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Refer to the Director of Child Protection Litigation to apply, extend, vary or revoke a child protection order

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This page was updated on 08 June 2022. To view changes, please see page updates

Where a child protection order is required to ensure the safety, wellbeing and best interests of a child in need of protection, an OCFOS lawyer will work with Child Safety to refer the matter to the DCPL.

Take action when a child protection order is expiring

Six months before the current child protection order ends:

  • undertake a file review to identify information relevant to informing an updated assessment about whether the child continues to be in need of protection
  • begin collating documents that have been relied upon to inform the assessment and may be required to support an application for a further child protection order
  • consider completing the the tool Collaborative assessment and planning framework with the child, parents and their safety and support network.
  • with the senior team leader, meet with the OCFOS lawyer for an initial  legal consult regarding the current assessment.

The OCFOS lawyer will provide their legal advice in writing and record it in ICMS within 5 days.

Three months before the child protection order ends, hold a practice panel discussion about the matter. (Refer to Procedure 5 Refer the case to a practice panel.)

Note

If a child is assessed as  no longer needing protection, a further child protection order is not required. Allow the current child protection order to end. (Refer to Procedure 5 Close a case for a child.)

If an assessment is made for an Aboriginal or Torres Strait Islander child that the child continues to be in need of protection and a further child protection order is appropriate:

  •  offer the opportunity to participate in a family-led decision making process. (Refer to Procedure 5 Decision making for an Aboriginal and Torres Strait Islander children.)
  • arrange, with the child's and family's consent, for an independent person to help facilitate their participation  in the decision making process.
  • complete the Independent entity form in ICMS to record whether an independent person helped facilitate the participation of the child and family in the decision making process. (Refer to Procedure 5 Complete the independent person form.)

Where a practice panel has confirmed that the child continues to be in need of protection and a child protection order is required to meet their safety, belonging and wellbeing needs, the CSO and senior team leader will seek a subsequent legal consultation with the OCFOS lawyer. For this consult, the OCFOS lawyer will be provided with the practice panel minutes and the curent CAP framework completed with the family (where this has been completed). The purpose of the subsequent legal consultation is to:

  • consider the endorsed assessment and review evidence to ensure that it is sufficient to suppot the proposed intervention
  • discuss the material needed to be included in the affidavit to support the application proposed to be sought
  • decide timelines and tasks, to ensure the referral meets the DCPL timeframes.

The OCFOS lawyer will provide written legal advice on the merits of proceeding with a referral to DCPL to the CSO and senior team leader. This legal advice will be based on the information provided to them and will be completed within 5 business days.

After receiving written legal advice from the OCFOS lawyer:

  • The senior team leader will decide the type and length of the child protection order that will be recommended to the DCPL
  • The CSO wil draft te initial affidavit and provide to the OCFOS lawyer no later than 6 weeks before the current child protection order ends. (Refer to Prepare an affidavit.)
  • The CSO, senior team leader and OCFOS lawyer will work together to identify information and documents that need to be redacted (that is, edited to remove or conceal information) or withheld n line with the Child Protection Act 1999, section 191. This information will also be outlined in the Sensitive information checklist.

Further reading

Refer to the practice guide Process for expiring child protection orders for further information about working with an OCFOS lawyer when Child Safety is considering seeking a further child protection order.

A referral to the DCPL for an expiring child protection order must be made at least 20 business days prior to the expiry date. The OCFOS layer will make the referral to the DCPL. For a referral to be valid it must include the following:

  • the referral form (Form A)
  • the initial affidavit
  • relevant documents exhibited to the affidavit in accordance with Rule 13 of the Childrens Court Rules 2016 and the Director of Child Protection Litigation Act 2016
  • the Sensitive information checklist.

After receiving a referral from the OCFOS lawyer, the DCPL will:

  • complete an initial review of the referred child protection matter, including the initial affidavit
  • ask for further information or documents from Child Safety if required to assist with making a decision
  • consult with the CSO, senior team leader and OCFOS lawyer before making a decision, if required
  • decide to either apply for a child protection order or refer the matter back to Child Safety
  • draft the application for a child protection order
  • file the application for a child protection order and affidavit in the Childrens Court
  • conduct the child protection proceedings before the Childrens Court
  • talk to the legal representatives and other parties in the proceeding
  • provide court outcomes and orders to Child Safety.

Attention

The DCPL must consult with Child Safety before doing any of the following:

  • referring a child protection matter back to Child Safety
  • applying for a child protection order that is different from the order assessed by Child Safety in their referral.

If, after consultation, the DCPL, applies for a child protection order that is not assessed by Child Safety to be appropriate and desirable for the child’s protection, the DCPL must provide Child Safety with written reasons for its decision. Child Safety is able to request that the DCPL complete an internal review of their decision by completing Form I—Child Safety internal review request form.

If, after consultation with the DCPL, Child Safety amends their assessment and decision on the most appropriate type of child protection order, Child Safety will provide written confirmation of this amendment to the DCPL.

It is considered a significant decision if the DCPL decides to apply for a child protection order that is different from the type of order assessed by Child Safety. When making a significant decision about an Aboriginal or Torres Strait Islander child, the Child Protection Act 1999 requires the DCPL, in consultation and with the consent of the child and their family, to arrange for an independent person  to assist in their participation in decision making. It is the responsibility of the senior team leader to determine the suitability of the independent person. (Refer to Procedure 5 Advise the Director of Child Protection Litigation about a person’s suitability to be an independent person.)

The DCPL is not required to arrange for an independent person if:

  • an independent person is not available
  • urgent action is needed to protect the child
  • it is likely to have a significant negative effect on the safety, psychological or emotional wellbeing of the child or any other person
  • it is not in the child’s best interest
  • the child or the child’s family does not consent to the independent person’s ongoing involvement in the decision making process
  • the DCPL is satisfied the chief executive or an authorised officer has already fulfilled the requirements in relation to the significant decision.

Recommend varying a child protection order—section 65

Under the Child Protection Act 1999, section 65, a child, their parent or the DCPL can apply to the Childrens Court to vary the following types of child protection orders:

  • directive orders about parental actions —to vary what the parent is directed to do or refrain from doing
  • directive orders about parental contact—to vary the directions relating to a parent’s contact with a child
  • supervision orders—to vary the matters stated for supervision
  • short-term custody orders—to vary the custody arrangements between a family member and the chief executive as well as court ordered conditions
  • short–term guardianship orders—to vary court ordered conditions
  • long-term guardianship orders—to vary who the guardian is as well as court ordered conditions.

Note

In line with the Child Protection Act 1999, section 65AA, only the DCPL may apply to the Childrens Court to vary a permanent care order.

An assessment to vary an existing child protection order cannot be made to:

  • change the type of child protection order. In this circumstance, an application to revoke (cancel) the order and make another child protection order is needed
  • increase the duration of the current child protection order. In this circumstance, an application to extend the child protection order is needed
  • reduce the duration of the current child protection order. In this circumstance, an application to revoke the child protection order is needed if it is assessed that the child protection order is no longer required.

If the DCPL applies to the Childrens Court to vary a long-term guardianship order or revoke a long-term guardianship order and make a permanent care order in its place, the court is already aware:

  • that the child is a child in need of protection and the order is appropriate and desirable for the child’s protection
  • that the protection sought by the order is unlikely to be achieved by an order on less intrusive terms 
  • that there is no parent able and willing to protect the child within the foreseeable future.

Recommend revoking a child protection order—section 65

Under the Child Protection Act 1999, section 65, a child, their parent or the DCPL may apply to the Childrens Court to:

  • revoke (cancel) a child protection order 
  • revoke a child protection order and make another order in its place.

However, a child’s parent cannot apply to revoke:

  • a child protection order and make another order in its place that grants guardianship of the child to any other party
  • a permanent care order.

If the current child protection order is no longer appropriate to meet a child’s need for safety, belonging  and wellbeing, complete a referral to the DCPL. In the referral recommend that the DCPL make an application to revoke a child protection order and seek another type of child protection order. 

For example, when a parent is unable or unwilling to provide consent for a child to receive medical treatment, the DCPL may make an application to revoke a child protection order granting custody to the chief executive. It may seek an order granting guardianship to the chief executive instead.

Note

If the DCPL makes an application to revoke a long-term guardianship order to a family member or another suitable person, the Childrens Court must also consider the child’s need for emotional security and stability.

Attention

Following the review of a case plan of a child subject to a long-term child protection order granting guardianship to the chief executive (Child Protection Act 1999, section 51VAA), if a decision is made that permanency for a child or young person would be best achieved by an alternate arrangement mentioned in the Child Protection Act 1999, section 5BA(4)(a)-(c), consult the OCFOS lawyer.

Request legal advice about the need to vary or revoke the current long-term child protection order granting guardianship to the chief executive to an alternate arrangement outlined in the Child Protection Act 1999, section 5BA(4)(a)-(c). (Refer to Procedure 5 Particular review requirements for a child subject to a child protection order granting long-term guardianship to the chief executive.)

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