Protection & Care - When a Child is in Need of Protection

Contributed by JessicaPeake and TamekaBrown and current to 27 July 2018

The Department is sometimes required to step in and assist families (through support or by removing an unsafe child) if it is determined a child is in need of protection.

According to section 28 of the Act a child is in need of protection if:

'Emotional abuse' includes psychological abuse and being exposed to family violence.

‘Harm’ is defined as harm to the child’s physical, emotional or psychological development and many any detrimental effect of a significant nature on the child's wellbeing.

'Neglect' includes failure by the child's parent(s) to provide, arrange, or allow the provision of adequate care for the child or effective medical, therapeutic or remedial treatment for the child.

A child is usually removed after the Department have applied for and obtained a warrant.

What is a Warrant?

The Department can make an application to the Children’s Court of Western Australia for a warrant. There are two types of warrant – ‘access’ or ‘provisional care’.

A warrant for ‘access’ can be applied for when the Department is denied or reasonably believes they will be denied access to a child. This warrant can also allow the Department to gain entry to a place where the child may be (s. 34 of the Act).

A warrant for ‘provisional protection and care’ can be applied for when a child in need of care:

• cannot be found by the Department;
• leaving the child where they are poses an unacceptable risk to the child’s wellbeing;
• a child may be at risk if they leave a safe place (such as a hospital); or
• the Department would be unable to locate the child if the carer became aware of a proposed application for care by the Department (s. 35 of the Act).

After a warrant is executed and the child removed, the Department must make a Protection Order Application as soon as practicable - but not more than two working days after. The Court matter should be listed for a court date within three working days after the application is made (s. 36 of the Act). However, this is not always possible in regional and remote areas.

Can my Child be removed without a Warrant?

A child can be removed from you by an authorised person without a warrant in certain circumstances. Removal can happen if the Officer suspects on reasonable grounds that there is an immediate and substantial risk to the child’s wellbeing (s. 37 of the Act).

The Officer may enter any place where the child may be, search that place and remove the child. An officer may use reasonable force and assistance if necessary (s. 121 of the Act).

Once a child is removed, the parents or carer must be notified, along with sufficient reasons for the removal of that child (s. 37 of the Act).

If the child is removed and the Department does not want to make a Protection Order, the child must be returned to the parent or carer as soon as is practicable. If an Order is to be made, an Application should be made within two working days of the child being removed. The Court must ensure the matter is listed for a court date within three working days after the Application was made (s. 38 of the Act). However, this is not always possible in regional and remote areas.

Powers and Duties of the Department

The Department has a wide variety of 'powers' under the Act. Where the Department has received information that raises concerns for a child, the Department ‘can make any inquiries necessary’ to safeguard or promote a child’s wellbeing and determine a course of action (s. 31 of the Act).

If it is determined that action is needed to protect the child’s wellbeing, the Department has a number of 'duties' it is required to carry out to protect that child. The Department must do at least one of the following (s. 32 of the Act):

• provide ‘social services’ to the child or parent – such as training, counselling, advocacy, crisis care, support or family violence services;
• arrange a meeting between a Department worker and the parent (or whoever is caring for the child);
• enter into a ‘responsible parenting agreement’ – this is an agreement around issues such as parenting, school attendance, contact with certain persons;
• enter into a ‘negotiated placement agreement’ – this is an agreement for the Department to find somewhere safe for the child to stay;
• conduct an investigation into any claims around abuse or harm;
• take interventional action – this may include making an application for a Protection Order, taking the child into provisional care or making an application for a warrant; or
• any other reasonable action.

Permanency Planning

Permanency planning is what the Department does (case management practice) to provide children in care with safe, continuous and stable living arrangements, lifetime relationships and a sense of belonging. The primary focus of permanency planning is to prevent children 'drifting' in care from one care arrangement to another, or through multiple attempts at reunification.

Permanency planning will take place regardless of whether a child is in provisional protection and care, on a Protection Order (time-limited) or a Protection Order (until 18) and it is done in conjunction with an assessment regarding the likelihood of reunification.

The Department has an internal Permanency Planning Policy which can be found on their website, along with an information sheet.

The Policy states decisions about whether reunification should proceed and is in the child's best interests must be made within:

• 12 months for children who enter provisional protection and care at less than three years of age; and
• two years for all other children.

As soon as a child enters the ‘provisional care’ of the Department, an assessment is completed to weigh up the likelihood of that child reunifying with the parent(s), or whether it is in the ‘child’s best interests’ that a Protection Order be made.

Reunification

Reunification is the planning process for assessing and returning a child home to their parent(s) after a period in care.

Reunifying a child with their parent(s) is the Department's first consideration in achieving a child's permanency wherever appropriate, because it recognises that parents and extended family play a primary role in promoting a child's sense of belonging and identity. However, in doing so, the Department must balance this with what is in the child's best interests.

Where reunification is not likely within the timeframe above, the Department will look to place the child in permanent care.

Types of Protection Orders

There are a number of Protection Orders the Department may ask the Children's Court to make. These include:

• Protection Order (supervision);
• Protection Order (time-limited);
• Protection Order (until 18); and
• Protection Order (special guardianship).

The Court can only make a Protection Order if the Magistrate is satisfied that it is in the best interests of the child to do so.

The making of a Protection Order may or may not affect who has 'parental responsibility' for the child.

'Parental responsibility' means all the duties, powers, responsibilities and authority which, by law, parents have in relation to a child.

Protection Order (supervision)

With a Protection Order (supervision) a child remains in the care of their parent(s) and the parent(s) keeps their parental responsibility. This means the parent is responsible for the day to day and long term decisions (s. 47 of the Act). However this arrangement is usually subject to a number of conditions (s. 50 of the Act), such as who can and cannot see the child, where the person can live, implementing steps of a safety plan, etc.

The Department will also continue to check in on the parent(s) and child to see how things are going and to make sure the child remains safe.

When a Protection Order (supervision) is made it is made for a specific period of time. The time will be detailed in the order but can only be up to a maximum of two years and must end before a child turns 18 years of age (s. 48 of the Act).

Despite a Protection Order (supervision) being in place, if the Department believe on reasonable grounds there are immediate and substantial risks to the child's well-being they can still remove the child from your care and the matter will return to the Children's Court.

Protection Order (time-limited)

While a Protection Order (time-limited) is in place, the CEO of the Department has 'parental responsibility' for the child for the term of the order (s. 54 of the Act). This means the Department will decide where the child lives, who they see and where they go to school.

A Protection Order (time-limited) will usually be made for a period of two years (the maximum amount of time), however it is not uncommon to have an order for shorter periods of time (s. 55 of the Act). The Department when making their application will specify to the Court how long they think the order should be in place for.

A Protection Order (time-limited) gives parents the time they need to work towards reunification. If reunification looks promising in a shorter period of time, then the Department may apply for a Protection Order (time-limited) for only 12 months.

When a Protection Order (time-limited) is made there must be a plan for reunification with one or both parents. This is known as a Section 143 Written Proposal and is developed by the Department in consultation with the parent(s). For further information on what this is and how it works see section on s.143 Written Proposal.

If reunification is successful while the order is in place, the Department can apply to revoke (cancel) the order or seek it be amended to say a Protection Order (supervision). On the other hand, the Department may determine that the child is in need of longer term care and they may apply to extend the order for another period of time or for a Protection Order (until 18) to be made.

Protection Order (until 18)

A Protection Order (until 18) is an order that also gives the CEO of the Department 'parental responsibility' of the child, however the Department will continue to have parental responsibility until the child turns 18 years of age (s. 57 of the Act).

The Department will seek a Protection Order (until 18) when they do not think reunification between the parent(s) and child is likely to occur. The Court can only make this order if it is satisfied that long-term arrangements should be made for the wellbeing of the child (s. 58 of the Act).

The Department will set out their proposal for contact arrangements in the Section 143 Written Proposal they file with the Court and this may also still include a plan for reunification, however reunification does not often happen after a Protection Order (until 18) has been made.

Protection Order (special guardianship)

A Protection Order (special guardianship) is an order giving parental responsibility for the child to an individual or two individuals jointly from the time the order is made until the child turns 18 years of age (s. 60 of the Act), the order is revoked or an adoption order is made un the Adoption Act 1994 (s. 62 of the Act).

This means the carers (and not you or the Department) will make the day to day and long-term decisions about your child and the Department are no longer formally involved.

At the time of the Court making a Protection Order (special guardianship), the Court can make conditions about contact arrangements between the child and the parent(s) or another person (s. 63 of the Act). The Court can also do this at a later date if an application is made to the Court (s. 64 of the Act).

The Department can make an application for a Protection Order (special guardianship) at any time.

On the other hand, carers can only apply to the Children's Court for a Protection Order (special guardianship), provided the child has been in the care of the carer for at least the two years immediately before the application is made under a Protection Order (time-limited) or Protection Order (until 18).