Last updated 12 July 2022
The Childrens Court may make a child protection order if it is satisfied of the following (s 59 Child Protection Act 1999 (Qld) (Child Protection Act)):
- The child is a child need of protection (s 10 Child Protection Act), that is, the child has suffered significant harm, is suffering significant harm or is at unacceptable risk of suffering significant harm and does not have a parent able and willing to protect the child from the harm.
- The order is appropriate and desirable for the child’s protection.
- 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 all persons who participate in the development or revision of the plan agreed with the plan.
- If the case plan is a revised case plan, a review report has been filed with the court.
- 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 the Department of Children, Youth Justice and Multicultural Affairs (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.
In addition, before making a long-term guardianship or permanent care order for 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.
The court may make a permanent care order if, in addition to the other matters stated above, the court is satisfied that the proposed guardian is:
- a suitable person for having guardianship of the child on a permanent basis
- willing and able to meet the child’s ongoing protection and care needs on a permanent basis
- committed to preserving the child’s identity, the child’s connection to the child’s culture of origin and the child’s relationships with members of the child’s family in accordance with the case plan.
The court may make a permanent care order only if the child has been in the care of the proposed guardian under a child protection order for at least 12 months immediately before the making of the application, unless there are exceptional circumstances and the court is satisfied there are exceptional circumstances that, in the best interests of the child, justify the making of the order.
Before the court extends or makes a further child protection order granting custody or short-term guardianship of a child, the court must have regard to the child’s need for emotional security and stability.
Types of final child protection orders
There are six main categories of child protection orders set out in s 61 Child Protection Act. The different categories of orders are:
- directive orders—these orders typically 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 a parent can have with the child
- directive orders about contact—these orders provide direction about the type of contact that a parent can have with the child, either directing that a parent is to have no contact with the child, or that the parent can only have contact with the child when a stated person or person of a stated category is present
- supervision orders—these orders typically 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)
- permanent care orders—these orders give a suitable person guardianship of the child on a permanent basis 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 one or more of the child protection orders it considers appropriate.
Length of child protection orders
A child protection order must state the time when it ends (s 62 Child Protection Act). There are three main timeframes for child protection orders:
- short-term in-home orders—these orders can last for any period of time up to a maximum of one year. Short-term in-home orders can be directive orders, directive orders about contact and supervision orders
- short-term out-of-home orders—these orders can last for any period of time up to a maximum of two years. Short-term out-of-home orders can be custody orders or guardianship orders. 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. Under a permanent care order, guardianship can be granted to a suitable person on a permanent basis.
If a child has been in the continuous care of Child Safety under a custody or short-term guardianship order for two years or more, the court must not make a further custodial or short-term guardianship order. For example, if a child protection order is made granting custody of a child to Child Safety for a period of one year is made and, since the making of the previous order, the child has been in care (including under interim orders) for a continuous period of 18 months, the maximum duration of the new order is six months (s 62(4) Child Protection Act). However, the court can make a further order granting custody or short-term guardianship up to two years if satisfied it is in the best interests of the child, and that reunification of the child with their family is reasonably achievable during the period of the further order (s 62(5) Child Protection Act).
A child’s parent or the child may also apply to vary or revoke the order (other than a permanent care order) before it ends. A child protection order may only be revoked if the court is satisfied that the order is no longer appropriate and desirable for the child’s protection. The court may have regard to a contravention of the child protection order or the Child Protection Act and, if the application is to revoke a long-term guardianship order, must have regard to the child’s need for emotional security and stability.
Appeals about decisions made by the Childrens Court must be made within 28 days of the decision being made (s 118 Child Protection Act). The court hearing the appeal may extend the period for filing the notice of appeal in certain circumstances.
If the original application was heard by a magistrate, an appeal is made to a judge of the Childrens Court of Queensland (usually a District Court judge). If the application was heard by a judge of the Childrens Court, appeals are heard by the Court of Appeal of Queensland.
The court hearing the appeal may stay (put on hold) the decision of the lower court on the reasonable conditions the court considers appropriate until the appeal is decided (s 119 Child Protection Act). An appeal is usually decided on the evidence and proceedings from the lower court, but may also be heard afresh, in whole or part (s 120 Child Protection Act).