Departments, lawyers and other participants in child protection proceedings

Who can participate in child protection court proceedings?

The Child Protection Act 1999 says that the following people can participate in child protection matters:

  • A lawyer representing the Director of Child Protection Litigation (“DCPL”)
  • A legal officer representing the Office of the Child and Family Official Solicitor (“OCFOS”)
  • The child’s mother and father
  • A person who ‘lives with’ or ‘spends time with’ orders in operation under the Family Law Act 1975
  • A person who has custody or guardianship of the child under another law, or the law of another State
  • A long-term guardian of the child
  • The child, who may be represented by a lawyer called a ‘Direct Representative’
  • A ‘Separate Representative’. This is a lawyer who represents the ‘best interests’ of the child
  • A representative of the Office of the Public Guardian
  • Other significant people in the child’s life who have received permission from the court to be involved in the proceedings

Proving paternity

The recording of a father on a birth certificate is considered the primary evidence of parentage of a child.

In some cases, the parties may consider paternity testing. A DNA paternity test may be presented in court and then the court may make a finding that a person is or is not a child’s father.

DNA testing of the child may be performed with the consent of the child’s legal guardian, or with the child’s consent if the child is of sufficient age and maturity to make a decision about undergoing the test themselves.

A paternity test on the child may be ordered by the court if there is a TAO, TCO or CAO in place or on an adjournment of a child protection order.

Child Safety Services may also seek medical examination or treatment of a child, which may include paternity testing. If Child Safety Services seeks a medical examination or treatment of a child in their custody or guardianship, a health practitioner may do this despite one or both parents not consenting.

Child Safety Services may, in some circumstances, pay for the test to occur when it is in the child’s best interests, such as when significant conflict about the child’s parentage may result in a change in the child’s placement or their usual family situation.

Mere speculation about who is the father will not be sufficient to cause Child Safety Services to fund a DNA test when a father is listed on the birth certificate.

Child Safety Services

Child Safety Services is a department of the Queensland Government with the purpose of protecting children and young people from harm or who are at risk of harm, and whose parents cannot provide adequate care or protection for them. Child Safety Services is part of the Department of Communities, Child Safety and Disability Services.

Child Safety Services is usually represented by the Office of the Child and Family Official Solicitor when appearing in court.

Roles of Child Safety Services staff

The following are some of the staff members at your Child Safety Service Centre. If you are discussing your case with a department worker, you may wish to ask them their role so that you understand what matters they may be able to assist you with.

Child Safety Support Officer (CSSO)

CSSOs support and assist the Child Safety Officers and often work directly with families.

Child Safety Officer (CSO)

Child Safety Officers investigate and assess notifications received by Child Safety Services and provide support and protective intervention to families. The CSO that is assigned to your case is usually your main point of contact with Child Safety Services.

They have limited decision-making ability, and some decisions are required to be made by the Senior Team Leader.

They report to the Senior Team Leader.

Senior Team Leader

A Senior Team Leader is responsible for a team of Child Safety Officers.

The Senior Team Leader has the ability to make decisions about placements and contact. For this reason they need to be contacted when you are seeking changes to these arrangements.

Family group meeting (FGM) convenor

The FGM convenor plans, prepares participants for and facilitates the family group meeting. They are independent of the case and does not have decision-making responsibilities for the case. The FGM convenor should remain neutral, assist and enable all to participate, and ensure that all attending feel safe throughout the process. The convenor also records the case plan developed at a family group meeting.

Senior practitioner

The senior practitioner supports and monitors the quality of the child protection service provided to children, their families and the community through:

  • a specialist knowledge of child protection practice
  • mentoring and developing the practice skills and knowledge of CSOs, CSSOs and Senior Team Leaders
  • monitoring and facilitating the implementation of relevant legislation, delegations, policies, procedures and quality standards
  • managing the ongoing improvement of child protection practice
  • participating in, or conducting reviews of, complex or sensitive cases

Manager

The Manager is responsible for all staff and operations at a Child Safety Service Centre.

The Office of the Child and Family Official Solicitor (“OCFOS”)

The Office of the Child and Family Official Solicitor (“OCFOS”) is a unit of the Department of Communities, Child Safety and Disability Services (the same department as Child Safety Services.)

OCFOS is a team of legal officers who usually work in Child Safety Service Centres and provide legal advice and assistance to Child Safety Officers.

They are usually the applicant in short term and emergency orders such as Temporary Custody Orders, Temporary Assessment Orders and Court Assessment Orders.

OCFOS refer a matter to the Director of Child Protection (“DCPL”) Litigation if they are satisfied that an application for a child protection order is required. OCFOS do not make the final decision about whether or not the DCPL apply for an order and the type and length of the order.

The Director of Child Protection Litigation (“DCPL”)

The Director is responsible for preparing and applying for child protection orders and conducting child protection order proceedings in the Childrens Court. These activities are carried out by staff within the office of the DCPL.

This office is independent of Child Safety Services.

If Child Safety Services believe that a child protection is necessary, then they must provide a “brief of evidence” to the DCPL. Then the DCPL independently makes the decision about whether or not a Child Protection Order application should be made and the type of order that should be sought.

The purpose of having an independent office applying for child protection orders is to increase accountability, improve oversight of Child Safety Services and to improve the quality of the evidence on which child protection decisions are made.

Grandparents, relatives and other people significant in the child’s life

Members of the child’s family or another significant person in the child’s life can apply to court to be able to participate in child protection proceedings.

The court can decide the extent of a person’s participation in the proceedings and assign a person all of the rights and involvement of a party. They also have the right to be legally represented if they wish to be.  In deciding whether a person may participate, and the extent to which they may participate, the court must consider the extent to which the person may be able to inform the court about a matter relevant to the proceedings and the person’s relationship with the child.

If you are a party you can make submissions to the court about who should be given these rights to participate in the proceedings.

Children participating in child protection proceedings

The Child Protection Act 1999 states that wherever possible, children should be encouraged to participate in decisions affecting their lives. Meaningful participation by young people may include:

  • parties and decision-makers actively listening to them
  • young people receiving support to express their views
  • having their views taken into account and recorded
  • being involved and present if they wish to be in decision-making processes.

The law says that children and young people are entitled to information and involvement as is appropriate for their age, ability to understand, and psychological state, including information about the decision and reasons for the decision. The right for children in care to get information and have a say in decisions that affect them is included in the Charter of Rights for a child in care in the Child Protection Act 1999.

Children and young people may want to participate in different ways and the Magistrate can make directions about how a child can participate in child protection proceedings.

Children may be involved by:

  • Attending Family Group Meetings, Court Ordered Conferences and other meetings
  • Recording their views and wishes with a Child Safety Officer or an independent person, such as the Child Advocate at the Public Guardian, the Separate Representative or the social assessment report writer
  • Having the Child Advocate give their views and wishes to the court
  • Instructing a lawyer (Direct Representative) to represent them in court and advocate for them with Child Safety
  • Writing a letter to the Magistrate
  • Drawing a picture for the Magistrate or giving the Magistrate their ‘Three houses’ drawing
  • Addressing the Magistrate personally (with or without all parties present)
  • Giving evidence in an affidavit (but only if they are 12 years old or over, represented by a lawyer and agree to giving evidence). Note that if a child gives affidavit evidence it may mean that they can be cross-examined by other participants in the proceedings.

Types of representatives for children

Direct representative

A Direct Representative is a lawyer who represents a child in the proceedings and provides the court information about what the child wants and argue for the child’s point of view. A direct representative, like a lawyer for an adult, acts on the child’s instructions.

A child might want a direct representative if they have strong views about what Child Safety Services or their parents are asking the court to do and they want to actively participate in the court processes.

The child can ask their Child Safety Officer, the court or the Separate Representative to help them to contact a Direct Representative. They can contact Legal Aid for help.

Legal services that act as Direct Representatives for children in child protection proceedings include Legal Aid, Youth Advocacy Centre and South West Brisbane Community Legal Centre.

Separate Representative

A Separate Representative is a lawyer appointed to represent your child’s or children’s ‘bests interests’ in the Childrens Court and to ensure their views and wishes are presented to the court. This is different to acting on the ‘direct instructions from your child.

A Separate Representative can be appointed by the court during child protection proceedings if the magistrate considers it important in protecting your child’s best interests.

If this is the case, the Childrens Court will ask Legal Aid Queensland to appoint a lawyer to be the separate representative.

The Separate Representative will gather information about what is in the bests interests of the child by:

  • reading the information given to the court by you and the Department of Communities (Child Safety)
  • meeting your child in person
  • requesting a social assessment report
  • speaking to teachers, guidance officers or other people who have had spent a significant amount of time with your child
  • requesting reports from other professionals such as social workers, psychologists or psychiatrists.

Office of the Public Guardian (“OPG”)

The Office of the Public Guardian (OPG) is a new independent statutory body that is responsible for protecting the rights of children and young people in out-of-home care, residential care and youth detention, and vulnerable adults with impaired decision-making capacity.

One of the OPG’s responsibilities is advocating for children and young people in child protection and supporting them to express their views and wishes when decisions are made about their care arrangements.

Child Advocates and Community Visitors work for the OPG to perform this role.

The Child Advocate

An Office of the Public Guardian child advocacy officer can assist a child who is in the child protection system by:

  • ensuring the child’s views are heard and taken into consideration when decisions are made that affect their care arrangements such as family group meetings, court hearings and tribunals
  • providing support in court conferences and organising legal and other representation for the child
  • applying to the tribunal or court about changes to a placement, a contact decision—contact with parents and siblings—or a change to a child protection order
  • helping resolve disputes with others, including making official complaints to the Queensland Police Service, health authority or the Ombudsman, and
  • helping resolve issues with the child’s school regarding suspensions or exclusions from class.

Community Visitors (‘CV’)

The CV visits children in out-of-home care, residential care, mental health facilities, and young people in detention or prison.

A CV will:

  • listen to the child and support them
  • help them to work through problems and issues
  • check that the place where they are living is all right and that their needs are being met
  • get information for them about people and services that can help you.

CV usually visit when a child first enters out-of-home care. A child can also request a visit by sending a text message to the OPG or sending a message through the OPG website.

How can a party participate in child protection proceedings?

If you are a ‘party’ to a child protection proceeding it means that you can:

  • Stand at the bar table and talk to the Magistrate
  • Receive the court documents and request (or ‘subpoena’) documents and information about the case.
  • Provide statements (or ‘affidavits) to give information to the court. The affidavits may be by yourself or another witness. If you are calling witnesses they must be available for cross-examination by the other parties on the hearing date.
  • Cross-examine other party’s witnesses in a hearing.
  • Make submissions. Submission are spoken or written arguments about what the court should decide. The parties usually make submissions near the end of a hearing.

If the child’s parents for any reason cannot appear in person, another person appointed in writing by the parents may, with the leave of the court, present their views and wishes.

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