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Protection and care matters - court process

Protection and care matters - court process

 

If your child has been taken into care by the Department of Communities (Child Protection and Family Support) WA ("the Department") and you have a case at the Children's Court of WA or your child is on a protection order this information may assist you.
 
What happens after the Department takes a child into care?
 
After the Department has taken a child into care, it will make a decision about whether that child requires ongoing protection. Sometimes the Department will not take any further action and the child will be returned to the parents.
 
However, if the Department considers that a child continues to be in need of protection and should not be returned to the parents or only returned with supervision by the Department, it may decide to make an application to the Children's Court for a protection order.
 
The Department should make an application for a protection order to the Children’s Court within two working days of the child being removed.  The Children's Court will set a date (in the metropolitan area this is usually three working days after the application for protection orders is made) for the parties (usually the Department and the parents) to go to court.

What is a protection order?

A protection order is made when a magistrate decides a child or young person is in need of protection.
 
If the Department has made an application for a protection order for your child, you should get legal advice. Click here for more information on protection orders.
 

Do I need to go to court?

You should :
  • get legal advice if your case is at the Children's Court, and
  • go to court each time your case is on at court unless your lawyer or the court tells you otherwise. 
If you don't go, in some situations your case can be dealt with in your absence without the court knowing what you want. Given this, it is very important to go to court on each court date to tell the court what you want.
 
Even if  the court finds your child is in need of protection it does not have to make the order requested by the Department. The court can make another protection order if it thinks that is best for your child. For example, the court could place your child on a protection order (until 18) even though the Department may have applied for a protection order (time limited). 

Do I have to respond to the Department's initial affidavit?

If you are a respondent and want to tell the magistrate and the other parties: 
  • what you think is best for your children
  • what you have to say about the Department's application and affidavit in support
  • your side of the story

you can put it in writing in a Response form (PCRESP).

If you have a lawyer they should be able to help you with this. You should get legal advice about what you put in the Response.  

 

 Click on the image below to view new protection and care - Response forms video 

 Protection and care - Response forms.jpg
 

 

The video covers background to the introduction of the Response form, its purpose, when it should be filed and how it is intended to assist the court.

Clickhere to see a sample Department of Communities Child Protection and Family Support initial affidavit.
Clickhere to see a sample Response to this Department affidavit.

 

The Children’s Court has a form and kit to help you with your response. They are available from the Court registry or from their website. See Response form and a Response Kit.  

What is taken into account in working out what is in a child's best interests?

The most important consideration in decision making by the Children's Court of WA is what is in the best interests of the child. To find out what is in the best interests of the child the court will consider:
  • the need to protect the child from harm
  • the capacity of the child's parents to protect the child from harm
  • the capacity of the child's parents, or of any other person, to provide for the child's needs
  • the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life
  • the attitude to the child, and to parental responsibility, demonstrated by the child's parents
  • any wishes or views expressed by the child, having regard to the child's age and level of understanding in working out the weight to be given to those wishes or views
  • the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from -
    • the child's parents 
    • a sibling or other relative of the child
    • a carer or any other person (including a child) with whom the child is, or has recently been, living, or
    • any other person who is significant in the child's life
  • the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life
  • the child's age, maturity, sex, sexuality, background and language
  • the child's cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders)
  • the child's physical, emotional, intellectual, spiritual, and developmental needs
  • the child's educational needs
  • any other relevant characteristics of the child, and 
  • the likely effect on the child of any change in the child's circumstances.
Other factors may also be taken into account in working out what is in the best interests of the child.

What are the different types of final protection orders?

  • Protection order (supervision) – your child remains in or is returned to your care but the Department supervises your care of your child. This order can last for up to two years.
  • Protection order (time-limited) – your child is placed in the Department’s care for up to two years even if they are living with you.
  • Protection order (until 18) – your child is placed in the Department's care until they turn 18.
  • Protection order (special guardianship) – your child is not in your care. A carer (the special guardian), not the Department, will be responsible for day to day and long term decisions for your child until they turn 18 or an adoption order is made.
For more information go to Protection orders in the Children's Court of WA or download a copy of the Legal Aid WA information sheet Protection orders in the Children's Court of WA .
 

What is a Section 143 Written Proposal?

The Department has to prepare a Section 143 Written Proposal if a child is found to be in need of protection by a magistrate if it has not been prepared before. It sets out:
  • for a protection order (supervision), the proposed arrangements for the supervision of the wellbeing of the child
  • for a protection order (time limited) or (until 18), the proposed living arrangements for the child.

For a protection order (time limited) this should include contact arrangements and what the parent/s have to do or show for the child to be returned to their care. If the child is already in the care of a parent, the written proposal sets out what the parent/s need to do to make sure the child stays safe in their care and what needs to happen so the Department can close the case at the end of the order.

Parents can have a say about what is in the proposal, as can the child or young person if the court has appointed a lawyer for them.

What if I disagree with where the Department has placed my child or the amount of time I get to spend with them?

Once the case is at the Children's Court, you can apply to the court for interim orders, for example, about living and contact arrangements.
 
Before the case gets to court you will have to talk to the caseworker about where the child will live and your contact with them.
 
Get legal advice.

What if I have a final hearing in the Children's Court?

You should get legal advice as soon as possible after your case is listed for a final hearing. The Legal Aid WA Information sheets Preparing for a final hearing in a protection  and care matter in the Children's Court of WA andRepresenting yourself at a final hearing for a protection and care matter in the Children's Court of WA have information that may help you if you do not have a lawyer.

What if I have a Protection Review Hearing?

If you get a letter from the court telling you about a Protection Review Hearing you should get legal advice. This hearing gives the parties a chance to resolve the issues to avoid a trial.
 
You have to go to this hearing even if you have a lawyer unless you have been excused in advance by the President of the Children's Court.
 
You, or your lawyer (if you have one), must:
  • complete a Review Certificate (Form PCREV)
  • lodge it with the Registry 3 working days prior to the Review Hearing, and
  • must also serve (give) a copy of the Review Certificate to the Department and all the other parties, including the Child Representative, if one has been appointed.

My child has been placed in a secure care centre. What is that?

A secure care centre (the Kath French Secure Care Centre) has been set up by the government in WA for children and young people where:
  • there is an "immediate and substantial risk" of them causing significant harm to themselves or another person and
  • there is no other suitable way for them to receive the care needed.
A child or young person can be placed in the secure care centre by:
  • the CEO of the Department if they are on a time limited, or until 18 protection order, or are in provisional protection and care, or
  • by a magistrate if the child or young person is in provisional protection and care.
There are limits on how long a child or young person can be placed in the secure care centre by either a magistrate or the CEO of the Department.

Will my child get a say at court?

For information on lawyers for children, see Child representatives in the Children's Court.

 
If I am a grandparent or other relative, can I have a say at court?

Click here for information on this or download the Legal Aid WA information sheet Grandparents- protection and care. 

Can a protection order be changed or revoked?

Yes. If you were involved in the court case when the protection order was made, you can apply to the Children's Court to have the order revoked (cancelled). Some orders, for example, interim protection orders, protection orders (supervision), and protection orders (special guardianship) can also be changed.
 
A long term carer of a child can also make an application to cancel a protection order (time limited) or protection order (until 18) and replace it with a protection order (special guardianship).  An application can be made by the carer where the child has both been in their care and on a protection order (time limited) or protection order (until 18) for at least the two years immediately before the application is made.
 
If you want a protection order changed or revoked you should get legal advice.
 

What can I do to get my child back if they are out of my care? 

If you have a provisional care plan, signs of safety mapping or written proposal from the Department you should try to work on each child safety issue outlined.
  • Make sure: 
    • you go to any meetings that the Department arranges about the care of your child so you can have a say about your child's living arrangements and the contact they have with you
    • the Department always has your current contact details
    • you always co-operate with and return calls from the Department.
  • Keep a diary of any calls to or from the Department or other services you are working with, and meetings you have with the Department or other services.
  • You may need to write letters to the Department (and keep copies) to establish a paper trail of evidence in case the matter goes back to court or for care plan review.
  • If the Department is concerned about certain child safety issues (for example, drug or alcohol use or family violence) you can arrange some drug and alcohol (or other types of) counselling or do a course to assist you and let the Department  know what you have done.
If you need more information on what to do if you disagree with Department care plan decisions once a final order is made, see Decisions of the Department of Communities Child Protection and Family Support.

Where can I get more information?

Last reviewed: 31/10/2017
Last modified: 15/11/2017 9:09 AM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.