Part 2Part 2 Out-of-home care under order of Children’s Court
This Part applies if a child or young person is placed in out-of-home care pursuant to an order of the Children’s Court.
143 Authorised carer’s right to information for purpose of assessing placement
(1) The designated agency responsible for the placement of a child or young person must inform an authorised carer of all information that may be reasonably necessary to assist the carer to make an informed decision whether to accept the placement of a child or young person, subject to subsection (2).(2) In determining what information to make available to an authorised carer concerning a child or young person, the designated agency must pay due regard to any wishes expressed by the child or young person concerning the disclosure of information.
144 Authorised carer’s right to information for purpose of medical care and safety
(1) The designated agency responsible for the placement of a child or young person must provide to an authorised carer all information (including medical reports) in the possession of the designated agency concerning a child or young person that may be reasonably necessary:(a) to enable the authorised carer to provide appropriate care for the child or young person, or(b) to ensure the safety of the authorised carer and other members of the authorised carer’s household.(2) An authorised carer must not disclose information obtained under this section, except:(a) to a medical practitioner or dentist for the purpose of medical or dental advice or treatment, or(b) in such circumstances as may be approved by the Minister.
145 Child’s or young person’s right to information concerning authorised carer
A child or young person is to be given information concerning the proposed authorised carer by the designated agency responsible for the placement before being placed with the authorised carer.
146 Involvement of authorised carers in decision-making
An authorised carer is entitled to participate in the making of decisions, going beyond those relating to daily care and control, concerning the safety, welfare and well-being of a child or young person in the care of the authorised carer.
147 Indemnity of authorised carers
An authorised carer is entitled to be indemnified by the Minister for any loss or damage suffered by the authorised carer that is caused by a child or young person while in the care of the authorised carer.
149 Order for sole parental responsibility
(1) An authorised carer who, for a continuous period of not less than 2 years, has had the care of a child or young person, for whom the Minister (either alone or with another person or persons) has parental responsibility, may apply to the Children’s Court for an order awarding sole parental responsibility for the child or young person to the authorised carer, subject to this section.(2) The application may be made by the authorised carer and the authorised carer’s partner, if the partner so consents, and an order may be made accordingly.(3) An application cannot be made by a person who has the responsibility of an authorised carer solely in his or her capacity as the principal officer of a designated agency.(4) An application cannot be made without the consent of the person or persons who had parental responsibility for the child or young person immediately before parental responsibility was allocated to the Minister. The Children’s Court must be satisfied that the consent has been properly given on an informed basis.(4A) The Children’s Court may order a person who makes an application under this section to notify those persons whom the Children’s Court specifies of the making of the application.Note. Section 256A sets out the circumstances in which the Children’s Court may dispense with service.(5) An application that relates to a child who is not less than 12 years of age, or a young person, and who is capable of giving consent cannot be made without the consent of the child or young person. A consent is to be given in such form and manner as may be prescribed by the regulations.(6) If an application relates to a child who is less than 12 years of age, the principal officer of the relevant designated agency is to give the child notice of the application.(7) In making an order under this section for sole parental responsibility, the Children’s Court may make or vary a contact order under section 86.
149AA Care plan and other relevant information to be presented before order made under section 149
(1) The authorised carer applying for an order under section 149 awarding sole parental responsibility to the carer must present the following to the Children’s Court before the order is made:(a) a care plan prepared, in accordance with this section, by the authorised carer or the principal officer of the designated agency that supervised the placement of the child or young person with the authorised carer,(b) a copy of any report on the health, educational or social well-being of the child or young person that is available to the authorised carer and that is relevant to the care plan.(2) Without limiting the information that must be contained in a care plan, it must contain information about the following:(a) the residence of the child or young person,(b) if the Children’s Court has made any contact order under section 86 in relation to contact of the child or young person with his or her parents, relatives, friends or other persons—the arrangements for contact,(c) the education and training of the child or young person,(d) the religious upbringing of the child or young person,(e) the health care of the child or young person,(f) the resources required to provide any services that need to be provided to the child or young person and the availability of those resources,(g) any views the child or young person has expressed about any aspect of the care plan.(3) The care plan is to be made as far as possible with the agreement of the parents of the child or young person concerned.(4) The care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children’s Court.(5) Other requirements and the form of a care plan under this section may be prescribed by the regulations.
149A Variation or rescission of order for sole parental responsibility
(1) An application for the variation or rescission of a sole parental responsibility order under section 149 in respect of a child or young person cannot be brought except with:(a) the leave of the Children’s Court, and(b) the consent of the principal officer of the designated agency that had last supervised the placement of the child or young person.(2) If:(a) the principal officer of the designated agency that had last supervised the placement of the child or young person gives consent under subsection (1) (b), and(b) the designated agency has provided support for the placement,the principal officer must provide the Children’s Court with a report concerning the placement together with such other information as may be relevant to the application.(3) Section 90 (6) applies to the determination of an application to vary or rescind a sole parental responsibility order under section 149 in respect of a child or young person in the same way as it applies to the variation or rescission of a care order.(4) This section does not limit or affect the making of an application to the Children’s Court by the Director-General under section 45 or 61.Note. Section 247 provides that nothing in this Act limits the jurisdiction of the Supreme Court. Consequently, nothing in this section will limit that jurisdiction.(5) The regulations may make provision for or with respect to:(a) the form and manner in which a consent is to be given for the purposes of this section, and(b) the form and contents of a report under subsection (2).
Division 1A Disclosure to parents and significant persons of information concerning placement in out-of-home care
(1) In this Division, parent, in relation to the child or young person concerned, means:(a) the person (other than the Minister or the Director-General) who had parental responsibility for the child or young person immediately before the child or young person was placed in out-of-home care, and(b) if the person referred to in paragraph (a), or the Minister or the Director-General, had parental responsibility for the child or young person pursuant to an order of the Children’s Court—the person who had parental responsibility for the child or young person immediately before the order of the Children’s Court was made.(2) A reference in this Division to a person who is significant to a child or young person is a reference to a person referred to in section 9 (2) (f).
149C Disclosure to parents and significant persons
(1) The designated agency responsible for the placement of a child or young person in out-of-home care must, in accordance with this Division, disclose information concerning the placement of the child or young person to the following persons:(a) any parent of the child or young person,(b) any other person who is significant to the child or young person and who makes a written request for the information.(2) The information must be disclosed as soon as practicable after the placement of the child or young person.(3) This section is subject to sections 149E (Consent of authorised carer to disclosure of high level identification information) and 149I (Refusal to disclose information concerning placement).
149D Type and amount of information to be disclosed
When considering the type and amount of information to be disclosed under this Division, the designated agency must have regard to:(a) the wishes of the child or young person and authorised carer concerned, and(b) any guidelines prepared by the Children’s Guardian in relation to disclosure, which may include, but are not limited to, any guidelines relating to the following:(i) particular classes of people, in addition to parents and including persons significant to the child or young person, who should normally receive information concerning placement,(ii) particular types of information concerning placement that should normally be disclosed,(iii) guidance as to any persons who should not receive information concerning placement,(iv) guidance as to how the child or young person concerned is to participate in any decision-making processes relating to the disclosure of information concerning the authorised carer of the child or young person.
149E Consent of authorised carer to disclosure of high level identification information
(1) Except as provided by this section (and despite section 149C), a designated agency must not disclose high level identification information concerning the placement of a child or young person unless:(a) the designated agency has contacted the authorised carer of the child or young person concerned and requested the consent of that authorised carer to the disclosure, and(b) the authorised carer has consented in writing to the disclosure.(2) The information may be disclosed even though the authorised carer of the child or young person concerned has refused to consent to the disclosure, or has not consented to the disclosure within 28 days after being requested to do so under this section, if the designated agency:(a) believes on reasonable grounds that the disclosure will not pose any risk to the safety, welfare or well-being of:(i) the child or young person concerned, or(ii) the authorised carer of the child or young person, or(iii) any member of the family or household of the authorised carer of the child or young person, and(b) complies with sections 149F and 149G.
149F Disclosure of high level identification information without consent of authorised carer
(1) Before disclosing high level identification information without the consent of the authorised carer of the child or young person concerned, the designated agency:(a) must provide written reasons to the authorised carer as to why it believes that the disclosure of the information will not pose any risk of the kind referred to in section 149E (2) (a), and(b) if the child or young person concerned is 12 years of age or older—must provide a copy of the written reasons to the child or young person (unless the agency considers that it is not in the child or young person’s best interests to do so), and(c) if the child concerned is less than 12 years of age—must supply a copy of the written reasons to any person nominated by the child (unless the agency considers that it is not in the child’s best interests to do so or that the child is too young to nominate a person), and(d) must ensure that a copy of the written reasons is retained on the designated agency’s file for the purpose of disclosing them to the child after he or she reaches the age of 12 (unless the agency considers that it is not in the child’s best interests to do so).(2) The designated agency must also give the authorised carer a written notice stating:(a) that the information will not be disclosed within the period of 21 days after the date of the notice, and(b) that the decision to disclose the information may be reviewed by the Administrative Decisions Tribunal:(i) on the application of the authorised carer, or(ii) on the application of the designated agency (on behalf of the authorised carer) at the request of the authorised carer made before the expiry of the 21-day period referred to in paragraph (a).
149G Application for review of decision to disclose high level identification information
(1) If a designated agency decides to disclose high level identification information under this Division despite the authorised carer’s refusing, or failing to give, consent to the disclosure, the authorised carer:(a) may apply to the Administrative Decisions Tribunal for a review of the decision to disclose the information, or(b) may, within the time allowed under section 149F (2) (b) (ii), request the designated agency to apply to the Administrative Decisions Tribunal, on behalf of the authorised carer, for a review of the decision to disclose the information.(2) The designated agency must comply with any request made in accordance with subsection (1) (b) and, before doing so, must carry out an internal review of the decision in accordance with section 53 of the Administrative Decisions Tribunal Act 1997 as modified by section 149H and the regulations (if any).(3) If an application is made to the Administrative Decisions Tribunal under this section, the designated agency must not disclose the information to which the application relates otherwise than in accordance with the final determination of the application (unless the application is withdrawn by or at the request of the authorised carer).
149H Modification of Administrative Decisions Tribunal Act 1997
(1) If an application for a review of a decision to disclose high level identification information under this Division is to be made by a designated agency at the request of, and on behalf of, an authorised carer:(a) the designated agency is taken to be an interested person for the purposes of the ADT Act, and(b) the following provisions of the ADT Act do not apply in relation to the application:(i) Division 2 (Duty to give reasons on request) of Part 2 of Chapter 5,(ii) section 53 (2) (Requirements for an application),(iii) Division 2 (Effect of pending applications on reviewable decisions) of Part 3 of Chapter 5, and(c) a reference in section 58 (1) of the ADT Act to receiving notice of an application is to be construed as a reference to the making of an application, and(d) a reference in section 58 of the ADT Act to the giving of reasons under section 49 of that Act is to be construed as a reference to the provision of reasons to the authorised carer under section 149F of this Act, and(e) the application is taken, after it is made, to have been made by the authorised carer.(2) The regulations may further modify the application of the ADT Act in relation to an application referred to in subsection (1).(3) In this section, the ADT Act means the Administrative Decisions Tribunal Act 1997.
149I Refusal to disclose information concerning placement
(1) Despite section 149C, a designated agency must refuse to disclose information concerning placement under this Division, or must impose conditions on the disclosure, if it believes on reasonable grounds that the disclosure of the information would adversely affect the safety, welfare or well-being of:(a) the child or young person concerned, or(b) an authorised carer of that child or young person, or(c) any member of the family or household of the authorised carer of that child or young person.(2) If a designated agency decides to refuse to disclose information concerning placement under this Division, it must give written notification of the decision:(a) to the parents of the child or young person, and(b) to any other person who is significant to the child or young person and who has made a written request for the information.(3) For the purposes of deciding whether or not to refuse to disclose information concerning placement, or to disclose such information subject to conditions, the designated agency must have regard to:(a) the wishes of the child or young person concerned, and(b) any guidelines prepared by the Children’s Guardian (as referred to in section 149D (b)).
149J Disclosure not contravention of confidentiality or contravention of privacy law
A disclosure of information concerning placement made in good faith under this Division does not constitute a contravention of any provision as to confidentiality in this Act or a contravention of the Health Records and Information Privacy Act 2002 or the Privacy and Personal Information Protection Act 1998.
149K No conflict with court order
(1) This Division does not authorise a disclosure of information concerning placement if that disclosure is prevented by an order of any court or tribunal.(2) This Division does not prevent a disclosure of information concerning placement if that disclosure is required by an order of any court or tribunal.
Division 2 Review of out-of-home care under order of Children’s Court
150 Review of placements effected by order of Children’s Court
(1) For the purpose of determining whether the safety, welfare and well-being of a child or young person who has been placed in out-of-home care by an order of the Children’s Court is being promoted by the placement, the designated agency having responsibility for the placement of the child or young person is to conduct a review of the placement in accordance with this section.(2) Except as provided by subsection (3A), a review is to be conducted:(a) in the case of a child or young person who is in out-of-home care pursuant to an interim order of the Children’s Court—within 4 months after the interim order is made, and(b) in the case of a child or young person who is in out-of-home care pursuant to a final order of the Children’s Court:(i) in the case of a child of less than 2 years of age—within 2 months after the final order is made and thereafter within every period of 12 months after the final order is made, or(ii) in the case of a child of not less than 2 years of age—within 4 months after the final order is made and thereafter within every period of 12 months after the final order is made, and(c) after the death of a parent or the authorised carer, and(d) after an unplanned change of placement.(3) Subsection (2) does not prevent the conduct of more frequent reviews.(4) A review is to be conducted in accordance with guidelines prepared by the Children’s Guardian.(5) (Repealed)(6) Despite subsection (1), a review may be conducted at any time by the Children’s Guardian.