For the most part, the law allows parents to bring up their children according to their own values and beliefs. This means that parents have the right to make decisions about their child or young person's upbringing without interference unless a parent's action or inaction causes harm or places their child at risk of harm.
Parents have the right to seek legal advice at any stage of the Department's intervention. Parents also have the right to:
- be told about allegations of harm and the outcome of assessments
- participate in decision making
- privacy and confidentiality
- access documents about their own personal affairs through the Freedom of Information Branch of the Department of Child Safety, including documents about their private life, medical records, family or domestic relationships, income, assets or financial records.
The core principles of the Child Protection Act in relation to child protection are:
- the welfare and best interests of the child are paramount
- families have the primary responsibility for the upbringing and protection of their children and the preferred way of ensuring a child's welfare is through support of the child's family
- powers under the Act should be exercised in a way that is open, fair and respects the rights of the people affected
- actions are to be taken in a way that ensures family relationships are maintained, the views of the child and the child’s family are considered and that the child’s parents have the opportunity to take part in planning and decision making for the child
- if a child is removed from their family, the aim of the Department is to safely return the child to the family if possible and must give proper consideration to placing the child, as a first option, with kin
- consultation with Aboriginal and Torres Strait Islander agencies in decision-making regarding Aboriginal and Torres Strait Islander children
If it has been assessed by the Department that a child has been harmed or is at risk of harm and requires protection, they will remain involved with the family for a period of time.
The Department may apply to the Children’s Court for a Child Protection Order in the following circumstances:
- if parents are in dispute with the Department about their child being in need of protection
- if the Department deems that the parents are not willing to co-operate with the Department to ensure their child's safety
- if the Department deems that the child's protection and care needs cannot be met while they remain at home.
There are a number of different types of Child Protection Orders:
- supervision orders may direct a parent to do specific actions or require the Department to supervise a child's care. These orders allow the child to remain at home in the care of their parents.
- short-term orders last for a maximum of two years and can grant custody or guardianship of a child to the Department, a family member or other person for the duration of the order.
- long-term orders are granted after a decision is made that the best way to protect a child is for guardianship to be given to the Department, a family member or another person on a long-term basis. Long-term orders last until the child turns 18 years of age.
For a Magistrate to grant a Child Protection Order, they must be sure that the child is in need of protection and that the order is not more intrusive than what is needed for the child to remain safe.
The Children’s Court is a closed court and therefore only certain persons are allowed to be present. Those who are allowed to attend court include, representatives from the Department of Child Safety, parents and their legal representatives, the Separate Representative (lawyer) appointed by the court to represent the child's interests and a representative of a Recognised Entity if the child is an Aboriginal or Torres Strait Islander.
Glossary of terms:
An individual under 18 years
Child in need of protection:
A child who: a. has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm
b. does not have a parent able and willing to protect the child from the harm.
Court Ordered Conference:
This is ordered by the court on adjournment of proceedings and is a meeting held between the parties that is convened by a chairperson. It is an attempt to decide the matters in dispute or to try to resolve the matters without the need for a court hearing.
Court Assessment Order:
An order made to authorise actions necessary as part of an investigation to assess whether a child is in need of protection and must state the time it ends and must not be for more than four weeks from the day the application was first brought before the court.
Means the right to have the child's daily care and the responsibility to make decisions about the child's daily care.
Legal responsibility for all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children. This includes responsibility for decisions about the child's long-term care
Under a Child Protection Order, means guardianship until the child turns 18 years.
Of a child under a Child Protection Order, means guardianship of the child for not more than two years.
Supervision Order (also known as Protective Supervision Order)
A Child Protection Order requiring the chief executive to supervise the child's protection in relation to the stated matters. To give effect to this order, the chief executive can issue administrative directives to the parents directing them to do or refrain from doing something specifically related to the supervision matters stated on the order.
Temporary Assessment Order
An order made to authorize actions necessary as part of an investigation to assess whether a child is in need of protection. A Magistrate may decide such an application without notifying the child’s parents. The order must state the time it ends and must not be more than three days after the day the order is made.
Liability limited by a scheme approved under professional standards legislation
This fact sheet is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.