The Children and Young People (Safety) Act 2017 (SA) (the Act) gives the Youth Court jurisdiction to hear and determine applications for children and young people in need of care and protection. The Act empowers the Court to make wide-ranging orders, such as orders for assessment of children and young people, parents and other caregivers, and for children and young people to go into the custody or guardianship of the Chief Executive or others. The Youth Court also convenes family group conference (previously known as family care meetings) through the court’s Conferencing Unit.
Certain sections of the Act commenced on 26 February 2018. The remaining sections commenced, and repealed the former Child Protection Act 1993 (SA), on 22 October 2018.
The following provides an outline of care and protection practice and procedure.
The Children and Young People (Safety) Act 2017 (SA) sets out the priorities in the operation of the Act. Protection of children and young people from harm is the paramount principle in the administration, operation and enforcement of child protection legislation [s 7].
Other considerations in relation to children and young people are [s 8]:
- the need to be heard and have their views considered
- the need for love and attachment
- the need for self esteam
- the need to achieve their full potential.
Where children and young people are at risk, early intervention is a priority [s 9].
The basis of any child protection intervention is that a child or young person must be considered to be “at risk”. A child or young person is considered to be at risk where [s 18(1)(a)-(c)]:
- they have suffered harm
- are likely to suffer harm, or
- are likely to be removed from the state for illegal purposes (such as marriage or female genital mutilation)
Section 17 of the Act sets out that harm may include physical or psychological harm and abuse or neglect of a sexual, physical, mental or emotional nature.
A child or young person is also considered to be "at risk" if their parents or guardians are unable or unwilling to care for them, if they are of no fixed address, or if they are of compulsory school age, but have been persistently absent from school without satisfactory explanation [s 18(1)(d) and (e)]. In making an assessment about whether a child is at risk attention must be had not only to the current circumstances of the child’s care but also to the history of the child’s care and the likely cumulative effect on the child of that history [s 18(3)].
In accordance with section 31 of the Children and Young People (Safety) Act 2017 (SA) there is a mandatory notification requirement placed upon certain persons to report any suspicion (held on reasonable grounds) that a child or young person is at risk, and the suspicion was formed in the course of their employment. Employment is defined broadly to include that which is paid or voluntary, employees in the traditional sense, but also self-employment, contractors and vocational placements [see s 30(4)]. The maximum penalty for non-compliance is a fine of $10 000 [see s 31(1)].
The mandatory reporting requirement applies to many professional people including medical practitioners, pharmacists, registered or enrolled nurses, dentists, psychologists, police officers, social workers, community corrections officers, teachers, family day care providers, ministers of religion, an employee or volunteer in an organisation that provides health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children and young people, being a person who:
- provides the services directly to children and young people, or
- holds a management position in the organisation directly responsible for the provision of the services to children and young people
See Children and Young People (Safety) Act 2017 (SA) s 30 (3).
The identity of any notifier is protected, unless confidentiality is waived in some way, or a court or tribunal, after a strictly regulated hearing, orders disclosure of such identity [s 163] and notifiers are protected from allegations of any breach of professional ethics [s 166(4)].
Police officers and child protection officers have the power to remove a child or young person from any premises, place, vehicle or vessel if they believe, on reasonable grounds, that it is necessary to protect them from serious harm and there is no reasonably workable alternative [s 41(1)].
The authorities must attempt to return the child or young person home, unless the child or young person is already under the guardianship, or in the custody of the Chief Executive, or to do so would place the child or young person at risk [s 42]. The Chief Executive has custody of the child or young person until they are returned to their parents or guardians or someone else or until the end of the fifth business day following the day on which the child young person was removed [s 43]. As such, if care and protection orders are necessary, the matter must be brought before the Youth Court within those 5 business days.
When a child or young person is residing with a person who has a restraining order under the Criminal Procedure Act 1921 (SA) s 99AAC preventing them from residing with the child or young person, there is a presumption that the child or young person is in a situation of serious harm from which an officer is authorised to remove the child [see s 41(2) and Children and Young People (Safety) Regulations (SA) reg 17].
In response to the Coroner’s recommendations arising from the 2015 inquest into the death of Chloe Valentine, new provisions were created to safeguard children whose parents or guardians have previously committed serious offences against a child in their care (‘qualifying offences’). These provisions are now at Part 4 of the Children and Young People (Safety) Act 2017 (SA) [ss 44-48].
A ‘qualifying offence’ is defined under section 44 and includes murder; manslaughter; criminal neglect; causing serious harm; or acts endangering life or creating a risk of serious harm where the victim was a child and the offender was a parent or guardian of the child.
Where the Chief Executive becomes aware that a child or young person born after 28 April 2016 is residing with a parent who has been found guilty of a qualifying offence an instrument of guardianship must be issued in respect of the child or young person [s 45(1)]. In the case of newborn children who have yet to be discharged from hospital, they are taken to be residing with a person if they are likely to reside with them on being discharged [s 45(7)].
The effect of an instrument of guardianship is that the child or young person will be under the guardianship of the Chief Executive [s 45(2)].
Where the Chief Executive becomes aware that a child or young person is residing, or is about to reside, with a person (not being a parent of the child) who has been found guilty of a qualifying offence a restraining notice must be issued against that person, unless the Chief Executive is of the opinion it would be inappropriate to do so under the circumstances [s 46(1)].
A restraining notice can prevent the relevant person from residing at the same premises as the child or young person; coming within a specified distance of the child or young person’s residence or having any unsupervised contact with the child or young person [s 46(2)].
Where an instrument of guardianship or a restraining notice is issued it must be served on the relevant person as soon as practicable and must be lodged with the Court [s 46(4)].
Failure to comply with a restraining notice is an offence with a maximum penalty of 2 years imprisonment [s 46(5)].
The Chief Executive of the Department for Child Protection may investigate a child or young person's circumstances if a report is made and the Chief Executive suspects, on reasonable grounds that the child or young person may be at risk [Children and Young People (Safety) Act 2017 (SA) s 34(1)(a)] or in any other appropriate circumstances [34(1)(b)].
Where the Chief Executive issues an instrument of guardianship or restraining notice in relation to a child or young person an assessment or investigation of the child’s circumstances is mandatory [s 34(2)]. See Instruments of guardianship or restraining notices.
Child protection officers (which includes both police officers and authorised departmental employees [s 147(1)]) can enter and inspect any premises, place vehicle or vessel, take photographs, films, audio, video or other recordings, seize items evidencing a contravention of the Act and require people to provide information [see ss 149 and 150; see ss 149(10) and 150(5) for related penalty for failure to comply]. A child protection officer who is an authorised departmental authority, must produce for inspection their identity card or other evidence of their authority, at the request of a person subject to the exercise of their powers under the Act [s 147(4)].
A child protection officer can only use force to enter any premises, place, vehicle or vessel on the authority of a warrant issued by a magistrate, except:
- where they believe on reasonable grounds that it is necessary to protect them from serious harm and there is no reasonably workable alternative [s 41(1)]
- to enforce a care and protection order requiring the removal of a child or young person from any premises, place, vehicle or vessel [s 149(3)], or
- where entry has been refused or cannot be gained, and the child protection officer believes on reasonable grounds that the delay that would ensue as a result of applying for a warrant would significantly increase the risk of harm or further harm to a child or young person [see s 149(4); s 149 (5)-(7) for warrant applications].
A person need not answer a question or produce a document if legal professional privilege applies or if they could not be compelled to answer the question or produce the document in proceedings in the Supreme Court [s 166(1) and (2)].
Assessment of child or young person
The Chief Executive may direct that a child or young person be examined or assessed if [s 35]:
- the child or young person is in the custody of the Chief Executive pursuant to section 41, or
- an instrument of guardianship or a restraining notice is in force, or
- the Youth Court orders the examination and assessment of the child or young person, or
- the Chief Executive considers it necessary or appropriate [Children and Young People (Safety) Regulations 2017 (SA) reg 12].
An employee of the Department will take the child or young person to their appointment with the relevant health professional.
Assessment of parent or guardian
If the Chief Executive reasonably suspects that a child or young person is at risk as a result of drug or alcohol abuse by a parent, guardian or other person or a lack of parenting capacity by anyone responsible for the care of the child or young person, the Chief Executive may direct the person to undergo relevant assessments [s 36].
The child or young person could still be in the parent’s care when they are directed to undergo an assessment. As such, it is important for the parent to get legal advice at this time as the outcome of the assessment will be critical to any further action by the Department. It is important parents understand that it is an offence to refuse to comply with the direction to undergo an assessment [s 36(3)]. The maximum penalty is six months imprisonment.
Those directed to undergo assessments must receive a notice setting out:
- the nature of the assessment
- the place at which the person must attend for the assessment
- the date and time of the assessment
- contact details of the person or body with whom the person can communicate about the assessment
- information setting out the consequences of refusing or failing to comply with the direction for the assessment
- the contact details of the Legal Services Commission
See Children and Young People (Safety) Regulations 2017 (SA) reg 13.
Anyone who has undergone a drug and alcohol assessment or been the subject of an application for an investigation and assessment order under the Children’s Protection Act 1993 (SA) in the last 5 years must take part in random drug and alcohol testing and may be directed to undertake a drug and alcohol rehabilitation program [ss 37 and 38]. It is an offence to refuse, without reasonable excuse, to comply with a requirement for testing or rehabilitation [ss 37 (5) and 38(2)]. The maximum penalty is six months imprisonment.
|REFUSING TO COMPLY WITH DIRECTION FOR ASSESSMENT|
|A refusal to comply with a direction for assessment will not only put the person at risk of prosecution, but it may also prompt the Department to commence proceedings and seek assessment orders from the Youth Court. A refusal to comply with such an order from the Youth Court carries maximum penalty of 2 years imprisonment.|
Section 96 of the Children and Young People (Safety) Act 2017 (SA) provides for voluntary custody agreements. The parents or guardians of a child can enter into a custody agreement under which the Chief Executive has custody of the child while the agreement has effect [see s 96(1)]. Negotiations for a custody agreement can be entered into by a parent or guardian of a child or young person or by the child or young person (of or above the age of sixteen years) but such agreement cannot be entered into (or extended) in relation to a child or young person of, or above the age of sixteen years without their consent [see ss 96(3), 96(4)].
A custody agreement must be in writing and may be terminated at any time by a parent or guardian who is a party to the agreement, or by agreement between the parties to the agreement, and will be taken to have been terminated on any order made in accordance with the Act (or any other Act) involving guardianship or custody of the child [see s 96(6)].
Unless terminated, a custody agreement has effect for a period not exceeding three months and may be extended, but for no longer than six months [see s 96(9)].
A family group conference may be convened if the Chief Executive suspects that a child or young person is at risk and it would be appropriate to make arrangements in this way [Children and Young People (Safety) Act 2017 (SA) see s 22]. The Court may also convene a conference [s 22], and adjourn a matter for this purpose [s 67], but there is no longer an legislative requirement that such a conference will be convened (or attempted) by the Department before the Chief Executive makes an application for a care and protection order.
The purpose of a family group conference is to provide an opportunity for the child’s family to make voluntary arrangements for the care and protection of the child or young person and to review those arrangements from time to time [s 21].
A conference coordinator is nominated by the Chief Executive or the Youth Court, whichever convened the conference. The conference coordinator conducts the meeting [s 22(2)].
Attendance at a conference is voluntary, but if parents or guardians refuse to attend a conference, the Department may make an application to the Youth Court for care and protection orders [s 21(2)].
The coordinator must ensure that the following are notified of the time and place of the conference [s 23(4)]:
- the parents and guardians;
- the child or young person him or herself;
- a suitable person to act as the child or young person's advocate (who may, but need not be a legal practitioner)
The coordinator need not arrange an advocate for the child or young person if satisfied that child or young person has made an informed and independent decision to waive their right to an advocate[s 23(5)].
Others who are entitled to attend the meeting include [s 23(1)]:
- other family members;
- anyone who has a close association with the child or young person;
- a person who has examined, assessed, counselled or treated the child or young person in the course of investigation;
- a representative from the child's school (if persistent absenteeism is involved);
- approved support persons (not including legal practitioners) for the child or young person and their parents/guardians; and
- a Department for Child Protection worker.
If the child or young person is an Aboriginal of Torres Strait Islander, a person nominated by an Aboriginal or Torres Strait Islander organisation [s 23(1)(h)].
After consultation with the child or young person and their parents and guardians, the coordinator may exclude a person from attending the conference [s 23(2) and (3)]. If this is done, the Coordinator must still take reasonable steps to ascertain their views and present them to the conference [s 24(3)]. The same applies if someone is unable to attend for any reason.
The coordinator must ensure that information about the child or young person’s circumstances and any grounds for suspecting the child or young person may be at risk is presented to the conference [s 24(1)]. Once the information is given, the parents, guardians and family members (including the child or young person if appropriate) must be given the opportunity to privately discuss and decide their own recommendations for the child or young person’s care and protection [s 24(2)].
If possible, decisions should be made by consensus, particularly the consensus of the child or young person and their family members [s 24(4)(a)]. Decisions will only be valid if the child or young person, their parents or guardians and the Department each accept them in writing [s 24(4)(c) and Children and Young People (Safety) Regulations 2017 (SA) reg 7(1)(a)]. However, the regulations provide that decisions need not be accepted by a child or young person, if having regard to the child or young person’s age or and development, it is not necessary or appropriate [reg 7(3)].
If a decision cannot be reached or a conference cannot be held (such as where the parents or guardians refuse to attend the conference), the Chief Executive may apply to the Youth Court for a Care and Protection Order [s 21(2)].
A written record of the decisions must be prepared and provided to each person present at the conference and included as part of the case plan for the child or young person [s 24 (5)]. The Department may wish to secure the arrangements by way of court order [s 50(3)(b)]. Either way, if a decision is made at the conference but not implemented or complied with, the Chief Executive may also apply to the Youth Court for a Care and Protection Order [s 26(2)].
Evidence of anything said at a conference is not admissible in any proceedings, but the written record of the decisions made is admissible for the purpose of establishing that those decisions were made [s 27].
Review procedures may be built into any arrangements that are formulated at a conference [s 25].
Unless a care and protection application is made to:
- secure proper arrangements for care and protection already put in place, such as those made by way of family group conference, or
- otherwise by consent of the parties or
- appoint an approved carer as a long-term guardian
the Chief Executive must reasonably suspect that child or young person is at risk, and be of the opinion that orders are necessary and appropriate to protect the child or young person from harm [see Children and Young People (Safety) Act 2017 (SA) s 50(3)]. If an instrument of guardianship or restraining notice has been issued, the Chief Executive must make an application for a care and protection order as soon as practicable thereafter [s 50(1) and (2)]. See Instruments of guardianship or restraining notices.
There is no longer a legislative requirement that a family group conference (previously known as a family care meeting) will be held (or attempted) by the Department before the Chief Executive makes an application for a care and protection order, but it may nevertheless be the case that a conference has already been held (or attempted).
It is now a legislative requirement that before making an application for an order granting custody of a child or young person, or placing a child or young person under the guardianship of the Chief Executive or another specified person, the Chief Executive must assess the likelihood of a reunification occurring and, if likely, the period within which reunification is likely to occur [s 50(4) and (5)]. This assessment then informs the Chief Executive's own determination of the arrangements that may be made for the parent or guardians to have continued contact with the child or young person. See Contact arrangements.
Upon hearing the care and protection application, if the Youth Court is satisfied it is appropriate to do so, it may make wide-ranging orders, including [s 53]:
- written undertakings by parents or guardians and children and young people (such as for supervision) for a specified period not exceeding twelve months [s 53(1)(a)]
- for the examination and assessment of the child or young person [s 53(1)(b)]
- for the assessment of a parent or guardian or other person responsible for the care of the child or young person [s 53(1)(c)]
- for a parent or guardian to care for a child or young person in a specified way or undertake specific courses or programs to increase their capacity to care [s 53(1)(m)]
- for a child or young person's passport to be held by the Court (in some circumstances) [s 53((1)(d)]
- for the Chief Executive to have custody of the child or young person [s 53(1)(j)]
- for a parent or guardian or other family member to have custody of the child or young person for up to 12 months [s 53(1)(i)]
- for the child or young person to be placed under the guardianship of the Chief Executive for 12 months or until the child or young person attains the age of 18 [s 53(1)(e) and (g)]
- for the child or young person to be placed under the guardianship of a specified person/s (not exceeding two) for 12 months or until the child or young person attains the age of 18 [s 53(1)(f) and (h)]
- revoking an instrument of guardianship or restraining notice [s 53(1)(l)]
- restraining orders regarding such things as who may reside with, or come within a specified distance of, the child or young person [s 53(1)(k)]
There are no longer strict legislative limits on the length of time between the lodgement of the initial application and the commencement of any trial. However, all proceedings must be dealt with expeditiously with due regard to the degree of urgency of each particular case [s 56(1)].
|WHERE THERE ARE ALSO CRIMINAL PROCEEDINGS|
|Where there are proceedings against a parent in an adult court arising from the same circumstances as in the Youth Court, proceedings in the Youth Court may be delayed. For example, where children or young people have been removed because of allegations of abuse and the parent has been charged with these offences. In such cases the proceedings may be adjourned for longer than normal to allow the adult court charges to be heard before the care and protection hearing.|
Children must be represented by a lawyer unless the court is satisfied that they have made an informed and independent decision not to be represented or that the application should be heard as a matter of urgency [see Children and Young People (Safety) Act 2017 (SA) s 64]. In the latter case, any orders made will only apply until the child or young person is represented (if they wish) and the matter is back before the court.
To the extent that it is consistent with the legal practitioner's duty to the court, a legal practitioner acting for the child or young person must [s 63]:
- act in accordance with any instructions given by the child or young person
- to the extent that the child has not given, or is not capable of giving instructions, act in accordance with the practitioner's own view of the best interests of the child or young person
- explain to the child or young person the nature of the legal practitioner's role (including any limitation on the practitioner's ability to act in accordance with their instructions)
- explain to the court the basis on which submissions are made, that is; on the child's instructions or in their best interests.
A legal practitioner who acts in accordance with section 63 cannot be held to have breached any code of professional etiquette or ethics [s 63(2)].
A child or young person, whether or not represented, must be given a reasonable opportunity to express their own views personally to the Court about his or her ongoing care and protection, unless the Court is satisfied that the child or young person is not capable of doing so, or to do so would not be in the best interests of the child or young person [see Children and Young People (Safety) Act 2017 (SA) s 62].
|OPPORTUNITY FOR A CHILD TO EXPRESS THEIR OWN VIEWS|
|Normally the child’s separate representative will ask the child or young person whether they want to talk to the Court.|
Under the Children and Young People (Safety) Act 2017 (SA) the Court is not bound by the rules of evidence and may inform itself as it thinks fit, acting according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms [see s 57(1)]. A fact to be proved in proceedings is sufficiently proved on the balance of probabilities [see s 58]. The requirement under this Act for proof on the balance of probabilities “more likely than not”, rather than “beyond reasonable doubt” is another reason why adult criminal proceedings are given precedence (as outlined above) in relation to time limits.
In practice, section 57 means that there is a less stringent adherence to the rule against hearsay. To protect children and young people from the trauma of having to give evidence in open court, the court has traditionally permitted professionals who have interviewed the child or young person (such as teachers, school counsellors, doctors, psychologists and social workers) to give evidence of their conversations with the child or young person, including statements they have made to them. Of course in a criminal court they would not be able to give evidence of things said to them by the child or young person. There is not an automatic right to give such evidence. It must be established in response to an objection at the time. Professionals assisting in these matters will need to accurately record any conversations with the child or young person if the evidence is to be admitted, or if it is to be given any weight. The conversation should be recorded verbatim where possible, in a question and answer format using “open ended” questions.
The Chief Executive determines arrangements for contact between children and young people who are in the custody or under the guardianship of the Chief Executive and those from whose care they have been removed, and may determine for any reason that there is to be no contact at all between the child or young person and another person [s 93(2)].
A determination of contact arrangements must be by notice in writing and must set out all of the following[s 93(5) and reg 24]:
- the Chief Executive’s consideration of the likelihood of reunification and how that influenced the contact arrangements
- the Chief Executive’s reasons for making the contact arrangements
- the frequency and duration of contact visits in a specified period
- the venue or venues at which contact visits are to take place
- the methods by which contact visits may or may not be undertaken (for example, face to face contact visits, telephone calls, written communication, social media)
- the persons who may and may not be present during contact visits
- whether the visits are to be supervised by the Department
The Chief Executive must take reasonable steps to provide a copy of any contact arrangement determinations to each person affected by the determination and explain to them the right to have contact arrangements reviewed [reg 24(2) and s 95]. The Chief Executive must also record and keep a copy of the reasons for any determination [reg 24(e)].
The Chief Executive may change or stop contact arrangements at any time by notice in writing [s 93 (6)].
For more information about contact arrangements and applications for review, see the Law Handbook, Contact arrangements.