About care and protection

What is a care and protection case?

When concerns have been raised about the care and protection of a child or young person under the age of 18 years, the Children's Court has jurisdiction to make court orders to ensure their safety, welfare and wellbeing.

Caseworkers within the Department of Communities and Justice (known as DCJ or sometimes, the Department) are responsible for taking actions to keep children safe under the Children and Young Persons (Care and Protection) Act 1998.

Caseworkers act on behalf of the Secretary of the Department and will often work with families without taking court action. However, if it is assessed that it is no longer safe for a child or young person to remain living with one or both of their parents or their current carer, an application must be made to the Children's Court.

Judicial officers in the Children's Court will independently assess all the facts and circumstances of each case and apply the law before any final decision is made. The Court must make sure that decisions are made with the best interests of the child or young person as the main consideration.

Who is a party to the court case?

The parties who have a right to appear in a care and protection case include a representative of the Secretary of the Department of Communities and Justice, the child or young person, and each person having parental responsibility for the child or young person. Any other person who has a genuine concern for the safety, welfare and wellbeing of the child or young person may apply to the Children's Court to be joined as a party to the proceedings.

Only parties to the court case will be given information about the court case, such as copies of documents and court results.

How does the process work?

Care and protection cases are commenced by filing an application at a Children’s Court registry. Once the application is filed, the proceedings must be listed within three days before a Children's Court. All parties should be served with the application, related documentation and a notice of listing advising them when and where the matter is listed before the court.

Care and protection cases are often adjourned in the early stages of the proceedings to enable the parties to gather information and prepare documentation to assist the Children’s Court in determining what action is in the best interests of the child or young person. It is common for matters to be adjourned for parties to issue subpoenas, for parties to attend a dispute resolution conference and/or for assessments to be conducted.

If at any stage during the proceedings everyone agrees on what final care orders should be made to protect the safety, welfare and wellbeing of the child or young person, then final care orders can be made “by consent” provided the judicial officer also agrees that the orders are in the best interests of the child or young person. If final orders are made, this will be the end of the case. If no agreement can be reached, the matter may need to be heard and determined by a judicial officer.

Care and protection matters are conducted with as little formality and legal technicality as the case permits. In these cases, the standard of proof is based on the balance of probabilities.

The Children’s Court takes all measures practicable, taking into account the age and developmental capacity of the child or young person, to ensure that the child or young person has every opportunity to be heard and participate in proceedings, and that the proceedings, decisions or rulings are understood by everyone involved in the case.

Types of applications

The most common types of applications filed in the care and protection jurisdiction are:

Applications for an Emergency Care and Protection Order
Applications for a Care Order
Applications to Vary or Rescind Care Orders

Types of orders

The court is able to make a variety of orders with respect to the care and protection of a child or young person. Some of the most common orders made include:

Interim care orders
Orders accepting undertakings
Orders for supervision
Orders allocating parental responsibility for a child or young person
Orders prohibiting an act by a person
Contact orders
Orders for the provision of support services and
orders to attend therapeutic or treatment programs
Guardianship Orders
Parent Capacity Orders.

The Children’s Court can make one or several of these orders all at the same time.

Appeals

A party who is not satisfied with the order of the Children’s Court, may appeal to the District Court against the order. You should obtain legal advice if you are thinking about lodging an appeal. Registry staff at the Children’s Court cannot give you legal advice.