Child Protection (Tas)                

In Tasmania, child protection matters are dealt with under the Children, Young Persons and Their Families Act 1997 and administered by the Department for Education, Children and Young People. This page deals with the care and protection of children system in Tasmania.

Child protection is separate from family law

It is important to be aware that child protection matters are separate from family law matters. Family law matters involving children consist of disagreements between family members about the arrangements to be made for a child. Child protection matters involve applications by a government department that believe a child is at risk.

Family law matters are dealt with under the Family Law Act 1975 in the Federal Circuit and Family Court of Australia (FCFCA). Child protection matters are dealt with under the Children, Young Person and Their Families Act 1997 in the Tasmanian Children’s Court.

Children at risk

Under section 4 of the Act, a child is at risk if:

• they have been, or are likely to be, abused or neglected
• a person who they have frequent contact with has threatened to kill, abuse or neglect them and the threat is likely to be carried out or a person they have frequent contact with has killed, abused or neglected another child   
• they are at risk of being affected by family violence
• the guardians of the child are unable to appropriately care for the child
• they are under 16 and are not attending school or other education without a reasonable excuse.

Best interests of the child

The Act sets out the principles that are to be observed when dealing with children. The paramount consideration is always to be the best interests of the child, including the need to protect the child from harm, the need to respect the views of the child and the nature of the child’s relationships with family members.

Other principles set out in the Act include:

• that the child’s family has primary responsibility for the care and upbringing of the child and is entitled to bring the child up in any cultural, ethnic and religious tradition
• that children are to be treated in a way that respects their dignity and privacy
• that children should be given the opportunity to respond to decisions proposed to be made about them and to express their views where appropriate
• that Aboriginal children should be placed with family, or with an Aboriginal carer, wherever possible and that Aboriginal communities are allowed to contribute to decision-making about Aboriginal children.

Custody and guardianship

A person who has guardianship of a child has the same responsibilities and rights as a natural parent.

A person who has custody of a child has responsibility for the daily care and control of the child.

Care and protection orders

If the Children’s Court is satisfied that a child is at risk and an order should be made or that the current arrangements for a child’s care should be incorporated into a protection order, it may make a care and protection order.

The court has the power to make a range of different care and protection orders including:

• an order placing the child in the custody of a person for a specified period
• an order granting guardianship of the child to a person for a specified period
• an order providing for how a person with custody or guardianship is to deal with matters relating to the care, protection, health, welfare or education of the child
• any other order the court thinks appropriate.  

Responding to an application

When the Department makes an application for orders, this will be served on the child’s parents or guardians. Parties may respond to an application by consenting to the order being sought or opposing it.

If an application is opposed, it will generally proceed to a hearing where the court will hear evidence and submissions from all parties and then decide whether to make an order.

If an application is not opposed, the court may proceed to make the orders provided it is satisfied that they are appropriate in the circumstances.

Separate representatives

A child who is the subject of child protection proceedings will generally be represented in those proceedings by a legal practitioner. However, a child may not have legal representation in some situations such as where the child chooses not to be represented or where the court considers it is in the best interests of the chil not to have representation.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.