Child Protection (WA)                

In WA, child protection matters are governed by the Children and Community Services Act 2004 and investigated by the Department of Communities. This page deals with the principles and procedures involved in child protection matters in WA.

Child protection vs family law

Child protection is separate from and different from family law.

Family law matters involving parenting disputes are dealt with under the Family Law Act 1975 in the Federal Circuit and Family Court of Australia (FCFCA). They involve disagreements between family members about the arrangements that should be made for a child.  

Child protection matters are dealt with in the Children’s Court under the Children and Community Services Act 2024. They involve applications by a government department for a protection order in respect of a child.

Where there is a risk of harm

If the Department of Communities suspects that a child is at risk of harm, it may investigate the situation. If it considers that the family is struggling to care for the child, it may provide support to help family members to do so.

If the Department considers that a child is in need of protection, it may:

• take the child into provisional care and protection; and
• apply for a protection order.

Children in need of protection

Under section 28 of the Act, a child is in need of protection if:

• they have been abandoned by their parents and no other suitable family member can be found to care for them
• their parents are dead or incapacitated and no other suitable family member can be found to care for them
• they are likely to suffer harm because of neglect or because of sexual, physical or emotional abuse
• they are likely to suffer harm because their parents are unable or unwilling to provide them with adequate care or treatment.

Best interests of child

The paramount consideration when dealing with a child protection matter is the best interests of the child. What is in the best interests of a child is to be determined taking into account a range of factors set out in section 8 of the Act. These include the need to protect the child from harm, the capacity of the child’s parents to protect them from harm, the views and wishes of the child, the child’s ethnic and religious identity and the child’s educational needs.  

Parental responsibility

Parental responsibility is the duty to make long-term decisions about a child. The person with parental responsibility decides matters such as where the child goes to school and what major medical interventions they receive.

Protection orders

A protection order is an order made by the Children’s Court in respect of a child. In WA, there are four different types of protection orders.

Protection order (supervision)

A protection order (supervision) is an order that provides for the supervision of the wellbeing of a child by the Department of Communities for a specified period of up to two years. This order does not impact who has parental responsibility for a child.

A protection order (supervision) may include conditions that must be followed by the child, their parent or another adult they live with.

Protection order (time limited)

A protection order (time limited) is an order that gives the Department parental responsibility for a child for a specified period of up to two years.

Protection order (until 18)

A protection order (until 18) is an order that gives the Department parental responsibility for a child until they turn 18.

A court must not make this order unless satisfied that long-term arrangements should be made for the wellbeing of the child.

Protection order (special guardianship)

A protection order (special guardianship) is an order that give one or two person (who are not the parents of the child or the Department) parental responsibility for a child until the child turns 18 or until an adoption order is made.  

A court must not make this order unless satisfied that long-term arrangements should be made for the wellbeing of the child and that the person proposed is suitable, willing and able to provide long-term care.

Responding to an application

When the Department makes an application in respect of a child, the application and supporting material is served on the parents or guardians. They may respond by filing their own material, either consenting to the application or opposing it.

If an application is opposed, it may proceed to a contested hearing. Each party will have the opportunity to call evidence and make submissions as to the child’s and family’s circumstances and any other matters that are in dispute. The court will then decide whether to make an order and what order to make.

In some cases, where parties disagree, the matter may resolve through negotiations and a contested hearing may be unnecessary.

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