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Relevant Legislation

Children, Youth & Family Act 2005

The Children, Youth and Families Act (“the Children’s Act ”) was passed by Parliament in late 2005. The provisions of the new Act came into effect on 23 April 2007. The new Act consolidates and replaces the Children and Young Persons Act 1989 and Community Services Act 1970. This means that one Act now guides both secondary services delivering early interventions and Child Protection functions.

The Children’s Act exists within the overarching framework provided by the Child Wellbeing and Safety Act, along with other relevant pieces of legislation.

Child Wellbeing & Safety Act 2005

(http://www.legislation.vic.gov.au/.../05-083a.doc)

Enacted on 1 June 2006, the Child Wellbeing and Safety Act creates an overarching legislative framework designed to encourage and support a shared commitment towards children. It does this by:

• Articulating a set of principles designed to guide the provision of services to children.
• Establishing the Victorian Children’s Council to provide the Premier and the Minister for Children with expert independent advice about policy for Victorian children.
• Providing the legislative functions and powers of the Child Safety Commissioner.

Court Processes

The Children’s Court makes decisions about child protection matters, the type of order a child should be placed on, and the conditions and length of that order.

The court process can be complex & time consuming.

Lawyers act on behalf of DHS to put its case to the magistrate or judge; a lawyer representing the child or young person (aged 7 years or over) puts their case to the magistrate or judge; and another lawyer may represent the family or each parent. The magistrate then decides on the most appropriate course of action.

Carers are not normally required to give evidence at a court hearing (but will be supported through the process by CSOs if called upon)

The Children’s Court is a public court and carers are therefore allowed to attend court hearings. This may not, however, be in their best interests or in the best interests of the child or young person they care for.

In preparation for a court hearing, DHS prepares a court report. Carers and CSOs have a vital role to play in informing this report. However, it is a report intended for use by the court, and carers and CSOs are therefore not permitted to receive copies.

Court Orders

Carers should receive a copy of the court order relevant to the child/young person in their care (see page 11 of The Home Based Care Handbook). They are not entitled to copies of court reports prepared for the case.

Interim Accomodation Order

A temporary order that controls where a child lives, pending the final determination by the court of an application. The role of DHS is derived from the conditions in the order. The placement cannot exceed the date specified on the order. In practical terms, the person with the day-to-day care of the child or young person makes routine decisions in keeping with the broad best interests planning decisions in place for the child or young person.

Refer to section 262 of the Children Youth & Families Act 2005

Interim Protection Order

A temporary order of up to 3 months duration which the court may make upon finding a child to be in need of protection. When an Interim Protection Order is made, the parents maintain their rights as legal guardians and custodians. The role of DHS is derived from the conditions on the order. This order usually states with whom the child or young person will reside.

Refer to section 291 of the Children Youth & Families Act 2005 (refer link below)

Custody To Secretary Order

A protection order that grants sole custody of a child to the Secretary of the Department of Human Services but does not affect the guardianship of the child.

DHS is responsible for day-to-day decision making in respect of the child or young person, but is not automatically entitled to authorise activities that require the approval of a parent or guardian. The parents/guardians must still participate in decision making regarding such matters as medical consents.

The order may authorise DHS to supervise and limit access; such decisions about access are made in the best interests of the child or young person and are often reflected in the conditions of the order.

In practical terms, the person with day-to-day care of the child or young person (such as the carer) makes routine decisions in keeping with the broad best interests planning decisions in place for the child or young person.

Refer to section 287 of the Children Youth & Families Act 2005 (refer link below)

Guardianship To Secretary Order

A protection order that grants guardianship and custody of a child to the Secretary of the Department of Human Services to the exclusion of all other persons.

A guardian is responsible for all decision making regarding the child or young person and has responsibility for the long-term welfare of the child. The guardian has the right to have the daily care and control of the child; and the right and responsibility to make decisions concerning the daily care of the child. In practical terms, the person with the day-to-day care of the child or young person makes routine decisions in keeping with the broad best interests planning goals in place for the child or young person and the Care and Placement Plan.

DHS must have this order in place before a Permanent Care Order is possible. However, permanency planning should commence prior to this, as required.

Refer to section 289 of the Children Youth & Families Act 2005 (refer link below)

Possible Referral Sources

Children’s Court of Victoria
http://www.childrenscourt.vic.gov.au/Court-Orders

Victorian Legal Aid 1800 677 402
(legal information & assistance with fees worked out depending on your financial situation & assets owned)

Women’s Legal Service 1800 133 302 or 9642 0877
(free independent legal advice for women)

Children Youth & Families Act 2005 click here