2. Decide the type of child protection order, if required
Whenever a decision is made that a child protection order is required to meet the child's protection and care needs, a decision about the appropriate order must reflect the needs of children and their families and the case plan goal, either:
- the child is to remain safely in the home
- reunification
- out-of-home long-term stable living arrangements.
The types of child protection orders available (Child Protection Act 1999, section 61) are:
- directive orders
- a supervision order
- short-term custody order - to a member of the child's family or the chief executive
- short-term guardianship order - to the chief executive
- long-term guardianship order - to a member of the child's family or to a suitable person or to the chief executive.
A directive or supervision order is appropriate where the child is able to safely remain in the home. Under these orders, parents retain all custody and guardianship decision-making responsibilities for the child.
Short-term orders are appropriate while efforts are being made to reunify a child and their family.
Long-term orders are appropriate when it has been assessed in the course of working with the child and family that the child is not able to be safely reunified with the parents within a timeframe appropriate to the child's age and circumstances, and that the child's protection and care needs will be met through long-term out-of-home care - refer to 2.6 Apply for a long-term guardianship order.
A decision about what type of child protection order will best respond to the child's protection and care needs will also be required when:
- an existing order is due to expire and a further period under an order is required
- the review of the case plan indicates that the existing order:
- is now a more intrusive level of intervention than is required
- has failed to keep the child safe from harm or risk of harm and a new order is required
- an existing order has been extended more than once or the child's longer-term need for permanency and stability must be considered.
In all cases, when applying for a child protection order and making a recommendation about the required duration of a child protection order, estimate the time required to resolve the child's protection and care needs and ensure the timeframe is warranted in the circumstances.
When an application for a child protection order is lodged prior to a family group meeting, a change to the type of order applied for may be required following the family group meeting if there is a reviewed assessment of the child's need for safety.
2.1 General factors informing decision-making about the type of order
When deciding the most appropriate child protection order, consider:
- the views of the child and the child's family
- the views of the recognised entity for an Aboriginal or Torres Strait Islander child
- what level of intervention is required by Child Safety Services to ensure the child is safe and meet the child’s protection and care needs, based on recent risk and needs assessments
- whether the child can remain in the home or requires an out-of-home care placement
- the goal of ongoing intervention - whether to support the child in the home, reunify the child and family or seek a long-term out-of-home care placement for the child
- what length of time will reasonably be needed to work towards meeting the child's case plan goal.
Individual and family circumstances relating to each child will also inform the decision-making process, including:
- whether the child needs protection from one or both parents
- whether the child's contact with one or both parents needs to be restricted for safety reasons
- whether one parent, with support, or other relatives may be able to assume a protective role with the child
- the relationship between the parents, their level of involvement with the child and their ability and willingness to be involved with case planning
- who will require custody and guardianship of the child for the duration of ongoing intervention - for further information, refer to Chapter 5, 3.1 Determine who may decide a custody or guardianship matter.
Having considered the general factors above about the goal of Child Safety Services' intervention and whether an out-of-home care placement is required, refer to the considerations unique to each order type, as follows:
- the child is to remain safely in the home and an out-of-home care placement is not required - refer to 2.2 Apply for a directive order, or 2.3 Apply for a supervision order
- an out-of-home care placement is required, however, the goal of intervention is reunification - refer to 2.4 Apply for a short-term custody order, or 2.5 Apply for a short-term guardianship order
- the child's protection and care needs will be met through long-term out-of-home care - refer to 2.6 Apply for a long-term guardianship order.
2.2 Apply for a directive order
There are two types of directive orders:
- an order directing a parent of a child to do, or refrain from doing, something directly related to the child's protection - Child Protection Act 1999, section 61(a)
- an order directing a parent not to have contact, direct or indirect, either:
- with the child
- with the child, other than when a stated person or a person of a stated category is present - Child Protection Act 1999, section 61(b).
A directive order may also be applied for in conjunction with a supervision order or another child protection order, if required. In limited circumstances, a child may be subject to both a directive order and intervention with parental agreement.
Directive order about parental actions - section 61(a)
Apply for a directive order about parental actions when all of the following circumstances apply:
- the parents will not take the action, or cease the action, on a voluntary basis
- the child can safely remain at home, as long as the parents take certain actions or cease certain actions - where applicable, this consideration will be informed by the most recent safety assessment
- the action is able to be clearly defined, and what is required of parents is easily understood by the parents
- a specific order is able to be made by the court
- failure on the parents part to keep to the directives of the order, will not place the child at unacceptable risk of harm
- the parents are likely to adhere to the recommended order.
Ensure that the order is specific, not general - for example, 'ensure the child attends school every school day', rather than 'ensure proper schooling', or 'take the child to the hospital clinic for treatment every Thursday', rather than 'provide adequate medical care'. If the order needs to be general, a supervision order is more appropriate - refer to 2.3 Apply for a supervision order.
Directive order about parental contact - section 61(b)
Apply for a directive order which directs the parent not to have contact, direct or indirect, with the child, or to only have contact, when a stated person or a person of a stated category is present, when any one of the following circumstances apply:
- the child could remain at home with a protective parent if the parent to whom the child protection concerns apply was prevented, or restricted, from contact
- a protective parent consents to the child being cared for by another person, for example, with relatives, if the parent to whom the child protection concerns apply was prevented, or restricted, from contact
- there is a Family Court of Australia parenting order which needs to be overridden for child protection reasons, allowing the protective parent to apply for variation of the Family Court of Australia order
- there is a need to prevent a parent from harassing the child in a significantly harmful way, for example, telephone threats, and prosecution may be required to enforce the contact order – in this case, the order may be made in conjunction with any other child protection order
- the child's safety could be secured through the supervision of the parent to whom the child protection concerns apply, and there is a person assessed as able and willing to provide the supervision.
It is not appropriate to use a directive order:
- to effectively deny both parents contact - when this is required, a custody order is more appropriate, as someone still has to exercise custody or guardianship over the child
- when the child is living with their only parent - the order should not be used in a way which would leave the child 'at home alone'
- in a way which would effectively deny someone entry to their own home, except on a very temporary basis.
Supervision of parental contact could range from contact visits to someone moving into the home temporarily, to ensure the child is not left alone with the parent to whom the child protection concerns apply. The supervising person must, however, be aware of the proposed order and voluntarily agree to their role in supervising the parent.
Note: A court may impose penalties on a child's parent who knowingly contravenes a directive order regarding contact.
Duration of the order
A directive order must not be for more than one year (Child Protection Act 1999, section 62(2)).2.3 Apply for a supervision order
A supervision order requires the chief executive to supervise the child's protection, with respect to the matters stated in the order. A supervision order may be applied for in conjunction with a directive order (Child Protection Act 1999, section 61(a)).
Apply for a supervision order when all of the following circumstances apply:
- the child is in need of protection but supervision and direction by Child Safety Services will enable:
- the child to safely remain at home
- Child Safety Services to monitor the situation to ensure the matters specified in the order are addressed by the parents
- it is possible to specify the areas relating to the child's care which are to be supervised by Child Safety Services
- failure on the parents part to comply with Child Safety Services' requirements will not place the child at immediate risk of harm
- the intervention needed, with the child residing in the home, will not be accepted by the parents on a voluntary basis
- it is appropriate for the parents to retain their custody and guardianship rights and responsibilities.
Ensure that the child's case plan clearly specifies how the supervision order will be implemented and monitored.
Duration of the order
A supervision order must not be for more than one year (Child Protection Act 1999, section 62(2)).
2.4 Apply for a short-term custody order
A short-term custody order grants custody to either:
- a suitable person, other than a parent of the child, who is a member of the child's family
- the chief executive.
Short-term custody to a member of the child's family - section 61(d)(i)
Apply for an order granting short-term custody to a suitable member of the child's family, when all of the following circumstances apply:
- the child cannot be safely left at home using a lesser order - where applicable, this consideration will be informed by the most recent safety assessment
- Child Safety Services is working towards the reunification of the child and family
- there is an appropriate relative able and willing to assume short-term custody for the purpose of protecting the child and work with Child Safety Services in planning for the child
- there is no significant conflict between the parents and the relatives, and the relatives will facilitate appropriate family contact between the child and parents
- it is not necessary to impose a 'no contact' decision on a parent
- it is appropriate for the parents to retain guardianship, that is, at least one parent is available and involved in case planning for the child - refer to Chapter 5, 3.1 Determine who may decide a custody or guardianship matter.
If there is uncertainty about one of the above factors, for example, the ability of the relatives to ensure positive family contact between the child and parents, it may be appropriate to seek an order granting custody to the chief executive but still place the child with the relatives.
If it is necessary to restrict a parent from all contact with the child, or to actively remove guardianship from a parent due to the very serious nature of the harm, seek an order granting short-term guardianship to the chief executive - refer to 2.5 Apply for a short-term guardianship order.
Short-term custody to the chief executive - section 61(d)(ii)
Apply for an order granting short-term custody to the chief executive, when all of the following circumstances apply:
- the child cannot be safely left at home using a lesser order - where applicable, this consideration will be informed by the most recent safety assessment
- Child Safety Services is working towards the reunification of the child and family
- it is appropriate for the parents to retain guardianship, that is, at least one parent is available and involved in planning for the child
- it is not necessary to impose a complete 'no contact' decision on a parent
- it is not possible or appropriate to make the short-term custody order in favour of a relative.
If it is necessary to restrict a parent from all contact with the child or to actively remove guardianship from a parent due to the very serious nature of the harm, seek an order granting short-term guardianship to chief executive - refer to 2.5 Apply for a short-term guardianship order.
Note: Guardianship cannot be removed from just one parent and not the other.
Duration of the order
A short-term custody order must not be for more than two years (Child Protection Act 1999, section 62(2)(b)).2.5 Apply for a short-term guardianship order
Under the Child Protection Act 1999, section 62(2)(b), a short-term guardianship order can only be made in favour of the chief executive. It is always preferable for parents to retain guardianship unless there are reasons, as outlined below, why this is not considered to be in the child's best interests.
Apply for an order granting short-term guardianship to the chief executive, when:
- the child cannot be safely left at home using a lesser order - where applicable, this consideration will be informed by the most recent safety assessment, and
- Child Safety Services is working towards the reunification of the child with the family, and one of the following circumstances apply:
- there is no available parent to exercise guardianship and be involved in case planning, or the parents availability is erratic
- it is necessary to actively remove guardianship from the parents, due to the very serious nature of the harm, or because the parents current incapacity to exercise guardianship is causing harm to the child
- it is assessed that the parent will fail to make appropriate guardianship decisions, such as schooling and health care, and therefore it is in the child's interests for guardianship to be vested in the chief executive.
Duration of the order
A short-term guardianship order must not be for more than two years (Child Protection Act 1999, section 62(2)).2.6 Apply for a long-term guardianship order
A long-term guardianship order grants guardianship to either:
- a suitable family member, other than a parent of the child (Child Protection Act 1999, section 61(f)(i))
- another suitable person nominated by Child Safety Services, that is, a foster carer (Child Protection Act 1999, section 61(f)(ii))
- the chief executive (Child Protection Act 1999, section 61(f)(iii)).
The Childrens Court can only grant a long-term guardianship order to a suitable person, who is not a member of the child's family, if both of the following apply:
- a short-term custody or guardianship order already exists in relation to the child
- the proposed guardian is nominated by the chief executive.
A decision about seeking a long-term guardianship order will only occur after a period of case planning and active intervention with the family, to resolve the child's protection and care needs. The outcome of the family reunification assessment, and if applicable, the referral to a permanency panel for a child aged under four years, guide the decision as to when it is appropriate to cease working towards reunification and to pursue alternative long-term out-of-home care for the child - refer to Chapter 4, 5.3 Assess whether reunificatin can occur.
Complete an assessment to decide the appropriate long-term guardianship order
Following a decision to cease reunification and to pursue a long-term out-of-home care placement, an assessment is required to decide the most appropriate long-term guardianship order for the child. To undertake this assessment, refer to the practice resource Long-term guardianship assessment factors and take into account:
- the information gathered through interviews with the child, parents and carers
- all relevant information from Child Safety Services' records.
The assessment may be undertaken as part of the process for reviewing and revising the case plan, or alternatively, the revised case plan will include the assessment as a required action.
When the assessment relates to an Aboriginal or Torres Strait Islander child, the recognised entity must be provided with an opportunity to participate in the decision-making process about the most appropriate long-term guardianship order.
1. Long-term guardianship to a suitable person (section 61(f)(i) or 61(f)(ii))
If long-term guardianship is being considered, and a suitable family member or other suitable person is able and willing to assume guardianship of the child, the Childrens Court can only grant guardianship to that person and not the chief executive (Child Protection Act 1999, section 59(5)(b)).
When considering long-term guardianship to a suitable family member or other suitable person, discuss with the child, parents and carers the advantages, obligations and full implications of making the order, including:
- the guardian will assume full parental responsibility, including making all decisions about the care of the child and providing for the child's needs
- the child will still have a case plan, however, there will be a reduced level of Child Safety Services' contact with the guardian and the child and Child Safety Services' obligation to review the case plan will be met, in most circumstances, by six-monthly contact with the guardian - refer to 1. What if a suitable person has long-term guardianship?
- the need for the guardian to inform Child Safety Services if the child moves out of the home
- the guardian is obliged, unless otherwise ordered by the Childrens Court, to inform the parents where the child is living, provide parents with information about the child's care and provide opportunities for the child to have contact with parents and appropriate members of the child's family (Child Protection Act 1999, section 80(1)(a-c))
- the guardian will not be eligible for dual respite allowance
- the child will not be eligible for a child health passport, an education support plan or Evolve Interagency Services
- the guardian is responsible for providing financial assistance to support a young person while they reside with the guardian, and are transitioning from care.
In addition, discuss the provision of ongoing financial assistance with the carer, in particular, that:
- approved carers who are granted guardianship will:
- continue to receive the fortnightly caring allowance for the child, as well as regional remote loading where applicable
- continue to receive high support needs allowance, for children with enduring special needs, such as physical disabilities or high medical needs
- child related costs may only be provided for costs associated with chronic and enduring medical or mental health needs, and non-routine costs of dental treatment, where treatment plans were in existence at the time of making the order.
2. Long-term guardianship to the chief executive (section 61(f)(iii))
If long-term guardianship is being considered, and there is no suitable family member or other suitable person available and willing to accept guardianship of the child, a long-term order granting guardianship to the chief executive will be recommended as the appropriate order. The Childrens Court will only grant long-term guardianship to the chief executive if the court cannot properly grant guardianship to another suitable person (Child Protection Act 1999 section 59(5)(b)).
If guardianship to the chief executive is being considered, discuss with the child, parents and carers the implications of making this order. For example, Child Safety Services will no longer work towards reunification.
Conduct and document the assessment
Where there is a potential suitable family member or other person able and willing to assume guardianship of the child, conduct the assessment and record the assessment and recommendation about whether long-term guardianship to that person is the most appropriate order in the Assessment report - long-term guardianship to a suitable person, which may be attached to the affidavit when applying to the Childrens Court for the order. In circumstances where long-term guardianship to that person is not recommended, the completed 'Assessment report - long-term guardianship to a suitable person' will include the recommendation that long-term guardianship to the chief executive is the most appropriate order.
Where there is no potential suitable family member or other suitable person able and willing to assume guardianship of the child, key information supporting the assessment and recommendation, including the rationale for not seeking long-term guardianship to a family member or other suitable person, is documented in both:
- the review report, in ICMS
- the affidavit - refer to 2.7 Complete an affidavit for a child protection order.
Note: when a recommendation is made to apply for an order granting long-term guardianship to the chief executive, it may still be appropriate to include, in the revised case plan for the child, continued actions to locate a suitable family member or other suitable person.
Obtain approval to apply for the long-term guardianship order
Following the completion of the assessment, discuss the outcome and proposed recommendation with the team leader, and where necessary, the senior practitioner, to confirm the proposed long-term guardianship order to be recommended.
Following this, either submit the review report and the affidavit or the 'Assessment report - long-term guardianship to a suitable person' to the CSSC manager, along with the following attachments:
- the most recent family reunification assessment
- the current case plan
- the most recent child strengths and needs assessment
- if the child is under four years of age:
- the Permanency panel: Key factors for consideration form or relevant Once Chance at Childhood documentation
- the permanency panel minutes - for further information, refer to Chapter 4, 5.5 Refer the case to a permanency panel.
The CSSC manager will consider all relevant information and either approve or not approve the decision to apply for the recommended long-term guardianship order, or provide an alternative decision.
Inform all parties of the decision
Following the decision by the CSSC manager:
- discuss the decision and reasons with all relevant parties, including the child
- where applicable, ensure that all parties are informed of available review mechanisms, including advice about:
- Child Safety Services' complaints system - where requested, provide a copy of the brochure Do you have a complaint about the Department of Child Safety?
- the CCYPCG complaints unit - where requested, direct parties to the CCYPCG website for information brochures
- provide written advice of the decision and rationale, to parties who disagree with the decision, including a brief summary of how to access the above-mentioned review mechanisms
- where applicable, consider and implement necessary supports for the child, their family and carers, to minimise any negative impact of the decision.
Apply for the long-term guardianship order
Once the CSSC manager has approved the decision to apply for the recommended long-term guardianship order, proceed with the application.
Implement actions following the making of a long-term guardianship order
As soon as possible after an order granting long-term guardianship is made by the Childrens Court, give the parties to the application:
- a copy of the order
- written notice of the making of the order - complete the Letter advising of a long-term guardianship order, which:
- explains the terms and effect of the order
- states that a party may appeal against the decision to make the order within 28 days after the order is made
- states how to appeal.
Where the chief executive is granted long-term guardianship, continue ongoing intervention in accordance with Chapter 4. Case planning and Chapter 5. Children in out-of-home care.
Approved carers who are granted guardianship of a child continue to receive the fortnightly caring allowance. In addition, they will receive any other financial supports recorded in the 'Assessment report - long-term guardianship to a suitable person' and approved by the CSSC manager.
Where financial supports were not approved by the CSSC manager, conclude payments from the date of the making of the order granting the suitable person long-term guardianship.
Where carers are granted long-term guardianship, to ensure the ongoing payment of the fortnightly caring allowance, the guardians remain in ICMS as a carer entity. If the guardians are approved foster or kinship carers at the time the order is granted, use the existing carer entity record. Record the child's details for the related long-term guardianship order and the carers new status as guardians in the carer entity record. If the child's guardians cease to be an 'approved foster carer' for other children in the future, but remain as the child's long term guardians, ensure the carer entity record reflects this.
For information about Child Safety Services' service delivery following the making of a child protection order granting long-term guardianship to a suitable person, refer to 1. What if a suitable person has long-term guardianship?
2.7 Complete an affidavit for a child protection order
The purpose of an affidavit is to provide sworn, factual information, to assist a magistrate in making a decision in relation to an application before the court, for a child protection order. The information provided in the affidavit is aimed at supporting the application, and in most cases a Child Safety Services' officer is the applicant.
When the affidavit relates to an Aboriginal or Torres Strait Islander child, ensure that clear information is provided in the affidavit about the process undertaken with the recognised entity, and the views of the recognised entity. This information will be filed, along with a Aboriginal and Torres Strait Islander Recognised Entity (Form 17), for each application.
For information about how to write an affidavit, including content, formatting and the roles and responsibilities of Child Safety Services' officers, refer to the practice resource Writing an affidavit.
Complete an affidavit
Always complete an Affidavit (Form 25) prior to submitting the initial 'Form 10 - Application for a child protection order' to the Childrens Court.
An additional affidavit may also be required, after the initial application and supporting affidavit have been filed, when:
- updating the court on any relevant assessments or changes in circumstances, during an adjournment period
- preparing for a child protection hearing, in response to affidavits filed by respondents to the application
- Child Safety Services applies to revoke a child protection order
- Child Safety Services applies to revoke a child protection order and make a new order
- responding to applications filed by parents, for example, an application by parents to revoke a child protection order
- a party has initiated an appeal of a decision made by a court.
Attach the case plan to the affidavit
Attach a copy of the current case plan for the child to the affidavit (Child Protection Act 1999, section 59(1)(b)).
For further information about developing the case plan, refer to Chapter 4. Case planning.
File the affidavit
The applicant will ensure that an affidavit is always filed:
- with a 'Form 10 - Application for a child protection order'
- on or before the expiry of an existing order
- for a supplementary affidavit, a minimum of three business days before the next court mention.
Note: The information contained in the application form for a child protection order is an unsworn document and is not considered evidence.
Serve the affidavit
All affidavits will be served on each respondent to a child protection application and the separate representative for the child, where applicable, three business days before the initial mention of the application in the Childrens Court. Complete a Affidavit of Service (Form 22) for each respondent, as proof of service, as soon as possible following service of the documents.
- Last updated
- 21 September 2009
Other languages