When is a Care and Protection order made?
Where the Minister believes a child is at risk and an order must be made to ensure his/her safety, a Care and Protection Order can be applied for in the Youth Court [see Children's Protection Act 1993 (SA) s 37]. Except in urgent cases an application for an order can be made only after a Family Care Meeting has been held or attempted and the family has not been able to come up with a satisfactory solution to the child’s safety needs [see s 27].
If the Youth Court is satisfied with the basis of the Department’s application it can make wide ranging orders under section 38 including:
- custody orders for up to 12 months
- guardianship orders for up to 12 months or until the child turns 18 years of age
- undertakings from parents and placing the child under ministerial supervision for up to 12 months
The Court must consider the importance of settled and stable living arrangements for the child, and as a general rule, a long term guardianship order (i.e. a guardianship order until the child turns 18 years of age) is to be preferred to a series of temporary arrangements for the custody or guardianship of the child [see s 38(2a)]. The Full Court of the Supreme Court has held that this general rule applies even if a "settled and stable" long term placement has not yet been found for the child, but the making of the long-term order is otherwise inevitable [see Minister for Families and Communities v R, A and Ors SASC 128].
If a child is placed under the guardianship of the Minister until the child turns 18 years of age, then the child's circumstances should be reviewed at least once each year. This is to determine whether the arrangements for the child continue to be in the child's best interests. The Minister must provide a copy of the conclusions reached at the review to the child, the child's parents and those in whose care the child is placed (unless the Minister is of the opinion that it would not be in the best interests of the child) [see s 52].
What is a Family Care Meeting?
The purpose of a Family Care Meeting is to provide an opportunity for the child’s family to make informed decisions about the care and protection of the child and to review those arrangements from time to time [s 28]. Generally an application for a Care and Protection Order cannot be made without a Family Care Meeting having first been convened [s 27(2)].
In certain circumstances, such as urgency, a meeting is not required. A Family Care meeting is also not required where a temporary guardianship instrument or restraining notice is issued for a child whose parent or guardian is found guilty of a qualifying offence [s 27(2a)]. A qualifying offence is defined under section 44A and includes the offences such as murder, manslaughter, criminal neglect, causing serious harm, committed by the parent or guardian against a child victim when they were parent or guardian to the child victim.
People who can be invited to the meeting are the child him or herself; the parents or guardians; family members; approved support persons for the parents/guardians; a Department for Child Protection worker and anyone who has had a close association with the child (such as a teacher) [See ss 30-31 in relation to those people who may be invited and those who are expected to attend].
The Care and Protection Coordinator convenes the meeting [s 29]. The coordinator must gather the views of all interested parties and convey them to everyone at the meeting and ensure that enough information is given about the risk to the child [s 32]. The approach is to be firm and direct, to leave the parties in no doubt as to the nature and extent of the Department’s concerns. Once the information is given, the parents, guardians and family members can privately discuss and decide their own arrangements for the child’s care and protection. After an agreement has been reached (preferably by consensus) it is conveyed to the meeting.
The final plan is only valid if the coordinator agrees. If a final plan is not reached or the plan is not implemented or breaks down, the Minister will apply to the Court for a Care and Protection Order [s 35].
How is a Care and Protection application different from other court proceedings?
Standard of proof
The standard of proof required at the hearing of a Care and Protection Order application is on the balance of probabilities and not, as in the case of a criminal charge, beyond a reasonable doubt [s 45 of the Act].
Burden of proof
Before a child has been removed, that is; in a first application by the Department for Child Protection, the Department must prove why a child or young person must be removed from the care of their parents.
After a child has been removed, that is; when orders are already in place, if the parents do not agree with further orders, they have to prove why the order should not be made.
A child or young person can object to the making of a further order without having to prove why they should be returned to their parents, provided the court is satisfied that they are not being unduly influenced. In this case, the Department once again has the burden of proof.
Rules of evidence
The normal rules of evidence do not apply to child protection proceedings. This allows the court to listen to matters that would not normally be admissible because of the rule against hearsay evidence. To protect children from the trauma of having to give evidence in open court, hearsay evidence from professionals who have interviewed the children (such as teachers, school counsellors, doctors, psychologists and social workers) may be accepted. However, first hand knowledge (e.g. eye witness accounts or actual evidence such as photographs) is still preferable to hearsay evidence.
The hearing of an application for a Care and Protection Order must commence within 10 weeks of the lodgement of the application [s 39(2) of the Act]. Such limited time periods do not generally apply in relation to other types of matters before other courts. In addition all proceedings are required to be dealt with as quickly as possible giving regard to the urgency of each case [s 39(1) of the Act].
Representation of children
Children must be represented by a lawyer unless the court is satisfied that they have made an informed and independent decision not to be represented or that the application should be heard as a matter of urgency [see Children and Young People (Safety) Act 2017 (SA) s 64]. In the latter case, any orders made will only apply until the child or young person is represented (if they wish) and the matter is back before the court. The child’s views must be sought and seriously considered and every child must be given an opportunity of speaking personally to the Court. Normally the child’s legal representative will ask them whether they want to talk to the court.
What is the role of the child’s legal representative?
The role of the child’s representative is to clearly state the child’s views and wishes. If the child is not capable of properly instructing the legal representative, then that legal representative must act, and make representations to the court, according to her or his own view of the best interests of the child [Children and Young People (Safety) Act 2017 (SA) s 63].
Can a Care and Protection Order be appealed or changed?
Section 22 of the Youth Court Act 1993 (SA) provides for an appeal from a Care and Protection Order to the Supreme Court. Legal advice should be sought as to whether there are grounds to appeal the order, and the likelihood of success.
Section 40 of the Children's Protection Act 1993 (SA) provides that a party to the proceedings may apply for an existing Care and Protection Order to be varied or revoked. This application is most often made by the Department for Child Protection, for example, to transfer guardianship to the appointed guardians under a long-term order. For the Court to vary or revoke the order in favour of the parents/guardians who previously had care, it must be satisfied that there has been a significant and sustained change on their part.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.