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Protection of children and young people

From 22 October 2018, the main law concerning the protection of children and young people in South Australia is set out in the Children and Young People (Safety) Act 2017 (SA) (the Act). See Reforms from 22 October.

The Act sets out the priorities in the operation of the Act. Protection of children and young people from harm is the paramount consideration in the administration, operation and enforcement of the legislation [s 7].

Other considerations in relation to children and young people are [s 8]:

  • the need to be heard and have their views considered
  • the need for love and attachment
  • the need for self esteam
  • the need to achieve their full potential.

Where children and young people are at risk, early intervention is a priority [s 9].

Reforms from 22 October

Much of the Children and Young People (Safety) Act 2017 (SA) commenced on 22 October 2018.

Key reforms from this date included:

  • A broadening of the mandatory reporting requirements
  • The Department for Child Protection now has the power to remove children suffering or likely to suffer serious harm for up to 5 days without court order, rather than only for 1 day
  • The Department for Child Protection now has the power to direct parents to attend assessments or random testing
  • Family group conferences no longer need to be convened or attempted before court orders are sought
  • Custody and guardianship is granted to the Chief Executive rather than the Minister
  • Contact arrangements (between parents and children in care) are determined by Chief Executive, but reviewable by a Panel
  • The Chief Executive can direct that child or young person's name be changed
  • Those aggrieved and sufficiently interested in the Chief Executive’s decisions under Chapter 7 of the Act may apply for internal and external review (by SACAT), with children’s views to be considered
  • There are no longer strict adjournment and hearing time frames, but matters are to be dealt with “expeditiously” by the Court
  • Carers can apply for children and young people to be transitioned to their own guardianship after 2 years of care and declarations as to name change may be made with these long term orders
  • There are new offences of harbouring or concealing child or young person, preventing their return to placement and taking them from their placement

Prescribed child protection complaints have gone to Ombudsman SA since 18 December 2017.

For more information about these changes, see the following sections of the Law Handbook.

Children and young people at risk

What does the legislation relating to the protection of children and young people do?

The Children and Young People (Safety) Act 2017 (SA) gives authority to the relevant Department (the Department for Child Protection) to intervene when a child or young person is at risk. This intervention can take several forms, ranging from referring families to appropriate support and services to seeking an order to remove a child from their parents’ care. It is a principle of the Act that children or young people who have been removed should be placed in a safe, nurturing, stable and secure environment. It is preferable for placement to be with a person with whom the child or young person has an existing relationship and that approved carers should be involved in decision making relating to children and young people in their care.

If an Aboriginal or Torres Strait Islander child or young person is taken into care, then it is a principle of the Act that the child or young person be placed in care, in order of priority, with

  • a member of their family
  • a member of their community who has a relationship that gives them responsibility for the child or young person
  • a member of their community
  • a person of the child or young person’s cultural background.

When is a child or young person defined as being ‘at risk’?

The Children and Young People (Safety) Act 2017 (SA) recognises that physical and psychological harm may include three main types of abuse and/or neglect [s 17]:

  • Sexual
  • Physical
  • Emotional

A child or young person is considered to be at risk if the child or young person [s 18(1)(a)-(c)]:

  • has suffered harm
  • is likely to suffer harm, or
  • is likely to be removed from the state for illegal purposes (such as marriage or female genital mutilation)

A child or young person is also considered to be at risk if their parents or guardians are unable or unwilling to care for them, if they are of no fixed address or if they are of compulsory school age, but have been persistently absent from school without satisfactory explanation [s 18(1)(d) and (e)]. In making an assessment about whether a child is at risk attention must be had not only to the current circumstances of the child’s care but also to the history of the child’s care and the likely cumulative effect on the child of that history [s 18(3)].

What if a child or young person is at risk of serious harm?

Ultimately the decision about whether a child or young person is at risk and in need of protection under the Act rests with the Department for Child Protection.

Child protection officers have the power to remove a child or young person from their home if they believe it is necessary to protect them from suffering serious harm and there is no reasonably workable alternative [s 41(1)]. They may also remove a child or young person if a child protection restraining order or an intervention order is in force that requires a defendant not to reside with the child or young person, but the defendant is residing with the child or young person [Children and Young People (Safety) Regulations 2017 (SA) reg 17]. If a child or young person is removed, they go into the custody of the Chief Executive until they are returned to their parents or another person or at the end of the fifth working day following their removal [s 43]. As such, if orders are necessary, the matter must be brought before the Youth Court within those 5 working days [s 43].

A child protection officer may be a police officer or an officer authorised by the Chief Executive of the Department for Child Protection [s 147]. The latter must be issued with an identity card stating that they are a child protection officer and must produce it for inspection upon request. Child protection officers have a range of powers (with or without a warrant) for the purpose of removing children and young people from situations in which they are at risk of harm. Refusing to comply with a direction from a child protection officer is an offence [s 149(10)]. The maximum penalty for this offence is imprisonment for one year. The practice is usually for the Department to contact the police to assist in this process or vice versa.

What if a parent is found guilty of a qualifying offence?

If a parent with whom a child or young person resides is found guilty of committing or attempting to commit a qualifying offence the Chief Executive must issue an instrument of guardianship [s 45].

A qualifying offence includes any of the following offences, where the victim was a child or young person and the offender was the parent of the child or young person [s 44]:

  • murder
  • manslaughter;
  • criminal neglect
  • causing serious harm
  • acts endangering life or creating risk of serious harm

An instrument of guardianship removes children or young people from the parent’s care and places them under the guardianship of the Chief Executive for 60 days or such longer period allowed by the Youth Court [ss 44 and 45(2)]. If an instrument of guardianship is issued, the Department must both investigate the circumstances of the child or young person [s 34(2)] and make an application for orders from the Youth Court [s 50(1)]. The application must be made as soon as possible and, in any case, within the guardianship period [s 50(2)]. The particular orders the Department applies for is in the Department’s discretion. See What orders can the Youth Court make?

What if there are Family Law Courts parenting orders in place?

If there are parenting orders in place in favour of the person who is the suspected source of abuse or neglect towards the child, a notification should still be made to the Department for Child Protection.

The parenting orders will, however, remain in place unless and until they are suspended, varied or discharged by either the Family Law Courts or the Youth Court. Only the Department for Child Protection can make an application to the Youth Court.

If a parent finds themselves in a situation where they are required to comply with parenting orders which may put the child or young person at further risk, they should seek legal advice without delay. They may need to make an urgent application to the Family Law Courts to suspend, vary or discharge the orders while the Department for Child Protection investigate the allegations.

Notification

Who can make a notification?

Anyone may make a notification to the Department of Child Protection. However, under section 31 of the Children and Young People (Safety) Act 2017 (SA), certain people (mandated notifiers) must notify the Department for Child Protection if they suspect on reasonable grounds that a child or young person is, or may be, at risk and the suspicion was formed in the course of the person's employment.

Who is mandated to notify?

Mandated notifiers are [s 30(3)]:

  • medical practitioners
  • pharmacists
  • registered or enrolled nurses
  • dentists
  • psychologists
  • police officers
  • social workers
  • community corrections officers under the Correctional Services Act 1982 (SA)
  • teachers
  • family day care providers
  • a minister of religion a person who is an employee of, or a volunteer in, an organisation formed for religious or spiritual purposes
  • any employee or volunteer in an organisation that provides health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children, being a person who
    • provides the services directly to children and young people, or
    • holds a management position in the organisation directly responsible for the provision of the services to children and young people

An employee includes a person who is self-employed, who carries out work under a contract for services, who carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation, who undertakes practical training as part of an educational or vocational course or carries out work as a volunteer [s 30(4)]. A reference to something occurring in the course of the person’s employment is to be construed accordingly.

In making a report, mandated notifiers are assured of confidentiality (subject to certain exceptions) and cannot be held, by making a report, to have breached any code of professional ethics [see sections 163 and 166(4)]. Reports can lead the Department to investigate further, see Investigation and intervention.

If the mandated notifiers listed above fail to notify the Department when they suspect on reasonable grounds that a child or young person is, or may be, at risk, and that suspicion was formed in the course of the person’s employment, they can be charged with an offence [s 31(1)]. However, a person need not report if they believe on reasonable grounds that:

  • someone else has reported the same [s 31(2)(a)]
  • if their suspicion arose solely from information from a police or child protection officer acting in the course of their official duties [s 31(2)(b)], or
  • the Department is already aware of all of the information that forms the basis of their suspicion [Children and Young People (Safety) Regulations 2017 (SA) reg 10],

In situations where a mandated notifier possesses additional knowledge of the child’s circumstances beyond that reported to them by a previous notifier, police or child protection officer, the mandated notifier must make their own report to the Department.

How to report that a child or young person is, or may be at risk?

Anyone can make a notification verbally to a social worker via the Child Abuse Report Line (131 478). This is a 24 hour service staffed by social workers from the Department for Child Protection. Trained mandated notifiers may also report some cases online using the eCARL system. However, serious concerns must still be reported verbally via the Child Abuse Report Line.

The law does not require proof of harm, but a notification must be accompanied by the name and address (if known) of the child or young person and information setting out the grounds for the person’s suspicion.

For further information on making a notification and what information to provide see Reporting child abuse at the Department for Child Protection website.

What does the Department do when they receive a notification?

Each report made to the Department for Child Protection is assessed [s 32(1)]. The response can range from an investigation and assessment, to no action at all. No action may be taken where matters have already been dealt with or where they are trivial, vexatious or frivolous [s 32(2)]. The Department must keep a record of the action taken in relation to each report and the reasons why [s 32(4)].

If it is determined that there is no risk to the child then no further action may be taken. In most cases where some risk is determined the Department will work with the family to provide support in those areas or behaviours of concern and can refer the family to services such as family counselling, home help, budget advice and family day care. The intervention is to improve the family situation so proper care can be provided for the child. If it is more appropriate for another authority to deal with a matter, or an aspect of a matter, the Department may refer the matter to that authority [s 33].

If, after investigation and assessment, it is determined that a child or young person is at risk, the Department may intervene, see Investigation and Intervention.

Investigation and intervention

When and how will the Department conduct an investigation?

The Department for Child Protection may begin an investigation, with or without parental consent, if they suspect that a child or young person may be at risk or it is otherwise appropriate [Children and Young People (Safety) Act 2017 (SA) s 34].

The Chief Executive may direct that a child or young person be examined or assessed if [s 35]:

An employee of the Department will take the child or young person to their appointment with the relevant health professional [s 35(3)].

If the Chief Executive reasonably suspects that a child or young person is at risk as a result of drug or alcohol abuse by a parent, guardian or other person or a lack of parenting capacity by anyone responsible for the care of the child or young person, the Chief Executive may direct the person to undergo relevant assessments [s 36].

The child or young person could still be in the parent’s care when they are directed to undergo an assessment. As such, it is important for the parent to get legal advice at this time as the outcome of the assessment will be critical to any further action by the Department. It is important parents understand that it is an offence to refuse to comply with the direction to undergo an assessment [s 36(3)]. The maximum penalty is six months imprisonment.

Those directed to undergo assessments must receive a notice setting out:

  • the nature of the assessment
  • the place at which the person must attend for the assessment
  • the date and time of the assessment
  • contact details of the person or body with whom the person can communicate about the assessment
  • information setting out the consequences of refusing or failing to comply with the direction for the assessment
  • the contact details of the Legal Services Commission

See Children and Young People (Safety) Regulations 2017 (SA) reg 13.

Anyone who has undergone a drug and alcohol assessment or been the subject of an application for an investigation and assessment order under the Children’s Protection Act 1993 (SA) in the last 5 years must take part in random drug and alcohol testing and may be directed to undertake a drug and alcohol rehabilitation program [ss 37 and 38]. It is an offence to refuse, without reasonable excuse, to comply with a requirement for testing or rehabilitation [ss 37 (5) and 38(2)]. The maximum penalty is six months imprisonment.

Does the Department need parental consent before it intervenes?

Intervention can occur in situations of immediate or serious risk with or without parental consent. In less serious cases, the Department for Child Protection will try and work with the parents or guardians but, in more serious cases this will not be possible or even appropriate and the Department has the power to intervene without the consent of the parents or guardians. This is particularly the case where there are concerns that the child or young person will be at risk of serious harm without intervention, see What if a child or young person is at risk of serious harm?

What happens when the Department intervenes with parental consent?

Where the Department for Child Protection wants to work with a family without taking court action, but while still ensuring the child or young person is placed out of the home for a period, they can:

  • convene a Family Group Conference to make arrangements [see Children and Young People (Safety) Act 2017 (SA) s 22] and/or
  • initiate a Voluntary Custody Agreement (also known as a 'Care Agreement') with the family [ s 96].

A Voluntary Custody Agreement is a short term agreement between the parents and the Department giving the Department custody of the child and the right to make all day to day decisions about the child, including where the child is to live.

The agreement must be in writing and state how long it is for, where the child is to live, and the type of decisions the parents must be consulted about.

Under the agreement the Department may organise support services for the family and make arrangements for short term care.

The agreement can be terminated at any time by the parents or a young person who is aged 16 years or older. Agreements are usually for a period of three months with an option to extend up to a maximum of six months.

Legal advice should be sought before entering into or terminating an agreement. If an agreement is terminated the Department may make an application to the Youth Court for a care and protection order. See When is a Care and Protection order made?

What is a family group conference?

A family group conference (previously known as a 'Family Care Meeting') is an opportunity for the child or young person and his or her family to make voluntary arrangements for the care and protection of the child or young person and to review those arrangements from time to time [s 21]. The Chief Executive or the Youth Court may convene a family group conference if they suspect that the child or young person is at risk and it would be appropriate to make arrangements for the care of the child or young person by way of family group conference [s 22]. There is no longer any legislative requirement that a family group conference be held before the Chief Executive makes an application for a care and protection order, but the Youth Court may adjourn an application for the purposes of convening a family group conference [s 67].

How is a family group conference conducted?

A conference coordinator is nominated by the Chief Executive or the Youth Court, whichever convened the conference. The conference coordinator conducts the meeting [s 22(2)].

Attendance at a conference is voluntary, but if parents refuse to attend a conference, the Department may make an application to the Youth Court for care and protection orders [s 21(2)]. People entitled to attend the meeting include [s 23]:

  • the child or young person him or herself
  • the parents or guardians
  • approved support persons (not being legal practitioners) for the child or young person and their parents/guardians
  • other family members
  • anyone who has a close association with the child or young person
  • a person who has examined, assessed, counselled or treated the child or young person in the course of investigation,
  • a representative from the child or young person's school (if persistent absenteeism is involved) a
  • a representative from a relevant Aboriginal or Torres Strait Islander organisation (if the child or young person identifies as Aboriginal or Torres Strait Islander), and
  • a Department for Child Protection worker.

The coordinator must ensure the conference is held at a time suitable to the child or young person and their parents or guardians, notify them of the time and place at which it will be held and arrange for a suitable person to act as an advocate for the child or young person (unless satisfied that the child or young person has made an informed and independent decision to waive their right to an advocate) [s 23(4)].

After consultation with the child or young person and their parents and guardians, the coordinator may exclude a person from attending the conference [s 23(2) and (3)]. If this is done, the Coordinator must still take reasonable steps to ascertain their views and present them to the conference [s 24(3)]. The same applies if someone is unable to attend for any reason.

The coordinator must ensure that information about the child or young person’s circumstances and any grounds for suspecting the child or young person may be at risk is presented to the conference [s 24(1). Once the information is given, the parents, guardians and family members (including the child or young person if appropriate) must be given the opportunity to privately discuss and decide their own recommendations for the child or young person’s care and protection [s 24(2)].

If possible, decisions should be made by consensus [s 24(4)(a)]. Decisions will only be valid if the child or young person, their parents or guardians and the Department each accept them in writing [s 24(4)(c) and Children and Young People (Safety) Regulations 2017 (SA) reg 7(1)(a)]. However, the regulations provide that decisions need not be accepted by a child or young person, if having regard to the child or young person’s age or and development, it is not necessary or appropriate [reg 7(3)].

If a decision cannot be reached or a conference cannot be held (such as where the parents refuse to attend the conference), the Chief Executive may apply to the Youth Court for a Care and Protection Order [s 21(2)].

A written record of the decisions must be prepared and provided to each person present at the conference and included as part of the case plan for the child or young person [s 24 (5)]. A decision may be made to review the arrangements at a subsequent conference [s 25]. The Department may wish to secure the arrangements by way of court order [s 50(3)(b)]. Either way, if a decision is made at the conference but not implemented or complied with, the Chief Executive may also apply to the Youth Court for a Care and Protection Order [s 26(2)]. See also When is a Care and Protection order made?

Care and Protection Orders

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.

Timeframes

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.

Custody or guardianship of the Chief Executive

What does it mean to be in the custody/guardianship of the Chief Executive?

Children and young people may be in the custody or guardianship of the Chief Executive:

  • after having been removed due to being at risk of serious harm,
  • under an instrument of guardianship, or
  • pursuant to a voluntary custody agreement, or
  • pursuant to a care and protection order.

This means that the Chief Executive of the Department for Child Protection determines in whose care the child or young person is placed and may give directions about their care, including arrangements for their education and professional examination, assessment and treatment [see Children and Young People (Safety) Act 2017 (SA) s 84(1)]. In deciding these things, the Chief Executive must have regard to the principles of intervention and the placement principles, and must keep in mind that leaving a child or young person in the custody or guardianship of the Chief Executive is the least preferred option [s 84(3)]. The child or young person’s views should be given due weight in decision-making, in accordance with their developmental capacity and the circumstances of the case [s 84(4)]. Generally, the Chief Executive will keep the parents informed of where the child or young person is placed, unless it would not be in their best interests to do so [s 84(5)]. While the Act enables the Chief Executive to exercise the above powers, such power and responsibility may also be delegated to other appropriate staff members within the Department for Child Protection, such as managers or case workers [s 146].

Do carers have to be approved?

A person in whose care the child or young person (who is in the custody or guardianship of the Chief Executive) is placed is referred to as a ‘carer’. Generally, carers must apply to and be approved by the Chief Executive to provide care, although there is an exception when an approved carer is not available in situations of urgency [ss 69, 71 and 77]. In determining whether to approve a carer, the Chief Executive must act in accordance with relevant policies, and have regard to the operation of the Child Safety (Prohibited Persons) Act 2016 (SA), and whether the person is willing and able to care for the child or young person in a manner consistent with the Act, among other things [s 72(3)]. However, the Chief Executive may refuse to approve a person as a carer for any reason [s 72(3)]. Conditions may be attached to a carer’s approval and carers may be subject to ongoing review and assessment [ss 72-73]. Carers who are refused approval pursuant to section 72 or whose approval as a carer is cancelled pursuant to section 74 may seek a review of the decision. In the first instance, carers must apply to the Department for an internal review [s 158(2)(b)]. If necessary, they may then apply to the South Australian Civil and Administrative Tribunal for an external review [s 158(3)(a) and (b)]. Time limits apply. See Can the Chief Executive’s decisions be reviewed?

Are approved carers involved in decision-making?

Approved carers are generally entitled participate in making decisions that relate to a child or young person’s health, safety, welfare or wellbeing [s 82(1)]. This will not apply when the decision-maker thinks it would not be in the best interests of the child or young person [s 82(2)].

Contact arrangements

Can parents have continued contact with their children?

The Chief Executive determines arrangements for contact between children and young people who are in the custody or under the guardianship of the Chief Executive and those from whose care they have been removed, and may determine for any reason that there is to be no contact at all between the child or young person and another person [s 93(2)].

If the Chief Executive is satisfied that reunification is likely, contact arrangements should be made with a view to maintaining attachment relationships between the child or young person and the person or persons with whom they will be reunited [s 93(3)(a)]. If unlikely, contact arrangements should be made bearing in mind the need not to undermine or compromise the ability of the child or young person to establish attachment relationships with their guardian or guardians [s 93 (3)(b)].

A determination of contact arrangements must be by notice in writing and must set out all of the following[s 93(5) and reg 24]:

  • the Chief Executive’s consideration of the likelihood of reunification and how that influenced the contact arrangements
  • the Chief Executive’s reasons for making the contact arrangements
  • the frequency and duration of contact visits in a specified period
  • the venue or venues at which contact visits are to take place
  • the methods by which contact visits may or may not be undertaken (for example, face to face contact visits, telephone calls, written communication, social media)
  • the persons who may and may not be present during contact visits
  • whether the visits are to be supervised by the Department

The Chief Executive must take reasonable steps to provide a copy of any contact arrangement determinations to each person affected by the determination and explain to them the right to have contact arrangements reviewed [reg 24(2) and s 95]. The Chief Executive must also record and keep a copy of the reasons for any determination [reg 24(e)].

The Chief Executive may change or stop contact arrangements at any time by notice in writing [s 93 (6)].

Can the contact arrangements be reviewed?

Yes, the person allowed or refused contact with a child or young person or the child or young person themselves may apply to the Contact Arrangements Review Panel (the Panel) for a review of the contact arrangements [s 95(1)].

The application for review must be made within 14 days of the Chief Executive’s determination of the contact arrangements, unless the Panel is satisfied that special circumstances exist and that time frame should be extended [s 95(2) and (3)]. The Panel may affirm, vary or set aside and substitute the determination or send it back for re-determination together with directions or recommendations [s 95(5)]. Once a determination has been reviewed by the Panel, it cannot be further reviewed by them [s 95(7)].

What if a parent removes a child from their placement?

It is an offence for a person to induce or encourage a child or young person to leave a placement, or to harbour, conceal or take a child or young person from a placement, without lawful excuse [s 88]. The maximum penalty for this offence is imprisonment for 12 months.

Other person guardianship

Can an approved carer become the long-term guardian of a child or young person in their own right?

An approved carer who has had the care of a child or young person (who is under the custody or guardianship of the Chief Executive) for at least 2 years may apply to the Chief Executive to become the child or young person’s long-term guardian [Children and Young People (Safety) Act 2017 (SA) s 89(1)]. As soon as possible thereafter the Department must undertake an assessment of the suitability of the proposed long-term guardian [s 89(3)] and if suitable, prepare a long-term care plan for the child or young person [s 90(1)]. An approved carer who is not assessed as suitable may wish to seek a review of the Chief Executive's decision [ss 157 and 158]. See Can the Chief Executive's decisions be reviewed?

A long-term care plan must include the following:

  • a cultural maintenance plan
  • details of any contact arrangements with the family of the child or young person or other significant people in their life
  • information about how the educational, health and disability needs (if any) of the child or young person will be met
  • details of any financial or other support will be provided to the approved carer/s
  • details of any compensation paid or payable to the child or young person as a victim or crime
  • details of any dispute resolution process (including mediation) to be followed in the event of dispute about the care of the child or young person
  • information about the most recent review of the long-term care plan

See Children and Young People (Safety) Regulations 2017 (SA) reg 22

As long as no new information has presented itself suggesting the proposed long-term guardian is not suitable, then once the long-term care plan is complete, the Chief Executive must apply for the appropriate orders from the Youth Court to place the child or young person under their long-term guardianship without undue delay [s 91 and reg 23]. A copy of the long-term care plan must be provided to the Court.

A declaration of the name by which the child or young person will be known can also be made at this time [s 53(1b)].

The views of the following people (if known) should be set out in the application [reg 23(1)]:

  • the child or young person
  • the proposed guardian/s
  • the birth family of the child or young person
  • the Department
  • the person or body representing the culture or community of the child or young person

If the birth family objects to the proposed long-term guardian or the child or young person’s change of name, they must prove why the order should not be made [s 59]. See How is a Care and Protection application different from other court proceedings? If the order is made, it will revoke the previous order placing the child or young person in the Chief Executive’s guardianship.

For more information, see the Department's brochure Long Term Guardianship (Specified Person).

Review of administrative decisions

Can the Chief Executive’s decisions be reviewed?

Most, if not all, of the Chief Executive’s decisions under the Children and Young People (Safety) Act 2017 are reviewable internally by the Department.

The Chief Executive’s decisions in relation to the approval (or cancellation of approval) of carers, foster care agencies and residential care facilities are also externally reviewable by the South Australian Civil and Administrative Tribunal.

Other decisions by the Chief Executive under Chapter 7 of the Act may also be reviewable by the Tribunal, except a decision relating to contact arrangements; or those that constitute prescribed child protection complaints [see s 158(1)(a) and 158(2)(a)]. These decisions are investigated or reviewed in different ways; see Can parents have continued contact with their children? and Prescribed Child Protection Complaints. See also the Table of complaints, reviews and appeals.

A decision must be internally reviewed before it can be reviewed by the Tribunal [s 158(2)(b)]. See Time frames below.

Decisions under Chapter 7

Decisions of the Chief Executive under chapter 7 of the Act may include those relating to the following:

  • approval of carers, foster care agencies and children’s residential facilities
  • placement, education and medical arrangements for children and young people
  • review of the circumstances of children or young people
  • direction not to communicate with, harbour or conceal
  • suitability of long-term guardians
  • financial or other assistance to approved carers or others
  • assistance to eligible care leavers

Who can apply for external review

Section 158(3)(a) and (b) set out that applicants for approval as carers, foster care agencies and residential care facilities and those to whom cancellation of approval relates may apply to the Tribunal for review.

Sub-section (c) says that, in relation to any other decision, those prescribed by regulations may apply to the Tribunal [see s 158(3)(c)] and Children and Young People (Safety) Regulations 2017 (SA)]. Regulation 40A says that those who may apply include:

  • the applicant in respect of an internal review of a decision
  • a child or young person to whom the reviewable decision relates (if they were not the applicant for review)
  • any other person aggrieved by the reviewable decision who has a sufficient interest in the matter

The child or young person about whom the review proceedings relate must generally be given an opportunity to personally present their views to the Tribunal about their ongoing care [s 159(1)]. The only reason they may be refused this opportunity is if the Tribunal is satisfied that they are not capable of personally presenting their views or it would not be in their best interests to present their views [s 159(2)]. The child or young person may or may not be represented by a lawyer at the Tribunal, but either way, they will be given the opportunity to personally present their views [s 159(3)].

Time frames

A person who is unhappy with a decision must first seek an internal review within 30 days [s 157]. An Application for Internal Review Form is available on the Department’s website and can be submitted in person, by post or by email.

If, after the internal review is complete, a person is still unhappy with the decision, they may apply, within the next 28 days, for the decision to be reviewed by the South Australian Civil and Administrative Tribunal [s 158]. An extension of time beyond the 28 days may be allowed if the Tribunal is satisfied that special circumstances exist and no one will be unreasonably disadvantaged by the delay [s 158(5)]. Fees may apply. See SACAT Fees.

Correct and preferable decision

The Tribunal will be looking at whether the Chief Executive made the correct and preferable decision [see South Australian Civil and Administrative Tribunal Act 2013 (SA) s 34(4)].

Prescribed child protection complaints

Since 18 December 2017 prescribed child protection complaints may be made to Ombudsman SA and will be taken to be complaints under the Ombudsman Act 1972 (SA) [Health and Community Services Complaints Act 2004 (SA) s 28A]. Previously all complaints relating to child protection went to the Health and Community Services Complaints Commissioner in the first instance.

The Ombudsman will not usually investigate a complaint unless the person has already lodged a complaint directly with the Department and given them time to respond. The Department's Central Complaints Unit has an online complaints form and can be contacted on 1800 003 305. For more information about when the Ombudsman may refuse to investigate and the time limit that generally applies see Complaints and Complaints about child protection services.

What is a prescribed child protection complaint?

Prescribed child protection complaints are complaints relating to health or community services that:

  • are provided to, or for the benefit of, a child who may be or who has been at risk; or
  • involve a notification (whether mandatory or otherwise) of a suspicion that a child may be at risk; or
  • involve an investigation of a case where a child may be at risk; or
  • are provided to, or for the benefit of, a child who is in the custody or guardianship of the Minister or someone else under the Act

and the provision of the service is an administrative act [s 28A(8)(a)]. However, the regulations may declare a particular complaint to be included or excluded from the definition [s 28A(8)(b)].

An administrative act is an act relating to a matter of administration (including a service, activity or omission) by the Department for Child Protection, or by an employee or contractor on their behalf [see Ombudsman Act 1977 (SA) s 3 and 13(5)].

Complaints may relate to things such as:

  • action or inaction by the Department in response to notifications
  • communication with families or approved carers during an investigation
  • the conduct of child protection officers or other Departmental staff during an investigation
  • other matters relating to the conduct of an investigation
  • the assessment of children and young people or their parents or guardians
  • the quality of medical care or other support services

If the complaint is not a prescribed child protection complaint, it may still be a complaint that can be made to the Health and Community Services Complaints Commissioner (HCSCC) (see Complaints about child protection services) or a decision reviewable by the South Australian Civil and Administrative Tribunal (see Can the Chief Executive’s decisions be reviewed?).

See also the Table of complaints, reviews and appeals.

Intervention Orders and Child Protection Restraining Orders and Notices

Intervention Orders

The police, a child or young person themselves, or an adult on their behalf, can apply to the Magistrates Court for an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) if a child or young person is at risk of being abused by someone. See Intervention Orders.

Child protection restraining orders – against non-guardian adults

Under s 99AAC of the Criminal Procedure Act 1921 (SA), police can apply to the Youth Court for an order restraining a non-guardian adult who has been living with a child from living with or having any contact with the child. Before granting such an order the Court must be satisfied that the child’s contact or residence with the adult puts him or her at risk of sexual, physical, psychological or emotional abuse or neglect. If a child is at risk of offending against Part 5 of the Controlled Substances Act 1984 (SA) (i.e. offences relating to controlled drugs) risk will also be made out. In addition to a restraining order the Court may also make other orders providing for the temporary placement of the child.

The 2004 Mullighan Inquiry into Children in State Care recommended this specific measure to protect runaway children, including wards of the state. These children often end up in exploitative relationships with adults who are not their guardians but who provide food, money, accommodation or drugs in exchange for sexual or other services from the child (including selling drugs for the adult).

Restraining notices – against non- guardian adults

Where a child or young person is residing with someone who has been found guilty of a qualifying offence the Department for Child Protection must issue a restraining notice in respect of the child or young person [ss 45-46].

A qualifying offence is defined under section 44 and includes the following offences where the victim was a child or young person and the offender was their parent or guardian:

  • murder;
  • manslaughter;
  • criminal neglect;
  • causing serious harm;
  • acts endangering life or creating risk of serious harm.

A restraining notice may prohibit the offender from residing at the same premises as the child or young person, coming within a certain distance of the premises or contacting the child or young person for 60 days period (or longer as may be set by the Youth Court) [s 46(2)].

It is an offence not to comply with a restraining notice and the maximum penalty is imprisonment for two years [s 46(5)].

Special provisions exist for newborn children who have yet to be discharged from hospital but who will be taken to be residing with a person guilty of a qualifying offence [s 46(7)].

Restraining notices are similar to restraining orders for the offender in effect, but they are issued by the Department rather than the court, and only when the person with whom the child or young person is residing has been found guilty of a qualifying offence, not for reasons broader than that. There is also no provision for review or appeal. For the child or young person, the effect of the restraining notice is that the Department must make an application for a care and protection order as soon as possible [s 50(1) and (2)]. See When is a Care and Protection order made?

    Protection of children and young people  :  Last Revised: Tue Oct 23rd 2018
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.