When is a Care and Protection order made?
When the Department for Child Protection reasonably suspects that a child or young person is at risk and that orders are necessary or appropriate to protect the child or young person from harm, the Department may apply for a Care and Protection Order from the Youth Court [see Children and Young People (Safety) Act 2017 (SA) s 50(3)]. The Department may apply for an order after already having removed the child or young person, either in circumstances where a parent has been found guilty of a qualifying offence (see What if a parent has been found guilty of an qualifying offence?) or where it was necessary to protect the child or young person from suffering serious harm and there was no reasonably workable alternative [s 41]. In the latter situation, the application to the court must then be made within 5 working days of the child or young person being removed [s 43] (see What if a child or young person is at risk of serious harm?). The Department may also apply for an order after having had a voluntary custody agreement in place (see What happens when the Department intervenes with parental consent?) or proper arrangements made through a family group conference (See What is a family group conference?), or without previously having had any custody of the child or young person.
Before making an application for the custody or guardianship of a child or young person, the Chief Executive must assess the likelihood of reunification occurring and if likely, the period within which reunification is likely to occur [s 53(4) and (5)]. This will inform the Chief Executive's determination of any contact arrangements between children and young people and the parents or guardians from whom they have been removed. See Can parents have continued contact with their children?
What orders can the Youth Court make?
If the Youth Court is satisfied that it is appropriate to do so, it can make wide-ranging orders under section 53 including:
- examination and assessment of the child or young person
- assessment of parent, guardian or other person responsible for the care of the child or young person to determine their capacity to care for the child or young person
- restraining orders regarding such things as who may reside with, or come within a specified distance of, the child or young person
- undertakings from parents and placing the child under departmental supervision for up to 12 months
- custody orders for up to 12 months (or longer in the case of custody being granted to the Chief Executive)
- guardianship orders for up to 12 months or until the child turns 18 years of age
- declaration as to the name by which child or young person will be known (when making a guardianship order until the child turns 18 years of age or after 24 months continuous guardianship)
If the Youth Court makes an order that a child or young person is to be placed under the guardianship of the Chief Executive until the child turns 18 years of age, then the child or young person's circumstances should be reviewed at least once each year [s 85(1)]. This is to determine whether the arrangements continue to be in the child or young person's best interests. The Minister must provide a copy of the conclusions reached at the review to the child or young person and those in whose care the child or young person is placed (unless the Chief Executive is of the opinion that it would be inappropriate to do so) [s 85(7)].
How is a Care and Protection application different from other court proceedings?
Standard of proof
The standard of proof required at the hearing of a Care and Protection Order application is on the balance of probabilities and not, as in the case of a criminal charge, beyond a reasonable doubt [s 58].
Burden of proof
When the Department for Child Protection first applies to the Youth Court for care and protection orders, the Department must prove why the orders must be made.
In any subsequent application, that is; when orders are already in place, if the parents or another person object to the further orders, they have to prove why the order should not be made [s 59(1) and (2)]. The regulations may, however, say those who object do not have this burden of proof in particular proceedings [s 59(1a)]. Regulation 17B says that the onus is not reversed by the existence of an interim order where the child or young person was not already under the custody or guardianship of the Chief Executive pursuant to an order before the application was made.
A child or young person can object to the making of a further order without having to prove why they should be returned to their parents, provided the court is satisfied that they are not being unduly influenced. In this case, the Department once again has the burden of proof [s 59(3)].
Rules of evidence
The normal rules of evidence do not apply to child protection proceedings [s 57]. This allows the court to listen to matters that would not normally be admissible because of the rule against hearsay evidence. To protect children from the trauma of having to give evidence in open court, hearsay evidence from professionals who have interviewed the children (such as teachers, school counsellors, doctors, psychologists and social workers) may be accepted. However, first hand knowledge (e.g. eye witness accounts or actual evidence such as photographs) is still preferable to hearsay evidence.
An application for a Care and Protection Order must be dealt with expeditiously, with due regard to the degree of urgency of each particular case [s 56(1)]. Once a trial commences it should generally continue without adjournment until all the evidence has been presented and judgment should be delivered as soon as possible after all the evidence has been presented [s 56(2)].
It is expected that an application will be dealt with to conclusion within about 12 weeks at the most. Such limited time periods do not generally apply in relation to other types of matters before other courts. This is the reason why parties to care and protection matters, such as parents and guardians, must get legal advice as quickly as possible.
Representation of children
Children and young people 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. The child or young person’s views must be sought and seriously considered and every child or young person must be given an opportunity to speak personally to the Court. Normally the child’s lawyer will ask them whether they want to talk to the Court.
What is the role of the child’s lawyer?
The role of the child’s lawyer is to clearly state the child or young person’s views and wishes. If the child or young person is not capable of properly instructing the lawyer, then the lawyer must act, and make representations to the court, according to her or his own view of the best interests of the child or young person [Children and Young People (Safety) Act 2017 (SA) s 63].
Can a Care and Protection Order be appealed or changed?
Section 22 of the Youth Court Act 1993 (SA) provides for an appeal from a Care and Protection Order to the Supreme Court. Appeals must generally be lodged within 21 days of the date of the order [Supreme Court Civil Rules 2006 (SA) r 281]. Therefore legal advice should be sought as soon as possible as to whether there are grounds to appeal the order, and the likelihood of success. This step must not be taken lightly as the Supreme Court may make cost orders against an unsuccessful party [r 286].
Section 55 of the Children and Young People (Safety) Act 2017 (SA) provides that a party to the proceedings may apply to the Youth Court for an existing Care and Protection Order to be changed or stopped. This application is most often made by the Department for Child Protection, for example, when transferring guardianship to the appointed guardians under a long-term order. For the Court to change or stop the order in favour of the parents who previously had care, the Court must be satisfied that there has been a significant and sustained change on their part.
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