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Child Protection
CHILD PROTECTION BILL 1998
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The object of the Bill is to provide for the protection of children.
The Bill responds to increased community expectation that:
· children be protected from abuse and neglect;
· children who are removed from home receive safe alternative
care; and
· children who suffer abuse and neglect receive quality services
which promote their emotional, physical, social and educational
development.
In achieving its objective of protecting children, the Bill aims to:
· ensure that all children are protected from harm and the risk of
harm, irrespective of the cause of the harm;
· assist families, including extended family members, to protect
their children from harm;
· ensure that the views of children and families are taken into
account when making decisions about the protection of children
and that children and families have information and access to
review of decisions affecting them;
· provide a range of orders to achieve the protection of children
when, because a child does not have a parent able or willing to
protect them, the State must discharge its obligation to intervene
at the least intrusive level to ensure protection;
· promote a partnership between the State, non-government entities
including Aboriginal and Torres Strait Islander entities, and the
community in taking responsibility for and providing services for
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the protection of children and support of families;
· recognise and articulate the entitlements and duties owed by the
State to children and young people in care;
· regulate standards for the care of children placed in alternative
care by the State so that children being cared for away from their
own home receive a standard of care which meets general
community expectations and the needs of the individual child.
Reasons for the Bill
This Bill will replace in its entirety the outdated and severely limited
Children's Services Act of 1965. Enormous advances have been made in
the understanding of the problem of child abuse and in the development of
child protection practice since the enactment of the Children's Services Act
over 30 years ago. Legislative reform will reflect improved service delivery
methods and changing community values, including increased
accountability for the exercise of statutory authority.
The introduction of new child protection legislation in Queensland will
more adequately define the role of Government in protecting children and
supporting families. New legislation will emphasise the role of families in
protecting children, and recognise the need to involve parents and children
in making decisions about meeting the child's needs. Provisions are
required to ensure that the child's voice is heard throughout the child
protection process, and that children are not further disadvantaged when
they are placed in the custody or under the guardianship of the State.
The Bill ensures that families are supported and appropriately involved in
ensuring the protection of their children. A range of orders are provided so
that the least intrusive protective option can be used in each case.
The expectations of contemporary society about the quality of care which
should be provided to children who are unable to live with their family are
not reflected in the provisions of the Children's Services Act 1965 relating
to the regulation of alternative care. In addition, a variety of community
services not envisaged by that Act are now available for children who must
live away from their families for protective reasons. New legislative
provisions are required to ensure that minimum standards of care are met
when children in the custody or under the guardianship of the State are
placed in alternative care.
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New legislation will address the significant over-representation of
indigenous children in care. The nationally accepted principles of the
Aboriginal and Torres Strait Islander Child Placement Principle for the
provision of child protection services to indigenous children and families
will be given a legislative base.
The Children's Services Act 1965 does not meet the requirements of the
Legislative Standards Act 1992. New legislation will clarify appeal
processes and emphasise accountability in planning and decision-making.
Estimated Cost for Government Implementation
Additional funds will be required for the legislation to be implemented
effectively. New legislation is one component of the child protection
reform which is needed to ensure Queensland children are adequately
protected from abuse and neglect. A review of existing resources and
service delivery is currently underway to identify additional resource
requirements. It is anticipated that additional funds required to support the
implementation of the legislation will be sourced from existing
departmental funds and through the budgetary process.
Consultation
Consultation has occurred with the key government departments
responsible for implementation of the Bill, namely the Department of
Families, Youth and Community Care (DFYCC), Queensland Police
Service (QPS), Department of Justice and Attorney-General (DJAG), and
Queensland Health, as well as with the Brisbane Childrens Court
Magistrate, Legal Aid Queensland, the Queensland Children's
Commissioner and Education Queensland. In addition, extensive
community consultation took place during September and October 1998.
The consultation has occurred on four levels:
· ministerial forums with key stakeholders;
· consultation with peak bodies and relevant government
departments;
· regional community consultation meetings; and
· promotion of the consultation process to the general public.
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In total, approximately 250 people attended ministerial information
seminars and approximately 400 people attended 36 consultation meetings,
in communities around the State. Participants represented the following
interest groups:
· Child and family welfare sector
· Careproviders and care services
· Client representatives
· Non-government education sector
· Youth sector
· Health sector
· Legal sector
· Tertiary institutions
· Child care sector
· Aboriginal community
· Torres Strait Islander community
Extensive consultation with departmental staff has also occurred
throughout each of the regions of the DFYCC.
The Exposure Draft of the Bill was made available via the DFYCC
internet page to allow interested persons to access copies electronically. An
e-mail address was also set up to allow interested persons to send
submissions and comments electronically.
The Bill brings into effect the reforms which were seen as important by
the community and key stakeholders.
Consistency with Fundamental Legislative Principles
Comment on consistency with the fundamental legislative principles of
the Legislative Standards Act 1992 is required in relation to the following
provisions:
· clause 16 (Contact with child at immediate risk of harm)
· clause17 (Contact with child in school, child care centre, family
day care etc)
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· clause 18 (Child at immediate risk may be taken into custody)
· clause 92 (Report about person's criminal history etc)
· clause 143 (Inquiries about certain persons' suitability)
· clause 94 (Carrying out medical examinations or treatment).
All instances of departures from the fundamental legislative principles
under the Bill have occurred in the context of a tension between the rights of
individuals as safeguarded by the fundamental legislative principles and the
competing right of a child to protection from harm. It is considered that in
these specific circumstances, the right of a child to be protected from harm
override other fundamental legislative principles. DJAG has expressed its
view that the provisions of these clauses are reasonable, in all the
circumstances, given the vulnerability of children and the overriding
principle of the Bill that the child's right to protection is paramount.
The relevant clauses are discussed briefly below. They are outlined in
more detail, including examples of their use, in the "Notes on Clauses"
section of these Explanatory Notes.
Clause 16 (Contact with child at immediate risk of harm)
Clause 16 gives officers authority to enter premises without an order in
certain defined circumstances. These powers are limited to specific
circumstances where the child is at immediate risk of suffering significant
harm and it is not appropriate to leave the premises to obtain an order
because to do so is likely to:
· expose the child to harm while the officer is away; or
· result in the family leaving the premises with the child (or the
child leaving) to avoid the investigation. When this occurs, it
may be a considerable period of time before the family or child is
located.
It is considered that in these circumstances, the rights of a child to be
protected from immediate harm or current on-going harm override the
fundamental legislative principle that power to enter premises should be
conferred only with a warrant issued by a judicial officer.
When an officer uses these powers, the details including the actions taken
and reasons must be recorded in a way which is accessible for inspection.
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Clause 17 (Contact with child in school, child care centre, family day
care etc)
Clause 17 allows officers to have contact with a child for the purpose of
investigating an allegation of harm, while the child is at school or in child
care and before the parents are made aware that investigation of an
allegation is occurring. These are situations where prior knowledge by the
parents of the contact with the child is likely to impede the investigation and
result in the child remaining unprotected.
It is considered that in these circumstances, the rights of a child to be
protected from harm override fundamental legislative principles in regard to
the rights of individuals (in this case those of the parents).
Whenever an officer uses these powers, the details including the actions
taken and reasons must be recorded on a register.
Clause 18 (Child at immediate risk may be taken into custody)
Clause 18 confers a power to take a child into the protective custody of
the chief executive without first obtaining an order. The circumstances when
this is authorised are specifically limited to those where an officer believes a
child is likely to be harmed if the officer does not take immediate action to
remove the child. This section also confers an authority to obtain a medical
examination or treatment of the child without the consent of the parents
while the child is in protective custody under this section. (See clause 94
about undertaking medical assessment).
When an officer takes a child into custody under this clause, they must
apply for a temporary assessment order for the child within 8 hours of
taking the child into custody. The effect of this clause is to limit the
circumstances where an officer can take a child into custody without an
order to those instances when an officer must take immediate action to
protect a child from current significant harm. Action under this clause can
be taken only in those minority of cases where it is not appropriate for an
officer to "go away and come back with an order".
It is considered that in these circumstances, the power exercised under
the Bill is sufficiently defined and is subject to appropriate review and is
therefore consistent with the requirements of the Legislative Standards Act
1992.
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Clause 92 (Report about person's criminal history etc) and clause
143 (Inquiries about certain persons' suitability).
Clause 92 and clause 143 allow information to be obtained which may be
relevant to a recommendation or decision about a person's suitability:
· to be granted custody or guardianship of a child under a child
protection order (clause 92); or
· to have a child in the custody or guardianship of the chief
executive placed in their care (clause 143).
The clauses enable the commissioner of police to provide relevant
information from police records which includes charges as well as
convictions. Information from police records about domestic violence
history is able to be provided. Also under these clauses the chief executive
of the Transport Department is able to provide information about certain
traffic violations.
It is considered that the provision of this information is justified in the
context of making decisions about whether a child will be safe with a
proposed carer and about the standards of care which that person could
provide. It is particularly relevant in relation to charges of sexual offences
against children where convictions are difficult to obtain, eg because of the
need to rely upon child witnesses.
Clause 92(7) also allows evidence from police records (ie records of
interview and formal police statements) to be provided for the purposes of
assessing suitability of persons to whom the court is considering granting
custody or guardianship of a child. This includes evidence about allegations
against the person, limited to relevant offences, ie offences against a person
(such as assault and sexual offences), related to illegal drug-taking or
dealing, and certain offences against this Bill relating to unlawfully
removing a child from custody.
Without this provision, the situation could arise where a vulnerable child,
one who has been found to be in need of protection because of abuse or
neglect, could be placed in the custody of a person known to the police as
having been the subject of numerous allegations of sexual abuse of children
but who has not been convicted because the children involved were too
young to be reliable witnesses.
It is considered that the State's duty of care to children who have been
found by the court to be in need of protection cannot be properly discharged
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if significant information about persons in whose care these children may
be placed cannot be made available to the DFYCC. These children are
especially vulnerable because of their history of abuse or neglect and it is
imperative that precautions are taken to ensure that they are not placed in
further danger by arrangements made by the court or the DFYCC for their
care.
It is considered that in these circumstances, the rights of a child to be
protected from harm override fundamental legislative principles relating to
consistency with the principles of natural justice.
Clause 94--carrying out medical examinations etc.
Clause 94 authorises doctors to carry out examination and treatment of a
child when the child has been taken into custody under clause 18, even
though the child's parents have not consented to the examination. Medical
examination and treatment under a court order are also covered by this
clause.
The ability to provide medical examination and treatment pursuant to the
child being taken into custody under clause 18 is a departure from the
general fundamental legislative principle that sufficient regard be given to
the rights of individuals (in this case those of the parents). This is
considered justified in situations where:
· the child needs to be given immediate medical care and it would
be inappropriate to delay this until a temporary assessment order
was obtained; or
· significant medical evidence relating to abuse or neglect of the
child may be lost or destroyed if medical examination cannot
commence immediately, ie prior to obtaining a temporary
assessment order.
This clause also recognises the practical consideration that urgent medical
treatment cannot be carried out without appropriate examination. However,
clause 94 stipulates that the doctor may only carry out medical treatment
that is reasonable in the circumstances.
This clause does not effect any rights held by the child, for example the
common law right of children who are competent to make their own
decisions to refuse medical treatment or examination.
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NOTES ON PROVISIONS
CHAPTER 1--PRELIMINARY
Part 1--Introduction
Clause 1 sets out the short title of the Bill.
Clause 2 provides for commencement of the provisions of the Bill.
Clause 3 provides information about the whereabouts in the Bill of the
"Dictionary" and of key terms and concepts which are central to an
understanding of the Bill.
Part 2--Purpose and Administration of Act
Clause 4 states the purpose of the Bill which is to provide for the
protection of children.
Clause 5 sets out the principles which will guide the administration of the
Bill. The guiding principles reflect national and international child
protection practice directions.
The Bill's administration will be founded on the principles that every
child has a right to protection from harm and that therefore the welfare and
best interests of the child are paramount.
The Bill establishes the responsibility of the State to intervene to protect
children while recognising that the primary responsibility for the care and
protection of children rests with the family. The principles clarify how
these competing factors should be balanced. For example, the Bill indicates
that intervention should be at the least intrusive level necessary to protect the
child and that intervention should be aimed at supporting the child's family
to meet the child's protective needs.
The key principles outlined in clause 5 are reflected throughout the Bill.
Clause 6 sets out additional provisions which apply throughout the
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administration of the Bill in relation to Aboriginal and Torres Strait Islander
children and families. If the child is an Aboriginal or Torres Strait Islander
child, decisions of an officer or court under this Bill should only be made
after consultation with a "recognised Aboriginal or Torres Strait Islander
agency". This term is defined in the Schedule 4 as the agency which reaches
agreement with DFYCC that they are the appropriate agency for a particular
community. The term "recognised Aboriginal or Torres Strait Islander
agency" includes an organisation or an individual.
This clause recognises the special needs of indigenous children and their
families and communities to receive services which meet the cultural and
identity needs of indigenous children, and to avoid dislocation of children
from their communities. It recognises the unique needs of Aboriginal and
Torres Strait Islander families stemming from their history as indigenous
Australians, as evidenced by the over-representation of indigenous children
in care. The principles of the Aboriginal and Torres Strait Islander Child
Placement Principle are embedded in this provision, which has application
throughout the Bill.
This provision has been drafted in consultation with representatives of
relevant indigenous organisations, including the State Aboriginal and
Islander Child Care Agency (State AICCA), who support its intent.
Clause 7 outlines the functions of the chief executive which provide the
framework for the proper administration of the Bill. These functions are
part of the broader context within which the powers and obligations set out
in the Bill are effected. The duties of the chief executive relate to the
provision of services to prevent harm to children, to intervene at an early
stage to assist vulnerable families, and to respond to the needs of children
and families when harm or risk of harm occurs. The provision of all of
these services occurs through administrative programs and does not require
specific legislative powers. The powers of the Bill to protect children relate
to the small percentage of circumstances where the chief executive is
required to assume protective custody of children, or take action without the
consent of parents.
Part 3--Basic Concepts
Clause 8 clarifies that the Bill applies to all children and young people
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under 18 years old. The term "child" can be read as "young person" where
the young person is under 18.
Clause 9 clarifies the meaning of the term "harm" as being any
detrimental effect on the child's well-being, ie its common usage. However
for the purposes of this Bill, "harm" is to be read as "significant" harm, ie
the injury or other detrimental effect must be significant in nature. The type
of harm may be physical, psychological or emotional. It may be the result
of physical, psychological or emotional abuse or neglect of a child, or the
result of sexual abuse or exploitation, but is not limited as to its cause.
Clause 10 defines the concept of "a child in need of protection"
which is used particularly in Chapter 2, Part 4. A court must find a child "in
need of protection" before making a child protection order in relation to the
child.
The intention of the words "does not have a parent able and willing to
protect the child from harm" is to limit the circumstances when the State
can remove children from the custody and guardianship of their parents. If
the child's protection can be achieved by the parents (possibly with support
and help from the State), it is not warranted to make an order for the State to
assume custody or guardianship of the child.
This definition includes situations where the risk of harm is caused by
the child's own actions or someone outside the home. It includes
circumstances where, despite a parent's conscientious efforts and through
no neglect or action on their part, the child remains exposed to risk of harm.
It also includes circumstances where the parent does not have the capacity to
care safely for the child despite a desire to do so, and circumstances where
a child has no parent or family available to them.
Risk of harm includes circumstances where no harm has yet occurred
but is likely to occur if no action is taken to protect the child. This may
include circumstances where past evidence relating to other children
indicates risk to the current child. It also includes circumstances where a
child is abandoned, or where actions of the child or parent expose the child
to risk of harm by others.
When determining whether a child is "a child in need of protection" the
main focus of the court is upon the child's needs and whether an order is
required to meet them, rather than upon the parents' actions, omissions or
incapacity which may have led to the harm or risk of harm.
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Clause 11 defines the meaning of the term "parent". Throughout most
of the Bill, the word "parent" has a broad meaning and can include anyone
caring in an ongoing way for the child like a parent, eg step-parents, or
grandparents with whom the child lives.
"Parent" does not include temporary carers, eg relatives with whom the
child stays for a few weeks or neighbours who mind the child each day. It
does not include persons standing in temporary "loco parentis" for the
parent, for example school principals.
The definition for Aboriginal and Torres Strait Islander parents is able to
be interpreted broadly to include customary relationships within a
community or tribal grouping.
Clause 12 describes the meaning of the term "custody" as it is used
throughout this Bill.
A child may be in the custody of the chief executive or a relative:
· under the authority of the Bill alone (this is only possible under
clause 18); or
· under an assessment order or a child protection order.
For a child in protective custody under the Bill, the officer taking the
child into custody or person granted custody can do things and make
decisions that relate to day-to-day matters concerning the child's care. This
may include obtaining necessary medical care.
Clause 13 describes describes the meaning of the term "guardianship"
as it is used throughout this Bill.
A child may be under the guardianship of the chief executive or a relative
under a child protection order. A person who is granted guardianship of a
child under this Bill has the right to make decisions that relate to day-to-day
matters concerning the child's care, and has all the rights, powers and
responsibilities in relation to the child, including making decisions about the
long term care and development of the child, as does a person having
parental responsibility under the Family Law Act 1975.
When the child is under the guardianship of the chief executive as the
result of an order under the Bill, the chief executive becomes the legal
guardian of the child, instead of the parents, for the term of the order.
Similarly, if a relative becomes the guardian of the child as a result of an
order under the Bill, the relative then becomes the only guardian for the
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term of the order. "Guardian" means a person having parental
responsibility as defined in part 7, division 2 of the Family Law Act 1975.
CHAPTER 2--PROTECTION OF CHILDREN
Part 1--Children at risk of harm
The preferred way of protecting the well-being of children is through the
provision of information and support services to families.
However, despite the provision of preventative and early intervention
services, and support services to families, some children will still be
exposed to the risk of harm. These children and families require a
transparent system of assessing and responding to the needs of the child
and family.
The system used to protect individual children includes:
· receiving reports of alleged harm to a child;
· investigating these reports and assessing a child's need for
protection; and
· if a child needs protection, determining what level of intervention
if any is required to ensure the child's safety.
In most cases, action to assess reports of alleged harm (eg contact with
the family and child, and if necessary medical examination) is carried out
with the consent of the child and the child's parents. In a minority of cases,
parents object to officers having contact with a child for the purpose of
investigating an allegation of harm, or will not consent to procedures which
may be considered necessary, eg medical examination of a child's injuries.
In these cases, officers require the legal authority to take action to assess the
child's need for protection and to safeguard the child's immediate welfare.
Officers administering the Bill are obliged to use all reasonable means to
gain the consent and co-operation of parents in taking action to protect
children (eg moving the child to a safe place if necessary while the matter is
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assessed) and usually such actions are taken with parental consent. Where
it is not possible to gain the voluntary consent and co-operation of a parent
or child the Bill provides the means for authorised officers and police
officers to fulfil the State's responsibility to protect children. This part
outlines these authorities and defines and limits their use.
Clause 14 obliges the chief executive to take appropriate action when in
receipt of allegations of harm to children. This may be through investigation
and assessment of the allegations, or taking other appropriate action.
Allegations are usually received as reports of concerns about a child and
may include mandatory notifications.
Responses include investigation and assessment through contact with the
child and family. When the allegation does not relate to significant harm,
"other action" may be taken through the provision of protective advice to
assist the notifier respond to the family's needs. For example, the notifier
may be given information about resources which could be accessed by the
family.
This clause also requires that departmental officers becoming aware of a
possible criminal offence against a child must report the suspected offence
to the police. When a criminal investigation and a child protection
assessment are occurring in relation to the same matter, the responses of
police and authorised officers are co-ordinated.
Clause 15 ensures that parents are given information about allegations
concerning their child, and about the outcome of a child protection
investigation, but also allows information to be withheld in certain
circumstances.
The requirement that authorised officers or police investigating an
allegation of harm must tell at least one of the child's parents what the
allegations are does not include details about the person who reported the
concerns (the notifier). Officers are not obliged to give details of matters to
each of a child's parents because:
· in some cases where a child has four or more parents as defined
in the Bill, this poses an onerous requirement; and
· in some cases the privacy of one parent would be violated without
sufficient cause if the other parent was told of unsubstantiated
allegations.
DFYCC practice standards require that all parents who are implicated in
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the allegations are told about them, that the primary carer is always told, and
that both parents are told if the allegations are substantiated. However, an
officer is not required to tell parents all details of the allegations or
investigation if to do so may jeopardise a criminal investigation of the
matter, or if telling them would place the child at risk of harm.
Clause 16 gives authorised DFYCC officers and police officers authority
to enter premises without an order in certain defined circumstances. These
powers are limited to specific circumstances where the child is at immediate
risk of significant harm and it is not appropriate to leave the premises to
obtain an order because to do so is likely to:
· expose the child to significant harm while the officer is away; or
· result in the family leaving the premises with the child (or the
child leaving) to avoid the investigation. When this occurs, it may
be a considerable period of time before the family or child is
located.
For example:
Officers investigating a report that a small child has been left
alone in a house can hear sounds of a distressed child inside the
house and no adult responds to their knocks on the door.
A family is known to officers as having in the past "gone into
hiding" with the child to avoid investigation of concerns about the
child. If, on locating the child, officers are denied contact with the
child, they must act immediately. If they go away to obtain an
order, the family is likely to have left the premises by the time the
officers return.
It is considered that in these circumstances, the rights of a child to be
protected from immediate harm or current ongoing harm override other
legislative principles.
When an officer uses these powers, the details including the actions taken
must be recorded in a register administered for that purpose. DFYCC
officers will record this information using the centralised child protection
information system administered by DFYCC; police officers will record the
information on a register administered by the Queensland Police Service
(QPS).
Clause 17 allows officers to have contact with a child for the purpose of
investigating an allegation of harm, while the child is at school or in child
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care and before the parents are made aware that an investigation is occurring
These are situations where prior knowledge by the parents of the contact
with the child is likely to impede the investigation and result in the child
remaining unprotected. Examples include:
A child tells someone about his or her sexual abuse by a parent
and the allegations are notified to the DFYCC. Because of the
dynamics involved if the child is being sexually abused, the parent
is likely to pressure the child into not talking to the officer about
the alleged abuse. The officers investigating the matter decide to
initially talk to the child at school.
A child in childcare tells a group leader about serious emotional
abuse by a parent. The child is very afraid of reprisal by the
parent for having told someone. The officer believes the child will
refuse to talk about the abuse if the parent is present or talks to
the child before the officer does. The officers assessing the matter
decide to initially talk to the child at childcare.
Officers will negotiate with the person in charge of the school or child
care centre e.g. the school principal, about a suitable time to visit the school
and talk to the child. As with clause 16, whenever an officer uses these
powers, the details including the actions taken must be recorded. DFYCC
officers will record this information using the centralised child protection
information system administered by DFYCC; police officers will record the
information on a register administered by QPS.
Clause 18 confers a power to take a child into the protective custody of
the chief executive without first obtaining an order. The circumstances when
this is authorised are specifically limited to those where an officer believes a
child is likely to be harmed if the officer does not take immediate action to
remove the child. For example:
An officer investigating an allegation that a parent has physically
harmed a child find the child has considerable bruising. The
parent is angry about the child having told someone about the
abuse. The officer believes the child will be beaten by the parent
again if left in the parent's care that day.
A child tells officers about being sexually abused by a parent. The
parent denies the allegation and places a good deal of pressure
on the child to retract the statement. The officers believe that the
child will be subject to emotional abuse if left in the care of the
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parent when they leave.
A young person is located by police late at night in circumstances
where there is considerable danger of sexual assault. The young
person objects to going with police to a safe place. It is likely to
be too late to act if police go away to obtain an order. The police
take the young person into protective custody in order to remove
her from the danger.
This section also confers an authority to obtain a medical examination or
treatment of the child without the consent of the parents while the child is in
protective custody under this section. (See clause 94 about undertaking
medical assessment).
When an officer takes a child into custody under this clause, they must
apply for a temporary assessment order for the child within 8 hours. The
effect of this section is to limit the circumstances where an officer can take a
child into custody without an order to those instances when an officer must
take immediate action to protect a child from current harm. Action under
this clause can be taken only in those minority of cases where it is not
appropriate for an officer to "go away and come back with an order".
The temporary assessment order can be applied for by contacting a
magistrate by telephone, facsimile, radio or any other electronic means.
Clause 19 ensures that when a child is taken into custody because of the
need to act immediately, this overrides any other custody or guardianship
order under the Bill which may be in existence. For example, a relative may
have long-term guardianship of the child under a child protection order. If
an officer believes immediate action is necessary to protect the child, the
child may be taken into custody under section 18 despite the existing child
protection order. However, the existing order only ceases to have effect for
the time the child is in custody under clause 18.
Clause 20 ensures that if a child is taken into protective custody parents
are given information about why this has occurred and what it means, ie
that for a period of up to 8 hours or until a decision is made about an order,
the child is in the custody of the chief executive.
Parents will usually be informed of where their child has been taken and
in whose care they have been placed while in custody. However this clause,
while it requires that the parents be given general information, does not
require that they be given the details of the person with whom the child is
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placed. When there is doubt as to whether giving this information could
place the child or care provider in jeopardy, the information can be withheld.
Clause 21 allows action to be taken to protect the child in circumstances
when the child needs to be moved from an unsafe situation but it is not
considered necessary to override any of the parents' legal rights in relation
to the child. This may apply when there is no parent present with the child,
and the child is at risk if left where they are. For example:
a child is found wandering alone at night and the parents'
circumstances are unknown;
police attending a domestic violence incident find young children
who were staying with friends in the home. Because of the
violence occurring, they believe the children will be at risk of
harm if left in the household. The children's parents are away.
This section allows the child to be moved to a safe place and cared for
until a parent or family member can collect the child. It can not be used if a
parent is present with the child.
This section is an enabling section; it does not confer powers on the
officers taking the action to override parental consent or to override the
objection of a child whose level of maturity would enable him or her to
consent to being moved, i.e. a child who is aged 12 years or older.
"Safe place" is not defined--it has its everyday meaning. The safe place
to which a child may be taken until parents are located and resume care of
the child will vary depending on the child's options, the circumstances and
the geographic location. For many children it will be the home of a relative,
friend or neighbour. For others, depending on the circumstances, it could be
a hospital, childcare facility, or other formal or informal emergency care
arrangement. A safe place for a child cannot include a watch-house--by law
it is not permitted for a child who has not been charged with an offence to
be placed in a watch-house.
Clause 22 protects notifiers of alleged harm to children from legal
liability related to making the report of alleged harm. It also protects
persons who give information in answer to questions asked of them in
relation to an investigation of alleged harm to a child.
In addition, a person is not considered to have breached any code of
professional conduct or ethics by notifying the DFYCC that they suspect a
child has been harmed or is at risk of harm.
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Child Protection
Protection from liability is not given if the person who notified alleged
harm did so knowing that the allegations were false.
This section does not make reference to malicious allegations or
allegations which are unsubstantiated, because there is no correlation in
most cases between the intent of the notifier and the accuracy of a report. A
report which was made for malicious reasons may nevertheless be accurate
and lead to the protection of children who were at risk. On the other hand, a
report found to be unsubstantiated may have been made with good
intentions by a caller who honestly suspected a child needed protection.
Part 2--Temporary assessment orders
The purpose of temporary assessment orders is to authorise actions
considered necessary as part of an investigation and assessment of harm,
where it has not been possible to obtain the parents' consent. These are a
new type of order which do not involve going to court. The term
"assessment orders" denotes that these orders apply during the process of
assessing whether or not a child needs protection. They allow a short period
of investigative intervention without locking the family into an unnecessary
court process when the level of ongoing protection required (if any) is not
yet known. Temporary assessment orders apply the principle that
intervention to protect a child should not include any action which is
unwarranted in the circumstances.
Clause 23 limits the meaning of the term "parent" in this part to include
only parents or others who by law have parental responsibility for the child.
The term includes parents or others who would currently have legal parental
responsibility if it were not for a child protection order granting custody or
guardianship of the child to the chief executive or someone else.
The meaning of parent has been limited in this part because it deals only
with parents whose legal rights may be affected by the provisions of this
part, eg by the granting of custody or guardianship to the chief executive.
Elsewhere in the Bill, "parent" is afforded a broader meaning to be inclusive
of other persons parenting the child, eg step parents who care for the child
but may not have legal parental responsibility.
Clause 24 explains that the purpose of a temporary assessment order is
20
Child Protection
to facilitate the process of investigation and assessment by enabling
necessary actions to be taken when a parent's consent cannot be obtained.
Clause 25 sets out the procedure for an officer (authorised officer or
police officer) to apply for a temporary assessment order. The application
must indicate which powers are sought under the order, and the reasons for
the application. The application is made to a magistrate, not to a court.
Clause 26 allows for an application for a temporary assessment order to
be heard "ex parte". Many such orders will be made by telephone contact
with a magistrate. The purpose of these orders would in many cases be
defeated if they could not be made promptly without notice to the parents.
Clause 27 sets the matters to be considered by the magistrate in making
the temporary assessment order. It ensures that an order is made only if it is
necessary and only if it is not possible to obtain parental consent to do the
things sought under the order. It also allows an order to be made in
circumstances where parental consent can not be validly obtained (eg
because a parent is psychiatrically ill).
Clause 28 sets out the provisions which may be included in a temporary
assessment order. An order may include one or more of these provisions if
warranted. If custody of the child is granted, the magistrate must be
specifically satisfied that it is necessary to remove the child from home
during the period of investigation and assessment. The order may direct a
parent not to have contact with the child, or allow contact only when a stated
category of person is present, eg "one of the mother's family", or "a worker
from 'xyz' agency". The ability to direct a parent in this way presents an
alternative to a custody order, in circumstances when a child has a protective
parent but that parent needs assistance to enforce restrictions on an allegedly
abusive parent.
The order may also give a power of entry if the court agrees that it is
necessary, to enable contact with the child.
Clause 29 limits the duration of a temporary assessment order to 3 days.
An order may however be made for a lesser time, and may be extended by
application under clause 29. Three days will usually be sufficient time to
enable a brief assessment of the child's circumstances to be completed, so
that decisions about initial responses (if necessary) to the child's and
family's needs can be taken.
Clause 30 provides for making the application by phone or by other
21
Child Protection
electronic means. This may be necessary in many circumstances when an
officer is unable to go to the magistrate to obtain the order, eg when the
application must be made over the weekend to a magistrate on call, or when
the officer is in a location some distance from the courthouse. The
procedure to be followed ensures that the original written application and the
signed order are filed. At the same time, it provides that a copy of the order,
completed by the officer after telephone consent by the magistrate, can be
used to authorise powers exercised by the officer.
Clause 31 requires that an officer using a power of entry under a
temporary assessment order must follow the procedure generally required
for the exercise of power of entry under a warrant.
Clause 32 outlines the obligations of the officer to inform at least one of
the child's parents about the order, the terms and effect of the order and
their right of appeal. Clause 189 outlines the general obligations of officers
to explain the terms and effects of orders to parents, a child's carer (in
certain circumstances) and to the child themselves if of an age and capacity
to understand.
Clause 33 ensures that the DFYCC is advised of any temporary
assessment order obtained by police.
Clause 34 allows an officer to apply for one extension of a temporary
assessment order if it is decided that a court assessment order or child
protection order is required to protect the child but it is not possible to apply
for the court assessment order or child protection order before the
temporary assessment order would end (eg because the decision is made on
Saturday and the order ends on Sunday). The order can be extended to the
end of the next business day so that the safe custody of the child continues.
Clause 35 provides that a temporary custody order takes precedence over
any other custody or guardianship order under the Bill which may be in
existence (eg a relative may have custody or guardianship of the child under
a child protection order) for the duration of the temporary custody order.
Part 3--Court assessment orders
These are a new type of order, the purpose of which is the same as that
of temporary assessment orders discussed above. Court assessment orders
22
Child Protection
may authorise actions considered necessary as part of an investigation and
assessment of harm where it has not been possible to obtain the parents'
consent and it is considered that a period of more than a few days is
required to complete the assessment about the level of ongoing protection
(if any) required by the child.
Like temporary assessment orders, court assessment orders apply the
principle that intervention to protect a child should not include action which
is unwarranted in the circumstances. However they are for a longer
period--up to four weeks--and for that reason must be made by a
Childrens Court. This allows parents to make submissions to the court
about the application.
Clause 36 limits the meaning of the term "parent" in this part to include
only parents or others who by law have parental responsibility for the child.
The term includes parents or others who would currently have legal parental
responsibility if it were not for a child protection order granting custody or
guardianship of the child to the chief executive or someone else.
The meaning of parent has been limited in this part because it deals only
with parents whose legal rights may be affected by the provisions of this
part, eg by the granting of custody or guardianship to the chief executive.
Elsewhere in the Bill, "parent" is afforded a broader meaning to be inclusive
of other persons parenting the child, eg step parents who care for the child
but may not have legal parental responsibility.
Clause 37 explains the purpose of a court assessment order as identical
to that of a temporary assessment order, ie to facilitate the process of
investigation and assessment by enabling necessary actions to be taken
when a parent's consent cannot be obtained. Court assessment orders are
used for this purpose when a period of longer than 3 days is considered
necessary, and because their duration may be for four weeks, an "ex parte"
order is not appropriate.
Clause 38 allows an authorised officer or police officer to apply to the
Childrens Court for a court assessment order. The application must state the
reasons for the order and the types of powers sought.
Clause 39 provides for the court registrar to set the date for hearing the
application. The registrar must set the date as early as possible to minimise
the detrimental effects of time delays in planning for the child.
Clause 40 provides that each of the child's parents must receive a copy
23
Child Protection
of the application. The child must also be given information. Young
persons who are the subject of an application would usually be given a copy
of the application. Clause 166 also provides that notice need not be served
on a parent if it is not practicable to do so, eg because the parent cannot be
located. DFYCC practice standards require that the application is fully
explained to the parents and the child.
Clause 41 names the parents as respondents. The child is not a
respondent but is a party to the proceeding.
Clause 42 ensures that the Childrens Court can not proceed with hearing
the application unless the parents have had reasonable notice. "Reasonable
notice" is not defined because it may vary in specific circumstances, for
example to allow access to legal advice and travel time which may vary in
different parts of the state. This clause also recognises that in some cases it
will not be practicable to give a parent notice, eg if they can not be located.
Clause 43 provides for the court to make a court assessment order and
states the matters about which the court must be satisfied before making the
order.
Clause 44 sets out the provisions which may be included in a court
assessment order. An order may include one or more of these provisions if
warranted. If custody of the child is granted, the magistrate must be
specifically satisfied that it is necessary to remove the child from home
during the investigation. The order may direct a parent not to have contact
with the child, or allow contact only when a stated category of person is
present, eg "one of the mother's family", or "a worker from 'xyz' agency".
The ability to direct a parent in this way presents an alternative to a custody
order, in circumstances when a child has a protective parent but that parent
needs assistance to enforce restrictions on an allegedly abusive parent.
The order may also give a power of entry and search if the court agrees
that it is necessary, to enable contact with the child.
Clause 45 requires that an officer using a power of entry under a court
assessment order must follow the procedure generally required for the
exercise of power of entry under a warrant.
Clause 46 limits the duration of a court assessment order to 4 weeks.
The total time of 4 weeks includes any adjournment period. The order may
be made for a lesser amount of time. An order may be extended once by
application under clause 48.
24
Child Protection
Clause 47 outlines the obligations of the chief executive to provide the
parties to the application with a copy of the order and information in writing
that explains the terms and effect of the order and their appeal rights. Clause
189 outlines the general obligations of officers to explain the terms and
effects of orders to parents, a child's carer (in certain circumstances) and to
the child themselves, if of an age and capacity to understand.
Clause 48 allows for extension of a court assessment order but only for
reasons to do with the best interests of the child. For example:
A relative is able to assume the child's care with agreement of the
child's parents, and this could represent a resolution of the
child's safety needs. However further time is required to assess
the suitability of the relative who has only recently made the offer.
It is in the child's interests to extend the court assessment order
to allow assessment of the relative, rather than make application
for a child protection order as the only other way to ensure
interim protective custody of the child.
The order can not be extended for reasons unrelated to the child's
interests, eg because an officer was on leave and therefore unable to
complete the assessment. The court assessment order can be extended for
no longer than 4 weeks. The application procedure for an extension is the
same as for the original order. Clause 96 provides that if the original order
would end before an extension application is heard, the child's custody
continues until the application for extension is heard.
Clause 49 allows an authorised officer to apply to vary or revoke a court
assessment order. The procedures are the same as for the original
application. Variation or revocation may be sought if the circumstances of
the case change during the term of the order and some of its provisions are
no longer required. There is no provision for a parent to apply to vary or
revoke the order because of its short duration. The hearing of an a
application by a parent which was contested by the DFYCC could take as
long as the term of the order, and deflect the efforts of all concerned from
the purpose of the order, ie to assess the child's and family's needs.
Part 4--Child Protection Orders
25
Child Protection
When, as a result of assessing a child's need for protection, the chief
executive decides that it is necessary to take action to ensure the child's
protection, this action will usually occur with the voluntary consent of the
family. When intervening to protect the child, the chief executive will
whenever possible work with the family to assist them to protect and guide
the child. In most cases action taken to protect children does not require
their removal from home and occurs with the co-operation of the child and
child's family.
However, if a child needs protection and the use of voluntary options to
work with the family to protect a child is not possible or not appropriate, a
child protection order may be required to ensure the child's safety. This
may occur, for example when:
· the level of harm to the child is such that the child can not remain
safely with his or her family; or
· the family disagrees with a delegated officer's decision about the
child needing protection.
In such cases, a Childrens Court may be asked to determine whether the
child is a child in need of protection, and, if so, what type of child protection
order will best meet the child's need.
Clause 50 limits the meaning of the term "parent" in this part to include
only parents or others who by law have parental responsibility for the child.
The term includes parents or others who would currently have legal parental
responsibility if it were not for a child protection order granting custody or
guardianship of the child to the chief executive or someone else.
The meaning of "parent" has been limited in this part because it deals
only with parents whose legal rights may be affected by the provisions of
this part, eg by the granting of custody or guardianship to the chief
executive. Elsewhere in the Bill, "parent" is afforded a broader meaning to
be inclusive of other persons parenting the child, eg step parents who care
for the child but may not have legal parental responsibility.
Clause 51 explains that the purpose of a child protection order is to
secure the protection of a child when the Childrens Court has found the
child to be in need of protection. A "child in need of protection" is defined
in clause 10. Although child protection orders vary in type, effect and
duration, all have this common purpose.
Clause 52 allows an authorised officer to apply for a child protection
26
Child Protection
order and sets out the procedure for application. Only officers of the
Department of Families, Youth and Community Care can make application
for a child protection order. This recognises the role of the department as
responsible for the protective custody of children, for the ongoing statutory
intervention with children and families, and for determining which of the
department's responses best meets the needs of the child and family.
Clause 53 provides for the court registrar to set the date for hearing the
application. The registrar must set the date as early as possible to minimise
the detrimental effects of time delays in planning for the child.
Clause 54 provides that each of the child's parents must receive a copy
of the application. The child must also be given information. Clause 189
provides that notice need not be served on a parent if it is not practicable to
do so, eg because the parent cannot be located. Clause 189(4) provides that
the child is to be given information appropriate to their age and ability to
understand. Under clause 189(5) young persons who are the subject of an
application would usually be given a copy of the application.
Departmental practice standards require that the application is fully
explained to the parents and the child.
Clause 55 names the parents as respondents. The child is not a
respondent but is a party to the proceeding.
Clause 56 ensures that the Childrens Court can not proceed with hearing
the application unless the parents have had reasonable notice. "Reasonable
notice" is not defined because it may vary in specific circumstances; for
example to allow access to legal advice and travel time which may vary in
different parts of the State. This clause also recognises that in some cases it
will not be practicable to give a parent notice, eg if they can not be located.
Clause 57 provides for the court to make a child protection order if it is
satisfied that a child is in need of protection ("a child in need of protection"
is defined in clause 10), and that an order is the appropriate way in the
circumstances of protecting the child. Clause 47 also sets pre-requisites to
the making of a child protection order by the court. These aim to ensure that
a child protection order is not made before there have been opportunities for
the family to hear and discuss the reasons for the application, explore family
options for the child's safety, and where possible resolve issues related to
the application.
Clause 57(2) also seeks to ensures that if the court grants custody or
27
Child Protection
guardianship to a relative, steps have been taken to assess the suitability of
the relative to have custody of the child.
Clause 57(3) sets additional pre-requisites for the making of a long-term
guardianship order (ie to 18 years) because such orders are meant to achieve
a long-term safety and care for the child. A long-term order can be made
only if:
· the court is satisfied that it appears unlikely that a parent will be
able to resume care of the child; or
· the order best meets the child's need for emotional security in the
long-term (eg, if an older child in care has been with the same
care provider family for many years, it may best meet the child's
emotional needs in the long-term to remain with the care
providers, even though the child may now have a parent able to
provide adequate care. To move the child now may cause lasting
emotional damage to the child).
Clause 57(4) guards against children growing up in long-term care as
"wards of the state" if a suitable alternative order can be made.
Clause 58 sets out the child protection orders which the court may
make. The following are illustrative examples:
a) an order may direct a parent not to leave the child in the care of
a particular person convicted of seriously harming a child;
b) an order may direct a parent who has harmed the child not to
have contact with the child, or allow the parent contact only
when a stated category of person is present, eg "one of the
mother's family", or "a worker from 'xyz' agency";
c) an order may require the chief executive to supervise the
parents' care of the child in relation to necessary medical care
for the child;
d)(i) an order may grant protective custody of the child to an aunt
for twelve months;
d)(ii) an order may grant custody of the child to the chief executive
for eighteen months;
e) an order may grant long term guardianship of the child (ie to
18 years of age) to the chief executive;
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Child Protection
f)(i) an order may grant long term guardianship of the child (ie to
18 years of age) to a grandmother;
f)(ii) an order may grant long term guardianship of the child (ie to
18 years) to a person who has been the child's careprovider for
a number of years.
Clause 59 provides for the duration of child protection orders. Orders
which direct a parent and orders for protective supervision by the chief
executive may be up to one year in duration. Orders granting custody or
guardianship may be up to 2 years duration, except for long-term orders
granting guardianship, which expire when the child turns 18.
Clause 60 describes the chief executive's obligation to provide copies of
the child protection order to the parties and to give them information in
writing that explains the terms and effect of the order and their appeal rights.
Clause 61 allows for authorised officers to apply for extensions of child
protection orders (other than long-term guardianship orders). The
application procedure is the same as for the original child protection order.
Clause 96 provides that if an application is made to extend a child protection
order for custody or guardianship and the order would end before the
extension application is heard, the child's custody or guardianship continues
until the application is decided.
Clause 62 allows any party to an order, including parents, the child, or a
person granted custody or guardianship of the child, to apply to vary an
order, to revoke an order, or to substitute another less stringent order in
place of the existing order.
Clause 62(2)(a) and (b) prevent any party other than the chief executive
DFYCC applying for a more stringent order to replace an existing order, or
for an extension of an existing order.
Clause 62(2)(c) and clause 62(3) limit the making of "repeat"
applications by parties for revocation or variation of orders.
Clause 62(5) sets procedures to be followed if a parent or other
"interested person" applies to revoke or vary the order. Other interested
persons (eg the other parent) must be advised by the chief executive about
the application. This is to ensure that notice is properly given to all parties
entitled to it.
Clause 62(6) ensures that the court must consider the child's protective
needs before deciding to revoke an order.
29
Child Protection
Part 5--Adjournments of proceedings and court ordered
conferences
Clause 63 enables the court to adjourn proceedings; however the court
must state the reason for the adjournment and give directions. This seeks to
ensure that adjournment periods are effectively used and do not occur
unless necessary. The court is required to adhere to the principle that
applications should be decided without undue delay because it is detrimental
to children to have decision-making about their lives "put on hold".
Clause 64 enables the court to make interim orders to apply during a
period of adjournment. For the period of the adjournment, these orders have
the same effect as the corresponding child protection orders (see clause 58).
However custody of a child during adjournment for a court assessment
order can not be given to anyone other than the chief executive because of
the purpose and short length of those orders.
Clause 65 enables the court to make procedural orders about actions to
be carried out during a period of adjournment. These are actions to assist
with the clarification and resolution where possible of issues related to the
child's protection, and may result in reports for the information of the court
in deciding the application.
Clause 65 also provides that the court may order the child be separately
legally represented (see clause 107).
Clause 66 provides for the arrangement of a court ordered conference.
Clause 67 provides that all parties to an application (ie the applicant, the
parents and other respondents if any, and the child) may attend a conference
with their legal representative, and a representative of a recognised
Aboriginal or Torres Strait Islander agency if the child is an indigenous
child. Children do not usually attend but would be represented by their
separate legal representative if they have one.
Clause 68 aims to ensure that parents can hold open discussion at
conferences without fear of what they say being used in any criminal
hearing relating to the harm to the child.
Clause 69 provides for the filing of a report on the outcome of the
conference with the court and for the immediate recommencement of the
hearing before the court if practicable.
30
Child Protection
Part 6--Obligations and rights under orders
Clause 70 places a responsibility on the chief executive to service child
protection orders. For all such orders (other than for long-term
guardianship) the chief executive must work with the child's family
towards resolving the child's protective needs and for this purpose must
have regular contact with them. (Contact must also occur with children
subject to long-term guardianship of the chief executive. However in these
cases, resolution of the child's protective needs is seen as having been
achieved through the making of the order).
If the child is in custody or short-term guardianship, the child's
protection needs will be met by returning the child home if this is possible
and in the child's best interests. In some cases, work with the family will
result in the child's needs being met in another way, eg the parents
supporting a decision in favour of a long-term order for the child. The
responsibilities of the chief executive under clause 70 also apply when
custody has been granted to a relative.
Contact with family members may be by telephone, or similar means,
when it is not practicable to have face-to-face contact, eg because the person
lives too far away.
Clause 71 obliges the chief executive to ensure the charter of rights for a
child in care is complied with for children in the custody or under the
guardianship of the chief executive. The Charter is contained in schedule 1.
All children in care must be told about the Charter, and given a written copy
unless they are too young to understand it.
Clause 72 states that the chief executive will provide assistance to a child
or young person, who has been in the custody or guardianship of the chief
executive, in the transition to independence. This assistance may include, for
example:
· providing information about identity and personal history
· assistance in finding suitable accommodation
· assistance to access income support (eg Austudy)
· assistance in accessing education or training
· financial assistance.
31
Child Protection
Clause 73 describes the application of division 2 as relating to child
protection orders requiring supervision.
Clause 74 sets out the obligations and powers relating to orders for the
chief executive to supervise the parents' care of the child in relation to stated
matters. This clause aims to ensure that an authorised DFYCC officer is
able to have access to the child for the purpose of the order.
Clause 75 authorises a delegated officer supervising a child's care under
a child protection order for protective supervision to issue directives to a
parent to do (or not to do) certain things. Any directive must be in writing
and must directly relate to the matters stated in the order as requiring
supervision. The following are illustrative examples:
The stated matter may be to ensure the safety of a child, through
proper supervision--the directive under clause 75 may require
the parent to ensure the child does not have unsupervised contact
with a particular person considered a risk to the child;
The stated matter may be the child's need for therapy to address
significant developmental delays--the directive under clause 75
may direct the parent to ensure the child attends for medical
appointments at a specialist clinic;
The stated matter may be the child's need for adequate physical
care while an infant--the directive under clause 75 may require a
parent who has seriously neglected their baby to accept the
services of a resource worker in order to learn about a baby's
physical needs.
Because a direction under this clause is given for the purpose of fulfilling
the requirements of a child protection order, which can be appealed to the
court if parents oppose it, grounds for administrative appeal are limited to
arguing that the direction does not relate directly to the matters stated in the
order as requiring supervision. The direction cannot be stayed pending
outcome of an appeal because it is grounded in the order of the court and a
stay may frustrate the intent of the court order.
Clause 76 obliges family members who are granted custody of a child
under a child protection order (other than long-term) to allow authorised
DFYCC officers to service the order by having access to the child, and by
working with them and with the child's parents to resolve the child's
protection needs.
32
Child Protection
Clause 77 obliges family members who are granted custody or
guardianship of a child under a child protection order to give information to
the child's parents and to facilitate contact between the parents and the child.
This obligation applies to child protection orders granting long-term
guardianship, as well as orders for custody. However the court may
approve non-compliance with this provision if compliance would risk the
child's or care provider's safety. This authority is vested in the court rather
than the relatives' discretion because the parents would not otherwise be
able to appeal the decision to prevent or limit contact.
Clause 78 outlines the application of division 4.
Clause 79 notes the authority of the chief executive to make decisions
about where a child who is under the custody or guardianship of the chief
executive will live, ie in whose care. This clause mentions the most
common placements, ie licensed care services, approved careproviders
(foster parents), and others such as relatives. Clause 79 does not limit
where the chief executive may place a child.
Clause 80 gives effect to the principle that placements for Aboriginal
and Torres Strait Islander children in protective custody must be culturally
appropriate and maintain the child's cultural identity (as stated in clauses 5
and 6). It gives a legislative base to the intent of the Aboriginal and Torres
Strait Islander Child Placement Principle. This includes consultation with a
recognised Aboriginal or Torres Strait Islander agency and adherence to the
hierarchy of placement options when making decisions about where to
place the child.
Clause 81 states that when an approved careprovider agrees to care for a
child, the careprovider and the chief executive will enter into a written
agreement for the child's care. This "placement agreement" contains terms
about matters relating to meeting the child's particular needs and also
generic terms which put beyond doubt the right of the authorised DFYCC
officer to have contact with the child.
Clause 82 obliges a delegated officer to inform parents where a child has
been placed while under an assessment order (temporary assessment order
or court assessment order), unless telling the parent/s where the child is
would be a risk to the child's or care provider's safety.
Clause 83 obligates a delegated officer to inform parents where a child
has been placed and with whom, while under a child protection order. The
child's parents, and the child, have the right to appeal the placement decision
33
Child Protection
to a tribunal. Information about the placement can be withheld if giving it
would risk the child's or care provider's safety. The child's parents also
have the right to appeal the decision to not inform them of where their child
is placed.
Clause 83 also provides that the chief executive is not obliged to provide
written notice of where the child is living if the child is in a placement for a
brief period only. This decision not to provide notice is not appealable
because appeal would be irrelevant given the short length of the placement.
For example:
It would be impracticable to give written advice to the parents
when a child is placed with care providers for a week only as an
emergency placement (though verbal information may be
provided); the child will have been moved by the time any appeal
is started.
Clause 84 relates to the chief executive's obligation to provide
opportunity for contact between the child and family members. However
the chief executive is not required to take unreasonable steps and is not
compelled to allow physical contact if this would risk the child's or care
providers' safety. It is also recognised that it may sometimes by
impracticable for the chief executive to comply with a request for contact.
For example:
it may be impracticable to arrange contact with the child while
the care providers have the child away with them on holidays;
if contact has to be supervised, it may be impracticable to provide
it every weekend.
Parents may appeal against a decision to limit contact with the child.
This clause does not compel the chief executive to meet the costs of
family contact as part of providing "opportunity for contact".
Clause 85 obliges the chief executive to review the arrangements in place
for a child's care, at least every 6 months. This clause applies to instances
where the chief executive has custody or guardianship of the child under a
child protection order.
Clause 86 describes the chief executive's right to move a child from a
carer if it is considered to be in the child's best interests. The term "carer"
includes both approved careproviders (foster parents) and others such as
relatives with whom a child is placed.
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Clause 87 states that when the chief executive has decided to remove a
child from a carer, the carer and the child (depending on age and capacity to
understand) must receive written notice which outlines the reasons for the
decision and advises of appeal rights when appropriate (refer to clause 88).
The chief executive need not provide the written notice if the child has been
with the carer for less than 7 days or removal of the child has been planned
with the carer as part of the careprovider agreement (refer to clause 81).
Clause 88 outlines the rights of carers to appeal decisions to remove a
child from their care. In all instances appeal is allowed if the stated reason
for the removal of the child is that the carer is no longer considered to be a
suitable person to care for the child. In other circumstances, approved
careproviders may appeal the removal of a child only if the child was placed
with them under a long term child protection order, ie the intent was that the
placement would be long-term.
The lack of appeal against the removal from approved careproviders of
children under short-term orders is because the intent of such orders is to
safely reunite children with their family whenever possible. A decision to
return a child home necessarily involves removal of the child from the
careprovider and in such cases appeal against the removal is inappropriate.
Clause 89 advises the application of division 4.
Clause 90 enables the chief executive to arrange for the public trustee to
manage the property of a child in care. This may occur, for example, if the
child is the beneficiary of an estate which gives the child real estate property
or substantial money. The term "incapacitated person" is a defined term
under the Public Trustee Act 1978.
Clause 91 enables section 60 of the Public Trustee Act 1978 to be
applied in relation to a child in care at the request of the chief executive. This
may occur if, for example, the child is a beneficiary of an estate managed by
someone on the child's behalf, and the chief executive has reason to suspect
that the trust is being managed to the detriment of the child.
Part 7--General
The provisions under this part are general provisions used to give effect
to the requirements of other provisions.
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Child Protection
Clause 92 allows information to be obtained which may be relevant to a
recommendation or decision about a person's suitability to be granted
custody or guardianship of a child under a child protection order. It enables
the commissioner of police to provide relevant information from police
records which includes charges as well as convictions. Information from
police records pertaining to criminal matters and domestic violence history
is able to be provided. Also under this clause the chief executive of transport
is able to provide information about certain traffic violations.
It is considered that the provision of this information is justified in the
context of making decisions about whether a child is likely to be safe with a
proposed carer and about the standards of care which that person could
provide. It is particularly relevant in relation to charges of sexual offences
against children where convictions can be difficult to obtain, eg because of
the need to rely upon child witnesses.
The following are illustrative examples of information which may
suggest that a person is not suitable to care for a child under an order for
their protection:
a person may have been charged with sexual offences against
children where the evidence is compelling but police were unable
to obtain a conviction because the court considered the children
too young to give reliable evidence;
a person has had a number of domestic violence orders made
against them, but does not disclose this in discussion with officers
assessing his or her suitability to have the care of a child. The
existence of the orders and the circumstances in which they were
made may indicate that a child placed with the person may be at
risk of exposure to domestic violence;
a person's criminal history may show some convictions for
serious offences (eg burglary) and that numerous other similar
charges which were not proceeded with after plea bargaining in
relation to the most serious offence--the total history may
suggest that the person is a habitual offender;
a person's traffic history may show that they have lost their
license a number of times for drink driving--this may indicate a
history of alcohol abuse which is inconsistent with a suitable
standard of care for children and a further practical concern that
they will not be licensed to drive the child to appointments etc.
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Child Protection
Clause 92(7) also allows evidence from police records (ie records of
interview and police statements) to be provided by the police commissioner
to the chief executive for the purposes of assessing suitability of persons to
be given custody or guardianship of a child who has been abused or
neglected. This includes evidence about allegations against the person. This
evidence is limited to relevant offences, ie offences against a person (such
as assault including sexual assault), related to illegal drug-taking or dealing,
and certain offences against this Bill relating to unlawfully removing a child
from custody.
The words "to which the commissioner has access" enable the provision
of information from police records in other States, territories or countries.
Clause 93 obliges a delegated officer to convene a family meeting when
the officer has decided to intervene to protect a child and is able to take this
action without a court order (ie it is possible and appropriate to work with
the family while the child remains in their custody). In these circumstances,
when an officer has, in their role as a statutory child protection officer,
assessed a child as requiring protection by the state, a family meeting is
required to provide a formal opportunity for the family to be advised of the
reasons for the officer's decision, to have their say about the matters, and to
receive relevant written information.
A delegated officer is also required to convene a family meeting if one is
ordered by the court.
Family meetings cannot be held unless at least one parent attends. A
representative of a recognised Aboriginal or Torres Strait Islander agency
may attend if the child is an indigenous child. The child will attend only if
this is considered by the convening officer to be in the child's interests
(younger children do not usually attend), but the child must be given
appropriate information. The attendance of other persons is at the officer's
discretion because of the primary purpose of family meetings to facilitate
involvement of the child's parents in making decisions about their child's
future safety. In practice, relatives and support persons usually attend.
Clause 94 authorises doctors to carry out the actions required by a court
order or authorised under the Bill. This relates to medical treatment,
examination or assessment under clauses 18, 28, 44 and clause 65. A
parent's or guardian's consent (including the chief executive's) is not
required. However this clause does not effect any rights held by the child,
for example their common law rights, if they are competent to make
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Child Protection
decisions for themselves, to refuse treatment.
A medical practitioner can not be held liable in relation to the preparation
of the report (eg for its contents, if they are the honest professional opinion
of the author). However, he or she has the same liability as would have
applied if the examination etc had been carried out with consent (eg, the
doctor could still be held liable for a negligent medical action).
Clause 95 authorises a qualified practitioner (eg, a psychologist or social
worker) to carry out a social assessment of the child and family required by
a court order under clause 65. A qualified practitioner can not be held liable
in relation to the preparation of the report (eg for its contents, if they are the
honest professional opinion of the author).
Clause 96 applies throughout chapter 2 "Protection of children" to
circumstances when a child is already in custody or guardianship under an
order which is due to expire, and application for another order for custody
or guardianship or extension has been made but cannot be heard by the
magistrate or court before the existing order ends. This clause allows the
custody or guardianship of the child to continue until the application for a
further order or extension is heard. This protects the child by ensuring there
is no "gap" in the protective custody between one order and the next.
CHAPTER 3--CHILDRENS COURT PROCEEDINGS
Part 1--Preliminary
Clause 97 describes the application of part 1.
Clause 98 clarifies meaning of the word "order" in chapter 3.
Part 2--Jurisdiction
Clause 99 outlines how the Childrens Court must be constituted when
exercising its jurisdictions. Appeals from the decisions of Childrens Court
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Child Protection
magistrates can be heard only by a Childrens Court judge. The jurisdiction
of the Childrens Court when constituted by two justices of the peace
(magistrate court) is limited to deciding applications for court assessment
orders or making interim orders, and does not include deciding a child
protection application.
Clause 100 allows the hearing of a matter in the Childrens Court to
proceed even though a criminal matter relating to the same circumstances is
pending. This is to ensure that decisions related to a child's need for
protection are not delayed and take precedence if necessary over the timing
of a criminal hearing on the same matter. This is in line with the principle in
clause 63(3).
Part 3--Procedural provisions
Clause 101 states that the paramount consideration of the court in
exercising jurisdiction under the Bill must be the welfare and best interests
of the child. This principle applies to all decisions made within the court's
jurisdiction under this Bill. In addition, the court is required to adhere to the
provisions of clause 6(3) in relation to Aboriginal and Torres Strait Islander
children.
Clause 102 provides that the court is not bound by the rules of evidence
and need only be satisfied of matters on the "balance of probabilities"
(rather than satisfied "beyond reasonable doubt"). The court is inquisitorial,
and may use whatever means it wishes to inform itself. For example, the
court may accept a submission from interested family members, or may
ask to speak to the child in the magistrate's office.
Clause 103 requires the court to take reasonable steps to ensure that the
child (if present in court), the parents and other parties understand the
proceedings. This includes the appropriate use of an interpreter if any party
experiences difficulty communicating in English and a person to facilitate
communication if a party has a disability which would limit their taking part
in the proceedings.
Clause 104 provides that the court can receive expert advice to assist it in
its deliberations. For example, in a highly complex medical matter the court
may request a medical expert to clarify the implications of material before
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Child Protection
the court.
Clause 105 allows the child, the child's parents and any other party (eg a
relative who has been granted custody of the child) to be legally represented.
It also allows for the parent or other party to appoint someone as an agent to
"stand in" as their proxy, eg if they are unable to attend court, and to present
their views and wishes to the court.
Clause 106 ensures that the court does not proceed with hearing of an
application unless the parents have had a chance to arrange legal
representation. The parents will have had "reasonable opportunity to obtain
legal representation" if they have had time to apply for legal aid, even if they
have not been granted legal aid.
Clause 107 provides for the separate legal representation of a child. The
court may order that the child be separately represented in any case, but is
obliged to consider whether such an order should be made in all cases in
which the parents or the child oppose the application. The style of separate
representation is similar to that which is provided by separate child's
representatives in the Family Court. The separate representative has an
obligation to the court to act in the child's interests, and is not obliged to act
on any instructions of the child.
Clause 108 allows for a lawyer to represent more than one child (eg,
within the same family) unless the court orders otherwise.
Clause 109 protects a child from being called to appear in the court and
give evidence, unless the court permits this to happen. The clause also
restricts the circumstances in which the court can grant permission. This
clause recognises the extreme emotional distress and damage that can occur
for a child when they are asked to testify against their own parents or in
relation to harm which they have endured. It also recognises that it is
contrary to strengthening positive family relationships for this to happen.
The child's statement (if any) and views must be put before the court, but in
an appropriate way which does not call the child to give evidence in court.
Clause 110 enables the court to take submissions from persons who are
not parties to the proceedings, if court considers the person has useful
information to provide. (However, this does not imply that any person who
is not a party can be present in court without leave of the court).
Clause 111 allows a Childrens Court magistrate to transfer proceedings
to another Childrens Court. This may be appropriate, for example, if the
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Child Protection
child and family have moved.
Clause 112 enables the court to hear two or more applications together
(eg for two children in the same family).
Clause 113 provides for each party to pay their own costs. There is no
provision for costs to be ordered against the State as the applicant because
of the complexity of this statutory role on behalf of the people of
Queensland. If an application results in withdrawal or is dismissed because
an order is considered by the court to be unnecessary, this does not mean
that the application was unwarranted. It may represent a positive resolution
of the protection issues during the court process, an outcome which may
have been aided by the court application.
If costs were to be awarded against the State as applicant, financial
considerations could become the determinant factor in deciding whether to
make application for an order, instead of the child's current need for
protection.
Part 4--Court Appeals
Clause 114 allows any of the parties to appeal a decision of a court on an
application for an order. This includes the child who may appeal in their
own right, or through a separate legal representative.
Clause 115 sets out the procedure for making an appeal.
Clause 116 allows for the appellate court to stay a decision which is
being appealed. If an appealed decision is not stayed, it can be implemented
even though it is being appealed.
Clause 117 provides for the appeal to be decided on the Childrens Court
records of the original hearing, except that a Childrens Court judge hearing
the appeal can order a new hearing or partial hearing.
Clause 118 lists the powers of the appellate court to confirm, vary or set
aside decisions and to make new decisions.
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Child Protection
CHAPTER 4--INTERSTATE TRANSFERS OF
GUARDIANSHIP AND CUSTODY OF CHILDREN
Clause 119 defines the meaning of "parent" for the purpose of this
chapter.
Clause 120 outlines the procedure for the chief executive to accept a
transfer of a custody or guardianship order for a child from another state.
When the chief executive assumes custody or guardianship by signing a
declaration, the interstate order becomes a Queensland child protection order
as if made under this Bill. The duration of the order is translated to be
consistent with a child protection order under this Bill.
Clause 121 requires the chief executive to advise the child and the child's
parents of the making of the declaration, ie that the order is now a
Queensland child protection order.
Clause 122 enables the chief executive to arrange a transfer of
guardianship of a child under the chief executive's custody or guardianship
from Queensland to another state. Written notice of the planned transfer
must be given to the child, the child's parents, and, if applicable, the carers.
The chief executive must consider any submissions they make that the
transfer should not be made. Transfer of guardianship decisions can be
appealed to a tribunal.
CHAPTER 5--REGULATION OF CARE
Part 1--Standards of care
Clause 123 obliges the chief executive to ensure that when a child is
placed with an approved care provider or in a care service, the care is of an
adequate standard. The Statement of Standards requires the chief executive
to, as far as possible, meet the material, educational, psychological and other
needs of children placed in out-of-home care by the DFYCC.
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Child Protection
The Statement of Standards is a central provision of the part dealing with
regulation of care because adherence or ability to adhere to those of the
standards which are within the care provider's means are used to assess the
suitability of care providers and services.
The Statement of Standards is consistent with the provisions of the
United Nations Convention on the Rights of the Child. Corporal punishment
or punishment which frightens or threatens a child is prohibited because,
among other reasons, children in care for protective reasons may have
experienced treatment of this type and are particularly vulnerable.
Part 2--Licensing of care services and approval of care
providers
Clause 124 establishes the purpose of this part.
Clause 125 ensures that a license can only be held by an organisation, not
by an individual.
Clause 126 sets out the procedure for application or renewal of a license
to provide a care service. The organisation must name an individual as the
"nominee" for the license, ie the person administratively responsible for the
license.
Clause 127 prohibits the chief executive from granting the application for
license unless satisfied that the organisation, and those persons managing
and providing the services (ie caring for children) are suitable. In assessing
whether persons are "suitable", the chief executive may consider criteria
under a regulation, including their ability to meet the stated standards, and
can take into account information about a person's criminal and other
histories (clause 143). Any child protection records about the person held
by the department may also be taken into account.
Clause 128 requires a license to be issued if approval of the application is
granted and enables a license to include reasonable conditions (for example,
limiting the type of care which can be provided--a care provider may be
approved only to care for babies).
Clause 129 limits the duration of a license to 3 years.
Clause 130 sets out the procedures to be followed if the chief executive
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Child Protection
refuses a license.
Clause 131 establishes that the nominee of a license holder is responsible
for ensuring suitable standards of care.
Clause 132 provides that only an individual can be an approved care
provider (foster parent), although two or more individuals can be jointly
approved. If a couple is to care jointly for the child, both must be approved
as care providers.
Clause 133 sets out the procedure for application or renewal of a
certificate of approval as a care provider. Applicants for approval as care
providers must make application to the DFYCC.
Clause 134 prohibits the application being granted unless the applicant is
suitable to be a care provider and all adult members of their household are
suitable to associate on a daily basis with children. In assessing whether
persons are "suitable", the approving officer may consider criteria under a
regulation, including the applicants' ability to meet the stated standards, and
can take into account information about a person's criminal and other
histories (clause 143). Any child protection records about the person held
by DFYCC may also be taken into account.
Clause 135 requires a certificate of approval to be issued if approval as a
care provider is granted. Conditions may apply to the approval.
Clause 136 sets the duration of the initial and subsequent certificates of
approval.
Clause 137 sets out the procedure for refusal of an application for a
certificate of approval.
Clause 138 sets out the procedure for licensees or approved care
providers to apply for an amendment to the conditions of their license or
approval. Throughout the rest of this division both licenses and certificates
of approval are referred to generically as "authorities".
Clause 139 enables licenses and approvals to be amended by the chief
executive, for example if standards of care are not being met or conditions
are not being adhered to. The procedure for amending the license or
approval is set out.
Clause 140 sets out the grounds on which a license or approval may be
suspended or cancelled.
Clause 141 sets out the procedure for suspending or cancelling a license
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Child Protection
or certificate of approval. The holder of the license or approval must be
given written notice of the reasons for the proposal to suspend or cancel the
license and have at least 28 to respond. Decisions to suspend or cancel
licenses or approvals may be appealed to a tribunal.
Clause 142 outlines the procedure to be followed if a license or approval
is to be amended, suspended or cancelled. The amendment, suspension or
cancellation takes effect on the day the new authority is given out (or later if
stated) and cannot be backdated.
Clause 143 authorises criminal history and other checks to be made by
the chief executive for the purpose of determining the suitability of persons
to provide care for children. It applies to persons managing and providing
care services at a licensed service, to care provider applicants and to the
adult members of their household. It authorises the commissioner of police
to provide information about a person's criminal history and domestic
violence history and the chief executive for transport to provide information
about a person's traffic history (see clause 92 and discussion under the
heading "Fundamental legislative principles" about why such checks are
justified). Departmental child protection records may also be considered in
determining the suitability of persons.
Clause 143 does not enable the provision of police records about alleged
offences, as is possible under clause 92(7), because children placed with
approved care providers will have regular contact by authorised DFYCC
officers (clause 92(7) applies when persons may be granted custody or
guardianship of children).
Clause 144 provides that failure to advise of a decision about an
application within 90 days may be taken as notice of a decision to refuse the
application.
Clause 145 makes it an offence to contravene a condition of a license or a
certificate of approval.
Clause 146 enables an authorised officer to request a licensee or
approved care provider to produce their license or certificate of approval.
Clause 147 provides for an authorised officer to enter and inspect the
premises of a licensed care service at any reasonable time to ensure that the
provisions of the Bill are being complied with.
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Child Protection
CHAPTER 6--ADMINISTRATION
Part 1--Authorised officers
Clause 148 provides for the chief executive to appoint authorised officers
(DFYCC employees and other persons by regulation) for the purpose of
carrying out duties under the Bill.
Clause 149 provides for the powers of an authorised officer to be
limited.
Clause 150 provides for stating an authorised officer's conditions of
appointment.
Clause 151 requires an authorised officer to have a departmental identity
card for the period of their appointment.
Clause 152 requires an authorised officer to show their identity card
before exercising a power under the Bill or, if this is not practicable, as soon
as possible afterwards.
Clause 153 provides that, if something is damaged when exercising a
power under the Bill (for example if something in the home is broken when
a child is being taken into custody), an authorised officer must give written
notice about the damage to the owner.
Clause 154 provides that if a person incurs loss or expense to property
because a power was exercised under this Bill, they can claim
compensation. This clause does not relate to indirect loss or loss other than
property, eg it does not include loss of income or the incurring of medical
or legal expenses.
Part 2--General
Clause 155 enables the chief executive to delegate powers under the Bill
to departmental employees.
Clause 156 enables the chief executive to approve forms for use under
this Bill.
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Child Protection
Clause 157 relates to co-ordination of government departments and
community agencies involved in providing child protection services. It
makes the chief executive responsible for ensuring that roles and
responsibilities of departments and agencies are co-ordinated at a broad
policy and planning level; and at the level of taking action to protect
individual children.
This clause ensures that mechanisms to co-ordinate statutory child
protection intervention services, such as the proposed Child Protection
Council, the inter-departmental Co-ordinating Committee on Child Abuse
and existing Suspected Child Abuse and Neglect (SCAN Teams), must
exist.
Clause 158 allows for the financial support by the chief executive of
children in the chief executive's custody or placed in alternative care for
reasons related to their protection and welfare. There is provision for the
chief executive to help meet expenses of the transition of a child from
custody or guardianship under the Bill to independence. These expenses
may in some cases be incurred after a young person turns eighteen years,
and may include, for example, a contribution towards establishing a
household or towards tertiary education costs.
CHAPTER 7--ENFORCEMENT AND LEGAL
PROCEEDINGS
Part 1--Offences
Clause 159 makes it an offence to obstruct an officer exercising
powersunder this Bill. However it is expressly allowed that a child who
resists being taken into custody for the child's own protection cannot be
charged with an offence under this section.
Clause 160 makes it an offence to impersonate an authorised officer.
Clause 161 makes it an offence to remove a child under custody or
guardianship of the chief executive from the care of the person with whom
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the child has been placed.
Clause 162 makes it an offence to remove a child from someone who
has custody or guardianship under this Bill. It is also an offence to keep a
child whom someone else has unlawfully removed.
Clause 163 makes it an offence to unreasonably refuse to allow an
authorised DFYCC officer to enter a house to check on the well-being of a
child under an order giving custody or guardianship to the chief executive.
Clause 164 makes it an offence to take a child under a custody or
guardianship order interstate, with the intention of preventing this Bill from
applying to the child.
Clause 165 makes it an offence for a parent to contravene an order
directing that they not have contact with the child. A person who has been
given notice of an order, eg by it being sent to their last known address, is
taken to know about the order.
Part 2--Warrant for apprehension of child
Clause 166 enables an authorised officer or police officer to apply for a
warrant for the retrieval of a child. This may be necessary when a child has
been unlawfully taken from the person with whom they were placed, or
when it has not been possible to take custody of a child even though an
order granting custody or guardianship has been made.
Clause 167 allows the issuing of a warrant by a magistrate. The warrant
authorises the officer to enter any places where the child is thought to be. It
may not be known exactly where the child is at the time of issuing the
warrant, and therefore its authority must enable the officer to enter any place
the child is thought to be while searching for the child. It would not be
practicable to have to seek a specific order relating to another place each
time the child was moved.
Clause 168 sets out the procedure to be followed after a warrant is issued
by phone or fax etc. It ensures that the sworn application and signed warrant
are filed and allows a copy of the warrant to be used by the officer in the
same way as a the signed warrant.
Clause 169 requires that an officer using a power of entry under a
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warrant must follow normal procedure for the exercise of power of entry
under warrants.
Part 3--Powers of authorised officers
Section 170 clarifies the application of part 3.
Section 171 authorises DFYCC officers, in the circumstances outlined in
clause 170, to seize (ie take with them, as evidence) anything that may
otherwise not be available at a later date as evidence.
Section 172 sets out the procedure to be followed if a thing has been
seized by an authorised officer. These are standard procedures.
Section 173 allows the court to order the forfeiture of a seized thing.
Section 174 deals with the status of forfeited things.
Section 175 allows authorised DFYCC officers to take photographs as
evidence, in the circumstances outlined in clause 148, ie the same
circumstances as they are authorised to seize things.
Part 4--Evidence and legal proceedings
Clause 176 provides that proof is not required for a Childrens Court to
accept that an authorised officer is authorised under this Bill or that a
document tendered under the signature of an authorised officer or the chief
executive is in fact signed by them. Clause 176 also provides a list of
statements which, if certified by the chief executive, can be taken as
evidence that the statement is true. For example:
If a statement signed by a delegated officer certifies that a licence
was issued on a particular date, this can be taken as evidence of
the matter--no further proof is required.
Clause 177 provides for offences under the Bill to be dealt with as
summary offences.
Clause 178 limits the time within which a proceeding for an offence can
be commenced.
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Child Protection
Part 5--Confidentiality
Clause 179 provides some definitions used in this part only. "Publish"
can mean any public means of communication, eg speaking at a public
meeting, but does not include communication which is not accessible by the
public. "Act" in this part includes reference to the Children's Services Act
1965 so that records created under that Act are covered by the Bill's
confidentiality provisions.
Clause 180 ensures that confidentiality is maintained about the identity of
persons who notify statutory authorities of their concerns about possible
harm to a child. The clause prohibits officers who are aware of the notifier's
details from disclosing them, except to others requiring the information to
perform duties under this Act, or if ordered by a court or tribunal. It also
prohibits the questioning of an officer in a court or tribunal proceeding
about the identity of the notifier unless the court or tribunal gives leave. The
identity of the notifier is also protected during the process by which the
court or tribunal considers whether to grant leave to disclose the
information.
This clause is essential for the effectiveness of the system for the
protection of children in Queensland. Statutory authorities with
responsibility to protect children rely upon members of the public to report
concerns about children. In most cases, notifiers will not report or disclose
information unless they can be assured that their identity will be protected.
Any lessening of this standard would erode public confidence in
Queensland's child protection system.
Clause 181 is the central confidentiality clause of the Bill. It prohibits
DFYCC employees, police officers, and other persons performing duties
under the Bill who obtain personal information, for example information
from child protection case records, from disclosing the information. The
prohibition applies to persons both directly and indirectly involved in the
administration of the Bill, eg staff of the department and Minister,
employees of licensees, and approved careproviders.
However the clause allows disclosure for purposes related to a person's
duties under the Bill, and for purposes directly related to the welfare of any
child. Such disclosure may not be directly related to the protection of the
child it concerns, but may be disclosed in relation to the protection or
welfare of another child or children. For example:
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Child Protection
A parent may have seriously neglected an infant in their care, and
now a second child is about to be born. Information about the
first child can be disclosed for the purpose of ensuring the
protection of the second infant.
Clause 181 also enables disclosure of personal information if the
disclosure relates to co-operating with other government entities which have
responsibilities relating to the protection of children. For example:
A family where the children are considered at risk of harm moves
interstate. Information about the family may be disclosed to the
other state welfare department when they locate the family, to
assist that department to protect the children.
Similarly, information about a child may be disclosed to a
non-government agency. For example:
An agency provides protective services to children referred by the
DFYCC. To enable them to provide the assistance required to
help the family meet the child's needs, the DFYCC provides
information held by the department about the child's needs..
Information may also be given to a person if it is information about
them.
Clause 182 ensures that personal information which is given to someone
under clause 181 must be treated confidentially by that person. However the
person may give the information to someone else if this is necessary for the
protection or welfare of the child. For example:
A school principal given information by an officer about a child
may pass on necessary parts of it to teachers of the child to
enable them to help support and safeguard the child.
Under this clause "purposes directly related to a child's protection and
welfare" can include purposes related to assessing or reviewing a child's
need for protection, and may relate to other members of the child's family
whose welfare is linked to that of the child.
Clause 183 makes it an offence to publish information which would
identify a child living in Queensland as being a child who has been harmed
by someone within their own family. This provision recognises the
emotional trauma to a child (even many years later) of seeing or hearing
themselves publicly identified as a child whose family mistreated them. The
repercussions extend to the attitudes of others with whom the child has
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contact, eg a child being embarrassed or bullied because other children at
school, for example, have had access via the media to very personal
information about what happened within the child's home.
For the same reasons, clause 183 also makes it an offence to identify a
child as the subject of investigation of a child protection allegation under this
Bill or the subject of an application or order under this Bill, unless approved
by the chief executive for publication.
Clause 184 protects personal client records by ensuring that subpoenas
are targeted to the documents required and do not catch up irrelevant
personal documents. This clause also protects the confidentiality of
documents which have been supplied in response to a subpoena, when in
the control of the court registrar or other agency.
Clause 184(1)(b) provides that records or documents from the
department which are in the possession of another government entity are
included in the provisions of clause 184 relating to subpoena of records.
Clause 185 allows an officer involved in administering the Bill to refuse
to disclose certain information to a court or a tribunal. The circumstances
relate to the safety of a child or family member, or to identifying a notifier,
or to the disclosure of highly personal information and jeopardising the trust
of the child or family member. Provision exists for the court or tribunal to
order the disclosure if it is satisfied that the information is relevant to the
proceedings, and that the arguments in favour of disclosing it outweigh the
arguments against. However this clause does not override clause 180 in
relation to the identity of a notifier.
Clause 186 prohibits the public reporting of proceedings under this Bill
in the Childrens Court (which is not open to the public), unless approved by
the court. The Childrens Court is a closed court to protect the privacy of
children.
Clause 187 prohibits the publication of any identifying information about
a child who is a victim or witness in a court proceeding about a sexual
offence. A court may also order the prohibition of identifying information
about a child in any other court proceedings relating to offences against the
child or in which the child is a witness.
Clause 188 enables personnel of a health service under the Health
Services Act 1991 (eg a hospital or public clinic) to release information from
the health service records to give to the chief executive. This may be
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Child Protection
necessary, for example, when a hospital has information directly relevant to
the assessment of a child's protection needs. It may include information
about another person (eg a parent) when the information relates to the
child's welfare.
Part 6--General
Clause 189 provides that when required to explain an order or declaration
or to serve notice on someone, the chief executive need only comply to the
extent "reasonably practicable" in the circumstances. For example, in the
circumstance where a parent cannot be located or contacted it is not
reasonably practicable to serve notice.
Children must be told or notified of matters, but in a way which is
appropriate to their age and ability to understand the information. This
includes the child being entitled to receive the information in writing if:
· the child is entitled to be told about matters where notice to
parents is required in writing, and
· the child or young person is considered by the authorised officer
to have the maturity and competence to deal appropriately with
the written information.
Clause 190 provides that if a police officer or authorised officer is
required to do something, the task can be performed by another officer with
the same delegations or powers.
Clause 191 provides protection from civil liability for a police officer or
authorised officer (or someone acting under their direction) acting properly
and honestly in an official capacity under the Bill.
CHAPTER 8--MISCELLANEOUS
Clause 192 enables an aggrieved person for an appealable decision to
appeal to the Children's Services Tribunal.
Clause 193 enables the Governor in Council to approve regulations
under this Bill and lists the matters about which a regulation may be made.
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Child Protection
CHAPTER 9--REPEALS, SAVINGS AND
TRANSITIONAL PROVISIONS
Part 1--Repeals
Clause 194 repeals the Children's Services Act 1965 in its entirety.
Clause 195 permits a reference to the Children's Services Act 1965 in
existing Acts or documents to be read as a reference to this Bill, if relevant.
Part 2--Savings and transitional provisions
Clauses 196 to 203 provide for the transition of existing orders under the
Children's Services Act 1965. These are existing 'care and protection' orders,
'protective supervision' orders, 'care and protection' orders under a section
47 or section 134 declaration, 'care and control' orders under section 61 and
'supervision' orders under section 61. Provision is also made for the
transition of existing licenses for care services and certificates of approval
for care providers.
CHAPTER 10--AMENDMENTS
Clause 204 states that schedule 3 lists consequential and other
amendments to other Acts.
SCHEDULE 1--CHARTER OF RIGHTS FOR A
CHILD IN CARE
Schedule 1 describes the obligations of the chief executive to children and
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Child Protection
young people who are in the custody or guardianship of the chief executive
under a child protection order. The Charter acknowledges the special
vulnerability of children who do not have a parent able and willing to protect
them and reflects the obligation of the State to provide care for these
children in a way that ensures their rights, as documented in the Charter, are
met. The matters stipulated in the Charter are provided for in other sections
of the Bill. Their listing in the Charter using language which may differ
from that used elsewhere in the Bill can not be taken to limit any of the
provisions contained in the body of the Bill.
SCHEDULE 2--APPEALABLE DECISIONS AND
AGGRIEVED PERSONS
Schedule 2 lists all decisions under the Bill which are able to be appealed
to the Children's Services Appeals Tribunal. The aggrieved persons, ie the
persons entitled to appeal, are listed alongside each decision.
SCHEDULE 3--AMENDMENT OF ACTS
Schedule 3 lists the Acts which are amended by the Bill.
SCHEDULE 4--DICTIONARY
Schedule 4 defines terms used in the Bill.
© The State of Queensland 1998