Last updated 12 July 2022

The Director of Child Protection Litigation (DCPL) was established under the Director of Child Protection Litigation Act 2016 (Qld) (DCPL Act) as an independent statutory officer within the Department of Justice and Attorney-General portfolio. The Director of Child Protection Litigation reports directly to the Attorney-General and Minister for Justice.

The Office of the Director of Child Protection Litigation was established to help the director perform their legislative functions.

The Director for Child Protection Litigation receives referred children protection matters from Child Safety

The DCPL receives referred child protection matters from the Department of Children, Youth Justice and Multicultural Affairs (Child Safety) and is responsible on behalf of the state (s 8 DCPL Act) to determine whether a matter will be the subject of a child protection order application, including the type of order to be sought, and to prepare applications and conduct child protection proceedings in the Childrens Court (s 9 DCPL Act).

In addition to the above matters, the DCPL also receives the following types of matters:

  • if a child protection order is in force for a child and Child Safety is satisfied that the order is no longer appropriate and desirable for the child’s protection (s 15(1)(b) DCPL Act)
  • if a permanent care order is in force for a child and Child Safety is satisfied that the child’s permanent guardian under the order is not complying, in a significant way, with their obligations under the order (s 79A DCPL Act) and Child Safety considers the order is no longer appropriate and desirable for the child’s protection (s 15(1)(c) DCPL Act).

How the Director of Child Protection Litigation deals with a referred child protection matter

Before dealing with the matter, the DCPL will make a determination as to whether the matter has been validly referred.

If so, the DCPL must deal with the matter by either deciding to:

  • apply for a child protection order for the child
  • refer the matter back to Child Safety (s 17(1) DCPL Act).

It is noted that to extend, vary or revoke a child protection order that is in force, a child protection application needs to be made to the court.

Prior to dealing with a referred matter, the DCPL can ask Child Safety for further evidence or information (s 17(2) DCPL Act).  For example, a matter would not be referred back if further evidence can be obtained that evidences that the child is a child in need of protection and that an order is appropriate and desirable.

If the DCPL is considering referring a matter back to Child Safety, or making an application for a different order (could be a different type of order, an order of a different duration or an order that is otherwise different), the DCPL must first consult with Child Safety (s 18(1) DCPL Act).

The DCPL then makes an independent decision that is based on Child Safety’s assessment.

If the DCPL goes ahead and refers the matter back or applies for a different order without Child Safety’s agreement, the DCPL must provide written reasons to Child Safety (s 18(1) DCPL Act).

Further, under guidelines issued by the DCPL, Child Safety can request that the matter be internally reviewed by a different DCPL lawyer.

If the DCPL decides to apply to 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)).

Child protection applications for the making, extension, amendment or revocation of a child protection order

Only the DCPL on behalf of the state may apply for a child protection order and related orders (s 10 DCPL Act).

However, subject to certain conditions, a child’s parent or the child may apply to vary or revoke a child protection order, other than a permanent care order (s 65(1) Child Protection Act).

When a child protection application is filed, the court will fix a time and place for the hearing of the first mention of the application in court (s 55 Child Protection Act).

Child Safety must serve a copy of the application on each parent personally (s 56 Child Protection Act). The parents then become respondents to the application (s 57 Child Protection Act). The child must be told about the application if it is appropriate in the circumstances, having regard to the child’s age or ability to understand (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).

First mention of the child protection proceeding

On the first mention of the proceedings the court will consider making interim child protection orders and may also consider a range of procedural issues that it may make either orders or issue directions about.

Types of interim child protection orders

The court on the adjournment of a proceeding may make any one or more of the following interim child protection orders:

  • Temporary custody orders—these orders give a suitable person who is a member of the child’s family 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 (s 67(1)(a)(ii) Child Protection Act).
  • Directive orders—these orders typically involve the child remaining at home and can include a direction about the type of contact that a parent can have with the child (s 67(1)(b)).
  • Authorised contact orders—these orders typically involve the child remaining at home and authorise Child Safety or police to have contact with the child (s 67(1)(c) Child Protection Act).
  • Authorised entry by a Child Safety or police officer— this authorisation allows an officer to enter and search any place, if the court is satisfied that entry to a place to locate the child has been, or is likely to be, refused and entry is necessary for enforcement of the order (s 67(2) Child Protection Act).

Other interim orders may include an order:

  • requiring a written social assessment report about the child and the child’s family be prepared and filed in the court (s 68(1)(a) Child Protection Act)
  • authorising a medical examination or treatment of the child and requiring a report of the examination or treatment be filed in the court (s 68(1)(b) Child Protection Act)
  • about the child’s contact with the child’s family during the adjournment (noting that the court must not make this order requiring Child Safety to supervise family contact with the child unless Child Safety agrees to supervise the contact) (s 68(1)(c) Child Protection Act)
  • requiring Child Safety to convene a family group meeting for certain reasons including case planning (s 68(1)(d) Child Protection Act)
  • that a conference between the parties be held before the proceeding continues to decide the matters in dispute or to try and resolve the matters (s 68(1)(e) Child Protection Act)
  • under s 110 of the Child Protection Act that a child be separately legally represented in the proceedings (s 68(1)(e) Child Protection Act)
  • or other directions to the parties to the proceedings, Child Safety or non-parties participating in the proceedings through an order made under s 113 of the Child Protection Act about the things to be done by them during the adjournment (s 66(4) Child Protection Act).

Court case management in child protection proceedings

The court manages child protection proceedings (r 63 Childrens Court Rules) (Childrens Court Rules) to ensure that they are resolved flexibly, fairly, as soon as possible, with minimum cost and legal technicality, and in accordance with the nature, importance and complexity of the issues to be resolved in the proceedings. Further, in relation to a proceeding involving an Aboriginal or Torres Strait Islander child, having regard to Aboriginal tradition or Islander custom (r 5 Childrens Court Rules).

The court may manage a proceeding by making an order or issuing a direction it considers appropriate about the conduct of a proceeding (r 64(1) Childrens Court Rules). Without limiting the court, it may do any of the following for the proceeding at any time:

  • decide the way the proceeding is to be conducted, including by:
    • setting a timetable for the proceeding
    • directing when stages in the proceeding are to be completed
  • direct that documents in the proceeding be amended
  • identify the issues in the proceeding
  • decide the issues that need to be investigated
  • decide the issues that are to be addressed at an appearance in the proceeding
  • decide the order in which the issues in the proceeding are to be resolved
  • encourage the parties to use alternative dispute resolution, if the court considers alternative dispute resolution is appropriate for the proceeding
  • help the parties to settle all or some of the issues in the proceeding
  • encourage the parties to cooperate with each other in the proceeding
  • decide when and how an appearance in the proceeding is to happen, including by directing that technology be used for the proceeding
  • deal with as many issues in the proceeding as possible at each appearance
  • deal with issues at an appearance without requiring the attendance of some or all of the parties
  • deal with issues in the proceeding without an appearance
  • make an order or issue a direction to promote the quick resolution of the proceeding, including by adjourning the proceeding on the court’s own initiative or by application in the proceeding (r 64(2) Childrens Court Rules).

Procedural provisions in a proceeding

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 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 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 that are relevant to the matter.

The court needs to only satisfy itself of a matter on the balance of probabilities, applying the Briginshaw principle that depending on the nature and gravity of the allegation against a party, the strength of the evidence required to meet the standard of proof may vary, permitting the court to require a higher degree of satisfaction to discharge that standard where the seriousness of the allegations and the consequences of sustaining them warrant that approach (MDS v Director of Child Protection Litigation & Ors [2017] QCHC 6, Morzone QC DCJ at [31] & [32]).

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, the court may order that a child be separately represented by a lawyer (a separate representative). Without limiting when a court may appoint a separate representative, the court must consider it where 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, take 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 instructions from the child. 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 others involved in the child’s life.

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  (s 108 Child Protection Act).

A child may also have their views and wishes presented to the court by a Child Advocate Legal Officer from the Office of the Public Guardian (s 108C Child Protection Act).

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 (s 113 Child Protection Act). If a non-party wishes to participate in a proceeding, they usually file an application in a proceeding and a supporting affidavit with the court.

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’s 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 whether the non-party is 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.

Transfer of proceedings and hearing of applications together

If the court is of the opinion a proceedings should be heard by the court at another place, it may order that the proceeding be transferred to the court at the other place (s 114 Child Protection Act).

Further, 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 (s 115 Child Protection Act). 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.