Child Protection (ACT)

In the ACT, child protection matters are dealt with under the Children and Young People Act 2008 and by ACT Child and Youth Protection Services. This page deals with the principles and procedures that underpin child protection matters in the ACT.

Child protection or family law?  

Child protection matters are dealt with separately from family law matters. While family law matters involving children are dealt with in the Federal Circuit and Family Court of Australia (FCFCA) under the Family Law Act 1975, child protection matters are dealt with in the Children’s Court under the Children and Young People Act 2008.

Family law matters involving children concern disputes between parents (and sometimes other family members) about the arrangements that will be made for children. Child protection matters are initiated by a government department when it has concerns that a child may be at risk of harm from which parents are not likely to adequately protect it. Child protection matters are an area of administrative law, as they involve the exercise of powers by government officials.

Children at risk

The Department investigates reports that a child is at risk of harm and may intervene to protect a child from harm. A child may be at risk of harm because there is no one to care for then, because they are being subjected to sexual or physical abuse or neglect, or because their day-to-day needs are not being provided for.

If the Department considers that a family is struggling to provide for the needs of a child, it may offer support to the family and monitor the family’s and the child’s progress. If the Department forms a view that a child is at risk from which its parents are unlikely to offer adequate protection, it may do the following:

• take the child into interim care
• apply to the court for a protection order

Care plans

When a child is proposed to be placed under an order (whether interim, short-term or long-term), a care plan must be prepared setting out how the child’s protection and care needs will be met. A care plan may include where the child will live, what medical care they will receive, where they will go to school and what contact they will have with family members.

When a care plan is prepared, the department must consult the child, the person/s who has daily care and responsibility for the child, and anyone else who would be involved in implementing the care plan.  

Best interests of the child

Under section 8 of the Children and Young People Act 2008, the paramount principle when making a decision under the Act is the best interests of the child.

When making a decision, the decision-maker must take into account:

• the preservation and enhancement of the child or young person’s sense of ethnic, cultural and religious identity
• the encouragement and continuation of the child or young person’s education, training and employment
• the child or young person’s age, sex, maturity, developmental capacity and background
• avoiding delay.

Care and protection orders

The Children’s Court may make a care and protection order if it:

• is satisfied that a child or young person is in need of care and protection;
• has considered a care plan prepared for the child or young person.

An order may include provisions about parental responsibility, daily care, contact with family members, and provisions about specific issues.

Care and protection orders may be made on a short-term or long-term basis.

Parental responsibility

‘Parental responsibility’ refers to the duty to make long-term and big-picture decisions about a child’s life. A person who has parental responsibility for a child decides where the child goes to school, what religion they follow and what major medical treatments they receive (among other things).

In some cases, the person with parental responsibility for a child will also be the person who has daily care of the child. In other cases, one person will have parental responsibility and another person will have daily care. For example, the court may order that daily care of a child be held by a grandparent, but that the Department retain parental responsibility.

Daily care

The person who has daily care of a child is responsible for making decisions about the child’s day to day life. This includes where the child lives, who they have contact with, what they eat and what they wear.

Responding to an application

If an application is made for a care and protection order in relation to a child, the application and supporting material will be served on the child’s parents or guardians. Parents will have the opportunity to respond to the application and file their own supporting evidence. Parties may consent to the application or oppose the application.

In some cases, an application that is opposed may resolve after discussion between parties without the need to go to a contested hearing. In other cases, the matter will proceed to a contested hearing where all parties will have the opportunity to call evidence and make submissions.

The court will then decide whether an order is needed, and if so, the length of the order and what the conditions should be. These decisions will be made based on what is in the best interests of the child based on an assessment of all the evidence that is before the court.

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