only be made if the young person’s parent has not had the care of the young person for at least six months, or for periods that total at least six months of the preceding year.
A permanent care order gives a person who is not the parent of the young person long-term custody and guardianship or joint guardianship of the young person. The order may last until the young person turns 18 or marries, whichever happens first. A permanent care application is made by DHHS in relation to approved care givers, but a permanent care order cannot be made in favour of DHHS.
Application may be made to vary or revoke the order, and a successful application (with the prior consent of DHHS) by the custodian for custody and guardianship under the Family Law Act 1975 (Cth) terminates the permanent care order.
Irreconcilable difference applications
Section 259 of the CYFA provides that any person who cares for a young person under 17 years of age – who believes that there is a “substantial and presently irreconcilable difference between themself and the young person to such an extent that the care and control of the young person are likely to be seriously disrupted” – may apply to the court that such a finding exists.
Also, a child who believes that there is a substantial and presently irreconcilable difference between themself and the person who has custody of them to such an extent that the care and control of them are likely to be seriously disrupted may, subject to section 259 of the CYFA, apply to the court for a finding that such a difference exists.
Before an irreconcilable difference application can be heard, conciliation counselling must take place, or be attempted (unless exceptional circumstances exist) and DHHS must provide a Certificate of Conciliation Counselling (s 260 CYFA). A magistrate who finds that there are irreconcilable differences between the parties will make a protection order (see “Magistrate’s order”). Irreconcilable difference applications are very rare.
DHHS powers and responsibilities
If a young person is in the custody, or under the guardianship, of the secretary of DHHS, the secretary may take legal proceedings on behalf of that young person in relation to the property or rights of the young person (s 172(2) CYFA).
The secretary of DHHS may also take into care, without a warrant, a young person under their custody or guardianship. This is subject to anything else expressly stated in the CYFA; for example, sections 173–176, which relate to the placement of young people.
Under the CYFA or the Adoption Act 1984 (Vic) (“Adoption Act”), the secretary may place a young person who is in their custody or guardianship:
•in an out-of-home care service (e.g. a DHHS medium-term unit or a foster placement);
•in a secure welfare service for 21 days (or a further 21 days in exceptional circumstances);
•in any other suitable situation, as circumstances require (s 173(1) CYFA); or
•for adoption under the Adoption Act if the young person is under the guardianship of the secretary and available for adoption.
In making a decision to place a young person, the welfare of the young person must be of paramount concern, and the secretary of DHHS must make provision for the physical, intellectual, emotional and spiritual development of the young person, in the same way that a good parent would (s 174 CYFA).
There are specific provisions in the CYFA regarding principles of case planning. They are set out in section 11.
Time limits are provided for in the case planning process. Sections 331 and 333 of the CYFA provide for internal review of departmental decisions. Further appeal to VCAT may be made by the young person or parent if they are dissatisfied with the internal reviews established by DHHS.
If a child aged between 10 and 15 years has exhibited sexually abusive behaviour, DHHS may apply to the court that the child be placed on a Therapeutic Treatment Order. Typically, such orders require counselling (during a 12 month order). Satisfactory completion of a Therapeutic Treatment Order generally enables the child to avoid what constituted the sexually abusive behaviour being dealt with in a way that may have resulted in a criminal record.
In more extreme cases, a child may be placed on a Therapeutic Treatment (Placement) Order. Such an order gives DHHS responsibility equivalent to the child being placed on a Custody to DHHS Order.