What do I need to know to navigate care and protection court processes?
This is the fifth guide in the Working together for kids series. Download Guide 5 – Representing yourself in court: What do I need to know to navigate care and protection court processes?
- The purpose of this guide
- Understanding words used in this guide
- At a glance
- First steps
- Preparing for the Final Hearing at Court
- What evidence do I need to give the Court
- Attending the Final Hearing at Court
- Order of proceedings
- What can I do if I’m not happy with the Court’s decision?
- Glossary of terms
- Guide to legal definitions
- Childrens Court forms
The purpose of this guide
The purpose of this guide is to provide you with information if you intend to represent yourself in the ACT Childrens Court regarding the care and protection of your child. It aims to help you respond to or initiate proceedings without a lawyer – but it cannot replace the professional advice of a lawyer.
Specifically, this guide provides general legal information about:
- What to do if Child and Youth Protection Services (CYPS) applies to the ACT Childrens Court for a Care and Protection Order for your child.
- How to navigate court processes related to the care and protection of your child.
- How to represent yourself in the ACT Childrens Court.
- Who you can contact for free legal assistance.
While the information provided was originally developed by legal professionals, it is intended as a guide only. It is always best to seek legal advice immediately when CYPS initiates any action in the ACT Childrens Court regarding your child. A list of legal services, including services specifically for Aboriginal and Torres Strait Islander families, is available at Contacts.
By providing this information we aim to help parents and family members understand how the child protection system works in the ACT, with specific focus on court processes, to help them navigate the system for the benefit of children and families.
This is the fifth guide in the ‘Working together for kids’ series. Please contact your case worker if you would like a copy of the other guides:
- Guide 1 – Child Concern Reports: What are they and what does it mean if someone makes a report about my child?
- Guide 2 – Going to court and working to reunite families: What’s involved and what can I do?
- Guide 3 – When children are in care: What happens with my child when they are in care and what can I do to have them come home?
- Guide 4 – Feedback and raising concerns: How can I let others know what I think?
The ‘Working together for kids’ guide series has been developed in partnership between CYPS and the Australian Red Cross Birth Family Advocacy Support Service.
CYPS is grateful to the Women’s Legal Centre ACT & Region for developing the original content of this specific guide, which CYPS has developed further with permission for inclusion in the guide series.
Acknowledgement also goes to the Family Inclusion Network ACT who was involved in the original Working together for kids book on which the guide series is based.
Understanding words used in this guide
In reading this guide, the terms ‘child’ and ‘children’ also refer to ‘young person’ and ‘young people’. The term ‘court’ refers to the ACT Childrens Court.
At a glance
A typical process when CYPS applies to the ACT Childrens Court for a Care and Protection Order.
The circumstances of each family are different and so what occurs at each step can also be different for each family. Throughout the process, the focus by all parties involved must be on what is best for your child. CYPS will work closely with you, your child and family, and your child's carer (if they enter care) at each step to ensure the right support for everyone is put in place and the best interests of your child are upheld.
For CYPS to apply to the ACT Childrens Court for a Care and Protection Order it will be because they have concerns about your child's safety or wellbeing. To successfully obtain the order, there are legal processes to follow.
CYPS must present evidence to the Court that supports their view that your child is in need of care and protection. Usually, the evidence CYPS provides is a thorough Family Assessment or an affidavit summarising your family’s involvement with the agency, and the reasons for their concern about your child. This evidence would have been gathered over time and is likely to have involved you and your family.
However, if CYPS believes your child is in immediate need of care and protection, they will use Emergency Action as a mechanism for quickly moving your child into care. Because of the immediacy of this situation the legal process is slightly different. However, if you intend to represent yourself in Court the basic steps are the same and it is important that you understand how Emergency Action works.
Emergency Action is used by CYPS to secure the immediate safety and wellbeing of your child in response to either a Child Protection Report or an appraisal process that has indicated your child is at immediate risk of abuse or neglect. This action allows CYPS to temporarily remove your child from your care and transfer the daily parental responsibility to the Director General, Community Services Directorate, for an initial period of no more than two working days.
During this time, CYPS must make an application to the ACT Childrens Court for a Care and Protection Order to continue the Director General’s parental responsibility for your child. In doing so, CYPS will seek to provide sufficient evidence that your child is in need of care and protection. If CYPS is unable to demonstrate this, the ACT Childrens Court may order your child be immediately returned to your care.
Emergency Action is not taken lightly by CYPS. In assessing the need for this action to happen, CYPS must consider whether your child is:
- in immediate need of care and protection, or
- likely to be in immediate need of care and protection if the Emergency Action is not taken.
Sometimes a parent is considered unable to protect their child because they have a history of failing to protect them, despite a stated willingness to do so. An example might be when a parent experiences significant mental illness that affects the way they are able to protect their child.
When CYPS takes Emergency Action, the Director General will arrange for someone to care for and have parental responsibility for your child during the two-working day period between CYPS taking Emergency Action and presenting their application to the ACT Childrens Court. You can nominate a carer from within your family or extended family network to care for your child. If there is no one suitable CYPS will make other arrangements, such as a pre-approved foster carer.
During the two-working day period, CYPS will undertake further appraisal activities, which may include a medical examination of your child. CYPS may also make further enquiries about your child's welfare, including interviews with your child, family members and/or people who are significant in your child’s life.
Because of the tight timeframes associated with Emergency Action, the evidence CYPS provides the ACT Childrens Court to support their application will not be available to you until the day you attend Court. All parties involved in the court proceedings will receive the documents on the day.
Often, when attending Court following Emergency Action you will not have had the time to secure legal representation. Where this is the case, it is usual for the Court to adjourn your proceedings for a couple of weeks to allow you time to obtain representation or legal advice if you intend to represent yourself.
It is recommended you seek legal advice whenever CYPS initiates any form of court action.
The following information outlines the steps you will need to take if you do intend to represent yourself. These steps are relevant regardless of whether Emergency Action is or is not taken.
Notice of proceeding – Originating application
If CYPS applies for a Care and Protection Order in respect of your child, you will be given notice of the proceeding by receiving a copy of the court application, called the ‘Originating Application’. This will often be given to you personally, but may also be posted to you.1
This application will tell you when and where to attend the first hearing of the Childrens Court in response to the proposed Care and Protection Order.2
You are strongly encouraged to get legal advice when you receive this application. See the Contacts section for a list of legal services you could approach.
It is important that you attend Court as outlined in the application. If you do not, the Magistrate can still make an order without hearing your side of the story and you will be bound by any orders made. If you do not attend Court, it will likely reflect badly on you and may make it harder for you to argue your case in the future.
Notice of intention to respond
Once you have received the application and are a party to the legal proceedings, you must file a ‘Form 2.8 Notice of Intention to Respond’ with the Childrens Court (see Childrens Court forms for an example) and give a written statement of your name and address to each other party to the proceeding. This is so each party knows how to provide you with copies of the documents they will use at the court hearing. Doing this is called service (see Service of documents for more information3). All further communications will be sent to the address you provide, so make sure you regularly check your mail at the address you give to the Court.
Case Management Conferences
Once CYPS has applied for a Care and Protection Order, your first Court appearance will usually be at a Case Management Conference. This is less formal than the final hearing of your matter, which will be in front of a Magistrate. The conference will be chaired by a Registrar or Deputy Registrar of the ACT Childrens Court.
If you are required to attend a Case Management Conference before you have had time to secure legal representation, you can request an adjournment to allow you some time to obtain representation or legal advice.
The purpose of the conference is to talk about the proposed Care and Protection Order CYPS is seeking from the Childrens Court. You will be able to say whether you agree with it, or not.
If you agree to the order, a Magistrate will grant it and you must abide by everything it includes.
If you do not agree, or want to make a different order (see Cross-application) your matter will go before a Magistrate for a contested hearing. The Magistrate may make an interim order. An Interim Care and Protection Order is a short-term protective arrangement for your child before the final hearing. When an interim order is granted, the Childrens Court will also set a date for the next hearing.
Often at the first Case Management Conference, CYPS will request an adjournment to prepare a Family Assessment Report that involves interviews with all family members and often meetings to observe your parenting style and the relationship you have with your child (and any other children you may have). This adjournment can be for as long as 10 weeks.
There can be many Case Management Conferences held in relation to your child’s case. At the end of the final conference, the Court will give you a timetable for what documents need to be filed and when. Once this occurs, a date for a ‘Listing Hearing’ will be set (this is explained in the next section).
What you do between the time of the Interim Care and Protection Order and the Final Hearing is very important and will have an impact on the Magistrate’s final decision of who should care for your child.
Make sure you abide by everything outlined in the interim order, attend drug testing if you have been instructed to and answer your phone.
Depending on your circumstances, during this period you should also try to:
- find secure and appropriate accommodation
- seek professional support to work towards living without a violent partner in your home
- start a detoxification or rehabilitation program
- take advantage of community services, such as parenting classes.
Keep records of everything you do. You will be able to use these records in Court to demonstrate your efforts and cooperation.
A Listing Hearing is a short appearance (called a ‘mention’) before a Magistrate at the Childrens Court. At the hearing, the Magistrate will:
- confirm that both you and CYPS are ready for the Final Hearing (sometimes also referred to as the ‘trial’)
- ask each party how long the Final Hearing will need to go for
- decide the date for the Final Hearing.
Be sure to bring your diary to the Listings Hearing so you can pick a date for the Final Hearing that you know you will be available to go to Court on.
What if I can’t attend Court when I am meant to be there?
It is very important to attend all Court dates in relation to your child’s care and protection. If you do not attend, Court decisions may be made in your absence. Also, not attending Court may reflect badly on you, making it harder for you to argue your case in the future.
If you have a good reason for not attending (for example, you have a serious illness), you must phone the Court and let them know before the date you are meant to attend Court. Make sure you get a doctor’s certificate, or other documentation, clearly demonstrating why you were not able to attend Court.
Preparing for the Final Hearing at Court
The Final Hearing is when the Childrens Court Magistrate will decide whether the proposed Care and Protection Order CYPS has applied for should be granted or not. At the hearing, you will need to present your response to the proposed order and what you want to have happen. It is important you are well-prepared for the hearing. The following information will help you achieve that.
What final orders do I want the Court to make?
Spend some time thinking about what you think the best outcome will be for you and your child. You need to answer the following questions4:
- Who should care for your child, and for how long?
- Who should have contact with your child, and how often?
- Where should your child live?
Write your answers down.
Once you know what outcome you want, think about how you will show to Court why this would be the best outcome for your child. You will need to do this by giving the Court evidence that supports your view. More information about evidence is provided in What evidence do I need to give the Court?
If you disagree with the terms of the Care and Protection Order being sought by CYPS and want the Court to make a different order, you can ask the Childrens Court for permission to make a cross-application5.
At your Case Management Conference, mention you would like to file a cross-application. Before attending the conference, complete ‘Form 2.7 Originating Application’ (this will be your cross-application) and ‘Form 2.8 Notice of Intention to Respond’ and bring both to the conference (see Childrens Court forms for examples of these forms).
In your cross-application, you must include6:
- the orders you would like the Court to make, or how you would like to change the order proposed by CYPS
- why the different order would be in the best interests of your child (see Guide to legal definitions for an explanation of best interests and care and protection principles)
- whether you want parental responsibility for your child to be transferred to someone else or shared (this is only required if your cross-application includes a parental responsibility provision).
Filing documents in Court
You will need to file copies of all your documentary evidence with the Childrens Court prior to the Final Hearing, as well as any forms you have been required to fill out.
To file your documents, take them to the Court’s Registry where the staff will stamp your documents with the day’s filing date.
For each document, you will need to file:
- an original for the Court to keep
- a copy for you
- a copy for all other parties to the proceedings (for example, CYPS).
If you need to serve a document on one of the parties you will need to give them one of these stamped documents (see Service below).
There is no cost to file your documents with the Childrens Court.
What is service of documents?
Service of documents is how you officially deliver the documents you will use in the Childrens Court to the other parties to the proceedings. Service of documents is an important step that allows the other parties to prepare for the hearing and have an opportunity to respond.
You must serve CYPS, and any other parties to your case, with all the documents you file with the Court Registry (see How to serve documents).
Service of documents is required by all parties. You should also be served with documents from CYPS so you too can read and prepare for the hearing. This will usually be done by post to your chosen address. Remember to check your mail regularly.
What documents must be served?
You are required to serve the following documents (use the links to jump to the specific sections of the guide related to these documents):
How to serve documents
When you file documents with the Childrens Court, Registry staff will stamp or apply a seal to each copy of your documents. The Court will keep one copy for the Court file, and give you back the rest of the stamped or sealed copies. These stamped or sealed copies are the copies you need to serve on CYPS and any other parties to the proceedings, and you must do this well before the hearing date.
When you file your documents, check with the Registry staff who else you need to serve copies of the documents on.
To serve your documents on the other parties, you need to deliver them either in person or by post. For example, to serve documents on CYPS, you can post your documents to the CYPS postal address, or go to the CYPS office and personally deliver them.
The postal address for CYPS is:
Child and Youth Protection Services
GPO Box 158
Canberra City ACT 2601
What evidence do I need to give the Court?
There is a range of evidence you can provide the Court to support your case. You may be able to get evidence to support your arguments from:
- reports from professionals, such as medical or psychological professionals or letters from support workers
- financial records (for example, bank statements, copies of invoices, bills, receipts)
- letters or other correspondence.
- your own affidavit setting out your version of events to support your case
- supporting affidavits written by others who can support your story.
More information specific information go to section Affidavits.
- people you question at the hearing who can say in Court your version of events is true.
Please read sections Witnesses and Subpoenas – Making sure witnesses and documents are at the hearing.
Remember to keep records
It is very important to keep accurate, detailed and well-organised records of anything relevant to your case. This includes written records of all conversations you have with CYPS staff, including your case worker. If you are not sure whether something is relevant, it is better to keep an accurate record of what occurred just in case, so you can use the information later if necessary.
What is an affidavit?
An affidavit is a written document containing evidence for the Court. It is signed in front of an authorised person (such as a lawyer or Justice of the Peace) and sworn or affirmed to be true. The person making the affidavit and the authorised person witnessing it must put their initials on each page of the affidavit document.
If a person swears on an affidavit, they promise that what is written in it is true and do so by swearing on a religious text. If a person does not want to use a religious text, they can simply affirm that their affidavit is true.
An affidavit is a serious legal document as you are formally telling the Court that what is written in the affidavit is true.
Your affidavit should include all the evidence you will use at the hearing.
It is important to understand that you and your witnesses may be cross-examined (or questioned) on the contents of your affidavits. Likewise, you can cross-examine the other party and their witnesses on the contents of their affidavits.
How to prepare an affidavit
Your affidavits should include:
- facts you know about
- only true statements
- only statements that are relevant to telling your story, or disputing the other parties’ stories (for example CYPS documentation) – that is, include clear statements that may challenge their views about your history or parenting capacity.
Your statements must be facts. Do not include your opinion in your affidavit.
An affidavit is made up of a series of short, numbered statements. Your affidavit should respond to what is stated in the affidavits written by CYPS and the other parties involved, as well as your view about your relationship with your child. Your affidavit is an opportunity for you to tell the Court your side of the story.
When you write your affidavit, keep the following in mind:
- number each paragraph
- each statement should be clearly written, and follow logically from the one before
- every new fact relevant to the case should be a new numbered statement
- keep your affidavit short and to the point
- include everything that is relevant to telling your side of the story
- don’t make irrelevant or offensive statements
- all the statements you make must be strictly true
- if you make a statement in an affidavit that you know is not true, you commit perjury, which is a criminal offence
- if you make an untrue statement, either knowing it is not true, or without properly checking if it is true, you may damage your credibility before the Court. This means the Court may not be as likely to believe your story and that could negatively affect your case.
Be honest in your affidavit. If something bad has happened, and it is likely to be raised at the hearing, it is better to admit it and explain what happened and what you have done about it since, than to exclude the information and have the Court find out about it from another party. For example, if you lost your home, explain how it happened and what you did to find a new home. Or, if your child witnessed domestic violence, tell the Court how you worked to overcome it, including for example participating in counselling or support groups, or using professional support to take out a court order against the violent person.
How to structure your affidavit
It is important to structure the affidavit so that the information is very clearly presented. To start, begin with numbered statements that provide some general background information:
- your date and place of birth
- the dates and places of birth of other parents or carers of your child who is the subject of the Care and Protection Order
- if relevant, the date when you started living with your partner
- date of birth and any other parent(s) of any other children you have
- where your children currently live and, if relevant, where they go to school or work
- your current employment situation
- your current living arrangements
- any incidents of concern, and what you are doing to address them.
Following this background information, explain in short sentences why the Magistrate should accept your side of the story. Use facts, not your opinion.
If you need to use another person’s evidence to tell your story (that is, something you have not seen or heard yourself), you should ask that person to write an affidavit presenting their evidence in support of your story. To ensure their affidavit is prepared in the right way, provide them with this guide and remember to let them know their affidavit must be signed by them in front of an authorised person, such as a lawyer or Justice of the Peace.
Filing and service of affidavits
Remember, you must file all affidavits you want to rely on for evidence with the Court Registry before the hearing date, and serve copies of the affidavits on the other parties also before the hearing date. For information on service, see Service of documents.
Witnesses are people who are able to give evidence in support of your case. They may be very important to telling and supporting your story, so you should think carefully about who your witnesses should be.
Who should I ask to support my case?
People who may be able to write affidavits supporting your case, and possibly appear as witnesses at the hearing include:
- your support workers
- your mental health workers
- medical support people who have been treating you (for example, your GP, psychologist or counsellor)
- other professional people.
You should avoid asking family and friends to give evidence. The Court is not looking for a character reference from someone who is in a close relationship with you. Instead, you should try to think of professional people who can give an independent assessment of you as a parent.
If you want your support person (that is, the person who has supported you through steps in the CYPS process) to give evidence, make sure that person provides a factual account of you, your parenting and your relationship with your child.
If you want a witness to attend a hearing, you may need to apply for a subpoena (see Subpoenas – Making sure witnesses and documents are at the hearing). It is also possible that the Court may order a person whose affidavit you are relying on for evidence to attend Court to be examined and cross-examined8.
There are three kinds of witness questioning that occur in a Court hearing:
Your role with a witness will differ depending upon who called the witness and is therefore relying on the witness’ evidence to support their case.
For a witness you have asked to attend the hearing and are relying on, you will do the examination-in-chief and the re-examination.
For a witness CYPS or another party has asked to attend the hearing and is relying on, you will only do the cross-examination.
At the hearing, you will have the opportunity to ask your witnesses question in support of your case.
The first time a witness is called to be asked questions is called the examination-in-chief of the witness.
When you are doing the examination-in-chief of your witness, you should ask open questions that allow your witness to tell their story. Try to start your questions with ‘who’, ‘what’, ‘when’, ‘where’ or ‘why’. Write down some sample questions before the hearing so you are well-prepared.
Be careful not to ask questions that suggest the answer to the witness (this is sometimes called ‘asking a leading question’). For example, when asking questions during examination-in-chief, you should not ask questions like:
“What do you think of the CYPS case worker’s untrue comment about my parenting?”
If you asked this question, you would be suggesting to your witness that they agree CYPS’ statements are untrue. A more appropriate question would be:
“What do you think of CYPS’ comment on my parenting?”
Remember, your witness must clearly be using their own thoughts and words when they are giving evidence in Court.
It is a good idea before the hearing to make yourself clear notes about what information you would like the Magistrate to hear from your witness. Tick off each point as you question your witness and they present the evidence you need.
When deciding what orders to make in your case, the Magistrate can only use the evidence that is before the Court, so think about how you can best present information that supports your case.
Notice of intention to cross-examine a witness
At the hearing, you may plan to cross-examine the other parties’ (including CYPS’) witnesses. You must prepare well beforehand to do this.
Before the hearing, you must draft a letter to the other party stating your intention to cross-examine. Your letter must tell the party which of their witnesses you want to cross-examine at the hearing. You need to file this letter with the Court and then serve the letter on the relevant party. This is called giving ‘notice of intention to cross-examine’ their witness.
At the hearing you will be able to cross-examine the witnesses CYPS or any other party calls (as long as you have provided notice of your intention to do so). Cross-examination means you will be able to ask the witness your questions after CYPS has asked them their examination-in-chief questions.
You should think carefully beforehand about the questions you would like to ask a witness of another party. You should have read the witness’ affidavit, and prepared your cross-examination questions. The answers the witness gives to your questions can help your case, and can cast doubt on the other party’s case. One way you can do this in cross-examination, is to put your alternate true version of events to the witness and ask them if your version is correct or not.
It is important that you stay calm when you ask the witness questions, even when they disagree with you and you believe their evidence is wrong. You should never ask rude questions or argue with a witness.
Remember, if you have witnesses who are supporting your case at the hearing (that is, witnesses whose affidavits you have filed), the other parties may wish to cross-examine them.
If the other party, or parties, wants to cross-examine a person whose affidavit you rely on, they must have, before the hearing, served you with written notice that your witness must attend Court on the hearing date9. It is then your responsibility to make sure your witness comes to Court. If your witness does not show up to Court, you might not be able to rely on your witness’ affidavit to support your case10.
After your witness is cross-examined by CYPS, or the other party, you may re-examine your witness. This means you will have an opportunity to ask a few more questions on the topic of the cross-examination. With your re-examination questions, you should focus on ‘repairing any damage’ done to your case by the other party’s cross-examination questions.
The questions you ask in re-examination should also be open questions, not leading questions. Remember, it is useful to start your questions with the words ‘who’, ‘what’, ‘when’, ‘where’, or ‘why’.
During re-examination, you cannot start a new line of questioning that introduces new topics. Your questions in re-examination must focus on addressing what happened in cross-examination.
You do not have to do re-examination. If you think asking more questions of your witness will not help your case, then do not re-examine.
Subpoenas – Making sure witnesses and documents are at the hearing
What is a subpoena?
A subpoena is a written order from the Court that tells a person to either:
- attend Court to give evidence – this is called a ‘subpoena to attend’
- produce documents, records or things to the Court – this is called a ‘subpoena to produce’
- do both of the above.
To get a subpoena, you need to apply to the Court for one to be issued using ‘Form 6.10 – Subpoena’ (see Childrens Court forms for an example). You will need to convince the Court that the subpoena is needed. For each subpoena you want issued, complete a Form 6.10 and attach a letter that states what kind of subpoena you need and explain exactly why you want the subpoena11.
Each subpoena you issue must:
- be addressed to one person only
- identify the person by name or by description of position
- for ‘subpoenas to attend’, state the date, time and place for attendance at Court (the hearing time)
- for ‘subpoenas to produce’, state the document or thing to be produced and the date, time and place for production (for example, the address of the Childrens Court).
In issuing a subpoena you have requested, the Court may order you to pay the amount of any reasonable loss or expense the person being subpoenaed incurs in complying with the subpoena. The possible costs of issuing subpoenas is explained in more detail below in Costs associated with subpoenas, along with advice on some ways to reduce those costs12.
Subpoenas to produce documents
When a ‘subpoena to produce’ documents is issued, the person listed in the subpoena must give the listed documents to the Court.
The Court Registrar will tell you whether the person has complied with the subpoena14.Then you can arrange to inspect any documents produced. All inspections of subpoenaed documents require an appointment with the Court. The party who issued the subpoena (that is, requested the documents) will have the first opportunity to see the documents.
The other parties to your case may also request subpoenas be issued to produce documents. Before the hearing, you should make appointments to inspect the documents you, CYPS, or other parties have subpoenaed. These documents will likely be some of the evidence that will be presented in Court, so reading these documents is important for preparing your case.
CYPS and any other parties may also make appointments to inspect the subpoenaed documents. If you do not want CYPS or other parties to see something you have subpoenaed, you must let the Court know why. You must either:
- tell the Court in writing why you object to others seeing it, before the due date of the subpoena
- attend the Court in person and tell the Court why you object to others seeing it, on the due date of the subpoena15.
Subpoenas for witnesses to attend Court
It is your responsibility to make sure your witnesses attend Court on the hearing day. CYPS and any other parties will also make sure their witnesses attend Court.
Sometimes you will need to subpoena your own witnesses to attend Court.
If your witness has written an affidavit, you do not automatically need to issue a subpoena to make them attend. You should note, however, that some of your witnesses may need a subpoena. For example, some workplaces do not allow their staff to take leave from work to attend Court unless the staff member can show a subpoena requiring them to attend. Ask each of your witnesses to check whether they will need a subpoena to attend Court. If they do, make sure you apply for the subpoena in plenty of time for your witness to be able to attend on the hearing date.
Remember, before the hearing you should make sure your witnesses have all written and signed their affidavits before a lawyer or Justice of the Peace (or other authorised person), and you should file their affidavits at Court. You are responsible for your witnesses attending Court.
If you want to call a witness at the last minute who has not prepared an affidavit, you will need to apply to the Court for a subpoena to do this.
Serving a subpoena
You must arrange to serve the subpoena to the person yourself, and you must do it on time16.You must give the person at least five days to respond to the subpoena before the hearing.
Once you have served a subpoena, you must inform the other party or parties to your case as soon as possible in writing that you have served the subpoena, and you should attach a copy of the subpoena to the letter17.
Similarly, CYPS and the other parties must inform you in writing when they have served a subpoena.
A subpoena cannot be served on an organisation. It must be served on a person in the organisation. For example, if you wish to subpoena police records, you cannot issue a subpoena on the Canberra City Police Station. In this situation, you must issue your subpoena to a member of the police force. If you are not sure of which person to address your subpoena to, one option is to address your subpoena to ‘The Proper Officer’).
It is best to phone the organisation and say you want to issue a subpoena and ask who is the appropriate person to address it to in the organisation. You should ask:
- the name and title of the person the subpoena should be directed to
- the address the subpoena should be directed to
- whether you can serve the subpoena by post or by fax
- who in the organisation you can speak with about the costs of complying with the subpoena, because you may have to cover these costs. Asking this question may help you to estimate costs you may have to cover.
Costs associated with subpoenas
When you issue a subpoena, you may have to pay some costs. For example, you will have to pay all reasonable costs associated with:
- finding, gathering, copying and delivering the documents to Court
- getting the witness to Court to give evidence, such as their transport or petrol costs (this is called ‘conduct money’ and you must get a money order or bank cheque to pay the witness’ conduct money)
- the witness’ professional costs on an hourly basis if the witness is a professional, for example a doctor, counsellor or school teacher.
- To avoid unnecessary costs, call and talk to the person you intend to subpoena and find out what the costs of complying with the subpoena are likely to be. For example, you can ask for an estimate of the costs of a professional witness appearing, or the costs of collecting and photocopying documents. You can ask how many relevant documents they have and you can make sure your subpoena only asks for documents that are essential to the issues in dispute.
- Make sure the date for delivery of documents is earlier than the date of the Court hearing. This is so you can review the documents you have subpoenaed to help prepare the relevant part of your case.
- There may be a small number of documents that do not need to be disclosed due to client legal privilege. This may occur with documents that are confidential communications between a client and their lawyer.
In some cases, it may be possible to reach agreement with CYPS about the care arrangements for your child before the Final Hearing occurs. This is called negotiating a Consent Order to put before the Court. You should seek legal advice to assist you through this process.
Once you and CYPS are able to reach agreement about your child’s care arrangements, a Consent Order is drafted. The draft order must be signed by18:
- each party to the application
- each person who will be either:
- required to comply with the order
- directly affected by the order.
If these steps occur and the Court accepts the Consent Order, you must abide by it. There is then no need for you to go to a Final Hearing, as you and CYPS have reached an agreement and the Court has approved it.
Once a Consent Order is accepted by the Court, it has the same legal effect as an order made after a contested Court hearing.
You will have to abide by the Consent Order.
It is important you are well-prepared when you appear in Court for the Final Hearing. This checklist will help ensure you have considered the necessary steps.
- Think about and write down the orders you want to ask the Court to make.
- File a cross-application for these orders (see section Cross-application).
- Write a list of all the evidence you want to collect, including witnesses, documents and affidavits.
- Write a plan for how you will collect all your evidence well before the hearing date.
- Write your affidavit (see section Affidavit for information and Childrens Court forms for an example).
- Get a Justice of the Peace or solicitor to witness your signature on the affidavit.
- Ask others to write and sign their supporting affidavits (let them know they will need to appear as witnesses in your Court hearing, and check whether they need a subpoena for them to do so – for example, for their workplace to let them attend).
- File all the affidavits you have prepared with the Court well before the hearing date.
- Give a stamped copy of all your affidavits (that is, serve them) to CYPS and the other parties well before the hearing date (see section Service of documents).
- Well before the hearing date, collect all the documentation you need to support what you are going to say in Court.
- Ensure you have a copy of CYPS’ Care Plan for your child.
- If you need to collect documents from other people, issue a subpoena to these people requesting the document (see section Subpoenas – Making sure witnesses and documents are at the hearing for information and Childrens Court forms for an example).
- Arrange an appointment at the Court to inspect the documents provided before the hearing date.
- If necessary, write a summary of the documentation that will help you. Also, a time line of events can be very helpful when you are asked questions in Court.
- File originals and copies of all documents with the Court.
- Give stamped copies of all your documents (that is, serve them) to CYPS and other parties (see section Service of documents).
- Ensure all your witnesses attend Court, especially if CYPS have told you they intend to cross-examine your witness. This may include issuing a subpoena requiring your witness to attend Court (see section Subpoenas – Making sure witnesses and documents are at the hearing for information and Childrens Court forms for an example).
- Write a list of what information you want to get from each witness at the hearing.
- Write a list of questions for your examination-in-chief (see section Examination-in-chief).
- For CYPS’ witnesses, give notice if you want to cross-examine them (see section Notice of intention to cross-examine a witness).
- Write a list of questions for your cross-examination of CYPS’ witnesses (see section Cross-examination).
- Write a summary to present to the Court. This summary should relate to your evidence and state why you should get the order you are asking the Court for.
Attending the Final Hearing at Court
What to expect
Unlike other proceedings, the Childrens Court Magistrate themselves can call witnesses and summon people to attend21.
A lawyer will be appointed for your child by Legal Aid. This person is known as a ‘child's representative’. The representative is independent of CYPS and you and is concerned only with ensuring your child’s best interests are being served by the legal process. It is likely your child's representative will approach you in Court to introduce themselves to you.
Where do I sit?
If you are representing yourself, you will sit at the ‘bar table’ and speak directly to the Magistrate, calling the Magistrate ‘Your Honour’ when you speak to them. The Court officer will guide you to where you should sit.
Who can come to Court with me?
The Childrens Court does not have childcare facilities. If you have small children, you will need to arrange alternate care for them while you attend Court.
You can bring up to two support people with you to Court, for example a friend, family member, advocate or staff member of a community agency. The Childrens Court is a closed court, so if you are going to bring a support person, you need the consent of all parties.
When you arrive at Court, check with the Registrar or Magistrate, Court staff and any legal representatives that will be attending the hearing that they consent to your support person (or support people) being present with you.
What should I take with me to Court?
You should bring:
- your plan of how you will present your evidence (that is, how you will tell your story to the Court), including questions for witnesses
- all your evidence, plus copies for handing to the other people at the hearing (the other party and the Magistrate)
- copies of the documents from CYPS (including their Care Plan)
- a pen and paper to take notes.
Do not bring into the courtroom:
- any food or drink
- cameras or recording devices.
How should I behave in Court?
Although the Childrens Court is more informal than other courtrooms, it is important to be polite and observe certain formalities. Remember to:
- turn off your mobile phone before going into the courtroom
- bow to the Magistrate as you enter and leave
- address the Magistrate as ‘Your Honour’
- take notes, including keeping track of what you would like to say
- speak clearly and slowly
- do not interrupt when others are talking – you will be given an opportunity to respond
- be polite to the Magistrate, lawyers and witnesses at all times, even if you do not agree with what they are saying.
Who will be in the courtroom?
Childrens Court proceedings are not open to the public22.The following people are allowed in the courtroom:
- Childrens Court Magistrate
- you and your child’s other parent
- parties to the proceedings and their lawyers (including your child and your child’s lawyer)
- Court officers
- anyone else who has daily care responsibility or long-term care responsibility for your child (however, carers are not usually parties to the proceedings)
- anyone the Court admits as your child’s representative
- the Director General or an authorised person from CYPS
- the Public Advocate
- a person or representative of an entity that has provided a report about your child
- anyone else required or permitted to be present by the Court or by law.
The Public Advocate is an ACT Government officer who can intervene in proceedings (including Case Management Conferences) and represent the rights of children in care and protection matters. You may or may not see the Public Advocate at your hearing.
Will my child have to participate in the proceedings?
The Court must ensure your child understands what the proceedings are about and what might happen to them after the hearing23. This is usually left to the children’s lawyer or the case worker to explain to your child.
Remember, your child will be represented by their own lawyer, appointed by Legal Aid24. This lawyer must ensure the views and wishes of your child are put to the Court25. This lawyer is completely independent from you and from CYPS.
Order of proceedings
In the hearing, CYPS will present their side of the story first. You will be given opportunities to respond to what they say later.
As CYPS presents their side of the story first, they will call their witnesses first to present their evidence.
For each witness that is called:
- the party who called the witness will ask the witness questions (examination-in-chief)
- the other party will then have a chance to ask the witness questions to challenge what they have said (cross-examination)
- the party who called the witness is then able to return and ask the witness a few more questions about what was covered in cross-examination (re-examination).
CYPS’ witnesses will be called first, and then your witnesses will be called.
What CYPS will present to the Court
CYPS will tell the Childrens Court why it believes your child is in need of care and protection and why the Magistrate should make the Care and Protection Order CYPS has applied for. CYPS will provide the Court with evidence in support of what it says to the Court. The kind of evidence CYPS may use includes:
- the Family Assessment Report they prepared following the assessment process
- records held about you or your family by the police, hospitals, doctors, schools or other agencies
- affidavits (documents stating facts written under oath) for example from your treating doctors or other relevant professionals.
You will be given copies of all the evidence filed by all the parties in the proceedings.
CYPS may call the following kinds of witnesses:
- your CYPS case worker
- the CYPS officer who wrote the Family Assessment Report relating to your child
- any carers who have been responsible for your child
- specialists who have treated your child
- expert witnesses, for example psychologists.
Presenting your evidence
Once CYPS has presented its evidence, it will be your turn to present your prepared evidence and tell your side of the story.
Work through your pre-prepared Court plan to present your evidence clearly. If you need to, make notes as you go so you know you haven’t missed telling the Magistrate anything.
Call your witnesses and undertake your examination-in-chief. Listen carefully to the other party’s cross-examination of your witness (taking notes if it helps you to), and then undertake your re-examination of the witness if you wish.
If you do not understand something that is occurring during the hearing, respectfully ask the Magistrate for clarification. You have a right to know what is occurring.
At the end, after all the evidence has been presented, both you and CYPS will be given the opportunity to summarise your case to the Magistrate. In this summary, you should talk about the evidence you have presented, and clearly say the reasons why the Magistrate should grant the order you are asking for.
When is judgment given?
When the Final Hearing has finished, the Court either makes the order at the hearing, or puts off its decision until later. This is called a reserved judgment.
If a decision is made on the day of your hearing, write down what has been decided, and what you have to do or not do. Ask the Court to repeat anything you have not been able to take down. You have a right to know what is said. A copy of the Court order will be sent to you later.
If a decision is not made on this day of the hearing, keep a note of the date the decision, the reserved judgement, will be ‘handed down’, or made, later in Court. This is so you can attend on that date.
Who pays for the Court costs?
The Childrens Court does not usually make costs orders. Each party pays for their own costs.
What happens once the orders are made?
If the Childrens Court decides to issue a Care and Protection Order, you must follow the order made. It is an offence to not comply with a Court order. An order is usually made for either one year, two years or until your child turns 18.
If the Childrens Court grants the Director General parental responsibility or responsibility for supervision of your child, CYPS will be required to submit an ‘Annual Review Report’ to the Public Advocate for each year your child is in care. This report will outline your child’s progress over the 12-month period and provide opportunity for CYPS to indicate whether it believes the order is still required. Each party who holds or shares parental responsibility for your child will be consulted in the making of this report, and you will be given a copy of it. Depending on the order put in place by the Court, CYPS may work with you on implementing a restoration plan. The purpose of the plan is to determine what needs to happen for your child to return permanently to your care.
When attending Court, keep these simple things in mind:
- Dress neatly. Presentation is important so consider what you will wear and your appearance.
- If you have other children, arrange for them to be taken care of by someone else while you attend Court. The ACT Childrens Court does not have childcare facilities.
- Arrive at least 15 minutes early.
- Bring copies of all your evidence.
- Bring copies of the documents from CYPS (including their Care Plan for your child).
- Bring your own Court plan – that is, the notes you wrote when preparing your case, including any questions you will ask the witnesses and the order you want the Court to make.
- Make sure your witnesses have arrived at the Court.
- Bring a pen and paper.
- Be prepared to turn your mobile phone off in the courtroom (make all your calls beforehand).
- Prepare yourself to be calm and respectful to the Magistrate and all parties in the courtroom.
What can I do if I’m not happy with the Court’s decision?
Most decisions made by CYPS can be reviewed by the ACT Childrens Court every 12 months where a Care and Protection Order is in place – this is part of an annual review process of the order. The Children and Young People Act 2008, allows any party to the original proceedings to apply to the Court to request the order be amended or revoked as part of this process.
An application can only be made if you (or the person making the application) believe on reasonable grounds that the amendment is in the best interests of your child.
An application to amend or revoke the order can in special circumstances be made prior to the annual 12-month review if the Court is satisfied there has been significant and sustained change in any relevant circumstances since the last review.
If you believe your circumstances have changed to the extent where your child would no longer be at risk when in your care, you should discuss this with your case worker. Changes to your circumstances can include leaving a relationship where domestic violence has occurred or successfully completing a drug or alcohol rehabilitation program.
The easiest way to have an order amended or revoked is to work with CYPS towards achieving a situation where CYPS believes it is your child’s best interests to return to your care. A key aim of CYPS is to reunite families and they will work with you to achieve this.
If you believe your circumstances have significantly changed but CYPS does not support the need for making a change to your child’s Care and Protection Order, you can seek legal advice about whether you have grounds for making an application to vary or revoke the order.
Similarly, each time CYPS makes an application in the ACT Childrens Court regarding your child (for example initiating Emergency Action or when applying for the Care and Protection Order) all CYPS affidavits filed in relation to the matter can be challenged by affidavits of other parties, the views of your child’s separate legal representative and also the views of the ACT Public Advocate.
External complaints processes
Like any other ACT Government agency, the Community Services Directorate (and therefore CYPS) is subject to the scrutiny of other Territory bodies. Sometimes it is more appropriate to refer a complainant to an agency such as the Human Rights Commission, Public Advocate, or Privacy Commissioner. In discussing your concerns with CYPS or the Community Services Directorate, you will be advised whether your complaint should be referred to one of these bodies.
It may also be possible for your complaint to be heard by the ACT Civil and Administrative Tribunal (ACAT). Applications to ACAT may be made in respect to reviewable decisions.
Reviewable decisions are defined by Section 839 of the Children and Young People Act 2008. You can request these decisions be reviewed by making an application to ACAT.
In reviewing these decisions, ACAT will be guided by the Administrative Decisions (Judicial Review) Act 1989 which requires government decision-makers have a legal responsibility to be accountable for decisions made and the basis for their decision-making process.
Reviewable decisions include:
- refusal to approve an individual as a suitable entity
- decision to revoke the approval of an individual as a suitable entity
- refusal to approve a person as an approved carer
- refusal to renew a person’s approval as an approved carer
- refusal to authorise a person as a kinship carer
- refusal to authorise a person as a foster carer
- refusal to approve a place operated by an approved residential care organisation as a place of care.
If you would like to progress an application to ACAT for a decision to be reviewed, you are encouraged to seek legal advice. See the Contacts section for a list of possible services you could approach.
- To speak to my case worker: 6207 1069 (North team), 6207 1466 (South team)
- To make a Child Concern Report: 1300 556 729
- P: 6110 2200
- P: 6234 7600 | E: firstname.lastname@example.org
- P: 6257 4499 or 1800 634 669
- P: 6243 3411 or 1300 654 314 | E: email@example.com
- P: 6205 2222
- P: 1800 176 468 | firstname.lastname@example.org
- West Belconnen: 6205 2904
- Gungahlin: 6207 0120
- Tuggeranong: 6207 8228
- P: 6207 5294 | E: email@example.com
- Please ask for a copy of the ‘Working together for kids’ guide, Feedback and raising concerns
Aboriginal Legal Service (NSW/ACT)
Helps Aboriginal and Torres Strait Islander men, women and children through representation in court, advice and information, and referral to further support services regarding criminal law, children’s care and protection law and family law.
Colonial Mutual Building
Level 3, 17-21 University Avenue
Canberra City ACT 2601
P: (02) 6249 8488
P: 1800 733 233 (free for care matters)
ACT Legal Aid
Helps people in the ACT with their legal problems, especially people who are socially or economically disadvantaged. Legal Aid ACT can help in criminal law, family law and some civil law matters.
Legal Advice Bureau
A lunch time Legal Advice Bureau where you can talk to a lawyer for initial legal advice. This service is run by the ACT Law Society.
Level 3, 11 London Circuit
Canberra ACT 2601
GPO Box 1562, Canberra ACT 2601
P: (02) 6245 5700
Pro Bono Clearing House
A pro bono (free) legal service run by the ACT Law Society.
Level 3, 11 London Circuit
Canberra ACT 2601
GPO Box 1562, Canberra ACT 2601
P: (02) 6245 5700
Welfare Rights and Legal Centre
Provides information and free legal advice about tenancy, public housing, social security and disability discrimination, plus night time legal advice service on Tuesdays from 6pm.
Women’s Legal Centre (ACT & Region)
A nationally accredited community legal centre that provides free advice, assistance and in some instances representation to women about a range of issues concerning family and employment.
The ACT Government is committed to making its information, services, events and venues, accessible to as many people as possible.
If you have difficulty reading this content and would like to receive this publication in an alternative format, such as large print or audio, please call (02) 6205 0282.
If English is not your first language and you require the translating and interpreting service, please call 131 450.
If you are deaf or hearing impaired and require the TTY typewriter service, please call 133 677 then ask for 133 427.
To access the ACT Interpreter Service for the deaf and blind, please call (02) 6287 4391.
Glossary of terms
Below is a list of common terms and abbreviations connected with the care and protection system used in this guide.
ACT Civil and Administrative Appeals Tribunal.
To put off a court case to a later date.
A written document containing evidence for the Court. An affidavit is signed in front of an authorised person (such as a lawyer or Justice of the Peace) and sworn or affirmed to be true.
A Case Management Conference is a court date, usually before a Registrar (less formal that proceedings before a Magistrate) where the Registrar finds out what the main points of contest are, what witnesses will be called, and sorts out any other procedural issues.
Child and Youth Protection Services.
A witness is asked questions by the opposite side of the proceeding.
In the context of care and protection of children, this means the person who holds responsibility for Child and Youth Protection Services (CYPS).
A witness tells their story in their own words and is asked questions by the party relying on their evidence.
The person in the ACT Childrens Court who decides what orders should be made.
Decisions made by a Magistrate that the involved parties must follow.
The people or legal entities (for example, a bank) involved in a legal proceeding.
A witness is questioned again by the party relying on their evidence, after the opposing party to the proceeding has completed their cross-examination of the same witness.
A person who works for the Court and who has been given power to do certain things.
A decision or judgment that is made after a hearing.
The legal delivery of a document to other parties in the proceedings.
A document that says you must appear in Court or give certain documents to the Court at the request of a party.
For more definitions of legal words visit the Legal Aid ACT website at: http://www.legalaidact.org.au/what-we-do/legal-information-education/legal-words
Guide to legal definitions
This list of definitions aims to help you better understand the terms used in the Children and Young People Act 2008, which is the law that governs what CYPS can do and what orders the ACT Childrens Court can make about your child. The relevant section of the Act is provided if you would like further information.
Abuse of a child means:
- physical or sexual abuse, or
- emotional abuse (including psychological abuse) if the abuse has caused or is causing significant harm to the child’s wellbeing or development.
Emotional abuse also occurs where a child has been or is being exposed to family violence where exposure includes:
- seeing the violence or
- seeing the consequences of family violence such as property damage, injuries to people involved including the emotional impact it has on the victim, police attendance at the home, or
- hearing the violence
AND this exposure to abuse either has caused, is causing, or would cause significant harm to the child’s wellbeing or development.
A child or young person is at risk of abuse or neglect if, on the balance of probabilities, there is a significant risk of the child being abused or neglected.
Examples of when a child is at risk of abuse or neglect
- Jane is 3 months old and CYPS has already received 5 reports about her. Jane's parents are long-term drug users and Jane was born with neonatal withdrawal syndrome. Jane's parents have agreed to work with CYPS to address their drug use. However, they have not actually made the changes they agreed to make. Jane's parents do not have contact with extended family and Jane is not regularly seen by any health practitioners or other community support people.
- Michael is 7 years old and in the full-time care of his mother. He has never had any contact with his father. Michael's mother has a mental illness characterised by episodes of psychosis. When Michael's mother has been unwell, she has locked Michael and herself in the home for weeks at a time. Michael's mother attempted suicide by driving off a bridge with Michael in the car.
- Tom is 9 years old and is in the sole care of his father. Since Tom was 6 years old, CYPS has received reports that Tom's father calls him derogatory names and yells at him, often in the presence of other people. Tom's school counsellor reports that Tom appears anxious, is fearful of loud noises in the school environment and regularly cries. Tom is assessed as being at risk of childhood depression by the school counsellor.
- Amy is 13 years old and regularly goes missing from home to avoid the constant fighting between her mother and stepfather. Amy is engaging in indiscriminate sexual activity and regularly consumes alcohol and illicit drugs which she pays for through prostitution. Amy has intentionally overdosed on medication 3 times and each overdose has required medical treatment. Amy's parents consider that she is now making her own choices and there is nothing they can do to help her.
When deciding whether a Care and Protection Order is in the best interests of the child, the Court will consider anything they think relevant. The Court must consider the following factors:
- protection of the child from abuse or neglect
- the child’s views or wishes
- the child’s relationship with their parents and other people
- how the changes will affect the child (including being separated from their parents)
- the reality of the how the child will maintain contact with their parents or anyone else who they were living with
- who can provide for the child’s needs, including their emotional and intellectual needs
- the importance of a settled, stable and permanent living arrangement
- the parents’ or carers’ attitudes to the child and to their parental responsibilities
- any abuse or neglect of the child or one of their family members
- any existing Court orders
- for Aboriginal or Torres Strait Islander children:
- the importance of the child’s cultural and spiritual identity and development
- the importance of keeping connections with family, community and culture.
A care and protection appraisal is an examination of a child’s circumstances, and may include CYPS carrying out 1 or more of the following:
- a visual examination of the child or someone else
- an interview of the child or someone else
- giving information to someone
- asking someone to give information to CYPS
- making inquiries about the child or someone else
- arranging for a care and protection assessment of the child or someone else
- asking the child or someone else to attend a stated place at a stated time for the appraisal or a care and protection assessment
- asking the child or young person or someone else to comply with any arrangement made by CYPS for the appraisal or a care and protection assessment.
A care and protection assessment means any of the following activities carried out by an authorised assessor (Section 438) on a person:
- a medical examination or test
- a dental examination or test
- a social assessment
- a paediatric or developmental assessment
- a psychological examination or test
- a psychiatric examination or test
- if the person is a parent or other person with parental responsibility—an assessment of the person's parenting capacity.
A Care and Protection Order is an order by a Court about the care and protection of a child, and may contain any of the following:
- a contact provision
This provision directs who can and cannot have contact with a child. Contact includes direct (face-to-face) or indirect contact (such as by telephone, letter or through another person).
For example, the Court may order:
- that a child may have contact with a stated person for at least four hours each week if the person complies with the drug use provision in the order
- that a child may have supervised contact with a stated person twice each week as arranged by CYPS
- that a child may have contact with a stated person in accordance with a Care Plan).
In practice, the Magistrate does not make contact order.
- a drug use provision
For example, that the stated person:
- must not use a stated drug
- may use a stated drug only in accordance with the conditions in the provision
- undergo drug testing as directed by CYPS in accordance with the drug testing standards.
- an enduring parental responsibility provision
This is a provision that:
- transfers daily care responsibility and long-term care responsibility for the child or young person to a stated person; and
- does not transfer parental responsibility to CYPS; and
- is in force until the child or young person is 18 years old.
The stated person can decide where and with whom a child or young person must live.
- an ACAT mental health provision
This is a provision directing the child or young person to submit to the jurisdiction of the ACAT to allow the ACAT:
- to decide whether the child or young person has a mental illness or mental dysfunction; and
- if the ACAT decides that the child or young person has a mental illness or mental dysfunction – to make recommendations to the Childrens Court about how the child or young person should be dealt with.
- a residence provision
This is a provision:
- about where or with whom a child must live, or
- authorizing a person to decide where or with whom a child must live.
This includes a direction that a state person must not live at the same premises at the child, even if that person is currently living there. It also includes a direction that a person may only live with the child if that comply with certain conditions, such as doing an anger management program.
- a short-term parental responsibility provision (Section 476)
This is a parental responsibility provision that is no longer than 2 years.
However, the Childrens Court may extend a short-term parental responsibility provision if it is satisfied that extending the provision is in the best interests of the child (s477).
- a long-term parental responsibility provision (Section 479)
This is a parental responsibility provision that:
- lasts until the child is 18 years old, and
- transfers daily care responsibility and long-term care responsibility for the child to CYPS or another stated person, unless the order states that a particular aspect of responsibility is transferred.
- a specific issues provision (Section 492)
This is a provision about the care and protection of the child that includes one or more of the following directions:
- that a stated entity must do a stated thing
- that a stated entity must not do a stated thing
- that a stated entity must comply with a stated condition.
- that a parent of the child or young person attend a stated parenting course
- that a stated individual or body give to CYPS stated oral or written information about the care, wellbeing or development of a child.
- a supervision provision (Section 489)
This is a provision placing the child under the supervision of CYPS for the period stated in the order.
The order may include the following:
- that the child, parent or someone else with responsibility for the child must report to CYPS at reasonable times and places
- that the child, parent or someone else with responsibility for the child must take part in discussions with CYPS about the child’s wellbeing or development (for example about whether the child should undertake some form of education, vocational or recreational activity.
Unless contrary to the best interests of a child, the Magistrate must apply the following care and protection principles:
- the primary responsibility for providing care and protection lies with the child’s parents and other family members
- priority must be given to supporting the parents and other family members to provide for the wellbeing, care and protection of the child or young person
- if the child does not live with his or her family because of the operation of this Act – contact with his or her family, and significant people, must be encouraged, if practicable and appropriate
- if the child is in need of care and protection and the child’s parents and other family members are unwilling or unable to provide the child with adequate care and protection (whether temporarily or permanently) – it is the responsibility of the government to share or take over their responsibility
- if the child does not live with their parents because of the operation of this Act – the safety and wellbeing of the child are more important than the interests of the parents
- a Court should make an order for a child only if the Court considers that making the order would be better for the child or young person than making no order at all.
CYPS staff must record a Child Concern Report when a person contacts the agency and indicates they believe or suspect that a child or young person:
- is being abused or neglected; or
- has been abused or neglected (see s345(1) when are children in need of care and protection); or
- is at current risk of abuse or neglect (see s354, voluntary reports).
Consistent with s345(2) ‘when is a child in need of care and protection’ a Child Concern Report will also be recorded by CYPS in the following circumstances:
- self-harm (non-accidental injury) by a child or young person
- serious or persistent conflict between a child or young person and the people with parental responsibility
- death of both people with parental responsibility for a child or young person
- abandonment of child or young person by both people with parental responsibility
- sexual or financial exploitation of a child or young person by a person with parental responsibility.
If a person who believes or suspects that a child is being abused, neglected or at risk of abuse or neglect makes a report to the public advocate and, in turn, CYPS suspects on reasonable grounds that the child may be in need of care and protection, the report is called a Child Protection Report.
Contact with a person is both direct contact (for example, physical or face-to-face) and indirect contact (for example, telephone, letters, giving the person something, getting someone else to contact the person on your behalf).
Cultural plan (Section 513(3))
A cultural plan is a Care Plan developed for the child by CYPS that includes ways of keeping and improving the identity of the child as an Aboriginal or Torres Strait Islander person.
Cumulative harm refers to the effects of multiple adverse or harmful circumstances and events in a child’s life. The unremitting daily impact of these experiences on the child can be profound and exponential, and diminish a child’s sense of safety and wellbeing.
A person who has daily care responsibility for child has responsibility for, and may make decisions about, the child’s daily care, which includes:
- where and with whom the child lives
- the people with whom the child may, or must not, have contact
- arrangements for temporary care of the child by someone else
- everyday decisions, for example about the personal appearance of the child
- decisions about education, training and employment
- consenting to health care treatment and dental treatment on the advice of a health practitioner (not including surgery).
Any Court doers will override these decisions made by the person with daily care responsibility.
Emergency action is when CYPS or a police officer transfers daily care responsibility of a child to CYPS or a police officer. It includes moving a child from where they are living to another place.
A Family Assessment is used by CYPS to provide more in-depth information about family functioning and parenting capacity than the appraisal has provided.
The purpose of a Family Assessment is to provide an objective and professional opinion on:
- the child or young person and family’s needs; and
- the parenting ability and capacity of each parent; and
- the ability of other supports to supplement the parenting; and
make a decision about whether a child or young person is, or continues to be, in need of care and protection.
A family group conference is a meeting about a child to give the participants an opportunity to:
- reach an agreement about the wellbeing of the child
- enter into a family group conference agreement detailing the agreed arrangements for the wellbeing of the child
- if a family group conference agreement is already in force for the child or young person – review the agreement.
Family group conference agreement (Section 76)
A family group conference agreement is an agreement made in a family group conference about a child. The agreement is between:
- the relevant person who attended the conference, and
- the child (if they are 15 years or older).
A family group conference agreement cannot transfer to or share parental responsibility with CYPS.
Family group conference agreementsare confidential. It is an offence to publish details about them.
A foster carer is a person authorised by law to look after children.
A child is in need of care and protection if:
- they have been, are being, or are at risk of being abused or neglected; and
- no-one with parental responsibility for the child is willing and able to protect the child from the abuse or neglect or the risk of abuse or neglect.
A child is in need of care and protection if:
- there is a serious or persistent conflict between the child and the people with parental responsibility for him or her (other than the director-general) to the extent that the care arrangements for the child are, or are likely to be, seriously disrupted; or
- the people with parental responsibility for the child are dead, have abandoned the child or cannot be found after reasonable inquiry; or
- the people with parental responsibility for the child are sexually or financially exploiting the child or not willing and able to keep him or her from being sexually or financially exploited.
An interim care and protection order is a care and protection order made during the court process, and ending when the final orders are made.
The court must believe on reasonable grounds that the child is in need of care and protection.
A kinship carer is a family member or significant person authorised by law to look after children.
A person with long-term care responsibility for a child or young person has responsibility for the long-term care, protection and development of the child, and all the powers, responsibilities and authority a guardian of a child has by law. For example:
- administration, management and control of a child’s property
- religion and observance of racial, ethnic, religious or cultural traditions
- obtaining or opposing the issuing of a passport for the child
- long-term decisions about education, training and employment
- on the advice of a health practitioner, may consent to health care treatment that involves surgery for the child.
Any Court orders will override these decisions made by the person with daily care responsibility.
Mandated reporter (Section 356)
Mandated sources of information are those whose professional occupation legally requires that they report suspected sexual abuse and non-accidental physical injury to CYPS.
Neglect of a child or young person means a failure to provide the child or young person with a necessity of life if the failure has caused or is causing significant harm to the wellbeing or development of the child or young person. For example, food, shelter, clothing, health care treatment.
Out of home carer (Section 508)
An out of home carer is one of the following for a child:
Parental responsibility for a child is all the duties, powers, responsibilities and authority parents have by law in relation to their children, including:
Parental responsibility provision (Section 474)
A parental responsibility provision in a care and protection order is a provision about who is responsible for a particular aspect of a child’s upbringing. It can include:
- who has daily care responsibility for the child
- who has long-term care responsibility for the child
- that parental responsibility is shared between people
- that the person who has long-term care responsibility for the child must consult with each other person shared long-term care responsibility for the child before making a decision about a long-term matter
Where information is received that indicates that a person believes or suspects that an unborn child may be in need of care and protection after birth, this will be recorded by CYPS as a Prenatal Report unless the pregnant woman has other children living with her.
Protection is action demonstrated in keeping the child or young person from abuse or neglect.
The Public Advocate of the ACT represents the best interests of people who do not have the capacity to make decisions in their own best interests. The Public Advocate independently represent children in Court.
A residential care service is an institution that looks after children. The institution must be registered with the Human Services Registrar and approved by CYPS.
Risk is defined as the ‘relationship between the degree of harm and the probability of the believed harm occurring (or of protection being provided’. ‘Risk assessment must consider the dual components of evaluation and probability. Probability includes factors which increase and decrease likelihood. (Source: Bearly, P. (1982) Risk and Social Work, Routledge, London)
Safety refers to factors which decrease the probability of abuse and neglect for a child or young person and are differentiated as either strengths or the demonstration of protection.
Safety relates to three important concepts:
- safety from danger
- safety during the assessment period
- future safety.
Sexually problematic behaviour
Sexual problematic behaviour is:
- inappropriate sexual behaviour by child towards a younger child
- inappropriate sexual behaviour by child towards a child of similar or older age or adult
- sexual offending.
Strengths are defined as ‘positive attributes in relationships, skills and personality’ where protective factors are defined as ‘action that can be demonstrated to keep the child or young person safe’. In an assessment, strengths are not given the same weight as protective factors however they are considered as they may act to support, enhance or develop capacity, motivation or competence to protect children and young people in the future.
Voluntary sources of information are those who have chosen to provide information on a purely voluntary basis where they believe that a child or young person is being abused, neglected or at risk of abuse or neglect.
Childrens Court forms
The forms mentioned in this guide are available from the ACT Legislation Register. Examples of how to complete these forms are provided from the links below:
- Example Form 2.7 – Originating application (PDF version) or (Word version)
- Example Form 2.8 – Notice of intention to respond (PDF version) or (Word version)
- Example Form 6.10 – Subpoena (PDF version) or (Word version)
- Example Form 6.11 – Affidavit (PDF version) or (Word version)
These examples are to be used as a ‘guide’ only. Always download the official forms from the ACT Legislation Register to ensure you have the most up-to-date version.
Notes: Highlighted sections require action by you. Crossed out text needs to be deleted by you. Comments to help guide you are provided in red italics.
Links to the specific forms from the ACT Legislation Register are:
- Form 2.7 – Originating application
- Form 2.8 – Notice of intention to respond
- Form 6.10 – Subpoena
- Form 6.11 – Affidavit
- There are some exceptions to required parental attendance: Court Procedures Act 2004 (ACT) s 71(5).
- Court Procedures Act 2004 (ACT) s 71(2)(a).
- Children and Young People Act 2008 s 708.
- Children and Young People Act 2008 s 422.
- Children and Young People Act 2008 s 428.
- Children and Young People Act 2008 s 429.
- Court Procedure Rules 2006 r 6710.
- Court Procedure Rules 2006 r 6721.
- Court Procedure Rules 2006 (ACT) r 6721(2).
- Court Procedure Rules 2006 (ACT) r 6721(5).
- Court Procedure Rules 2006 (ACT) r 6602.
- Court Procedure Rules 2006 (ACT) r 6611(2).
- Court Procedure Rules 2006 (ACT) r 6612.
- Court Procedure Rules 2006 (ACT) r 6609.
- Court Procedure Rules 2006 (ACT) rr 6609(6)-(7).
- Court Procedure Rules 2006 (ACT) r 6605.
- Court Procedure Rules 2006 (ACT) r 6605(3).
- Children and Young People Act 2008 s 719.
- Children and Young People Act 2008 s 712.
- Children and Young People Act 2008 s 716.
- Children and Young People Act 2008 ss 713-4.
- Court Procedures Act 2004 (ACT) s 72.
- Court Procedures Act 2004 (ACT) s 74B.
- Court Procedures Act 2004 (ACT) s 74G. There are exceptions in the legislation.
- Court Procedures Act 2004 (ACT) s 74E.