Last updated 8 August 2016
If, at the end of the investigation, the Department of Communities, Child Safety and Disability Services (Child Safety) is satisfied that a child is in need of protection and a child protection order is appropriate and desirable for the child’s protection, the matter must be referred to the Director of Child Protection Litigation (DCPL) (s 15 Director of Child Protection Litigation Act 2016 (Qld) (DCPL Act)).
Child Safety must then give the DCPL a brief of evidence about the child that includes:
- the reasons why the child is a child in need of protection
- the reasons why a child protection order is appropriate and desirable for the child’s protection
- the type of child protection order Child Safety considers appropriate and desirable for the child’s protection (s 16 DCPL Act).
Child Safety will also give all relevant documents and evidence to the DCPL.
The DCPL will then decide to:
- apply for a child protection order for the child or
- refer the matter back to Child Safety (s 17 DCPL Act).
If the DCPL decides to apply to the Childrens Court for a child protection order for a child, the application must state the grounds upon which it is made and the nature of the order sought (s 54 Child Protection Act 1999 (Qld) (Child Protection Act)).
After the application is filed, the DCPL must serve a copy on each parent personally (s 56 Child Protection Act). The parents then become respondents to the application. The child is also a party to the proceedings and so must be told about the application; however, they should only be served with copies of the documents if it is appropriate in the circumstances having regard to the child’s age or ability to understand the information (s 195 Child Protection Act).
An application for a child protection order can only be heard in the absence of the child’s parents if the parents have been given reasonable notice of the hearing and fail to attend the hearing, or the court is satisfied that it was not practicable to give the parents notice of the hearing (s 58 Child Protection Act).
Types of child protection orders
There are four main types of child protection orders set out in s 61 of the Child Protection Act. The different types of orders are:
- directive orders—these orders involve the child remaining at home and can include a direction to a parent to do or not to do something directly related to the child’s protection and/or a direction about the type of contact that the parent can have with the child
- supervision orders—these orders involve the child remaining at home and require Child Safety to supervise the child’s protection in relation to specific matters stated in the order
- custody orders—these orders give a suitable person or Child Safety the right to care for the child on a day-to-day basis including the right and responsibility to make decisions about the child’s daily care
- guardianship orders—these orders give a suitable person or Child Safety guardianship of the child and also include all the powers, rights and responsibilities in relation to the child that a person with parental responsibility for the child would have (e.g. the right to make long-term decisions about the child’s care, welfare and development).
The court may make any combination of orders that it considers appropriate in a particular case.
Length of child protection orders
Every child protection order must state how long the order is to last (s 62 Child Protection Act). There are three main time frames for child protection orders:
- interim orders—these orders are normally made during the course of the proceedings before the Childrens Court. It is a temporary order and will usually only last until the matter is next in court. An interim order can include granting temporary custody of a child to Child Safety or a suitable member of the child’s family (s 67 Child Protection Act)
- short-term orders—these orders can last for any period of time up to a maximum of two years. Short-term orders can be directive orders, supervision orders, custody orders or guardianship orders. However, directive and supervision orders can only be made for a maximum of 12 months. Custody of a child on a short-term order can be granted to either a suitable member of the child’s family (other than the child’s parents) or Child Safety. Guardianship of a child on a short-term order can only be granted to Child Safety
- long-term orders—these orders can only be guardianship orders, and they grant guardianship of the child until the child turns 18 years of age. Long-term guardianship can be granted to a suitable member of the child’s family (other than the child’s parents), another suitable person who is not part of the child’s family (e.g. a foster carer) or to Child Safety.
Making a child protection order
A Childrens Court may make a child protection order if it is satisfied that (s 59 Child Protection Act):
- the child has suffered harm, is suffering harm or is at unacceptable risk of suffering harm and does not have a parent able and willing to protect the child from the harm (s 10 Child Protection Act)
- the order is appropriate and desirable
- there is an appropriate case plan in place for the child, and a copy of the case plan has been filed in court. It is not relevant whether or not all persons who participate in the development or revision of the plan agreed with the plan
- if the application is contested, a court-ordered conference has been held to try to settle the matter, or because of exceptional circumstances, it would be inappropriate to require the parties to hold a conference
- the child’s wishes or views, if they are able to be ascertained, have been made known to the court
- the child’s protection is unlikely to be ensured by a less intrusive order.
Before making a child protection order granting custody or guardianship of a child to a person other than Child Safety, the court must have regard to any report given or recommendation made by Child Safety about the person. These reports may include a report about the person’s criminal, domestic violence and traffic histories.
Before extending or making a further short-term child protection order granting either custody to Child Safety or a suitable person, or guardianship to Child Safety, the court is required to take into account how the extension or further order will affect the child’s need for emotional security and stability.
In addition, before making a child protection order granting long-term guardianship of a child, the court must also be satisfied that:
- there is no parent who is able and willing to protect the child within the foreseeable future
- the child’s need for emotional security will be best met in the long-term by making the order.
The court must not grant long-term guardianship of the child to a person who is not a member of the child’s family, unless the child is already in custody or guardianship under a previous child protection order. Also, long-term guardianship cannot be granted to Child Safety if it can properly be granted to another suitable person (s 59 Child Protection Act).
If the DCPL applies for an extension of a short-term child protection order or for a new successive order, and the court declines to make the order, the court on the court’s own initiative or on the application made orally or in the approved form of a party to the proceeding, may make a Transition Order (TO). A TO can provide that the child protection order ends on a later day, no more than 28 days after the court’s decision to decline to make a substantive child protection order. If a party applies for a TO and the court adjourns the proceeding before deciding the application, the child protection order continues in force, despite the court’s decision to refuse to extend the application or grant a further child protection order.