Chapter 4 Children and young persons in need of care and protection
Part 1 Action taken by Director-General
34 Taking of action by Director-General
(1) If the Director-General forms the opinion, on reasonable grounds, that a child or young person is in need of care and protection, the Director-General is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child or young person.(2) Without limiting subsection (1), the action that the Director-General might take in response to a report includes the following:(a) providing, or arranging for the provision of, support services for the child or young person and his or her family,(b) development, in consultation with the parents (jointly or separately), of a care plan to meet the needs of the child or young person and his or her family that:(i) does not involve taking the matter before the Children’s Court, or(ii) may be registered with the Children’s Court, or(iii) is the basis for consent orders made by the Children’s Court,(b1) development, in consultation with one or more primary care-givers for a child or young person, of a parent responsibility contract instead of taking a matter concerning the child’s or young person’s need for care and protection before the Children’s Court (except in the event of a breach of the contract),(c) ensuring the protection of the child or young person by exercising the Director-General’s emergency protection powers as referred to in Part 1 of Chapter 5,(d) seeking appropriate orders from the Children’s Court.Note. In considering what action to take under this section, the Director-General is to have regard to the grounds under section 71 on which the Children’s Court may make a care order.
35 Decision against taking action
(1) The Director-General may decide to take no action if the Director-General considers that proper arrangements exist for the care and protection of the child or young person and the circumstances that led to the report have been or are being adequately dealt with.(2) If the Director-General decides to take no action, the Director-General must make a record of the reasons for the decision.
(1) In deciding the appropriate response to a report concerning a child or young person, the Director-General must have regard to the following principles:(a) The immediate safety, welfare and well-being of the child or young person, and of other children or young persons in the usual residential setting of the child or young person, must be given paramount consideration.(b) Subject to paragraph (a), any action must be appropriate to the age of the child or young person, any disability the child, young person or his or her family members have, and the circumstances, language, religion and cultural background of the family.(c) Removal of the child or young person from his or her usual caregiver may occur only where it is necessary to protect the child or young person from the risk of serious harm.(2) The principles in this section are to be applied in priority to the principles in section 9 in deciding the appropriate response to a report concerning a child or young person.
Part 2 Use of alternative dispute resolution
37 Alternative dispute resolution
(1) In responding to a report, the Director-General is to consider the appropriateness of using alternative dispute resolution services that are designed:(a) to ensure intervention so as to resolve problems at an early stage, and(b) to reduce the likelihood that a care application will need to be made under Chapter 5, and(c) to reduce the incidence of breakdown in adolescent-parent relationships, and(d) if an application for a care order under Chapter 5 is made, to work towards the making of consent orders that are in the best interests of the child or young person concerned.(2) Participation in any such alternative dispute resolution is voluntary.(3) To avoid doubt, subsection (2) does not apply to any dispute resolution conducted by the Children’s Registrar of the Children’s Court, or ordered by the Children’s Court, under this Act.Note. Within this provision, models for counselling and conferencing may be developed to accommodate the unique requirements of a community (whether cultural, geographic or language), the complexities of the case, or the nature and severity of the abuse suffered by the child or young person.
Part 3 Care plans and parent responsibility contracts
38 Development and enforcement of care plans
(1) A care plan, developed by agreement in the course of alternative dispute resolution, may be registered with the Children’s Court and may be used as evidence of an attempt to resolve the matter without bringing a care application in accordance with Part 2 of Chapter 5.Note. Section 38F provides that a care plan or parent responsibility contract is taken to be registered with the Children’s Court when it is filed with the registry of the Court without the need for any order or other further action by the Court.(2) A care plan that allocates parental responsibility, or aspects of parental responsibility, to any person other than the parents of the child or young person, takes effect only if the Children’s Court makes an order by consent to give effect to the proposed changes in parental responsibility.(2A) Any such order may be made by the Children’s Court without the need for a care application under Part 2 of Chapter 5 and without the need to be satisfied of the existence of any of the grounds under section 71 if the Court is satisfied that:(a) the proposed order will not contravene the principles of this Act, and(b) the parties to the care plan understand its provisions and have freely entered into it, and(c) in the case of a party other than the Director-General, the party has received independent advice concerning the provisions to which the proposed order will give effect.(3) The Children’s Court may make such other orders by consent for the purpose of giving effect to a care plan (being orders of the same kind as it could make in a care application that is duly made under Part 2 of Chapter 5) without the need for a care application under that Part and without the need to be satisfied of the existence of any of the grounds under section 71 if the Court is satisfied that:(a) the proposed order will not contravene the principles of this Act, and(b) the parties to the care plan understand its provisions and have freely entered into it, and(c) in the case of a party other than the Director-General, the party has received independent advice concerning the provisions to which the proposed order will give effect.
Division 2 Parent responsibility contracts
38A Parent responsibility contracts
(1) A parent responsibility contract is an agreement between the Director-General and one or more primary care-givers for a child or young person that contains provisions aimed at improving the parenting skills of the primary care-givers and encouraging them to accept greater responsibility for the child or young person.(2) A parent responsibility contract must:(a) be in writing, and(b) be signed by the Director-General and each primary care-giver who is to be a party to the contract, and(c) be in the form (if any) prescribed by the regulations, and(d) be registered with the Children’s Court, and(e) specify the period (not exceeding 6 months) during which the contract will be in force, commencing on the date on which the agreement is registered with the Children’s Court, and(f) specify the circumstances in which a breach of a term of the contract by a primary care-giver will authorise the Director-General to file a contract breach notice with the Children’s Court.(3) No more than one parent responsibility contract may be entered into within any period of 12 months between the Director-General and any of the same primary care-givers for a child or young person.(4) Before entering into a parent responsibility contract, the Director-General must give the other proposed parties to the contract a reasonable opportunity to obtain independent advice concerning the provisions of the contract.(5) Without limiting subsection (1), a parent responsibility contract may make provision for or with respect to any or all of the following:(a) attendance of a primary care-giver for treatment for alcohol, drug or other substance abuse during the term of the contract,(b) attendance of a primary care-giver for counselling,(c) requirements relating to alcohol or drug testing that a primary care-giver must undergo during the term of the contract,(d) permitting information about the contract (including compliance with the contract) to be shared between persons and agencies involved in the implementation of the provisions of the contract,(e) participation in courses aimed at improving the parenting skills of the primary care-givers (including, for example, courses relating to behavioural management and financial management),(f) monitoring of compliance with the terms of the contract.(6) However, a parent responsibility contract may not make provision for or with respect to any of the following:(a) the allocation of parental responsibility for a child or young person,(b) the placement of a child or young person in out-of-home care.Note. Care plans may make provision for the allocation of parental responsibility.(7) Any term of a parent responsibility contract that makes provision for or with respect to a matter referred to in subsection (6) has no effect.(8) A parent responsibility contract takes effect only if (and when) it is registered with the Children’s Court.Note. Section 38F provides that a care plan or parent responsibility contract is taken to be registered with the Children’s Court when it is filed with the registry of the Court without the need for any order or other further action by the Court.(9) The Director-General is to cause a copy of the parent responsibility contract to be given to each other party to the contract as soon as is reasonably practicable after it is registered with the Children’s Court.(10) A parent responsibility contract remains in force for the period specified in the contract, unless sooner terminated.
38B Amendment of parent responsibility contracts
(1) The Director-General may, with the agreement of the other parties to a parent responsibility contract, vary any of the terms of the contract (but not so as to increase the period during which the contract is to be in force).(2) A varied parent responsibility contract has effect only if (and when) a copy of the contract that includes the variations made to it is registered with the Children’s Court.(3) A registered varied parent responsibility contract has effect as such only from the date it is registered until the end of the period originally specified in the contract for its duration.
38C Termination of parent responsibility contracts
(1) The Director-General may terminate a parent responsibility contract before the expiry of the period specified in the contract for its duration (the contract period) by:(a) filing a contract breach notice with the Children’s Court, or(b) causing a notice terminating the contract (a termination notice) to be served on each other party to the contract.(2) The Director-General may cause a termination notice to be served on each other party to the contract for any reason and at any time during the contract period.(3) If a parent responsibility contract is terminated by service of a termination notice, the Director-General is to cause the registry of the Children’s Court to be notified of the termination of the contract as soon as is reasonably practicable after its termination.
38D Effect of parent responsibility contract
(1) A parent responsibility contract may be used as evidence of an attempt to resolve a matter concerning a child’s or young person’s need for care and protection without bringing a care application in accordance with Part 2 of Chapter 5.(2) A refusal by a primary care-giver for a child or young person to enter into a parent responsibility contract may also be used as evidence of an attempt to resolve a matter concerning the child’s or young person’s need for care and protection without bringing a care application in accordance with Part 2 of Chapter 5.(3) Except to the extent that this Division or any other provision of this Act provides otherwise:(a) a parent responsibility contract does not create a legally enforceable agreement, and(b) any failure to comply with the terms of such a contract (or any thing done or omitted to be done in connection with the negotiation of, or entry into, the contract) does not give rise to civil liability of any kind.
(1) The Director-General may file a contract breach notice with the Children’s Court in relation to a parent responsibility contract if:(a) a primary care-giver for a child or young person who is a party to the contract has breached a term of the contract, and(b) the contract authorises the Director-General to file a contract breach notice with the Children’s Court for breaches of the kind committed by the primary care-giver.(2) A contract breach notice must state the following matters:(a) the name of the primary care-giver for a child or young person who is alleged to have breached the parent responsibility contract,(b) each provision of the parent responsibility contract that the primary care-giver is alleged to have breached,(c) the manner in which the primary care-giver is alleged to have breached the provision,(d) the care orders that the Director-General will seek from the Children’s Court in respect of the child or young person concerned,(e) such other matters as may be prescribed by the regulations.(3) The Director-General is to cause a copy of a contract breach notice filed with the Children’s Court (along with a copy of the parent responsibility contract) to be served on each of the following persons as soon as is reasonably practicable after filing the notice:(a) each primary care-giver who is a party to the parent responsibility contract,(b) the child or young person for whom the party breaching the contract is a primary care-giver.(4) In any care application that is made by the Director-General duly filing a contract breach notice with the Children’s Court it is to be presumed (unless the presumption is rebutted by a party to the proceedings other than the Director-General) that the child or young person in respect of whom the application is made is in need of care and protection.Note. The filing of a contract breach notice with the Children’s Court operates as a care application by the Director-General. See section 61A (1).(5) A reference in this Act to the Director-General duly filing a contract breach notice is a reference to the Director-General filing the notice in accordance with the provisions of this section.
Division 3 Registration of care plans and parent responsibility contracts
A care plan or parent responsibility contract is taken to be registered with the Children’s Court when it is filed with the registry of the Court without the need for any order or other further action by the Court.
38G Registration does not make care plans and parent responsibility contracts court documents
(1) The registration of a care plan or a parent responsibility contract with the Children’s Court does not make the plan or contract a document of the Court.(2) Accordingly, a party to a registered care plan or registered parent responsibility contract does not require the leave or other consent of the Children’s Court to provide a copy of the plan or contract to any other person or to use the plan or contract in any proceedings in another court or tribunal.
42 Sexually abusive behaviour by certain children and young persons
(1) If the Director-General is aware that a child who is not less than 10 years of age but less than 14 years of age has exhibited sexually abusive behaviour, the Director-General must inform a police officer of all relevant circumstances before making a decision whether or not to apply for a care order under Chapter 5.(2) The Director-General is not required to inform a police officer in compliance with this section if information of all relevant circumstances has been made to a police officer by another person.