Last updated 25 January 2017

The court must have regard to particular principles and state reasons.

The court must decide child protection applications having regard to the principles stated in ss 5A to 5C of the Child Protection Act 1999 (Qld) (Child Protection Act) to the extent the principles are relevant; and when making a decision, the court must state its reasons for the decision (s 104 Child Protection Act).

Rules of evidence

When making a determination about the safety, wellbeing and best interests of the child, the court is not bound by the rules of evidence and may inform itself in any way it thinks appropriate (s 105 Child Protection Act). It may take into consideration social and family assessment reports, medical reports and any affidavit material or information provided by the parties. This allows the admission of hearsay evidence or the relaxation of other rules of evidence at the court’s discretion. Of course, there may still be some argument as to the weight to be given to such evidence. The court needs to only satisfy itself of a matter on the balance of probabilities. The inquisitorial nature of the court’s role in child protection matters was considered in the Supreme Court case of Dale v Scott; Ex Parte Dale [1985] 1 Qd R 406, which followed an earlier case Re T (an infant) [1982] Qd. R 475, that where a court is primarily concerned with the welfare of a child, it should be able to inform itself of the facts which are relevant to the matter.

Evidence given by a child

A child can only be called to give evidence with the leave (permission) of the court. Leave will only be granted if the child is at least 12 years of age, is represented by a lawyer and agrees to give evidence. If a child gives evidence, cross-examination will be allowed only with the further leave of the court (s 112 Child Protection Act).

Legal representation

The child has the right to appear in person or be legally represented by either or both a direct representative and a separate representative. The child’s parents and other parties may also appear in person or be represented by a lawyer (s 108 Child Protection Act). If a parent is not represented, then the court may only proceed if the court is satisfied the parent has had reasonable opportunity to obtain legal representation (s 109 Child Protection Act).

Separate representative of a child

In a child protection proceeding, if the court considers it is necessary in the child’s best interests, may order that a child be separately represented by a lawyer (the child’s separate representative). Without limiting the above, the court must consider making an order for the child to have a separate representative if the proceeding concerns the child or their parents contest an application for a child protection order (s 110 Child Protection Act). The court can decide to make such an order, or one of the parties can apply for a separate representative to be appointed.

The separate representative must:

  • to the extent that is appropriate, taking into account the child’s age and ability to understand, meet with the child, explain their role and help the child to take part in the proceeding
  • as far as possible, present the child’s views and wishes to the court.

The separate representative must act in the child’s best interests regardless of any instructions from the child. They will act independently in the best interests of the child, but may request information from the Department of Communities, Child Safety and Disability Services (Child Safety) and from the other parties to the proceedings.

They may engage an independent report writer to prepare a social assessment report for the court about the child and their protective needs. In preparing the report, the report writer will usually speak to the child, each of the parties (including Child Safety) and other professionals involved in the child’s life (e.g. the child’s school or doctor). This report writer may be a social worker, psychologist or psychiatrist, as the separate representative considers appropriate in the circumstances (s 98 Child Protection Act).

The separate representative will take part in family group meetings, conferences and court appearances and may make submissions on which orders and what interventions they consider to be in the child’s best interests.

A separate representative, whilst not a party to the proceedings, must do anything required to be done by a party and may do anything permitted to be done by a party. Further, the parties to the proceeding must act in relation to the proceeding as if the separate representative were a party to the proceeding, and the role of a separate representative ends when the application is decided or withdrawn or, if there is an appeal in relation to the application, when the appeal is decided or withdrawn (s 110 Child Protection Act).

Direct legal representation of the child

A direct legal representative is not the same as a separate representative. If the child engages a lawyer to act on their behalf in the proceedings, this lawyer is a direct representative and would act on the child’s instructions and is an advocate for the child’s views and wishes.

Non-parties to a court proceeding

On an application by a person who is not a party to a proceeding, the court may, by order, allow the person to take part in the proceeding by doing all or some of the things that a party is or may be allowed to do.

Before deciding the application of a non-party to take part in the proceeding, the court must:

  • give the other parties a reasonable opportunity to make submissions about the person participation
  • consider the extent to which the person may be able to inform the court about a matter relevant to the proceeding, and the person’s relationship with the child.

An order allowing a non-party to take part in the proceeding must state:

  • how the person may take part
  • whether the participation is allowed until the proceeding ends or only for a stated part of the proceeding
  • whether the non-party is subject to conditions and may be required to do a thing that a party is or may be required to do
  • whether a provision or all provisions of the Child Protection Act apply in relation to the person as if they were a party.

A non-party may be represented by a lawyer (s 113 Child Protection Act).

Hearing of applications together

The court may hear two or more applications for an order together if the court considers it is in the interests of justice to do so. This is even though the parties, or all of the parties to the proceedings are not the same. The court may decide to do this at any time before the applications are decided on its own initiative or on the application of a party to the proceeding (s 115 Child Protection Act).

Adjournments and interim orders

During the course of the proceedings, it may be necessary for the matter to be adjourned. If so, the court may make one or more of the following orders for the period of the adjournment (ss 66–68, 110 Child Protection Act):

  • to prepare a written social assessment report about the child and the child’s family and file it in court
  • to authorise a medical examination or treatment of the child and require a report to be filed in court
  • to arrange the child’s contact with their family
  • to require Child Safety to convene a family group meeting to develop or revise a case plan to be filed in court
  • to hold a conference between the parties. The purpose of the conference is to try to identify the issues in dispute and to try to resolve them
  • to appoint a separate legal representative for the child
  • to allow (where an interim custody order has not been made) an authorised officer or police officer to have contact with the child, to authorise an authorised officer or police officer to find the child by entering and searching any place the officer reasonably believes the child is.