Child Protection Act 1999

An Act about the protection of children, and for other purposes

1Short title

This Act may be cited as the Child Protection Act 1999.

2Commencement

(1)Section 260 commences on the date of assent.

(2)The remaining provisions commence on a day to be fixed by proclamation.

3Definitions

(1)The dictionary in schedule 3 defines particular words used in this Act.

(2)Key terms used in this Act are defined in part 3, division 1.

5Application of principles

(1)This Act is to be administered under the principles stated in this division.

(2)All other principles stated in this Act are subject to the principle stated in section 5A.

5AParamount principle

The main principle for administering this Act is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount.

Example—

If the chief executive is making a decision under this Act about a child where there is a conflict between the child’s safety, wellbeing and best interests (whether immediate or long-term in nature), and the interests of an adult caring for the child, the conflict must be resolved in favour of the child’s safety, wellbeing and best interests.

5BOther general principles

The following are general principles for ensuringare relevant to making decisions relating to the safety, wellbeing and best interests of a child—

(a)a child has a right to be protected from harm or risk of harm;

(b)a child’s family has the primary responsibility for the child’s upbringing, protection and development;

(c)the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family;

(d)if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child;

(e)in protecting a child, the State should only take action that is warranted in the circumstances;

(f)if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests;

(g)if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care;

(h)if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin;

(i)if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible;

(j)a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support);

(k)a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child;

(l)a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values;

(m)a delay in making a decision in relation to a child should be avoided, unless appropriate for the child.;

(n)a child has the right to express the child’s views about what is, and is not, in the child’s best interests.

5BA Principles for achieving permanency for a child

(1)The principles stated in this section are relevant to making decisions about actions to be taken, or orders to be made, under this Act.

(2)For ensuring the wellbeing and best interests of a child, the action or order that should be preferred, having regard to the principles mentioned in sections 5B and 5C, is the action or order that best ensures the child experiences or has—

(a)ongoing positive, trusting and nurturing relationships with persons of significance to the child, including the child’s parents, siblings, extended family members and carers; and

(b)stable living arrangements, with connections to the child’s community, that meet the child’s developmental, educational, emotional, health, intellectual and physical needs; and

Example—

living arrangements that provide for a stable and continuous schooling environment

(c)legal arrangements for the child’s care that provide the child with a sense of permanence and long-term stability, including, for example, a long-term guardianship order, a permanent care order or an adoption order for the child.

Note—

See sections 62 and 64 about the restrictions on the duration or extension of child protection orders granting custody or short-term guardianship.

(3)For this Act, permanency, for a child, means the experience by the child of having the things mentioned in subsection (2)(a) to (c).

(4)For deciding whether an action or order best achieves permanency for a child, the following principles also apply, in order of priority—

(a)the first preference is for the child to be cared for by the child’s family;

(b)the second preference is for the child to be cared for under the guardianship of a person who is a member of the child’s family, other than a parent of the child, or another suitable person;

(c)if the child is not an Aboriginal or Torres Strait Islander child—the next preference is for the child to be adopted under the Adoption Act 2009;

(d)the next preference is for the child to be cared for under the guardianship of the chief executive;

(e)if the child is an Aboriginal or Torres Strait Islander child—the last preference is for the child to be adopted under the Adoption Act 2009.

Notes—

1See also section 5C for the additional principles that apply for administering this Act in relation to Aboriginal and Torres Strait Islander children, including the Aboriginal and Torres Strait Islander child placement principle.

2For the principles that apply for administering the Adoption Act 2009, including the additional principles applying in relation to Aboriginal and Torres Strait Islander children, see sections 6 and 7 of that Act.

(4)For deciding whether an action or order best achieves permanency for a child, the following principles also apply, in order of priority—

(a)the first preference is for the child to be cared for by the child’s family;

(b)the second preference is for the child to be cared for under the guardianship of a person who is a member of the child’s family, other than a parent of the child, or another suitable person;

(c)the third preference is for the child to be cared for under the guardianship of the chief executive.

Editor’s note—

Section 5BA incorporates an uncommenced amendment—see 2021 Act No. 6s 8.

5CAdditional principles for Aboriginal or Torres Strait Islander children

(1)The following additional principles apply for administering this Act in relation to Aboriginal or Torres Strait Islander children—

(a)Aboriginal and Torres Strait Islander people have the right to self-determination;

(b)the long-term effect of a decision on the child’s identity and connection with the child’s family and community must be taken into account.

(2)The following principles (together the child placement principlesAboriginal and Torres Strait Islander child placement principle) also apply in relation to Aboriginal or Torres Strait Islander children—

(a)the principle (the prevention principle) that a child has the right to be brought up within the child’s own family and community;

(b)the principle (the partnership principle) that Aboriginal or Torres Strait Islander persons have the right to participate in significant decisions under this Act about Aboriginal or Torres Strait Islander children;—

(i)significant decisions under this Act about Aboriginal or Torres Strait Islander children; and

(ii)decisions relating to the development and delivery of services, provided by the department, that—

(A)support Aboriginal or Torres Strait Islander families; or

(B)provide for the care or protection of Aboriginal or Torres Strait Islander children;

(c)the principle (the placement principle) that, if a child is to be placed in care, the child has a right to be placed with a member of the child’s family group;

Note—

See section 83 for provisions for placing Aboriginal and Torres Strait Islander children in care.

(d)the principle (the participation principle) that a child and the child’s parents and family members have a right to participate, and be enabled to participate, in an administrative or judicial process for making a significant decision about the child;

(e)the principle (the connection principle) that a child has a right to be supported to develop and maintain a connection with the child’s family, community, culture, traditions and language, particularly when the child is in the care of a person who is not an Aboriginal or Torres Strait Islander person.

5DPrinciples about exercising powers and making decisions

(1)The following principles are relevant to exercising a power or making a decision under this Act—

(a)a power under this Act should be exercised in a way that is open, fair and respectful of the rights of each person affected by the exercise of the power;

(b)to the extent that it is appropriate, the views of relevant persons should be sought and taken into account before a decision is made under this Act;

Note—

See also section 5E in relation to the exercise of a power, or the making of a decision, under this Act that affects, or may affect, a child.

(c)if a relevant person for a decision under this Act needs help to participate in or understand the decision-making process, or to understand a statutory right relevant to the decision, the relevant person should be given help;

(d)a relevant person for a decision under this Act may obtain their own legal advice, or be represented by a lawyer or supported by another person, in relation to the decision-making process;

(e)information about a child affected by a decision under this Act should be shared—

(i)only to the extent necessary for the purposes of this Act; and

(ii)in a way that protects the child’s privacy.

(2)This section does not apply to a court or the tribunal.

(3)In this section—

relevant person, for a decision, means each of the following persons—

(a)the child to whom the decision relates;

(b)a person who is a parent or sibling of the child and is affected by the decision;

(c)any long-term guardian of the child.

7Chief executive’s functions

(1)For the proper and efficient administration of this Act, the chief executive’s functions are—

(a)providing, or helping provide, information for parents and other members of the community about the development of children and their safety needs; and

(b)providing, or helping provide, preventative and support services to strengthen and support families and to reduce the incidence of harm to children; and

(c)providing, or helping provide, services to families to protect their children if a risk of harm has been identified; and

(d)providing, or helping provide, services for the protection of children and responding to allegations of harm to children; and

(e)providing, or helping provide, services that encourage children in their development into responsible adulthood; and

(f)helping Aboriginal and Torres Strait Islander communities to establish programs for preventing or reducing incidences of harm to children in the communities; and

(g)ensuring children have meaningful and ongoing opportunities to participate in decisions of the chief executive about programs and services relating to the purposes of this Act; and

(gh)providing support and training to approved carers to help them care for children under this Act; and

(hi)negotiating and reviewing a statement of commitment between the State and organisations with an interest in the care of children under this Act that includes the provision of support and resources by the department to approved carers; and

(ij)promoting a partnership between the State, local government, non-government agencies and families in taking responsibility for, and dealing with the problem of, harm to children; and

(jk)promoting a partnership between the State and foster carers that recognises the integral part played by foster carers in caring for children under this Act; and

(kl)promoting and helping in developing coordinated responses to allegations of harm to children and responses to domestic violence; and

(lm)cooperating with government entities that have a function relating to the protection of children or provide services to children in need of protection or their families; and

(mn)ensuring access by children in care to advocacy services and cooperating with the services to help ensure that the children’s concerns are dealt with; and

(no)consulting with clients of the department and of organisations involved in providing services relating to the purposepurposes of this Act and with client representative groups; and

(op)arranging for independent Aboriginal or Torres Strait Islander entities for Aboriginal or Torres Strait Islander children to facilitate the participation of the children and the children’s families when making decisions in relation to the children; and

(pq)reviewing, under chapter 7A, the department’s involvement with certain children who have since died or who have suffered serious physical injury—

(i)to facilitate ongoing learning and improvement in the provision of services by the department; and

(ii)to promote the accountability of the department; and

(iii)to support collaboration and joint learning between the department and other relevant agencies; and

(qr)providing, or helping provide, public education about child abuse and neglect and to encourage people whose occupation involves responsibility for children and members of the public to report suspected child abuse and neglect to the chief executive; and

(rs)collecting and publishing, or helping to collect and publish, information and statistics about—

(i)harm to children; and

(ii)the life outcomes of children in care; and

(iii)the relationship between the criminal justice system and the child protection system; and

(st)promoting and conducting research into—

(i)the causes and effects of harm to children; and

(ii)the life outcomes of children in care; and

(iii)the relationship between the criminal justice system and the child protection system; and

(tu)encouraging tertiary institutions to provide instruction about harm to children and its prevention and treatment.

(2)In this section—

children in care means children in the chief executive’s custody or guardianship.

relevant agency see section 245B.

7AExplanation about entities involved in court applications

(1)The scheme under this Act includes the making of court orders to—

(a)authorise actions as part of an investigation to assess whether a child is a child in need of protection; or

(b)ensure a child’s protection.

(2)Authorised officers appointed by the chief executive are empowered to apply for temporary assessment orders, court assessment orders and temporary custody orders.

(3)Police officers are empowered to apply for temporary assessment orders and court assessment orders.

(4)Under the Director of Child Protection Litigation Act 2016, the litigation director is empowered to apply for child protection orders.

(5)The chief executive is responsible for working collaboratively with the litigation director in relation to applications for child protection orders, including by collecting and preparing evidence.

8Who is a child

A child is an individual under 18 years.

9What is harm

(1)Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.

(2)It is immaterial how the harm is caused.

(3)Harm can be caused by—

(a)physical, psychological or emotional abuse or neglect; or

(b)sexual abuse or exploitation.

(4)Harm can be caused by—

(a)a single act, omission or circumstance; or

(b)a series or combination of acts, omissions or circumstances.

10Who is a child in need of protection

A child in need of protection is a child who—

(a)has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and

(b)does not have a parent able and willing to protect the child from the harm.

11Who is a parent

(1)A parent of a child is the child’s mother, father or someone else (other than the chief executive) having or exercising parental responsibility for the child.

(2)However, a person standing in the place of a parent of a child on a temporary basis is not a parent of the child.

(3)A parent of an Aboriginal child includes a person who, under Aboriginal tradition, is regarded as a parent of the child.

(4)A parent of a Torres Strait Islander child includes a person who, under Island custom, is regarded as a parent of the child.

(5)A reference in this Act to the parents of a child or to 1 of the parents of a child is, if the child has only 1 parent, a reference to the parent.

Note—

In some provisions, parent has a narrower meaning. The same meaning is given the term in chapter 2, part 2 (see section 23), chapter 2, part 3 (see section 37), chapter 2, part 3AA (see section 51AA), chapter 2, part 3A (see section 51F) and chapter 2, part 4 (see section 52).

Note—

See also schedule 3, definition parent, paragraph (a).

12What is effect of custody

(1)This section applies if—

(a)an authorised officer or police officer takes a child into the chief executive’s custody; or

Note—

Under section 18, a child at immediate risk of harm may be taken into custody.

(b)the chief executive has custody of a child under a care agreement; or

(c)the chief executive or someone else is granted custody of a child under an assessment order, temporary custody order or child protection order.

(2)The chief executive, or other person granted custody of the child, has—

(a)the right to have the child’s daily care; and

(b)the right and responsibility to make decisions about the child’s daily care.

13What is effect of guardianship

If the chief executive or someone else is granted guardianship of a child under a child protection order, the chief executive or other person has—

(a)the right to have the child’s daily care; and

(b)the right and responsibility to make decisions about the child’s daily care; and

(c)all the powers, rights and responsibilities in relation to the child that would otherwise have been vested in the person having parental responsibility for making decisions about the long-term care, wellbeing and development of the child.

13AAction by persons generally

(1)Any person may inform the chief executive if the person reasonably suspects—

(a)a child may be in need of protection; or

(b)an unborn child may be in need of protection after he or she is born.

(2)The information given may include anything the person considers relevant to the person’s suspicion.

13BAction by relevant persons under other provisions

(1)Under division 2, if a relevant person has a reportable suspicion about a child, the person is required to report the matter to the chief executive.

(2)If a relevant person does not have a reportable suspicion about a child but considers the child is likely to become a child in need of protection if no preventative support is given, the person may take other appropriate action under this Act.

(3)For example, if the relevant person is a prescribed entity to which section 159MD(1) applies, the person may give information under that section to a service provider so the service provider can offer help and support to the child or child’s family to stop the child becoming a child in need of protection.

13CConsiderations when forming a reasonable suspicion about harm to a child

(1)This section applies to a person in forming a reasonable suspicion, for section 13A(1) or division 2, about whether a child has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm.

(2)The matters that the person may consider include—

(a)whether there are detrimental effects on the child’s body or the child’s psychological or emotional state—

(i)that are evident to the person; or

(ii)that the person considers are likely to become evident in the future; and

(b)in relation to any detrimental effects mentioned in paragraph (a)—

(i)their nature and severity; and

(ii)the likelihood that they will continue; and

(c)the child’s age.

(3)The person’s consideration may be informed by an observation of the child, other knowledge about the child or any other relevant knowledge, training or experience that the person may have.

13DProtection from liability

Section 197A provides for protection from liability for information given under this part.

13EMandatory reporting by persons engaged in particular work

(1)This section applies to a person (a relevant person) who is any of the following —

(a)a doctor;

(b)a registered nurse;

(c)a teacher;

(d)a police officer who, under a direction given by the commissioner of the police service under the Police Service Administration Act 1990, is responsible for reporting under this section;

(e)a person engaged to perform a child advocate function under the Public Guardian Act 2014;

(f)an early childhood education and care professional.

(2)For this section, a reportable suspicion about a child is a reasonable suspicion that the child—

(a)has suffered, is suffering, or is at unacceptable risk of suffering, significant harm caused by physical or sexual abuse; and

(b)may not have a parent able and willing to protect the child from the harm.

(3)If a relevant person forms a reportable suspicion about a child in the course of the person’s engagement as a relevant person, the person must give a written report to the chief executive under section 13G.

(4)In this section—

early childhood education and care professional means an individual, other than a volunteer or an individual under the age of 18, who is—

(a)any of the following under the Education and Care Services Act 2013—

(i)an approved provider;

(ii)a supervisor for a QEC approved service;

(iii)an educator for a QEC approved service; or

(b)any of the following under the Education and Care Services National Law (Queensland)—

(i)an approved provider;

(ii)a nominated supervisor for an approved education and care service;

(iii)an educator for an approved education and care service;

(iv)a family day care co-ordinator for an approved family day care service;

(v)a family day care educator for an approved family day care service.

13FMandatory reporting relating to children in departmental or licensed care services

(1)This section applies to a person (a relevant person) who is any of the following—

(a)an authorised officer;

(b)a public service employee employed in the department;

(c)a person employed in a departmental care service or licensed care service.;

(d)an approved carer;

(e)a person employed in an entity mentioned in section 82(1)(f).

(2)For this section, a reportable suspicion about a child in care is a reasonable suspicion that the child has suffered, is suffering, or is at unacceptable risk of suffering, significant harm caused by physical or sexual abuse.

(3)If a relevant person forms a reportable suspicion about a child in care, the person must give a written report to the chief executive under section 13G.

(4)In this section—

child in care means a child placed in the care of an entity conducting a departmental care service or a licensee.

child in care means a child placed in care under section 82(1).

13GReport to the chief executive

(1)This section applies to a report that a relevant person is required to give under section 13E or 13F.

(2)The report must—

(a)state the basis on which the person has formed the reportable suspicion; and

(b)include the information prescribed by regulation, to the extent of the person’s knowledge.

(3)The person is not required to give a report about a matter if—

(a)giving the report might tend to incriminate the person; or

(b)the person knows, or reasonably supposes, that the chief executive is aware of the matter.

(4)A regulation may prescribe the way the report must be given.

(5)To remove any doubt, it is declared that a person does not commit an offence against this or another Act only because the person omits to do an act required under section 13E(3) or 13F(3) or this section.

13HConferrals with colleague and related information sharing

(1)A relevant person may give information to a colleague, and a colleague may give information to a relevant person, for any of the following purposes—

(a)for the relevant person to form a suspicion about whether a child has suffered, is suffering, or is at unacceptable risk of suffering, significant harm caused by physical or sexual abuse;

(b)in the case of a relevant person under section 13E—for the relevant person to form a suspicion about whether a child has a parent able and willing to protect the child from harm mentioned in paragraph (a);

(c)for the relevant person to give a report under section 13G or keep a record about giving a report;

(d)for the relevant person or colleague to take appropriate action to deal with suspected harm or risk of harm to a child.

Examples for paragraph (d)—

1A teacher with a reportable suspicion about a child under section 13E may give information to the principal at the school to enable the principal to take appropriate action to protect the child or other children from risk of harm.

2An educator under the Education and Care Services National Law (Queensland) with a reportable suspicion about a child under section 13E may give information to the nominated supervisor for the approved education and care service, within the meaning of that Law, to enable the supervisor to take appropriate action to protect the child or other children from risk of harm.

(2)In this section—

colleague, of a relevant person, means a person working in or for the same entity as the relevant person.

13IReporting obligation arises when reportable suspicion is formed

To remove any doubt, it is declared that—

(a)a relevant person is not required to give a report under section 13G until the person has formed a reportable suspicion about a child; and

Example—

After observing injuries on a child’s body, a doctor or teacher considers it possible that a parent of the child has physically abused the child or failed to protect the child from physical abuse. After obtaining further information about the family’s circumstances, the doctor or teacher forms a reportable suspicion about the child under section 13E.

(b)once a relevant person has formed a reportable suspicion about a child, the person must comply with section 13G even though the person is taking, or has taken, other action in relation to the child.

13JParticular reports to be given to public guardian

As soon as practicable after receiving a report required by section 13F, the chief executive must give a copy to the public guardian to help the public guardian perform the public guardian’s child advocate functions under the Public Guardian Act 2014.

14Substantiation of alleged harm

(1)If the chief executive becomes aware (whether because of notification given to the chief executive or otherwise) of alleged harm or alleged risk of harm to a child and reasonably suspects the child is in need of protection, the chief executive must immediately—

(a)have an authorised officer investigate the allegation, assess whether the alleged harm or risk of harm can be substantiated and, if it can, assess the child’s protective needs; or

(b)take other action the chief executive considers appropriate.

(2)If the chief executive reasonably believes alleged harm to a child may involve the commission of a criminal offence relating to the child, the chief executive must immediately give details of the alleged harm to the police commissioner.

(3)Subsection (2) applies whether or not the chief executive suspects the child is in need of protection.

15Child’s parents and long-term guardians to be told about allegation of harm and outcome of investigation

(1)This section applies if an authorised officer or police officer—

(a)investigates an allegation of harm or risk of harm to a child; or

(b)assesses a child’s need of protection because of an allegation of harm or risk of harm to the child.

(2)If the child does not have long-term guardians, the officer must—

(a)give details of the alleged harm or risk of harm to at least 1 of the child’s parents; and

(b)as soon as practicable after completing the investigation—

(i)tell at least 1 of the child’s parents about the outcome of the investigation; and

(ii)if asked by the parent, give the information about the outcome of the investigation to the parent in writing.

(3)If the child has long-term guardians, the officer must—

(a)take, or make a reasonable attempt to take, the actions stated in subsection (2)(a) and (b), but only if the officer is satisfied it would be in the child’s best interests to do so, having regard to—

(i)the nature and extent of the child’s connection with the child’s parents; and

(ii)the evidence in support of the allegation of harm or risk of harm; and

(iii)any other relevant matter; and

(b)take the actions stated in subsection (2)(a) and (b) in relation to the long-term guardians.

(4)However, if the officer reasonably believes—

(a)someone may be charged with a criminal offence for the harm to the child and the officer’s compliance with subsection (2) or (3) may jeopardise an investigation into the offence; or

(b)compliance with subsection (2) or (3) may expose the child to harm;

the officer need only comply with the subsection to the extent the officer considers is reasonable and appropriate in the particular circumstances.

(5)If, under subsection (3)(a), the officer does not take the actions stated in subsection (2)(a) and (b) but makes a reasonable attempt to take the actions, the officer must document full details about the actions taken by the officer in making the attempt.

16Contact with child at immediate risk of harm

(1)This section applies if—

(a)an authorised officer or police officer is investigating an allegation of harm, or risk of harm, to a child; and

(b)the officer has been denied contact with the child or can not reasonably gain entry to the place where the officer reasonably believes the child is; and

(c)the officer reasonably suspects the child—

(i)is at immediate risk of harm; or

(ii)is likely to leave or be taken from a place and suffer harm if the officer does not take immediate action.

(2)The officer may exercise the following powers—

(a)enter the place;

(b)search the place to find the child;

(c)remain in the place, and have contact with the child for as long as the officer reasonably considers necessary for investigating the allegation.

(3)The officer may exercise a power under subsection (2) with the help, and using the force, that is reasonable in the circumstances.

(4)At the first reasonable opportunity, the officer must record, in a register kept for the purpose by the department or the Queensland Police Service, full details about the exercise of the powers and other actions taken by the officer.

17Contact with children in school, education and care service premises, family day care etc.

(1)This section applies if—

(a)an authorised officer or police officer is investigating an allegation of harm, or risk of harm, to a child; and

(b)the officer reasonably believes—

(i)it is in the child’s best interests that the officer has contact with the child before the child’s parents or long-term guardians are told about the investigation; and

(ii)the child’s parents or long-term guardians knowing in advance about the proposed contact with the child is likely to adversely affect or otherwise prevent the proper and effective conduct of the investigation; and

(c)the child is at a school, or place where education and care or regulated education and care is provided, when the officer is to have contact with the child; and

(d)the officer has lawfully entered, and is lawfully remaining at, the school or place.

(2)The officer may have contact with the child for as long as the officer reasonably considers necessary for investigating the allegation.

(3)Before exercising a power under subsection (2), the officer must notify the principal or other person in charge of the school or place of the intention to exercise the power.

(4)As soon as practicable after the officer has had contact with the child, the officer must—

(a)if the child has long-term guardians—tell at least 1 of the long-term guardians that the officer has had contact with the child and the reasons for the contact; or

(b)otherwise—tell at least 1 of the child’s parents that the officer has had contact with the child and the reasons for the contact.

(5)The officer’s obligation under subsection (4) to give reasons for the contact with the child is limited to the extent the officer considers is reasonable and appropriate in particular circumstances if the officer reasonably believes—

(a)someone may be charged with a criminal offence for harm to the child and the officer’s compliance with the subsection may jeopardise an investigation into the offence; or

(b)compliance with the subsection may expose the child to harm.

(6)Also, at the first reasonable opportunity, the officer must record, in a register kept for the purpose by the department or the Queensland Police Service, full details about the exercise of the powers and other actions taken by the officer.

(7)In this section—

education and care means education and care provided under the Education and Care Service National Law (Queensland).

regulated education and care means regulated education and care within the meaning of the Education and Care Services Act 2013.

18Child at immediate risk may be taken into custody

(1)This section applies if an authorised officer or police officer reasonably believes a child is at risk of harm and the child is likely to suffer harm if the officer does not immediately take the child into custody.

(2)The officer may take the child into the chief executive’s custody.

(3)For subsection (2), the officer may—

(a)enter the place where the officer reasonably believes the child is; and

(b)search the place to find the child; and

(c)remain in the place for as long as the officer reasonably considers is necessary to find the child.

(4)The officer may exercise a power under subsection (2) or (3) with the help, and using the force, that is reasonable in the circumstances.

(5)The officer must, as soon as practicable, apply for a temporary assessment order for the child.

(6)However, subsection (5) does not apply if an authorised officer applies for a temporary custody order for the child.

(7)Also, the officer may arrange a medical examination of, or for medical treatment for, the child that is reasonable in the circumstances.

Note—

Section 97 applies to the medical examination or treatment.

(8)The chief executive’s custody of the child ends on the earlier of the following to happen—

(a)the application for the temporary assessment order or temporary custody order for the child is decided;

(b)8 hours elapses after the child is taken into custody.

19Effect of taking child into custody on existing order

(1)This section applies if—

(a)an authorised officer or police officer takes a child into the chief executive’s custody; and

(b)a child protection order granting custody or guardianship of the child to someone other than the chief executive is in force.

(2)The order, so far as it relates to the child’s custody or guardianship, ceases to have effect while the chief executive’s custody of the child continues.

20Officer’s obligations on taking child into custody

(1)This section applies if an authorised officer or police officer takes a child into the chief executive’s custody.

(2)If the child does not have long-term guardians, the officer must, as soon as practicable—

(a)take reasonable steps to tell at least 1 of the child’s parents—

(i)that the child has been taken into custody and the reasons for the action; and

(ii)when the chief executive’s custody ends under section 18(8); and

(b)tell the child about their being taken into the chief executive’s custody; and

Note—

Section 195 deals with compliance with provisions about giving information.

(c)tell the chief executive the child has been taken into the chief executive’s custody, the reasons for the action and where the child has been taken.

(3)If the child has long-term guardians, the officer must, as soon as practicable—

(a)comply with subsection (2)(a) to (c) as if the reference in subsection (2)(a) to parents were a reference to long-term guardians; and

(b)comply, or make a reasonable attempt to comply, with subsection (2)(a).

(4)Subsections (2) and (3) do not require the officer to tell the child’s parents or long-term guardians in whose care the child has been placed.

(5)The officer’s obligation under subsection (2)(a)(i) or (3) to give reasons for taking the child into custody is limited to the extent the officer considers is reasonable and appropriate in particular circumstances if the officer reasonably believes—

(a)someone may be charged with a criminal offence for harm to the child and the officer’s compliance with the provision may jeopardise an investigation into the offence; or

(b)compliance with the provision may expose the child to harm.

(6)If, under subsection (3)(b), the officer does not comply with subsection (2)(a) but makes a reasonable attempt to comply, the officer must document full details about the actions taken by the officer in making the attempt.

21Moving child to safe place

(1)This section applies if—

(a)an authorised officer or police officer reasonably believes a child who is under 12 years is at risk of harm but does not consider it necessary to take the child into the chief executive’s custody to ensure the child’s protection; and

(b)a parent or other member of the child’s family is not present at the place where the child is, and, after reasonable inquiries, the officer can not contact a parent or other member of the child’s family.

(2)The officer may, with the help that is reasonable in the circumstances, move the child to a safe place and make arrangements for the child’s care at the place.

(3)As soon as practicable after moving the child, the officer must—

(a)take reasonable steps to tell at least 1 of the child’s parents or a family member of the child’s whereabouts; and

(b)if the officer is a police officer—tell the chief executive the child has been moved to a safe place and where the child has been moved.

(4)The child may be cared for at the place under the arrangements until the child’s parents or family members resume or assume the child’s care.

(5)The moving of the child does not—

(a)prevent the child’s parents or family members resuming or assuming care of the child; or

(b)affect existing parental rights for the child.

24Purpose of pt 2part

(1)This part provides for the making of temporary assessment orders.

(2)A temporary assessment order is made to authorise actions necessary as part of an investigation to assess whether a child is a child in need of protection, if the consent of a parent of the child to the actions has not been able to be obtained or it is not practicable to take steps to obtain the parent’s consent.

25Making of application for order

(1)An authorised officer or police officer may apply to a magistrate for a temporary assessment order for a child.

(2)The officer must prepare a written application that states the following—

(a)the grounds on which it is made;

(b)the nature of the order sought;

(c)if taking the child into, or keeping the child in, the chief executive’s custody is sought—the proposed arrangements for the child’s care.

(3)The written application must be sworn.

(4)The magistrate may refuse to consider the application until the applicant gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application be given by statutory declaration.

26Deciding application

A magistrate may decide an application for a temporary assessment order without notifying the child’s parents of the application or hearing them on the application.

27Making of temporary assessment order

(1)The magistrate may make a temporary assessment order for the child only if the magistrate is satisfied—

(a)an investigation is necessary to assess whether the child is a child in need of protection; and

(b)the investigation can not be properly carried out unless the order is made.

(2)However, in deciding the application, the magistrate must also be satisfied reasonable steps have been taken to obtain appropriate parental consent to the doing of the things sought to be authorised under the order or it is not practicable to take steps to obtain the consent.

(3)In this section—

appropriate parental consent means—

(a)if the child does not have long-term guardians—the consent of at least 1 of the child’s parents; or

(b)if the child has long-term guardians—the consent of at least 1 of the long-term guardians.

28Provisions of temporary assessment order

(1)The magistrate may make a temporary assessment order for the child that provides for any 1 or more of the following the magistrate considers to be appropriate in the circumstances—

(a)authorising an authorised officer or police officer—

(i)to have contact with the child; and

(ii)if the magistrate is satisfied it is necessary to provide interim protection for the child while the investigation is carried out—to take the child into, or keep the child in, the chief executive’s custody while the order is in force;

(b)authorising the child’s medical examination or treatment;

Note—

Section 97 applies to the medical examination or treatment.

(c)directing a parent not to have contact (direct or indirect)—

(i)with the child; or

(ii)with the child other than when a stated person or a person of a stated category is present.

(2)In addition, the order may also authorise an authorised officer or police officer to enter and search any place the officer reasonably believes the child is, to find the child, if the magistrate is satisfied—

(a)entry to a place has been, or is likely to be, refused, or it is otherwise justified in particular circumstances, including, for example, because the child’s whereabouts are not known; and

(b)the entry is necessary for the effective enforcement of the order.

(3)On entering a place, an authorised officer or police officer may remain in the place for as long as the officer reasonably considers necessary for exercising the officer’s powers under this section.

(4)An authorised officer or police officer may exercise powers under the order with the help, and using the force, that is reasonable in the circumstances.

29Duration of temporary assessment orders

(1)A temporary assessment order must state the time when it ends.

(2)The stated time must not be more than 3 business days after the day the order is made.

(3)The order ends at the stated time unless it is extended.

(4)Regardless of subsections (1) to (3), the order ends when the child turns 18 years.

30Application by particular forms of communication and duplicate order

(1)An application under section 25 may be made by phone, fax, radio or another form of communication if the authorised officer or police officer reasonably considers it necessary because of—

(a)urgent circumstances; or

(b)other special circumstances (including, for example, the officer’s remote location).

(2)The application—

(a)may not be made before the officer prepares the written application under section 25(2); but

(b)may be made before the written application is sworn.

(3)The magistrate may make the order (the original order) only if the magistrate is satisfied—

(a)it was necessary to make the application under subsection (1); and

(b)the way the application was made under subsection (1) was appropriate.

(4)After the magistrate makes the original order—

(a)if there is a reasonably practicable way of immediately giving a copy of the order to the officer (for example, by sending a copy by fax), the magistrate must immediately give a copy of the order to the officer; or

(b)otherwise—

(i)the magistrate must tell the officer the date and time the order was made and the other terms of the order; and

(ii)the officer must complete a form of the order, including by writing on it—

(A)the magistrate’s name; and

(B)the date and time the magistrate made the order; and

(C)the other terms of the order.

(5)The copy of the order mentioned in subsection (4)(a), or the form of the order completed under subsection (4)(b), (in either case the duplicate order) is a duplicate of, and as effectual as, the original order.

(6)The officer must, at the first reasonable opportunity, send to the magistrate—

(a)the written application complying with section 25(2) and (3); and

(b)if the officer completed a form of the order under subsection (4)(b)—the completed form of the order.

(7)The magistrate must keep the original order and, on receiving the documents under subsection (6)—

(a)attach the documents to the original order; and

(b)give the original order and documents to the clerk of the court of the relevant magistrates court.

(8)Despite subsection (7), if—

(a)an issue arises in a proceeding about whether an exercise of a power was authorised by an order made under this section; and

(b)the original order is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove an order authorised the exercise of the power.

31Order—procedure before entry

(1)This section applies if an authorised officer or police officer is intending to enter a place under an authority under a temporary assessment order.

(2)Before entering the place, the officer must do or make a reasonable attempt to do the following things—

(a)identify himself or herself to a person present at the place who is an occupier of the place;

(b)give the person—

(i)a copy of the order so far as it relates to the entry and searching of the place; or

(ii)if the entry and searching is authorised by a duplicate order under section 30(5), a copy of the duplicate order so far as it relates to the entry and searching of the place;

(c)tell the person the officer is permitted by the order to enter and search the place to find the child;

(d)give the person an opportunity to allow the officer immediate entry to the place without using force.

(3)For subsection (2)(a), an authorised officer must produce the officer’s identity card to the person for inspection.

Note—

For a police officer, see the Police Powers and Responsibilities Act 2000, section 637.

(4)However, the officer need not comply with subsection (2) if the officer reasonably believes that immediate entry to the place is required to ensure the effective exercise of powers under the order is not frustrated.

32Explanation of temporary assessment orders

(1)If the child does not have long-term guardians, then, immediately after a temporary assessment order is made for a child, the applicant for the order must—

(a)give a copy of the order, or duplicate order under section 30(5), to at least 1 of the child’s parents; and

(b)explain the terms and effect of the order; and

(c)inform the parent—

(i)about the right of appeal; and

(ii)that, because of the duration of the order, if the parent wishes to appeal against the order, an appeal should be started immediately; and

Note—

Under section 29, the duration of a temporary assessment order must be not more than 3 business days.

(iii)how to appeal; and

(d)tell the child about the order.

Note—

Section 195 deals with compliance with provisions about giving information.

(2)If the child has long-term guardians, then, immediately after a temporary assessment order is made for a child, the applicant for the order must—

(a)comply with subsection (1)(a) to (d) as if a reference to parents were a reference to long-term guardians; and

(b)comply, or make a reasonable attempt to comply, with subsection (1)(a) to (c).

(3)If, under subsection (2)(b), the applicant does not comply with subsection (1)(a) to (c) but makes a reasonable attempt to comply, the applicant must document full details about the actions taken by the applicant in making the attempt.

33Police officers to notify chief executive of certain orders

If a temporary assessment order is made on the application of a police officer, the officer must immediately give copies of the application and order to the chief executive.

34Extension of temporary assessment orders

(1)An authorised officer or police officer may apply to a magistrate for an order to extend the term of a temporary assessment order for a child.

(2)This part applies, with all necessary changes, to the application as if it were an application for a temporary assessment order.

(3)The magistrate may extend the temporary assessment order only if the magistrate is satisfied the order has not ended.

(4)The temporary assessment order may be extended until the end of the next business day after it would have otherwise ended if the magistrate is satisfied the officer intends to apply for a court assessment order or the litigation director intends to apply for a child protection order for the child within the extended term.

(5)Unless subsection (4) applies, the temporary assessment order may not be extended to a time ending more than 3 business days after the day it was made.

(6)A temporary assessment order may not be extended more than once under subsection (4).

35Variation of temporary assessment orders

(1)An authorised officer or police officer may apply to a magistrate for an order to vary a temporary assessment order for a child.

(2)This part applies, with all necessary changes, to the application as if it were an application for a temporary assessment order.

36Effect of temporary assessment order on existing child protection orders

If a temporary assessment order is made for a child for whom a child protection order is already in force, the temporary assessment order prevails to the extent of any inconsistency between the orders.

41Notice of application

(1)As soon as practicable after the application is filed, the applicant must do the following—

(a)if the child does not have long-term guardians—personally serve a copy of the application on each of the child’s parents;

(b)if the child has long-term guardians—

(i)personally serve a copy of the application on each of the long-term guardians; and

(ii)personally serve, or make a reasonable attempt to personally serve, a copy of the application on each of the child’s parents other than the long-term guardians;

(c)tell the child about the application.

Note—

Section 195 deals with compliance with provisions about giving information.

(2)If the applicant makes a reasonable attempt to personally serve, but does not personally serve, a copy of the application under subsection (1)(b)(ii), the applicant must document full details about the actions taken in making the attempt.

Example of how an applicant may make a reasonable attempt—

leaving a copy of the application at, or posting a copy of the application to, the parent’s last known residential address

(3)Also, if the applicant is a police officer, the applicant must immediately give a copy of the application to the chief executive.

(4)A copy of the application served under this section must state—

(a)when and where the application is to be heard; and

(b)for a copy served on a parent—that the application may be heard and decided even though the parent does not appear in court.

42Respondents to application

The child’s parents are respondents to the application.

43Hearing of application in absence of parents

(1)The Childrens Court may hear and decide the application in the absence of the child’s parents only if—

(a)the parents have been given reasonable notice of the hearing and fail to attend or continue to attend the hearing; or

(b)it is satisfied it was not practicable to give the parents notice of the hearing.

(2)Subsection (1) does not limit the jurisdiction of the court to exclude a person from a proceeding.

44Making of court assessment order

The Childrens Court may make a court assessment order only if the court is satisfied an investigation is necessary to assess whether the child is a child in need of protection and the investigation can not be properly carried out unless the order is made.

45Provisions of court assessment order

(1)The order may provide for any 1 or more of the following the court considers to be appropriate in the circumstances—

(a)authorising an authorised officer or police officer to have contact with the child;

(b)authorising the medical examination or treatment of the child;

(c)if the court is satisfied it is necessary to provide interim protection for the child while the investigation is carried out—

(i)granting temporary custody of the child to the chief executive; and

(ii)authorising an authorised officer or police officer to take the child into, or keep the child in, the chief executive’s custody while the order is in force;

(d)making provision about the child’s contact with the child’s family during the chief executive’s custody of the child;

(e)directing a parent not to have contact (direct or indirect)—

(i)with the child; or

(ii)with the child other than when a stated person or a person of a stated category is present.

(2)Before making an order under subsection (1)(d), the court must consider the views of the chief executive about the child’s contact with the child’s family, including—

(a)whether any contact with the child should be supervised; and

(b)the duration and frequency of any contact with the child.

(3)In addition, the order may also authorise an authorised officer or police officer to enter and search any place the officer reasonably believes the child is, to find the child, if the court is satisfied—

(a)entry to a place has been, or is likely to be, refused, or it is otherwise justified in particular circumstances, including, for example, because the child’s whereabouts are not known; and

(b)the entry is necessary for the effective enforcement of the order.

(4)On entering a place, an authorised officer or police officer may remain in the place for as long as the officer considers necessary for exercising the officer’s powers under this section.

(5)An authorised officer or police officer may exercise the officer’s powers under the order with the help, and using the force, that is reasonable in the circumstances.

46Order—procedure before entry

(1)This section applies if an authorised officer or police officer is intending to enter a place under an authority under a court assessment order.

(2)Before entering the place, the officer must do or make a reasonable attempt to do the following things—

(a)identify himself or herself to a person present at the place who is an occupier of the place;

(b)give the person a copy of the order so far as it relates to the entry and searching of the place;

(c)tell the person the officer is permitted by the order to enter and search the place to find the child;

(d)give the person an opportunity to allow the officer immediate entry to the place without using force.

(3)For subsection (2)(a), an authorised officer must produce the officer’s identity card to the person for inspection.

Note—

For a police officer, see the Police Powers and Responsibilities Act 2000, section 637.

(4)However, the officer need not comply with subsection (2) if the officer reasonably believes that immediate entry to the place is required to ensure the effective exercise of powers under the order is not frustrated.

47Duration of court assessment orders

(1)A court assessment order for a child must state the time when it ends.

(2)The stated time must not be more than 4 weeks after the day the hearing of the application for the order is first brought before the court.

Note—

Under section 40section 39, the registrar fixes the time and place for hearing the application.

(3)The order ends at the stated time unless it is extended or earlier revoked.

(4)Regardless of subsections (1) to (3), the order ends when the child turns 18 years.

48Chief executive’s obligations after making of court assessment order

As soon as practicable after a court assessment order for a child is made, the chief executive must give to the parties to the application for the order—

(a)a copy of the order; and

(b)a written notice—

(i)explaining the terms and effect of the order; and

(ii)stating that a party may appeal against the decision to make the order within 28 days after the order is made; and

(iii)stating how to appeal.

49Extension of court assessment orders

(1)An authorised officer may apply to the Childrens Court for an order to extend the term of a court assessment order for not more than 4 weeks.

(2)This part applies, with all necessary changes, to the application as if it were an application for a court assessment order.

(3)The court may extend the term of the order only if the court is satisfied—

(a)the order has not ended; and

(b)the extension is in the child’s best interests.

(4)A court assessment order may not be extended more than once.

50Variation and revocation of court assessment orders

(1)An authorised officer may apply to the Childrens Court for an order to vary or revoke a court assessment order.

(2)This part applies, with all necessary changes, to the application as if it were an application for a court assessment order.

(3)Without limiting the things to which the court may have regard in deciding the application, the court may have regard to a contravention of the court assessment order or this Act.

51Effect of court assessment order on existing child protection orders

If a court assessment order is made for a child for whom a child protection order is already in force, the court assessment order prevails to the extent of any inconsistency between the orders.

51ABPurpose of part

(1)This part provides for the making of temporary custody orders.

(2)The purpose of a temporary custody order is to authorise the action necessary to ensure the immediate safety of a child—

(a)if the chief executive has referred a child protection matter relating to the child to the litigation director under the Director of Child Protection Litigation Act 2016, section 15—while the chief executive works with the litigation director under section 53A; or

(b)otherwise—while the chief executive decides the most appropriate action to meet the child’s ongoing protection and care needs (for example, applying for a child protection order).

51ACMaking of application for order

(1)An authorised officer may apply to a magistrate for a temporary custody order for a child.

(2)The officer must prepare a written application that states the following—

(a)the grounds on which it is made;

(b)the nature of the order sought;

(c)the proposed arrangements for the child’s care.

(3)The written application must be sworn.

(4)The magistrate may refuse to consider the application until the officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application be given by statutory declaration.

51ADDeciding application

A magistrate may decide an application for a temporary custody order without notifying the child’s parents of the application or hearing them on the application.

51AEMaking of temporary custody order

The magistrate may make a temporary custody order for the child only if the magistrate is satisfied—

(a)the child will be at unacceptable risk of suffering harm if the order is not made; and

(b)the following person will be able, within the term of the temporary custody order, to decide the most appropriate action to meet the child’s ongoing protection and care needs and start taking that action—

(i)if the chief executive has not referred a child protection matter relating to the child to the litigation director under the Director of Child Protection Litigation Act 2016, section 15—the chief executive;

(ii)otherwise—the litigation director.

51AFProvisions of temporary custody order

(1)The magistrate may make a temporary custody order for the child that provides for any 1 or more of the following the magistrate considers to be appropriate in the circumstances—

(a)authorising an authorised officer or police officer—

(i)to have contact with the child; and

(ii)to take the child into, or keep the child in, the chief executive’s custody while the order is in force;

(b)authorising the child’s medical examination or treatment;

Note—

Section 97 applies to the medical examination or treatment.

(c)directing a parent not to have contact (direct or indirect)—

(i)with the child; or

(ii)with the child other than when a stated person or a person of a stated category is present.

(2)In addition, the order may authorise an authorised officer or police officer to enter and search any place the officer reasonably believes the child is, to find the child, if the magistrate is satisfied—

(a)entry to a place has been, or is likely to be, refused, or it is otherwise justified in particular circumstances, including, for example, because the child’s whereabouts are not known; and

(b)the entry is necessary for the effective enforcement of the order.

(3)On entering a place, an authorised officer or police officer may remain in the place for as long as the officer reasonably considers necessary for exercising the officer’s powers under this section.

(4)An authorised officer or police officer may exercise powers under the order with the help, and using the force, that is reasonable in the circumstances.

51AGDuration of temporary custody orders

(1)A temporary custody order must state the time when it ends.

(2)The stated time must not be more than 3 business days after the day the order is made.

(3)The order ends at the stated time unless it is extended.

(4)Regardless of subsections (1) to (3), the order ends when the child turns 18 years.

51AHExtension of temporary custody orders

(1)An authorised officer may apply to a magistrate for an order to extend the term of a temporary custody order for a child.

(2)This part applies, with all necessary changes, to the application as if it were an application for a temporary custody order.

(3)The magistrate may extend the temporary custody order only if the magistrate is satisfied the order has not ended.

(4)The temporary custody order may be extended until the end of the next business day after it would otherwise have ended if the magistrate is satisfied the litigation director intends to apply for a child protection order for the child within the extended term.

(5)Unless subsection (4) applies, the temporary custody order may not be extended to a time ending more than 3 business days after the day it was made.

(6)A temporary custody order may not be extended more than once under subsection (4).

51AIApplication by particular forms of communication and duplicate order

(1)An application under section 51AC may be made by phone, fax, radio or another form of communication if the authorised officer reasonably considers it necessary because of—

(a)urgent circumstances; or

(b)other special circumstances (including, for example, the officer’s remote location).

(2)The application—

(a)may not be made before the officer prepares the written application under section 51AC(2); but

(b)may be made before the written application is sworn.

(3)The magistrate may make the order (the original order) only if the magistrate is satisfied—

(a)it was necessary to make the application under subsection (1); and

(b)the way the application was made under subsection (1) was appropriate.

(4)After the magistrate makes the original order—

(a)if there is a reasonably practicable way of immediately giving a copy of the order to the officer (for example, by sending a copy by fax), the magistrate must immediately give a copy of the order to the officer; or

(b)otherwise—

(i)the magistrate must tell the officer the date and time the order was made and the other terms of the order; and

(ii)the officer must complete a form of the order, including by writing on it—

(A)the magistrate’s name; and

(B)the date and time the magistrate made the order; and

(C)the other terms of the order.

(5)The copy of the order mentioned in subsection (4)(a), or the form of the order completed under subsection (4)(b), (in either case the duplicate order) is a duplicate of, and as effectual as, the original order.

(6)The officer must, at the first reasonable opportunity, send to the magistrate—

(a)the written application complying with section 51AC(2) and (3); and

(b)if the officer completed a form of the order under subsection (4)(b)—the completed form of the order.

(7)The magistrate must keep the original order and, on receiving the documents under subsection (6)—

(a)attach the documents to the original order; and

(b)give the original order and documents to the clerk of the court of the relevant magistrates court.

(8)Despite subsection (7), if—

(a)an issue arises in a proceeding about whether an exercise of a power was authorised by an order made under this section; and

(b)the original order is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove an order authorised the exercise of the power.

51AJOrder—procedure before entry

(1)This section applies if an authorised officer or police officer is intending to enter a place under an authority under a temporary custody order.

(2)Before entering the place, the officer must do or make a reasonable attempt to do the following things—

(a)identify himself or herself to a person present at the place who is an occupier of the place;

(b)give the person—

(i)a copy of the order so far as it relates to the entry and searching of the place; or

(ii)if the entry and searching is authorised by a duplicate order under section 51AI(5), a copy of the duplicate order so far as it relates to the entry and searching of the place;

(c)tell the person the officer is permitted by the order to enter and search the place to find the child;

(d)give the person an opportunity to allow the officer immediate entry to the place without using force.

(3)For subsection (2)(a), an authorised officer must produce the officer’s identity card to the person for inspection.

Note—

For a police officer, see the Police Powers and Responsibilities Act 2000, section 637.

(4)However, the officer need not comply with subsection (2) if the officer reasonably believes that immediate entry to the place is required to ensure the effective exercise of powers under the order is not frustrated.

51AKExplanation of temporary custody orders

(1)This section applies if a temporary custody order is made for a child.

(2)If the child does not have long-term guardians, the applicant for the order must immediately—

(a)provide at least 1 of the child’s parents with—

(i)a copy of the order or the duplicate order under section 51AI(5); and

(ii)an explanation of the terms and effect of the order; and

(iii)information—

(A)about the right of appeal; and

(B)that, because of the duration of the order, if the parent wishes to appeal against the order, an appeal should be started immediately; and

(C)about how to appeal; and

(b)tell the child about the order.

Note—

Section 195 deals with compliance with provisions about giving information.

(3)If the child has long-term guardians, the applicant for the order must immediately—

(a)comply with subsection (2)(a) as if a reference to parents were a reference to long-term guardians; and

(b)comply, or make a reasonable attempt to comply, with subsection (2)(a) in relation to the child’s parents other than the long-term guardians; and

(c)comply with subsection (2)(b).

(4)If, under subsection (3)(b), the applicant does not comply with subsection (2)(a) in relation to the child’s parents other than the long-term guardians, but makes a reasonable attempt to comply, the applicant must document full details about the actions taken by the applicant in making the attempt.

51ALVariation of temporary custody orders

(1)An authorised officer may apply to a magistrate for an order to vary a temporary custody order for a child.

(2)This part applies, with all necessary changes, to the application as if it were an application for a temporary custody order.

51AMEffect of temporary custody order on existing child protection orders

(1)This section applies if a temporary custody order is made for a child for whom a child protection order is already in force.

(2)The child protection order, so far as it relates to the child’s custody or guardianship, ceases to have effect while the chief executive’s custody of the child continues under the temporary custody order.

51AWhat is case planning

Case planning is the process of developing a case plan for a child and then regularly reviewing it.

51BWhat is a case plan

(1)A case plan for a child is a written plan for meeting the child’s protection and care needs.

(2)A case plan must include the following matters—

(a)the goal for best achieving permanency for the child and the actions to be taken to achieve the goal;

(b)if returning the child to the care of a parent of the child is the goal for best achieving permanency for the child—an alternative goal in the event that the timely return of the child to the care of the parent is not possible;

(c)for an Aboriginal or Torres Strait Islander child—details about how the case plan is consistent with the connection principle stated in section 5C(2)(e).

Note—

See section 6AAsection 5F(5) for requirements about how the chief executive or an authorised officer must perform functions under this Act involving an Aboriginal or Torres Strait Islander person.

(3)Also, a case plan must include actions for helping the child transition to independence if—

(a)the child is 15 years or more; and

(b)the child does not have a long-term guardian.

(4)A case plan may also include any of the following matters—

(a)any other goals to be achieved by implementing the plan;

(b)arrangements about where or with whom the child will live, including interim arrangements;

(c)services to be provided to meet the child’s protection and care needs and promote the child’s future wellbeing;

(d)matters for which the chief executive will be responsible, including particular support or services;

(e)the child’s contact with the child’s family group or other persons with whom the child is connected;

(f)arrangements for maintaining the child’s ethnic and cultural identity;

(g)matters for which a parent or carer will be responsible;

(h)a proposed review day for the plan.

51CChildren for whom case plans are required

The chief executive must ensure a case plan is developed for each child who the chief executive is satisfied—

(a)is a child in need of protection; and

(b)needs ongoing help under this Act.

Notes—

1Ongoing help under this Act may be, for example—

•giving support services to the child and his or her family

•arranging for the child to be placed in care under a care agreement

•seeking a child protection order for the child.

2A case plan may not be required for a particular child because another entity is working to address the child’s protection and care needs and, as part of the work, is undertaking case planning with the child and the child’s family.

51DHow case planning must be carried out

(1)The chief executive must ensure case planning for a child is carried out in a way—

(a)that enables timely decision-making; and

(b)that is consistent with the principles for administering this Act; and

(c)that encourages and facilitates the participation of—

(i)the child; and

(ii)the child’s parents; and

(iii)other appropriate members of the child’s family group; and

(iv)for an Aboriginal or Torres Strait Islander child—Aboriginal or Torres Strait Islander agencies and persons; and

Note—

See section 6AAsection 5F(5) for requirements about how the chief executive, the litigation director or an authorised officer must perform functions under this Act involving an Aboriginal or Torres Strait Islander person.

(v)other appropriate persons; and

(d)that facilitates input from other appropriate entities; and

Example of input from another entity—

information given by a local health agency about services available to a family

(e)that enables the persons involved to understand it.

Examples for paragraph (e)—

1The chief executive should explain the case planning process to a child using language appropriate to the child’s age, language skills and circumstances.

2The chief executive should tell a child’s parents about child protection concerns, and explain steps in the case planning process to them, in a way that helps them to understand, ask questions and participate in any discussion. For a parent from a non-English speaking background, this may involve the use of an interpreter.

(2)The chief executive must give participants in case planning the information they reasonably need to participate effectively.

(3)The information must be given to the participants in a timely way to facilitate their effective participation.

51GPurposes

The purposes of family group meetings are—

(a)to provide family-based responses to children’s protection and care needs; and

(b)to ensure an inclusive process for planning and making decisions relating to children’s wellbeing and protection and care needs.

51HConvening a meeting

(1)The chief executive must convene a family group meeting, or have a private convenor convene a family group meeting, to develop a case plan for a child.

(2)A family group meeting convened to develop a case plan is a case planning meeting.

(3)The chief executive may also convene a family group meeting or have a private convenor convene a family group meeting—

(a)to review a case plan under division 5 and prepare a revised case plan; or

(b)to consider, make recommendations about, or otherwise deal with, another matter relating to the child’s wellbeing and protection and care needs.

(4)Also, under section 68, the Childrens Court may order that a family group meeting be convened.

51IPrivate convenors

(1)A private convenor is a person, other than the chief executive or a delegate or other representative of the chief executive, who convenes a family group meeting under this part by arrangement with the chief executive.

(2)The chief executive may have a person convene a family group meeting as a private convenor only if the chief executive is satisfied the person is appropriately qualified.

(3)If the chief executive has a private convenor convene a family group meeting, the chief executive must ensure the private convenor complies with this part in relation to the meeting.

(4)For section 197(3), definition official, a private convenor is a person acting under the direction of the chief executive.

51JFunction

(1)The function of a family group meeting is to deal with the matters, relating to a child’s protection and care needs or wellbeing, for which the meeting was convened.

(2)For a case planning meeting, this includes—

(a)considering the child’s protection and care needs; and

(b)agreeing on a plan to meet those needs and promote the child’s wellbeing.

51KApplication of div 3

This division applies to a case planning meeting.

51LWho should be involved

(1)The convenor must give the following persons a reasonable opportunity to attend and participate in the meeting—

(a)the child, unless it would be inappropriate because of the child’s age or ability to understand;

(b)the child’s parents;

(c)other members of the child’s family group who the convenor considers likely to make a useful contribution to the plan’s development at the meeting;

(d)other persons with whom the child has a significant relationship;

Example—

An approved carer may be someone with whom the child has a significant relationship.

(e)any legal representative of the child;

(f)if the child is an Aboriginal or Torres Strait Islander child—an independent Aboriginal or Torres Strait Islander entity for the child;

(g)the public guardian;

(h)anyone else who the convenor considers likely to make a useful contribution to the plan’s development at the meeting;

(i)if the convenor is a private convenor—the chief executive;

(j)on the request of the chief executive—the litigation director.

(2)The convenor must also allow the child or a parent of the child to have someone attend and participate in the meeting to give help or support to the child or parent.

Examples—

•a youth worker

•an Aboriginal or Torres Strait Islander elder

•a representative within the child’s cultural community

•a legal representative

(3)To remove any doubt, it is declared that a requirement to allow a person to attend or participate in the meeting under subsection (1)(a) to (e), (1)(g) to (j) or (2) applies whether or not the child’s parents agree to the person’s attendance or participation.

(4)The convenor is not required to allow a particular person to attend or participate in the meeting under subsection (1)(b) to (d), (1)(f) or (2) if the convenor is satisfied that person’s attendance or participation would be contrary to the purposes of the meeting or not in the child’s best interests.

(5)Also, the convenor is not required to allow an independent Aboriginal or Torres Strait Islander entity for the child to attend or participate in the meeting, under subsection (1)(f), if—

(a)the entity’s attendance or participation is likely to have a significant adverse effect on the child’s or another person’s safety or psychological or emotional wellbeing; or

(b)the child or the child’s family does not consent to the entity’s attendance or participation.

(b)section 5H applies in relation to the entity’s attendance or participation.

51MPreparing for the meeting

(1)Before holding the meeting, the convenor must inform the invitees—

(a)that the chief executive considers the child is a child in need of protection; and

(b)the assessed risks to the child and the child’s assessed needs; and

(c)details of the proposed meeting, including—

(i)the proposed day, time and venue for the meeting; and

(ii)the purpose and functions of the meeting; and

(iii)particular issues to be addressed at the meeting; and

(iv)the opportunities for attendees to identify issues or deal with particular issues.

(2)In this section—

invitee means a person mentioned in section 51L(1) other than a person mentioned in section 51L(4).

51NObtaining the views of persons not attending

The convenor must take reasonable steps to ascertain before the meeting, and make known at the meeting, the views relevant to the meeting of the following persons and entities—

(a)the child, if the child’s views may reasonably be ascertained and the convenor does not expect the child to be attending;

(b)another person mentioned in section 51L(1) who notifies the convenor that he or she will not be attending;

(c)a member of the child’s family group who, under section 51L(4), has not been invited to the meeting but whose views, in the convenor’s opinion, should be obtained;

(d)a relevant prescribed entity or service provider.

51ORecording the case plan developed at the meeting

If a case plan is developed at the meeting, the convenor must record the plan in the approved form and, if the convenor is a private convenor, give it to the chief executive.

51PDevelopment of plan at more than 1 meeting

A case plan may be developed at more than 1 meeting under this division.

51QDealing with a case plan developed at a meeting

Within 10 business days after a case plan is developed at a case planning meeting, the chief executive must endorse the plan unless section 51R applies.

51RDealing with an inappropriate plan

(1)This section applies if the chief executive is satisfied a case plan developed at a case planning meeting, or something in the plan, is clearly impracticable or not in the child’s best interests.

(2)The chief executive may—

(a)reconvene, or have a private convenor reconvene, the case planning meeting under division 3 to develop an amended case plan; or

(b)convene, or have a private convenor convene, another case planning meeting under division 3 to develop an amended case plan; or

(c)amend the case plan and endorse the amended plan.

(3)The chief executive may amend the case plan under subsection (2)(c)—

(a)only to the extent necessary to ensure the plan is practicable and in the child’s best interests; and

(b)only within 7 days after the case planning meeting at which it was developed; and

(c)if the meeting was convened by a private convenor, only after consulting with the private convenor.

(4)If the chief executive amends the case plan under subsection (2)(c), the chief executive must give written notice of the amendment, and the reasons for the amendment, to each person who was at the meeting at which the plan was developed.

51SPreparing the plan if not developed at a meeting

(1)This section applies if a case plan is not developed at the case planning meeting or meetings held under division 3.

(2)This section also applies if it has not been possible for the chief executive to convene a family group meeting, or have a private convenor convene a family group meeting, under section 51H(1).

(3)The chief executive must—

(a)take reasonable steps to obtain the views of any of the following persons and entities whose views have not yet been obtained—

(i)the child, if the child’s views may reasonably be ascertained;

(ii)another person mentioned in section 51L(1);

(iii)another member of the child’s family group whose views, in the chief executive’s opinion, should be obtained;

(iv)a relevant prescribed entity or service provider; and

(b)having regard to the views (if any), prepare a case plan, in the approved form, that the chief executive is satisfied best meets the child’s protection and care needs and endorse the plan.

(4)If the meeting mentioned in subsection (1) was convened under a court order under section 68(1)(d)(i), the chief executive must file the plan prepared under this section in the court.

51TDistributing and implementing the plan

After a case plan has been recorded in the approved form and endorsed, the chief executive must—

(a)give a copy of the plan to the child, unless that would be inappropriate having regard to the child’s age and ability to understand; and

(b)explain the plan to the child in a way, and to an extent, that is reasonable, having regard to the child’s age and ability to understand; and

(c)give a copy of the plan to—

(i)the child’s parents; and

(ii)anyone else affected by the plan or who the chief executive considers should receive a copy; and

Examples of persons who may be given a copy—

•an approved carer

•an elder or other respected person of the child’s community

(d)support the implementation of the plan.

Example of supporting the implementation of the plan—

The chief executive may provide, or arrange for another entity to provide, a service to the child’s family.

51UApplication of div 5

This division applies to a child for whom a case plan has been developed, while—

(a)a child protection order is in force for the child; or

(b)the child otherwise remains a child mentioned in section 51C.

51VReview of plan—no long-term guardian

(1)This section applies if the child does not have a long-term guardian.

(2)The chief executive must regularly review the case plan.

(3)In deciding when, or how often, to review the plan, the chief executive must have regard to—

(a)the child’s age and circumstances; and

(b)the nature of the arrangements in place under the plan; and

(c)any problems or potential problems with the plan, or ways the plan might be improved, of which the chief executive is aware; and

(d)if a child protection order for the child is in force—the duration of the order.

(4)In any case, the review must happen at least every 6 months.

(5)Without limiting subsections (2) to (4), the child may, at any time, ask the chief executive to review the child’s case plan.

(6)On a request under subsection (5), the chief executive may decide not to review the plan if satisfied—

(a)the child’s circumstances have not changed significantly since the plan was finalised or, if it has been reviewed, since the most recent review; or

(b)for another reason, it would not be appropriate in all the circumstances.

(7)If, on a request under subsection (5), the chief executive decides not to review the case plan, the chief executive must give written notice of the decision to the child.

(8)The notice mentioned in subsection (7) must comply with the QCAT Act, section 157(2).

(59)Subsection (6)Subsection (10) applies to the review of a case plan for a child in care if—

(a)the case plan does not include actions for helping the child transition from care to independence; and

(b)the child has turned 15 since the making, or last review, of the case plan.

(610)The review must include developing appropriate actions for helping the child transition to independence.

(711)After reviewing the plan, the chief executive must prepare—

(a)a report about the review under section 51X; and

(b)a revised case plan.

51VAReview of plan—long-term guardian

(1)This section applies if the child has a long-term guardian.

(2)The chief executive must contact the child at least once every 12 months to give the child an opportunity to make comments or queries about, or ask for a review of, the child’s case plan.

(3)The long-term guardian must allow the chief executive to have contact with the child at least once every 12 months.

(4)At any time, the child or the long-term guardian may ask the chief executive to review the case plan.

(5)Also, at any time, a parent of the child may ask the chief executive to review the case plan if the plan has not been reviewed in the previous 12 months.

(6)On a request under subsection (4) or (5)—

(a)the chief executive may decide not to review the plan if satisfied—

(i)the child’s circumstances have not changed significantly since the plan was finalised or, if it has been reviewed, since the most recent review; or

(ii)for another reason, it would not be appropriate in all the circumstances; or

(b)otherwise, the chief executive must review the plan and prepare—

(i)a report about the review under section 51X; and

(ii)a revised case plan.

(7)If, on a request under subsection (4) or (5), the chief executive decides not to review the case plan, the chief executive must give written notice of the decision to—

(a)the person who made the request; and

(b)if it was the child who made the request—the long-term guardian.

(8)The notice mentioned in subsection (7) must comply with the QCAT Act, section 157(2).

51VB Review of plan—permanent guardian

(1)This section applies if the child has a permanent guardian.

(2)The permanent guardian or the child may, at any time, ask the chief executive to review the child’s case plan.

(3)On a request under subsection (2)—

(a)the chief executive may decide not to review the plan if satisfied—

(i)the child’s circumstances have not changed significantly since the plan was finalised or, if it has been reviewed, since the most recent review; or

(ii)for another reason, it would not be appropriate in all the circumstances; or

(b)otherwise, the chief executive must review the plan and prepare—

(i)a report about the review under section 51X; and

(ii)a revised case plan.

(4)If, on a request under subsection (2), the chief executive decides not to review the case plan, the chief executive must give written notice of the decision to—

(a)the person who made the request; and

(b)if it was the child who made the request—the permanent guardian.

(5)The notice mentioned in subsection (4) must comply with section 157(2) of the QCAT Act.

51WWho may participate

(1)The chief executive must give the following persons a reasonable opportunity to participate in the review and preparation of the revised case plan—

(a)the child, unless it would be inappropriate because of the child’s age or ability to understand;

(b)the child’s parents;

(c)other members of the child’s family group who the chief executive considers are likely to make a useful contribution;

(d)other persons with whom the child has a significant relationship;

Example—

An approved carer may be someone with whom the child has a significant relationship.

(e)any legal representative of the child;

(f)if the child is an Aboriginal or Torres Strait Islander child—an independent Aboriginal or Torres Strait Islander entity, or member of an independent Aboriginal or Torres Strait Islander entity, for the child;

(g)the public guardian;

(h)a relevant prescribed entity or service provider;

(i)anyone else who the chief executive considers is likely to make a useful contribution to the review.

(2)To enable the participation, the chief executive may convene a family group meeting or have a private convenor convene a family group meeting.

(3)If a family group meeting or other meeting is convened for the purpose of the review and the child or a parent of the child attends, the convenor must allow the child or parent to have someone attend and participate in the meeting to give help or support to the child or parent.

(4)To remove any doubt, it is declared that a requirement to allow a person to attend or participate in a meeting under this section, or otherwise participate in the review, applies whether or not the child’s parents agree to the person’s attendance or participation.

(5)The convenor of a meeting under this section is not required to allow a particular person to attend or participate in the meeting, under subsection (1)(b) to (d), (1)(f) or (3), if the convenor is satisfied that person’s attendance or participation would be contrary to the purposes of the meeting or not in the child’s best interests.

(6)Also, the convenor of a meeting under this section is not required to allow an independent Aboriginal or Torres Strait Islander entity for the child, or a member of the entity, to attend or participate in the meeting, under subsection (1)(f), if—

(a)the entity’s or member’s attendance or participation is likely to have a significant adverse effect on the child’s or another person’s safety or psychological or emotional wellbeing; or

(b)the child or the child’s parents do not consent to the entity’s or member’s attendance or participation.

(b)section 5H applies in relation to the entity’s attendance or participation.

51XReport about the review

(1)The report about the review must include the following matters—

(a)the goals, including the goal for best achieving permanency for the child, in the previous case plan that have been achieved or are yet to be achieved;

(b)any changes to the goals in the revised case plan;

(c)any services provided to the child under the previous case plan or the revised case plan;

(d)the extent to which the living arrangements and contact arrangements under the previous case plan have been meeting the child’s needs;

(e)if the case plan includes actions for helping the child transition to independence—the extent to which the actions continue to meet the child’s needs;

(f)who participated in the review and how they participated, including whether a family group meeting was held and who attended.;

(g)if section 51VAA applies in relation to the review and the review considered the matter mentioned in section 51VAA(4)—the review’s findings in relation to the matter.

(2)The report must also address how the revised case plan gives priority to permanency for the child.

(3)For subsection (2), if the child is placed in the care of someone other than a parent of the child under a child protection order granting custody or short-term guardianship of the child, the report must state—

(a)the risks and benefits of returning the child to the care of a parent; and

(b)whether there is a real risk that permanency for the child will not be best achieved by returning the child to the care of a parent within a timeframe appropriate to the child’s age and circumstances; and

(c)if there is a real risk mentioned in paragraph (b), the progress made in planning for alternative long-term arrangements for the child, for example—

(i)arrangements for the child to live with a member of the child’s family under a child protection order granting long-term guardianship of the child; or

(ii)arrangements for the child to live with a member of the child’s family or another suitable person under a permanent care order; or

(iii)for a young child—arrangements for the child’s adoption under the Adoption Act 2009; or

(iv)for an older child—arrangements for the child’s transition to independent living.

(4)For subsection (2), if the child is placed in the care of the chief executive under a child protection order granting long-term guardianship of the child, the report must state the progress made in planning for alternative long-term arrangements for the child, including, for example—

(a)arrangements for the child to live with a member of the child’s family or another suitable person under a child protection order granting long-term guardianship of the child; or

(b)arrangements for the child to live with a member of the child’s family or another suitable person under a permanent care order; or

(c)arrangements for the child’s adoption under the Adoption Act 2009.

Editor’s note—

Section 51X incorporates an uncommenced amendment—see 2021 Act No. 6s 10.

51YDistributing and implementing the revised case plan

(1)This section applies after the chief executive has prepared the revised case plan.

(2)The chief executive must—

(a)give a copy of the plan to the child, unless that would be inappropriate having regard to the child’s age and ability to understand; and

(b)explain any changes in the plan to the child in a way, and to an extent, that is reasonable, having regard to the child’s age and ability to understand; and

(c)give a copy to the child’s parents and anyone else affected by the plan or who the chief executive considers should receive a copy; and

(d)support the implementation of the plan.

51YAEvidence relating to family group meetings

(1)Evidence of anything said or done at a family group meeting is inadmissible in a criminal proceeding before a court other than—

(a)with the consent of all persons participating in the family group meeting; or

(b)in a proceeding for an offence committed during the family group meeting.

(2)In a child protection proceeding, a person must not be taken to have admitted anything alleged about the person only because the person attended or participated in a family group meeting.

(3)However, if a person attends or participates in a family group meeting, subsection (2) does not affect the admissibility, in a child protection proceeding, of evidence of anything the person says or does at the meeting.

51YBEvidence relating to case plans

(1)Evidence of anything recorded in a case plan is inadmissible in a criminal proceeding before a court other than with the consent of all persons mentioned in the case plan.

(2)In a child protection proceeding, a person must not be taken to have admitted anything alleged about the person only because the person participated in the development of, or agreed to, a case plan.

51ZApplication of pt 3B

This part applies to a child if—

(a)there is no assessment order in force granting custody of the child to the chief executive and the chief executive—

(i)reasonably suspects the child is a child in need of protection and considers an investigation is necessary to assess the child’s need of protection; and

(ii)is satisfied it is necessary to provide interim protection for the child while the investigation is carried out; or

(b)there is no child protection order in force granting custody or guardianship of the child to anyone and the chief executive is satisfied the child—

(i)is a child in need of protection; and

(ii)needs ongoing help under this Act.

51ZAWhat is intervention

The intervention for the child is the action taken by the chief executive to give the help, including ongoing help, that the child needs.

Examples—

•giving support services to the child and his or her family

•arranging for the child to be placed in care under a care agreement

51ZBConsidering intervention with agreement

(1)The chief executive must give proper consideration to intervening with the parents’ agreement if—

(a)the child’s views and wishes, if able to be ascertained, have been considered; and

(b)for a child to whom section 51Z(a) applies, the chief executive is satisfied the child’s parents are able and willing to work with the chief executive to meet the child’s interim protection needs while the investigation is carried out; and

(c)for a child to whom section 51Z(b) applies, the chief executive is satisfied—

(i)the child’s parents are able and willing to work with the chief executive to meet the child’s protection and care needs; and

(ii)it is likely that, by the end of the proposed intervention, the child’s parents will be able to meet the child’s protection and care needs.

(2)However, subsection (1) does not apply if the chief executive reasonably believes it is likely that, if the child’s parents withdraw their agreement to the intervention for the child, the child will be at immediate risk of harm.

51ZCWorking with the child and parents

(1)If the chief executive decides to intervene with the parents’ agreement, the chief executive must—

(a)encourage and facilitate the participation of the child and child’s parents in—

(i)decisions about the most appropriate intervention for the child; and

(ii)the carrying out of the intervention; and

(b)encourage and facilitate the parents’ continuing involvement, during the intervention, with the child’s life and care.

(2)The case plan for the child must include details about what is expected of the child’s parents and the chief executive to achieve the goals under the case plan.

51ZDWhat is a care agreement

(1)A care agreement is an agreement between the chief executive and the child’s parents for the short-term placement of the child in the care of someone other than the parents.

Note—

Section 82 deals with the persons in whose care the child may be placed under a care agreement.

(2)A care agreement entered into for a child to whom section 51Z(a) applies is an assessment care agreement.

(3)A care agreement entered into for a child to whom section 51Z(b) applies is a child protection care agreement.

51ZEEntering an agreement

(1)The chief executive may enter into a care agreement for the child if satisfied—

(a)it would be in the child’s best interests to be temporarily placed in the care of someone other than the child’s parents; and

(b)it is not likely that, if the parents end the agreement, the child will be at immediate risk of harm.

(2)The chief executive must obtain and have regard to the child’s views before entering into the care agreement, unless the child is unable to form and express views, taking into account the child’s age and ability to understand.

(3)The child may also be a party to the care agreement.

(4)Despite section 51ZD(1), the chief executive may enter into an assessment care agreement with only 1 of the child’s parents if—

(a)it is impractical to obtain the consent of the other parent to the agreement before entering into the agreement; or

(b)the chief executive has made a reasonable attempt to obtain the consent of the other parent before entering into the agreement.

(5)If the chief executive has not obtained the consent of the other parent before entering into an assessment care agreement under subsection (4), the chief executive must make a reasonable attempt to give a copy of the agreement to the other parent, and obtain the other parent’s consent, after the agreement has been entered into.

Note—

See section 51ZI(2) for how the other parent may end the agreement.

(6)The chief executive may not enter into an assessment care agreement with only 1 of the child’s parents if another parent refuses to enter into the agreement.

51ZFRequirements of an agreement

(1)A care agreement must be in the approved form, signed by the parties.

(2)A care agreement must state the following—

(a)the name of the person in whose care the child is to be placed;

(b)the period of the agreement;

(c)where the child will be living;

(d)arrangements for contact between the child and his or her parents;

(e)the type of decisions relating to the child for which the parents must be consulted.

51ZGEffect of particular agreement

While a child protection care agreement is in force for the child, the chief executive has custody of the child.

51ZHPeriod of an agreement

(1)Subject to this division, a care agreement has effect for the period stated in it.

(2)The period of an assessment care agreement must not be more than 30 days.

(3)An assessment care agreement may not be extended.

(4)When a child protection care agreement is entered into, the initial period of operation stated in it must not be more than 30 days.

(5)A child protection care agreement must not be made if the total of the following periods would be more than 6 months—

(a)the initial period of the proposed agreement;

(b)the period for which any other child protection care agreement was in force for the child within the previous 12 months.

(6)Before a child protection care agreement ends, it may be extended by agreement of the parties.

(7)A child protection care agreement may be extended more than once.

(8)A child protection care agreement must not be extended if the total of the following periods would be more than 6 months—

(a)the period for which the agreement has been in force;

(b)the period of the proposed extension;

(c)the period for which any other child protection care agreement was in force for the child within the 12 months before the extension.

(9)The chief executive must not agree to an extension unless—

(a)a case plan is in force for the child; and

(b)the chief executive is satisfied the extension would be in the child’s best interests, having regard to the progress made under the case plan and the child’s developmental needs.

51ZIEnding an agreement

(1)A party to a care agreement may end the agreement at any time by giving at least 2 days notice to the other parties.

(2)If a care agreement is entered into with only 1 of the child’s parents, the other parent may end the agreement at any time by giving at least 2 days notice to the parties.

(3)A care agreement ends automatically if—

(a)a child protection order is made granting custody or guardianship of the child to the chief executive or someone else; or

(b)the chief executive otherwise gains custody or guardianship of the child under this Act or the Adoption Act 2009.

53Purpose of pt 4part

(1)This part provides for the making of child protection orders.

(2)A child protection order is made to ensure the protection of a child the Childrens Court decides is a child in need of protection.

Note—

See section 10.

53AChief executive’s role in support of litigation director

(1)This section applies if the chief executive refers a child protection matter to the litigation director under the Director of Child Protection Litigation Act 2016, section 15.

(2)The chief executive must work collaboratively with the litigation director in relation to the matter, including by giving the litigation director the information, documents and evidence required under that Act.

54Application for child protection order

An application for a child protection order for a child must—

(a)be made to the Childrens Court; and

(b)state the grounds on which it is made; and

(c)state the nature of the order sought; and

(d)comply with applicable rules of court; and

(e)be filed in the court.

Note—

Only the litigation director may make the application—see the Director of Child Protection Litigation Act 2016, section 10.

55Registrar to fix time and place for hearing

When the application is filed, the registrar of the Childrens Court must immediately fix the time and place for hearing the application having regard to the principle that it is in the best interests of the child for the application to be heard as early as possible.

55APublic guardian to be notified, under an arrangement, of applications etc. for orders

(1)The public guardian and the registrar of the Childrens Court at a place may enter into an arrangement under which the registrar advises the public guardian of—

(a)all applications for a child protection order filed at the place; and

(b)all hearings of applications at the place identified under the arrangement.

(2)The registrar of the Childrens Court must give notice of the applications and hearings to the public guardian in a way, and within the time, agreed with the public guardian under the arrangement.

56Notice of application

(1)As soon as practicable after the application is filed, the chief executive must—

(a)personally serve a copy of it on each of the child’s parents; and

(b)tell the child about the application.

Note—

Section 195 deals with compliance with provisions about giving information.

(2)However, if it is not practicable to serve the copy personally, a copy of the application may be served on a parent by leaving it at, or by sending it by post to, the parent’s residential address last known to the chief executive.

(3)The copy of the application served under this section must state—

(a)when and where the application is to be heard; and

(b)the application may be heard and decided even though the parent does not appear in court.

57Respondents to hearing

The child’s parents are respondents to the application.

57AWithdrawal of application

(1)The application may be withdrawn only with the court’s leave.

(2)When seeking the court’s leave, the litigation director must give reasons why the order is no longer required.

58Hearing of application in absence of parents

(1)The Childrens Court may hear and decide the application in the absence of the child’s parents only if—

(a)the parents have been given reasonable notice of the hearing and fail to attend or continue to attend the hearing; or

(b)it is satisfied it was not practicable to give the parents notice of the hearing.

(2)Subsection (1) does not limit the jurisdiction of the court to exclude a person from a proceeding.

59Making of child protection order

(1)The Childrens Court may make a child protection order only if it is satisfied—

(a)the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and

(b)there is a case plan for the child—

(i)that has been developed or revised under part 3A; and

(ii)that is appropriate for meeting the child’s assessed protection and care needs; and

(iii)for a long-term guardianship order or a permanent care order for the child—that includes living arrangements and contact arrangements for the child; and

(c)if the making of the order has been contested—

(i)a conference between the parties has been held or reasonable attempts to hold a conference have been made; or

(ii)because of exceptional circumstances, it would be inappropriate to require the parties to hold a conference; and

Example of exceptional circumstances—

The court may be satisfied the risk to the safety of a party if a conference were held outweighs the potential benefit of holding the conference.

(d)the child’s wishes or views, if able to be ascertained, have been made known to the court; and

(e)the protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms.

(2)Before making a child protection order, the court may have regard to the following matters—

(a)any contravention of this Act or of an order made under this Act;

(b)a decision by the chief executive to end intervention under part 3B because the intervention was no longer appropriate to meet the child’s protection and care needs.

(3)When deciding whether a case plan is appropriate under subsection (1)(b)(ii), it is not relevant whether or not all persons who participated in the development or revision of the plan agreed with the plan.

(4)The court must not make a child protection order unless a copy of the child’s case plan and, if it is a revised case plan, a copy of the report about the last revision under section 51X have been filed in the court.

(5)Also, before making a child protection order granting custody or guardianship of a child to a person other than the chief executive, the court must have regard to any report given, or recommendation made, to the court by the chief executive about the person, including a report about the person’s criminal history, domestic violence history and traffic history.

Note—

Section 95 deals with reports about the person’s criminal history, domestic violence history and traffic history.

(6)In addition, before making a long-term guardianship order or a permanent care order for a child, the court must be satisfied—

(a)there is no parent able and willing to protect the child within the foreseeable future; or

(b)the child’s need for emotional security will be best met in the long term by making the order.

(7)Further, the court must not grant long-term guardianship of a child to—

(a)a person who is not a member of the child’s family unless the child is already in custody or guardianship under a child protection order; or

(b)the chief executive if the court can properly grant guardianship to another suitable person.

(7A)The court may make a permanent care order for a child only if, in addition to the other matters about which the court must be satisfied under this section, the court is satisfied—

(a)the person to whom guardianship of the child is to be granted under the order (the proposed guardian) is—

(i)a suitable person for having guardianship of the child on a permanent basis; and

(ii)willing and able to meet the child’s ongoing protection and care needs on a permanent basis; and

(iii)committed to preserving—

(A)the child’s identity; and

(B)the child’s connection to the child’s culture of origin; and

(C)the child’s relationships with members of the child’s family in accordance with the case plan for the child; and

(b)the child has been in the care of the proposed guardian, under a child protection order granting custody or guardianship of the child to the chief executive or the proposed guardian, for a period of at least 12 months immediately before the making of the application.

(7B)However, the court may make a permanent care order, despite not being satisfied of the matter mentioned in subsection (7A)(b), if the court is satisfied there are exceptional circumstances that, in the best interests of the child, justify the making of the order.

Example of exceptional circumstances—

The proposed guardian is caring for 1 or more of the child’s siblings under a permanent care order.

(8)Before the court extends or makes a further child protection order granting custody or short-term guardianship of the child, the court must have regard to the child’s need for emotional security and stability.

(9)This section does not apply to the making of an interim order under section 67.

59A Additional matters about making permanent care orders for Aboriginal or Torres Strait Islander children

(1)This section applies to an application for a permanent care order for an Aboriginal or Torres Strait Islander child.

(2)In deciding whether to make the order, the Childrens Court must have proper regard to—

(a)Aboriginal tradition and Island custom relating to the child; and

Note—

The Acts Interpretation Act 1954, schedule 1, contains definitions of Aboriginal tradition and Island custom.

(b)the Aboriginal and Torres Strait Islander child placement principlesprinciple in relation to the child.

(3)The court may make the order only if it is satisfied—

(a)the case plan for the child includes appropriate details about how the child’s connection with his or her culture, and community or language group, will be developed or maintained; and

(b)the decision to apply for the order has been made in consultation with the child, if the court considers consultation is appropriate.

(4)To inform itself about the matters mentioned in subsection (2)(a), the court may have regard to the views about those matters of—

(a)an independent Aboriginal or Torres Strait Islander entity for the child; or

(b)the child; or

(c)a member of the child’s family.

60Extraterritoriality

To remove doubt, it is declared the Childrens Court may make a child protection order even if the events causing the child to be a child in need of protection happened outside Queensland, or partly in Queensland and partly outside Queensland.

61Types of child protection orders

The Childrens Court may make any 1 or more of the following child protection orders that the court considers to be appropriate in the circumstances—

(a)an order directing a parent of the child to do or refrain from doing something directly related to the child’s protection;

(b)an order directing a parent not to have contact, direct or indirect—

(i)with the child; or

(ii)with the child other than when a stated person or a person of a stated category is present;

(c)an order requiring the chief executive to supervise the child’s protection in relation to the matters stated in the order;

(d)an order granting custody of the child to—

(i)a suitable person, other than a parent of the child, who is a member of the child’s family; or

(ii)the chief executive;

(e)an order granting short-term guardianship of the child to the chief executive;

(f)an order (a long-term guardianship order) granting long-term guardianship of the child to—

(i)a suitable person, other than a parent of the child, who is a member of the child’s family; or

(ii)another suitable person, other than a member of the child’s family, nominated by the chief executive; or

(iii)the chief executive;

Note—

The parents of the child may apply to vary or revoke a long-term guardianship order—see section 65(1).

(g)an order (a permanent care order) granting long-term guardianship of the child to a suitable person, other than a parent of the child or the chief executive, nominated by the chief executive.

Note—

Only the litigation director may apply to vary or revoke a permanent care order—see section 65AA.

62Duration of child protection orders

(1)A child protection order for a child must state the time when it ends.

(2)The stated time for an order that does not grant custody or guardianship of the child must not be more than 1 year after the day it is made.

(3)If no previous child protection order has been made for the child and the order grants custody or short-term guardianship of the child, the stated time for the order must not be more than 2 years after the day it is made.

(4)If a previous child protection order has been made for the child and the order grants custody or short-term guardianship of the child, the stated time for the order must not be—

(a)if, immediately before the making of the order, the child has been in continuous care since the making of the earliest child protection order for the child—later than 2 years after the day the earliest order was made; or

Example—

The court makes an order granting custody of a child to the chief executive. A previous child protection order granting custody of the child to the chief executive was in effect for 1 year. Since the making of the previous order, the child has been in care, including under interim orders, for a continuous period of 18 months. The stated time for the new order must not be more than 2 years after the previous child protection order was made. As a result, the maximum duration of the new order is 6 months.

(b)otherwise—later than 2 years after the day the earliest child protection order for the child made during the relevant continuous care period was made.

Example—

The court makes an order granting custody of a child to the chief executive and there have been previous orders granting custody of the child to the chief executive. The first order was in effect for 1 year, after which the child was returned to the care of the child’s parents for 1 year. Then another order was made granting custody of the child to the chief executive for 12 months. Since the making of the second order, the child has been in care, including under interim orders, for a continuous period of 18 months. The stated time for the new order must not be more than 2 years after the second order was made. As a result, the maximum duration of the new order is 6 months.

(5)However, despite subsection (4), the stated time for an order to which subsection (4) would otherwise apply must not be more than 2 years after the day it is made if—

(a)it is in the best interests of the child to have a longer stated time for the order than the time provided for under subsection (4); and

(b)the Childrens Court considers that reunification of the child with the child’s family is reasonably achievable within the longer stated time.

(6)The stated time for an order that grants long-term guardianship of the child must be the end of the day before the child turns 18 years.

(7)The order ends at the stated time unless it is extended or earlier revoked.

(8)Regardless of subsections (1) to (7), the order ends when the child turns 18.

(9)In this section—

child protection order does not include an interim order under section 67.

relevant continuous care period means a period of continuous care that has not ended immediately before the making of the order.

63Chief executive’s obligations after making of child protection order

As soon as practicable after a child protection order for a child is made, the chief executive must give to the parties to the application for the order—

(a)a copy of the order; and

(b)a written notice—

(i)explaining the terms and effect of the order; and

(ii)stating that a party may appeal against the decision to make the order within 28 days after the order is made; and

(iii)stating how to appeal.

64Extension of certain child protection orders

(1)An application for an extension of a child protection order for a child, other than an order granting long-term guardianship of a child, may be made to the Children’s Court.

Note—

Only the litigation director may make the application—see the Director of Child Protection Litigation Act 2016, section 10.

(2)The application must be made before the order ends.

(3)If the application is an application to extend a child protection order granting custody or short-term guardianship of a child, the court must not extend the order for a period of time that would result in the child being in continuous care for a period of 2 years or more.

(4)However, subsection (3) does not apply if the court is satisfied—

(a)it is in the best interests of the child for the order to be extended for a longer time than the time provided for under subsection (3); and

(b)reunification of the child with the child’s family is reasonably achievable within the longer time.

(5)Subject to subsections (3) and (4), this part applies, with all necessary changes, to the application as if it were an application for a child protection order.

65Variation and revocation of particular child protection orders

(1)The litigation director, a child’s parent or the child may apply to the Childrens Court for an order to—

(a)vary or revoke a child protection order, other than a permanent care order, for the child; or

(b)revoke a child protection order, other than a permanent care order, for the child and make another child protection order in its place.

(2)However, a child’s parent can not—

(a)apply for an order to revoke a child protection order for the child and make another child protection order in its place that grants guardianship of the child; or

(b)without the leave of the court, apply for an order to vary or revoke a child protection order for the child if another application for an order by a parent of the child to vary or revoke the child protection order has been decided by the court; or

(c)apply to vary a long-term guardianship order granting long-term guardianship of the child to the chief executive to grant long-term guardianship of the child to a suitable person mentioned in section 61(f)(i) or (ii).

(3)For subsection (2)(b), the court may grant leave only if it is satisfied the child’s parent has new evidence to give to the court.

(4)This part applies, with the changes prescribed in subsections (5) to (5D) and all other necessary changes, to the application as if it were an application for a child protection order for the child.

(5)If the application is made by the child or a parent of the child—

(a)other parents of the child and the litigation director become respondents to the application; and

(b)immediately after the application is made, the registrar must give written notice to the litigation director and chief executive of the time and place for hearing the application; and

(c)as soon as practicable after receiving the registrar’s notice, the chief executive must comply with section 56 except so far as it relates to the applicant.

(5A)Subsection (5B) applies if the litigation director or the child applies to—

(a)vary or revoke a long-term guardianship order for the child; or

(b)revoke a long-term guardianship order for the child and make a permanent care order for the child in its place.

(5B)Section 59(1)(a) and (e), (6)(a), (7) and (8) does not apply to the application.

(5C)However, subsection (5B) does not apply in relation to the application if—

(a)the application is an application by the litigation director or the child mentioned in subsection (5A)(b); and

(b)the court orders, on its own initiative or on the application of the litigation director or the child, that the provisions of section 59 mentioned in subsection (5B) are to apply to the application.

(5D)The court may make an order under subsection (5C)(b) only if it is satisfied that, because of exceptional circumstances, it is in the best interests of the child for the provisions of section 59 mentioned in subsection (5B) to apply to the application.

(6)The court may, under subsection (1)(a), revoke a child protection order for a child only if it is satisfied the order is no longer appropriate and desirable for the child’s protection.

(7)Without limiting the things to which the court may have regard in deciding an application under this section, the court—

(a)may have regard to a contravention of the child protection order or this Act; and

(b)for an application to revoke a child protection order granting long-term guardianship of a child under section 61(f)(i) or (ii)—must have regard to the child’s need for emotional security and stability.

(8)In this section—

child protection order does not include an interim order under section 67.

65AA Variation and revocation of permanent care orders

(1)The litigation director may apply to the Childrens Court for an order to—

(a)vary or revoke a permanent care order for a child; or

(b)revoke a permanent care order for a child and make another child protection order in its place.

(2)However, the litigation director may apply to vary or revoke a permanent care order only if the litigation director is satisfied—

(a)that—

(i)the child has suffered significant harm, is suffering significant harm, or is at an unacceptable risk of suffering significant harm; and

(ii)the child’s permanent guardian is not able and willing to protect the child from harm; or

(b)the child’s permanent guardian is not complying, in a significant way, with the guardian’s obligations under section 79A(1).

Example—

The child’s permanent guardian is not, despite it being in the best interests of the child, helping the child maintain the child’s relationships with the child’s parents or another person of significance to the child.

(3)This part applies, with all necessary changes, to the application as if it were an application for a child protection order for the child.

(4)The court may revoke a permanent care order for a child only if it is satisfied the revocation of the order—

(a)is in the best interests of the child; and

(b)will promote the child’s ongoing protection and care needs.

(5)Without limiting the matters to which the court may have regard in deciding an application under this section, the court—

(a)may have regard to a contravention of the permanent care order or this Act; and

(b)must have regard to the child’s need for emotional security and stability.

(6)Without limiting the court’s powers, in deciding an application to revoke a permanent care order the court may—

(a)revoke the order; or

(b)revoke the order and make another child protection order in its place.

65ACourt may make transition order

(1)This section applies if a court—

(a)in relation to a child protection order granted under section 61(d) or (e)—

(i)refuses to extend the order or grant a further order before the order ends; or

(ii)revokes the order; or

(iii)decides an appeal against the making of the order in favour of a person other than the litigation director; or

(b)in relation to a child protection order granted under section 61(f) or (g)—

(i)revokes the order; or

(ii)decides an appeal against the making of the order in favour of a person other than the litigation director.

(2)The court may make an order (a transition order) that the child protection order ends on a later day stated in the transition order.

(3)The transition order may be made on the court’s own initiative or on the application, made orally or in the approved form, of a party to the proceeding.

(4)If a party applies for the transition order and the court adjourns the proceeding before deciding the application, the child protection order continues in force, despite the decision mentioned in subsection (1), until the application is decided.

(5)The day stated in the transition order as the day on which the child protection order ends may not be more than 28 days after the day of the court’s decision under subsection (1), even if a party applied for the transition order and the court adjourned the proceeding before deciding the application.

(6)The court may make a transition order in a proceeding only once.

65BGrounds for making transition order

(1)A court may make a transition order if satisfied the order is necessary to allow for the gradual transition of the child into the care of the child’s parents in a way that—

(a)supports the child; and

(b)may reduce any disruption or distress experienced by the child; and

(c)is otherwise in the best interests of the child.

(2)When deciding whether to make a transition order—

(a)the court must have regard to—

(i)the child’s wishes and views, if able to be ascertained; and

(ii)the parents’ readiness to care for the child; and

(b)the court may have regard to any other relevant matter.

Example for paragraph (b)—

The court may have regard to information, from the person caring for the child under the child protection order, about the child’s needs.

65CEffect of stay of decision about child protection order

If, under section 119, an appellate court stays a decision mentioned in section 65A(1), a transition order made in relation to the decision ends on the day the decision is stayed.

65DTransition plans

If the court makes a transition order in relation to a child, the chief executive must prepare a plan, for the period of the transition order, that—

(a)states how the chief executive intends to provide for the support and gradual transition of the child into the care of the child’s parents; and

(b)includes matters prescribed under a regulation for inclusion in the plan.

66Court may adjourn proceedings

(1)The Childrens Court may adjourn a proceeding for a court assessment order or child protection order for a child for a period decided by the court.

(2)However, for a court assessment order the total period of adjournments must not be longer than 4 weeks.

Note—

Section 47 contains provisions about when a court assessment order ends.

(3)In deciding the period, the court must take into account the principle that it is in the child’s best interests for the application for the order to be decided as soon as possible.

(4)The court must state the reasons for the adjournment and may give directions to the parties to the proceeding, the chief executive or a person the court has allowed to take part in the proceeding under section 113 about the things to be done by them during the adjournment.

67Court’s powers to make interim orders on adjournment

(1)On the adjournment of a proceeding for a court assessment order or child protection order, the Childrens Court may make any 1 or more of the following orders—

(a)an interim order granting temporary custody of the child—

(i)for a court assessment order—to the chief executive; or

(ii)for a child protection order—to the chief executive or a suitable person who is a member of the child’s family;

(b)an interim order directing a parent of the child not to have contact (direct or indirect)—

(i)with the child; or

(ii)with the child other than when a stated person or a person of a stated category is present;

(c)an interim order authorising an authorised officer or police officer to have contact with the child.

(2)In addition, the court may make an interim order authorising an authorised officer or police officer to enter and search any place the officer reasonably believes the child is, to find the child, if the court is satisfied—

(a)entry to a place has been, or is likely to be, refused, or it is otherwise justified in particular circumstances, including, for example, because the child’s whereabouts are not known; and

(b)the entry is necessary for the effective enforcement of an order made under subsection (1)(c).

(3)On entering a place, an authorised officer or police officer may remain in the place for as long as the officer considers necessary for exercising the officer’s powers under this section.

(4)An authorised officer or police officer may exercise the officer’s powers under the order with the help, and using the force, that is reasonable in the circumstances.

(5)The order has effect for the period of the adjournment.

(6)In this section—

parent, of a child, means each of the following persons—

(a)the child’s mother or father;

(b)a person in whose favour a residence order or contact order for the child is in operation under the Family Law Act 1975 (Cwlth);

(c)a person, other than the chief executive, having custody or guardianship of the child under—

(i)a law of the State, other than this Act; or

(ii)a law of another State;

(d)a long-term guardian of the child.

67AOrder—procedure before entry

(1)This section applies if an authorised officer or police officer is intending to enter a place under an authority under an interim order mentioned in section 67(2).

(2)Before entering the place, the officer must do or make a reasonable attempt to do the following things—

(a)identify himself or herself to a person present at the place who is an occupier of the place;

(b)give the person a copy of the order so far as it relates to the entry and searching of the place;

(c)tell the person the officer is permitted by the order to enter and search the place to find the child;

(d)give the person an opportunity to allow the officer immediate entry to the place without using force.

(3)For subsection (2)(a), an authorised officer must produce the officer’s identity card to the person for inspection.

Note—

For a police officer, see the Police Powers and Responsibilities Act 2000, section 637.

(4)However, the officer need not comply with subsection (2) if the officer reasonably believes that immediate entry to the place is required to ensure the effective exercise of powers under the order is not frustrated.

68Court’s other powers on adjournment of proceedings for child protection orders

(1)On the adjournment of a proceeding for a child protection order, the Childrens Court may also make 1 or more of the following orders—

(a)an order requiring a written social assessment report about the child and the child’s family be prepared and filed in the court;

(b)an order authorising a medical examination or treatment of the child and requiring a report of the examination or treatment be filed in the court;

Note—

Section 97 applies to the medical examination or treatment.

(c)subject to subsection (5), an order about the child’s contact with the child’s family during the adjournment;

(d)an order requiring the chief executive—

(i)to convene a family group meeting to develop or revise a case plan and file the plan in the court; or

(ii)to convene a family group meeting to consider, make recommendations about, or otherwise deal with, another matter relating to the child’s wellbeing and protection and care needs;

(e)an order that a conference between the parties be held before the proceeding continues to decide the matters in dispute or to try to resolve the matters;

(f)an order under section 110 that the child be separately legally represented.

(2)If the court makes an order under subsection (1)(a) or (b), the court must state the particular issues the report must address.

(3)Subsection (2) does not limit the issues that may be addressed in the report.

(4)Without limiting subsection (1)(c), an order mentioned in the paragraph may limit the child’s contact with the child’s family or provide for how the contact is to happen.

(5)The court must not make an order under subsection (1)(c) requiring the chief executive to supervise family contact with the child unless the chief executive agrees to supervise the contact.

(6)To remove any doubt, it is declared that the chief executive may be the subject of an order mentioned in subsection (1)(a), (b) or (c) even though the chief executive is not a party to the proceeding.

68AAccess to information to prepare a court-ordered report

(1)This section applies if, on an adjournment, the Childrens Court makes an order under section 66(4) or 68(1)(a) or (b) requiring that a report be prepared.

(2)The court may order that a person preparing the report be permitted to view, or be given a copy of, a relevant document or other information before the court.

68BInterim contact orders

Section 99MA deals with particular circumstances in which the court may decide to make an order under section 67(1)(b) or 68(1)(c) while a tribunal proceeding is suspended.

69Registrar to appoint chairperson and convene conference

(1)If the Childrens Court orders a conference be held between the parties to a proceeding, the registrar of the court must—

(a)appoint a chairperson for the conference; and

(b)convene the conference to be held as soon as practicable after the order is made.

(2)The chairperson must have the qualifications or experience prescribed under rules of court.

70Attendance of parties

(1)The chairperson, the chief executive and the parties must attend the conference.

(2)However, subsection (1) does not require the child to attend the conference.

(3)The parties may be represented by their legal representatives at the conference.

(4)If the child is an Aboriginal or Torres Strait Islander child, an independent Aboriginal or Torres Strait Islander entity for the child, or member of the entity, may attend the conference.

(5)The public guardian may attend the conference.

(6)No-one else can attend the conference without the chairperson’s approval.

71Communications inadmissible in evidence without consent

Anything said at the conference is inadmissible in a proceeding before any court other than with the consent of all the parties.

72Report of conference

(1)As soon as practicable after the conference is finished, the chairperson must file in the court a report of the conference containing the particulars prescribed under rules of court.

(2)If the report states the parties have reached an agreement in relation to the application the subject of the proceeding and it is practicable for the application to be heard earlier than the adjournment date, the registrar must immediately—

(a)fix a new time and place for the hearing of the application; and

(b)advise the chairperson and the parties of the time and place for the hearing of the application.

(3)If the new time and place for the hearing of the application is not the same day the conference finished, the registrar must confirm the advice by written notice.

73Chief executive’s obligations about meeting child’s protection and care needs under certain orders and agreements

(1)This section applies if—

(a)a child protection order is made for a child, other than an order granting long-term guardianship of the child; or

(b)a care agreement is entered into for a child.

(2)The chief executive must take steps that are reasonable and practicable to help the child’s family meet the child’s protection and care needs.

(3)For subsection (2), the chief executive must have regular contact with the child and the child’s parents or other appropriate members of the child’s family.

74Charter of rights for a child in care

(1)This section applies if the chief executive—

(a)has custody or guardianship of a child under a child protection order; or

(b)has custody of a child under a care agreement.

(2)As far as reasonably practicable, the chief executive must ensure the charter of rights for a child in care in schedule 1 is complied with in relation to the child.

(3)Subsection (2) does not limit another provision of this Act.

(4)The chief executive must ensure the child—

(a)is told about the charter of rights and its effect; and

(b)is given written information about the charter of rights unless, having regard to the child’s age or ability to understand, the chief executive reasonably believes the child would not be able to understand the information; and

(c)is regularly told about the obligations of the chief executive under subsection (2); and

(cd)is told about the public guardian and other entities known to the chief executive that can help the child if the child considers that the charter of rights is not being complied with in relation to the child.; and

(e)is regularly told about the child’s right to contact the chief executive if the child has any questions or concerns about the child’s protection and care needs.

(5)A communication mentioned in subsection (4) must—

(a)use language that is appropriate for the child; and

(b)be carried out in a way that is appropriate for the child.

74AChief executive’s obligations to children under particular child protection orders

(1)This section applies if either of the following orders is made in relation to a child—

(a)a long-term guardianship order granting long-term guardianship of the child to a person other than the chief executive;

(b)a permanent care order.

(2)The chief executive must ensure the child—

(a)is regularly told about the charter of rights and its effect; and

(a)is told about the charter of rights for a child in care in schedule 1 and its effect; and

(b)is regularly given written information about the charter of rights unless, having regard to the child’s age or ability to understand, the chief executive reasonably believes the child would not be able to understand the information; and

(c)is regularly told about the obligations of the child’s long-term guardian or permanent guardian under section 79A; and

(d)is regularly told about the public guardian and other entities known to the chief executive who can help the child if the child considers that the child’s long-term guardian or permanent guardian is not complying with the guardian’s obligations in relation to the child; and

(e)is regularly told about the child’s right to contact the chief executive if the child has any questions or concerns about the child’s protection and care needs.

(3)A communication mentioned in subsection (2) must—

(a)use language that is appropriate for the child; and

(b)be carried out in a way that is appropriate for the child.

75Transition to independence

(1)This section applies to a person who is or has been a child in the custody or under the guardianship of the chief executive.

(2)As far as practicable, the chief executive must—

(a)ensure help is available to assist the person in the transition from being a child in care to independence; and

(b)ensure the help is available to the person for the period starting when the person turns 15 and ending when the person turns 25.

(3)Without limiting subsection (2)(a), the help may include the following—

(a)help to access entitlements, including, for example, social security allowances or payments;

(b)help to access appropriate accommodation;

(c)help to access education and training;

(d)help to obtain employment;

(e)help to obtain legal advice;

(f)help to access health and community services, including, for example, specialist disability support services;

(g)support in establishing or maintaining relationships with the person’s family or carer;

(h)help in accessing information, including information in the chief executive’s possession or control, about the person and his or her time in care;

Note—

See section 188C about the information the chief executive may give the person.

(i)counselling or other support to help the person in relation to information mentioned in paragraph (h);

(j)other assistance, based on an assessment of the person’s needs, provided by the chief executive.

Examples of assistance, based on a person’s needs, that may be provided by the chief executive—

•financial assistance under section 159

•help given to ensure a young person with impaired capacity is given the opportunity to develop decision-making skills and exercise the rights mentioned in the Guardianship and Administration Act 2000, sections 5 and 6

(4)In this section—

information includes a document or copy of a document.

76Application of div 2

This division applies if, under a child protection order for a child, the chief executive is required to supervise the child’s protection in relation to matters stated in the order.

77Obligations of child’s parents and powers of authorised officers

(1)The child’s parents or other person with whom the child is living must—

(a)keep the chief executive informed about where the child is living; and

(b)allow authorised officers to have reasonable contact with the child.

(2)For subsection (1)(b), an authorised officer may enter the place where the child is living at any reasonable time to have contact with the child and to inquire about the child’s care.

(3)The officer may exercise the officer’s powers under subsection (2) with the help, and using the force, that is reasonable in the circumstances.

78Chief executive’s powers

(1)For giving effect to the child protection order, the chief executive may, by written notice given to a parent of the child, direct the parent to do or refrain from doing something specifically relating to the supervision matters stated in the order.

(2)The notice mentioned in subsection (1) must comply with the QCAT Act, section 157(2).

(3)The parent may apply to have the decision to give the direction reviewed only on the ground that the direction does not specifically relate to the supervision matters.

(4)The tribunal may not stay the operation of the decision under the QCAT Act, section 22(3).

79Obligations of family members and other persons to department under orders

(1)If, under a child protection order, a member of a child’s family is granted custody of the child, the family member must help the chief executive achieve the child’s future protection, including, for example, by taking part in meetings with the child’s family.

(2)The family member must—

(a)keep the chief executive informed about where the child is living; and

(b)allow authorised officers to have reasonable contact with the child.

(3)A long-term guardian or permanent guardian of a child must keep the chief executive informed about where the child is living.

79AObligations of long-term guardians and permanent guardians to children under orders

(1)A long-term guardian or permanent guardian of a child must—

(a)as far as reasonably practicable, ensure the charter of rights for a child in care in schedule 1 is complied with in relation to the child as if—

(i)the guardian were the chief executive; and

(ii)the child were a child in need of protection in the custody or care of the chief executive; and

(b)ensure the child is provided with appropriate help in the transition from being a child in care to independence; and

(c)to the extent it is in the best interests of the child, preserve the child’s identity and connection to the child’s culture of origin; and

(d)to the extent it is in the best interests of the child, help maintain the child’s relationships with the child’s parents, family members and other persons of significance to the child.

(2)However, the Childrens Court may order that any of the requirements mentioned in subsection (1) do not apply, or apply with stated modifications or apply to a stated extent, if the court is satisfied compliance with the requirement would—

(a)constitute a significant risk to the safety of the child or anyone else with whom the child is living; or

(b)otherwise not be in the best interests of the child.

80Obligations of family members and other persons to child’s parents

(1)If, under a child protection order for a child, a member of the child’s family or another suitable person is granted custody or guardianship of the child, the family member or person must—

(a)tell the parents where the child is living; and

(b)give them information about the child’s care; and

(c)provide opportunity for contact between the child and the child’s parents and appropriate members of the child’s family as often as is appropriate in the circumstances.

(2)However, if the Childrens Court is satisfied compliance with the requirements of subsection (1) would constitute a significant risk to the safety of the child or anyone else with whom the child is living, the court may order that all or part of the requirements do not apply, or apply with stated modifications or apply to a stated extent.

80AObligations if child is no longer cared for by long-term guardian or permanent guardian

(1)This section applies if—

(a)either of the following child protection orders are in force for a child—

(i)a long-term guardianship order granting long-term guardianship of the child to a person other than the chief executive;

(ii)a permanent care order; and

(b)either—

(i)the child’s long-term guardian or permanent guardian reasonably believes the guardian’s care of the child will end in the near future; or

Example—

The guardian has a health condition that will result in the guardian not being able to care for the child in the near future.

(ii)the child is no longer cared for by the child’s long-term guardian or permanent guardian.

Examples—

1The child is an older child transitioning to independent living.

2The relationship between the child and the guardian has broken down and the child is no longer able to live with the guardian.

(2)The long-term guardian or permanent guardian must immediately give the chief executive written notice of—

(a)if the guardian reasonably believes the guardian’s care of the child will end in the near future—that fact; or

(b)if the care has ended—that fact and, if the guardian knows where the child is living, that information.

(3)If the chief executive is given notice under subsection (2), the chief executive must—

(a)review the child’s protection and care needs and wellbeing; and

(b)take any further action the chief executive considers appropriate.

80BMaking a complaint

(1)This section applies if a child or a member of the child’s family honestly and reasonably believes a permanent guardian of the child is not complying with the guardian’s obligations under section 79A.

(2)The person may make a complaint about the non-compliance to the chief executive.

(3)A complaint may be made for the person by another person acting with the first person’s consent.

80CChief executive may require further information

The chief executive may, by notice, ask the complainant to give the chief executive further information about the complaint within the reasonable time stated in the notice.

80DRefusal to deal with complaint

(1)The chief executive may refuse to deal with the complaint if the chief executive reasonably believes—

(a)the complaint is trivial, unreasonable or without substance; or

(b)the complaint was made vexatiously; or

(c)the complainant refuses, without a reasonable excuse, to provide further information reasonably required by the chief executive to decide whether to deal with the complaint.

(2)If the chief executive refuses to deal with a complaint, the chief executive must—

(a)as soon as practicable, give written notice of the decision to the complainant; and

(b)keep a record about the complaint and the chief executive’s refusal to deal with the complaint.

(3)The notice mentioned in subsection (2)(a) must comply with section 157(2) of the QCAT Act.

80EDealing with complaint

(1)If the chief executive does not refuse to deal with a complaint under section 80D, the chief executive must take all reasonable steps to resolve the complaint as soon as is reasonably practicable.

(2)After taking the reasonable steps, the chief executive must give the complainant a response to the complaint stating—

(a)the steps taken to resolve the complaint; and

(b)the reason the chief executive considers the steps taken are reasonable in the circumstances; and

(c)any results of the steps taken that are known at the time of giving the response.

81Application of div 4

This division applies if the chief executive has custody or guardianship of a child under this Act.

82Placing child in care

(1)The chief executive may place the child in the care of—

(a)an approved kinship carer for the child; or

(b)an approved foster carer; or

(c)an entity conducting a departmental care service; or

(d)a licensee; or

(e)if it is not possible, or not in the child’s best interests, for the child to be placed in the care of an entity mentioned in paragraphs (a) to (d)—a provisionally approved carer for the child; or

(f)if the chief executive is satisfied another entity would be the most appropriate for meeting the child’s particular protection and care needs—that entity.

Example for paragraph (f)—

A particular medical or residential facility may be the most appropriate entity for a child with a disability.

(2)Also, if the child is in the chief executive’s custody or guardianship under a child protection order, the chief executive may place the child in the care of a parent of the child.

82APlacement with more than 1 approved carer

(1)The child may be placed in the care of more than 1 approved carer at the same time.

(2)If it is proposed to place the child in the care of an approved carer, and the approved carer lives with his or her spouse and holds a certificate of approval jointly with the spouse, the child must be placed in the care of both of them.

83Additional provisions for placing Aboriginal and Torres Strait Islander children in care

(1)This section applies if the child is an Aboriginal or a Torres Strait Islander child.

(2)The chief executive must, in consultation with the child and the child’s family, arrange for an independent Aboriginal or Torres Strait Islander entity for the child to facilitate the participation of the child and the child’s family in the process for making a decision about where or with whom the child will live.

(3)However, the chief executive is not required to arrange for the involvement of an independent Aboriginal or Torres Strait Islander entity for the child under subsection (2) if—

(a)it is not practicable because an entity is not available or urgent action is required to protect the child; or

(b)the chief executive is satisfied that an entity’s involvement—

(i)is likely to have a significant adverse effect on the safety or psychological or emotional wellbeing of the child or any other person; or

(i)is not otherwise in the child’s best interests; or

(c)the child or the child’s family does not consent to the entity’s involvement.

(c)section 5H applies in relation to the entity’s involvement.

(4)In making a decision about the person in whose care the child should be placed, the chief executive must, if practicable, place the child with a member of the child’s family group.

(5)However, if it is not practicable to place the child with a member of the child’s family group, in making a decision about the person in whose care the child should be placed, the chief executive must place the child with—

(a)a member of the child’s community or language group; or

(b)if it is not practicable to place the child in the care of a person mentioned in paragraph (a), an Aboriginal or Torres Strait Islander person who is compatible with the child’s community or language group; or

(c)if it is not practicable to place the child in the care of a person mentioned in paragraph (a) or (b), another Aboriginal or Torres Strait Islander person; or

(d)if it is not practicable to place the child in the care of a person mentioned in paragraphs (a) to (c), a person who—

(i)lives near the child’s family, community or language group; and

(ii)has a demonstrated capacity for ensuring the child’s continuity of connection to kin, country and culture.

(6)Also, the chief executive must give proper consideration to—

(a)the views of the child and the child’s family; and

(b)ensuring the decision provides for the optimal retention of the child’s relationships with parents, siblings and other people of significance to the child under Aboriginal tradition or Island custom.

(7)Before placing the child in the care of a family member or other person who is not an Aboriginal person or Torres Strait Islander, the chief executive must give proper consideration to whether the person is committed to—

(a)facilitating contact between the child and the child’s parents and other family members, subject to any limitations on the contact under section 87; and

(b)helping the child to maintain contact with the child’s community or language group; and

(c)helping the child to maintain a connection with the child’s Aboriginal or Torres Strait Islander culture; and

(d)preserving and enhancing the child’s sense of Aboriginal or Torres Strait Islander identity.

83AGiving information to carers and children

(1)Before placing the child in care under section 82, the chief executive must—

(a)give to the proposed carer the information that the chief executive has about the child that the proposed carer reasonably needs to help him or her make an informed decision whether to agree to the placement; and, including, for example, the following information—

(i)information about why the chief executive has custody or guardianship of the child;

(ii)information about any special needs of the child;

Examples of special needs of a child—

•physical or intellectual disabilities or impairments the child has

•allergies, other physical or mental health conditions, or other medical conditions the child has

•medications the child requires

(iii)the proposed length of time of the placement;

(iv)information the carer will reasonably need to ensure the safety of the child, the carer and other members of the carer’s household; and

(b)give the child information the chief executive has about the proposed carer and members of the proposed carer’s household that the child reasonably needs to participate meaningfully in the decision about who will be the child’s carer; and

(c)if possible, give the child an opportunity to meet the proposed carer and members of the proposed carer’s household.

(2)When placing the child in care, and while the child is in care, the chief executive must give the carer information that the chief executive has relating to the child that the carer reasonably needs—

(a)to provide care for the child under this Act; and

Examples of information a carer may reasonably need to provide care for a child under this Act—

•information that corrects or updates the information given to the carer under subsection (1)

•a copy of the child’s case plan

•information about the child’s goals, personality, preferences and behaviours

•information about any special behavioural management needs of the child

•information about the child’s family, culture and background

•information about any arrangements for contact between the child and the child’s family group

•information about the cultural needs of the child

(b)to ensure the safety of the child, the carer and other members of the carer’s household.

(3)If the child is placed in the care of a licensee—

(a)a requirement under subsection (1) or (2) to give information to the proposed carer or carer applies to the licensee instead of the chief executive; and

(b)the chief executive must give the licensee the information that the chief executive has about the child that the licensee needs to comply with the requirement.

(4)In deciding the information about the child to give to someone under this section, the chief executive must have regard to—

(a)the views and wishes of the child, having regard to the child’s age and ability to understand; and

(b)the proposed length of time of the placement; and

(c)the child’s right to privacy under the charter of rights.

(5)Before giving information about the child to someone under this section, the chief executive must tell the child what information is being given and why it is being given.

(6)The chief executive must ensure the information given under this section is—

(a)comprehensive; and

(b)in a form that will be easily understood by the person to whom the information is given.

(67)In this section—

carer, in relation to a child, means—

(a)if the child is placed in the care of an approved carer—the approved carer; or

(b)if the child is placed in the care of another entity—the individual who directly provides care to the child.

84Agreements to provide care for children

(1)If an approved carer agrees to care for the child, the chief executive and approved carer must enter into a written agreement for the child’s care.

Note—

Provisions of the agreement may be included in the child’s case plan.

(2)The terms prescribed under a regulation must be included in the agreement.

85Chief executive to tell parents of placing child in care—assessment order

(1)This section applies if the child is in the chief executive’s custody under an assessment order.

(2)Subject to subsections (3) and (4), the chief executive must, as soon as practicable after deciding in whose care to place the child, tell the child’s parents in whose care the child is placed and where the child is living.

(3)Before complying with subsection (2), the chief executive must consider the matters prescribed under a regulation.

(4)If, after considering the matters, the chief executive reasonably suspects compliance with subsection (2) could constitute a significant risk to the safety of the child or anyone else with whom the child is living, the chief executive need not comply with the subsection.

86Chief executive to notify parents of placing child in care—child protection order

(1)This section applies if the child is in the chief executive’s custody or guardianship under a child protection order.

(2)Subject to subsections (3) and (4), the chief executive must, as soon as practicable after deciding in whose care to place the child, give written notice of the decision to the child and the child’s parents stating the following—

(a)the person in whose care the child is placed;

(b)where the child is living;

(a)the person in whose care the child is placed and where the child is living;

(bc)the reasons for the decision;

(cd)the child or child’s parent may apply to the tribunal to have the decision reviewed;

(de)how, and the time within which, the child or child’s parent may apply to have the decision reviewed;

(ef)any right the child or child’s parent has to have the operation of the decisions stayed.

(3)Before complying with subsection (2), the chief executive must consider the matters prescribed under a regulation.

(4)If, after considering the matters, the chief executive reasonably suspects compliance with subsection (2) would constitute a significant risk to the safety of the child or anyone else with whom the child is living, the chief executive may decide not to comply with the subsection.

(5)If the chief executive makes a decision under subsection (4), the chief executive must give written notice of the decision to the child and the child’s parents stating the following—

(a)that the chief executive has decided not to tell the child’s parents—

(i)the person in whose care the child is placed; or

(ii)where the child is living;

(a)that the chief executive has decided not to tell the child’s parents the person in whose care the child is placed and where the child is living;

(b)the reasons for the decision;

(c)the child or child’s parent may apply to the tribunal to have the decision reviewed;

(d)how, and the time within which, the child or child’s parent may apply to have the decision reviewed;

(e)any right the child or child’s parent has to have the operation of the decisions stayed.

(6)Subsection (2) does not apply if the chief executive is satisfied it is not reasonably practicable for the chief executive to give the notice because the child is placed in the person’s care for less than 7 days.

87Chief executive to provide contact between child and child’s parents

(1)The chief executive must provide opportunity for contact between the child and the child’s parents and appropriate members of the child’s family as often as is appropriate in the circumstances.

(2)However, the chief executive may refuse to allow, or restrict or impose conditions on, contact between the child and the child’s parents or members of the child’s family, if the chief executive is satisfied it is in the child’s best interests to do so or it is not reasonably practicable in the circumstances for the parents or family member to have the contact.

(3)If the chief executive refuses to allow, or restricts or imposes conditions on contact between the child and a person, the chief executive must give written notice of the decision to each person affected by the decision.

(4)The notice mentioned in subsection (3) must comply with the QCAT Act, section 157(2).

88Chief executive to provide contact between Aboriginal or Torres Strait Islander child and child’s community or language group

(1)This section applies if the child is an Aboriginal or a Torres Strait Islander child.

(2)The chief executive must provide opportunity for contact, as often as is appropriate in the circumstances, between the child and appropriate members of the child’s community or language group.

89Removal from carer’s care

The chief executive may decide to remove the child from the care of the child’s carer if the chief executive is satisfied it is in the child’s best interests.

90Notice of removal from care

(1)This section applies if the chief executive—

(a)has custody or guardianship of the child under a child protection order; or

(b)has custody of the child under a care agreement.

(2)As soon as practicable after making the decision to remove the child from the care of the child’s carer, the chief executive must give written notice of the decision to the carer and the child unless—

(a)the child is placed in the carer’s care for less than 7 days; or

(b)if the child is in the care of an approved carer—the child is removed under a provision of the agreement under section 84 relating to the duration of the child’s care.

(3)The notice to the carer must state the following—

(a)the reasons for the decision;

(b)if, under section 91, the carer is entitled to apply to have the decision reviewed—

(i)the carer may apply to the tribunal to have the decision reviewed; and

(ii)how, and the time within which, the carer may apply to have the decision reviewed; and

(iii)any right the carer has to have the operation of the decisions stayed.

(4)The notice to the child must state—

(a)the reasons for the decision; and

(b)that the child may apply to the tribunal to have the decision reviewed; and

(c)how, and the time within which, the child may apply to have the decision reviewed; and

(d)any right the child has to have the operation of the decisions stayed.

(5)Subsection (4)(b) to (d) do not apply if—

(a)the child was placed with the carer under a care agreement; or

(b)the carer is a provisionally approved carer.

91Review of decision to remove child from carer’s care

The child’s carer is entitled to have the decision to remove the child from the carer’s care reviewed by the tribunal if—

(a)the chief executive has custody or guardianship of the child under a child protection order; and

(b)the carer is not a provisionally approved carer; and

(c)either—

(i)the child protection order grants the chief executive long-term guardianship of the child; or

(ii)the stated reason for the decision is the carer is no longer a suitable person to have the care of the child or the carer is no longer able to meet the standards of care in the statement of standards for the child.

92Application of div 5

This division applies if, under a child protection order, the chief executive is granted custody or guardianship of a child.

93Management of child’s property by public trustee

(1)This section applies if—

(a)the child has an entitlement to property; and

(b)the chief executive has powers and duties in relation to the property; and

(c)the chief executive is satisfied it is in the child’s best interests for the public trustee to manage the property.

(2)The chief executive may give written notice to the public trustee requiring the public trustee to manage the property for the child.

(3)On receipt of the notice, the public trustee becomes the manager of the property and has the powers and duties in relation to it under the Public Trustee Act 1978, part 6, as if the child were an incapacitated person.

94Audit of trust by public trustee

(1)This section applies if the child is a beneficiary under a trust.

(2)For the Public Trustee Act 1978, section 60, the chief executive is a person interested in the trust.

95Report about person’s criminal history etc.

(1)Subsection (2) applies if—

(a)the chief executive intends to give a report or make a recommendation to the Childrens Court, or is asked or required by the court to give a report or make a recommendation to the court, about—

(i)a child’s parents; or

(ii)a person to whom the court is considering granting custody or guardianship of a child; or

(b)the chief executive proposes to place a child who is in the chief executive’s custody or guardianship in the care of an individual, other than an approved carer, who has agreed to care for the child (the proposed individual).

Example for paragraph (b)—

A child is placed in the care of a member of the child’s family as part of a plan for reunification with the child’s parents.

(2)For ensuring the chief executive or court has all relevant information the chief executive or court needs for assessing the suitability of a person to have the custody, guardianship or care of a child who is found to be a child in need of protection, the chief executive may ask—

(a)the police commissioner to give the chief executive a written report about the criminal history and domestic violence history of—

(i)the parents, person to whom the court is considering granting custody or guardianship or an adult member of the parents’ or person’s household; or

(ii)the proposed individual or an adult member of the proposed individual’s household; and

(b)the chief executive for transport to give the chief executive a written report about the traffic history of the parents, person to whom the court is considering granting custody or guardianship of the child or proposed individual.

(3)Also, for the purpose of making any other decision under this Act, the chief executive may—

(a)ask the police commissioner to give the chief executive a written report about the criminal history and domestic violence history of—

(i)a parent of the child; or

(ii)an adult member of a parent’s household; or

(iii)an adult against whom an allegation of harm or risk of harm to a child has been made; and

(b)ask the chief executive for transport to give the chief executive a written report about the traffic history of a parent of the child.

(4)The police commissioner or chief executive for transport must comply with a request under subsection (2) or (3).

(5)Subsections (2)(a) and (3)(a) apply to the criminal history or domestic violence history in the police commissioner’s possession or to which the police commissioner has access.

(6)Subsection (4) applies despite the Transport Operations (Road Use Management) Act 1995, section 77.

(7)Subsection (8) applies to a person in relation to whom the police commissioner must give a report mentioned in subsection (2) or (3).

(8)Also, the police commissioner may give the chief executive a copy of, or extract from, the police commissioner’s records in relation to—

(a)the commission or alleged commission of the following offences by the person—

(i)a personal offence against anyone;

(ii)an offence against the Drugs Misuse Act 1986;

(iii)an offence against section 162, 164, 166, 167 or 168; or

(b)an application for a protection order under the Domestic and Family Violence Protection Act 2012 in which the person is an aggrieved or respondent under that Act.

97Carrying out medical examinations or treatment

(1)This section applies if—

(a)an authorised officer or police officer—

(i)takes a child into the chief executive’s custody; and

(ii)seeks medical examination of, or treatment for, the child; or

Note—

Under section 18(7), an authorised officer or police officer may arrange for a child’s medical examination or treatment.

(b)a child is in the chief executive’s custody under this Act and the chief executive seeks medical examination of, or treatment for, the child; or

(c)an order for a child authorises the child’s medical examination or treatment.

Note—

Under section 28(1)(b) a temporary assessment order may authorise the medical examination or treatment of the child. Also, under section 45(1)(b) a court assessment order may authorise the medical examination or treatment of the child.

(2)A health practitioner may medically examine or treat the child.

(3)Subsection (2) applies even though the child’s parents have not consented to the examination or treatment.

(4)However, subsection (2) is subject to the rights the child has in relation to the examination or treatment.

(5)Also, the health practitioner may only carry out medical treatment that is reasonable in the circumstances.

(6)If this section applies because of subsection (1)(a) or (b) or because of an order mentioned in subsection (1)(c) that is an assessment order, the health practitioner must give the chief executive or police commissioner a report about the medical examination or treatment.

(7)For the purpose of deciding any liability in relation to the carrying out of the examination or treatment, the health practitioner is taken to have the consent of the child’s parents to the examination or treatment.

(8)In this section—

treatment includes vaccination.

98Carrying out social assessments

(1)If, on an application for a child protection order, the Childrens Court makes an order requiring a social assessment of the child and the child’s family, an appropriately qualified practitioner may carry out the social assessment.

Note—

See section 68(1)(a).

(2)The practitioner does not incur liability for an act or omission done or omitted to be done honestly and without negligence in carrying out the social assessment.

99AApplication of ch 2A

This chapter applies to a proceeding before the tribunal that relates to this Act.

99BDefinitions for ch 2A

In this chapter—

president means the president under the QCAT Act.

registrar means the principal registrar under the QCAT Act.

reviewable decision includes a reviewable decision under the Public Guardian Act 2014, section 128.

review application means an application made, as provided under the QCAT Act, for review of a reviewable decision by the tribunal.

separate representative see section 99Q(3).

support person means a person allowed by the tribunal under the QCAT Act, section 91 to attend a hearing for the purpose of supporting a party or witness.

99CObject of ch 2A

The object of this chapter is to provide for the tribunal—

(a)to make decisions in a review that promote the welfare and best interests of the child about whom the reviewable decision was made; and

(b)to conduct proceedings in a way that uses adversarial and inquisitorial procedures, as appropriate, to arrive at the best possible decision in the circumstances; and

(c)to foster an atmosphere of review that enhances the delivery of services to children.

99DPrinciples for tribunal in matters relatingTribunal to have regard to this Actparticular principles

In exercising its jurisdiction, functions or powers in relation to this Act, the tribunal must have regard to the principles mentioned in sections 5A to 5C, to the extent the principles are relevant.

99ERegistrar to give notice of review application

(1)The registrar must give notice of a review application to the decision-maker.

(2)Within 7 days after receiving the notice, the decision-maker must give the registrar notice of the names and addresses of all persons, apart from the applicant—

(a)who are entitled to apply for a review of the reviewable decision concerned; and

(b)of whom the decision-maker is aware.

(3)The tribunal may shorten the period for giving the decision-maker’s notice to the registrar.

(4)The tribunal may act under subsection (3) only if satisfied that not to do so will result in a child’s interests being adversely affected or another party to the review suffering hardship.

(5)For subsection (2), a person’s entitlement to apply for a review is taken to be unaffected by the ending of the period of 28 days mentioned in the QCAT Act, section 33(3).

(6)Immediately on receipt of the decision-maker’s notice, the registrar must give an information notice to each person named in the decision-maker’s notice.

(7)The information notice must state—

(a)details of the review application; and

(b)that the person may elect to become a party to the review and the period within which the notice of election must be filed under section 99ZB; and

(c)how the person may elect to become a party to the review.

99FReview applications by public guardian

(1)This section applies if the applicant for a review application is the public guardian.

(2)The review application must be made within 28 days after the public guardian gives notice under the Public Guardian Act 2014, section 133(4) to the chief executive about the reviewable decision.

99GGovernment entity may nominate decision-maker

The department may give the registrar a notice nominating an officer or employee of the department, or the holder for the time being of an office in the department, as the decision-maker for a review.

99HConstitution of tribunal

(1)The tribunal must be constituted by 3 members with at least 1 legally qualified member.

(2)A compulsory conference must be heard by at least 2 members, at least 1 of whom is a legally qualified member.

(3)If a child to which a proceeding before the tribunal relates is Aboriginal or Torres Strait Islander, the tribunal hearing the proceeding must include, if practicable, a member who is Aboriginal or Torres Strait Islander.

(4)The president may choose a member to constitute the tribunal for a proceeding to which this part applies only if the president considers the member—

(a)is committed to the principles mentioned in sections 5A to 5C; and

(b)has extensive professional knowledge and experience of children; and

(c)has demonstrated a knowledge of and has experience in 1 or more of the fields of administrative review, child care, child protection, child welfare, community services, education, health, indigenous affairs, law, psychology or social work.

(5)A member is ineligible to be a constituting member for a review of a reviewable decision if the member—

(a)has been refused a certificate of approval, or a renewal of a certificate of approval, as an approved carer; or

(b)has had a certificate of approval as an approved carer cancelled.

(6)In this section—

member has the meaning given by the QCAT Act.

99IPower of tribunal to stay operation of decision limited in particular circumstances

(1)This section applies if the tribunal is constituted by less than 3 members for a compulsory conference.

(2)The tribunal may, under the QCAT Act, section 22(3), only make an order staying the operation of a reviewable decision if the relevant decision-maker for the reviewable decision does not oppose the staying of the decision’s operation.

99JProceedings relating to this Act must usually be held in private

(1)A hearing of a proceeding before the tribunal to which this part applies must be held in private.

(2)However, the following are entitled to be present at the proceeding—

(a)each party to the proceeding;

(b)if, under an Act, a party is entitled to be represented by someone else at the proceeding, the party’s representative;

(c)a separate representative representing a child in the proceeding;

(d)the public guardian;

(e)a witness while giving evidence;

(f)a support person for a witness, while the witness is giving evidence;

(g)a person allowed to be present by the tribunal.

(3)This section is subject to the QCAT Act, section 220.

Editor’s note—

QCAT Act, section 220 (Tribunal may exclude person)

99KWhen proceeding may be held in public

Despite section 99J, the tribunal may allow a proceeding before the tribunal to be held in public if information identifying, or likely to lead to the identification of, a particular child will not be given in the proceeding.

99LAdjournments

(1)In considering whether to adjourn a proceeding before the tribunal involving a child, the tribunal must take into account any impact that adjourning the proceeding will have on the child.

(2)When it adjourns a proceeding, the tribunal must—

(a)give reasons for the adjournment; and

(b)state any matters it requires a party to the proceeding to address during the adjournment; and

(c)give directions and make orders it considers necessary or desirable.

99MWhen matter before court

(1)Subsection (2) applies if—

(a)a review application is before the tribunal; and

(b)some or all the matters to which the reviewable decision relates are also before a court.

(2)A legally qualified member of the tribunal must suspend the tribunal’s review if the member considers—

(a)the court’s decision about the matters would effectively decide the same issues to be decided by the tribunal; and

(b)the matters will be dealt with quickly by the court.

(3)If a legally qualified member acts under subsection (2), the court decides the matters and the decision effectively decides the issues before the tribunal, the member must dismiss the review application.

(4)Subsection (5) applies if—

(a)a legally qualified member has suspended the tribunal’s review; and

(b)the matters have not been decided by the court.

(5)The member may cancel the suspension and the tribunal may continue to deal with the review application.

(6)A legally qualified member may act under subsection (2), (3) or (5) on the member’s own initiative or on application by a party to the review.

99MASuspension of review proceeding if court may deal with contact matter

(1)This section applies if—

(a)the chief executive makes a reviewable decision under section 87(2) about contact between a child and the child’s parents or members of the child’s family; and

(b)a review application for the reviewable decision is made; and

(c)a proceeding for the review application (the review proceeding) is before the tribunal; and

(d)the applicant is also a party to a child protection proceeding relating to the child before the Childrens Court.

(2)If the chief executive becomes aware the circumstances mentioned in subsection (1) have arisen, the chief executive must notify the tribunal registrar.

(3)After the tribunal registrar is notified—

(a)a legally qualified member of the tribunal must suspend the review proceeding; and

(b)the tribunal registrar must notify the parties to the review proceeding and the court registrar of the suspension; and

(c)the chief executive must notify the parties to the child protection proceeding of the suspension.

(4)While the review proceeding is suspended, the court may make an order that the subject matter of the reviewable decision may be dealt with by the tribunal in the review proceeding.

(5)The court registrar must—

(a)if the court makes an order under subsection (4)—give the tribunal registrar a copy of the order; or

(b)if the court adjourns the child protection proceeding and makes an interim contact order—give the tribunal registrar a copy of the interim contact order; or

(c)if the court decides the child protection proceeding without making an order under subsection (4) or an interim contact order—notify the tribunal registrar of that action.

(6)If the tribunal registrar is notified that the court has acted in a way mentioned in subsection (5)(a) or (c)—

(a)a legally qualified member of the tribunal must cancel the suspension of the review proceeding; and

(b)the tribunal registrar must notify the parties to the review proceeding that the proceeding is no longer suspended.

(7)If the tribunal registrar is notified that the court has made an interim contact order—

(a)a legally qualified member of the tribunal must dismiss the review application; and

(b)the tribunal registrar must notify the parties to the review proceeding of the dismissal.

(8)This section does not affect the tribunal’s power to dismiss the review application apart from this section.

(9)In this section—

court registrar means the registrar of the Childrens Court.

interim contact order means an order under section 67(1)(b) or 68(1)(c) about the subject matter of the reviewable decision mentioned in subsection (1)(a).

party, to a child protection proceeding, includes—

(a)a separate representative for the child in the proceeding; and

(b)a person taking part in the proceeding under an order in force under section 113.

tribunal registrar means the principal registrar under the QCAT Act.

99NCompulsory conferences

(1)This section applies to a compulsory conference under the QCAT Act to which the parties to a proceeding before the tribunal have been directed to attend by the tribunal or principal registrar.

(2)In addition to anything the person presiding over the conference may do under the QCAT Act, the person may do 1 or more of the following—

(a)identify information to be given to the tribunal by the parties;

(b)give the parties information about the tribunal’s practice and procedures;

(c)refer the parties to alternative dispute resolution.

(3)Also, the person presiding over the conference may meet with a party separately—

(a)if the person considers doing so may avoid the escalation of conflict between the parties; or

(b)if the party is a child and the person considers doing so is in the child’s best interests having regard to the child’s views and wishes.

99ORequirements about ensuring proper understanding of tribunal proceedings

(1)In addition to the QCAT Act, section 29 the tribunal must take all reasonable steps to ensure each child taking part in a proceeding before the tribunal, who is not a party to the proceedings, understands the tribunal’s procedures.

(2)Also, a child entitled to start, or participate in, a proceeding before the tribunal—

(a)should be given the information and help necessary for the child to do so; and

(b)should have access to appropriate representation.

99PReview applications on behalf of children

(1)A person, other than the public guardian, may file a review application on behalf of a child only with the president’s permission.

(2)The president may give permission only if the president considers—

(a)the person is not, on the person’s own behalf, entitled to apply for the decision to be reviewed by the tribunal; and

(b)it is in the child’s best interests that the application be made; and

(c)it would be inappropriate for, or unreasonable to require, the child to make the application himself or herself.

(3)An applicant, other than the public guardian, may withdraw a review application filed on behalf of a child only with the permission of the president or the tribunal.

(4)The president or tribunal may give permission under subsection (3) only if the president or tribunal considers that, having regard to the child’s views or wishes, if any, it is in the child’s best interests that the application be withdrawn.

99QSeparate representation of children

(1)This section applies if a reviewable decision is about a child and the decision is the subject of a review application.

(2)Also, this section applies whether or not the child—

(a)is a party to a proceeding before the tribunal; or

(b)is represented by a lawyer or someone else under the QCAT Act, section 43.

(3)The tribunal must consider whether it would be in the child’s best interests for the child to be separately represented under this section before the tribunal by a lawyer (a separate representative).

(4)If the tribunal considers it would be in the child’s best interests for the child to be separately represented under this section before the tribunal by a lawyer, the tribunal must order that the child be represented by a separate representative.

(5)A separate representative may represent more than 1 child in the same proceeding before the tribunal.

(6)A separate representative must—

(a)act in the child’s best interests having regard to any expressed views or wishes of the child; and

(b)as far as possible, present the child’s views and wishes to the tribunal.

(7)For the QCAT Act, a separate representative has the same rights and obligations as a party to the review.

99RSeparate representative must not be called to give evidence

A separate representative must not, in any proceeding before the tribunal, be called to give evidence, and if called must not give evidence, about a communication between the representative and the child for whom the representative was appointed.

99SRepresentation of children

(1)This section applies if a party to a proceeding before the tribunal is a child who is represented by a separate representative under section 99Q.

(2)In the proceeding, the party may also be represented by a lawyer or someone else under the QCAT Act, section 43.

99TChildren must not be compelled to give evidence

(1)A child must not be compelled to give evidence in a proceeding before the tribunal.

(2)Without limiting subsection (1), the tribunal may not require a child to do either of the following under the QCAT Act, section 97(1)—

(a)attend a hearing of a proceeding to give evidence;

(b)produce a stated document or other thing to the tribunal.

(3)Before a child gives evidence in a proceeding, the tribunal must satisfy itself that the child is willing to give the evidence.

99UChild’s right to express views to tribunal

(1)This section applies if a reviewable decision is about a child and the decision is being reviewed by the tribunal.

(2)Whether or not the child is a party to the review or appears as a witness before the tribunal, the child has the right to express his or her views to the tribunal about matters relevant to the review.

99VChildren giving evidence or expressing views to tribunal

(1)This section applies if a child is giving evidence or expressing the child’s views to the tribunal.

(2)Only the following persons may be present while the child gives evidence or expresses the child’s views—

(a)the constituting members;

(b)the lawyer, if any, representing the child;

(c)the separate representative, if any, for the child;

(d)the child’s support person if the child has a support person and agrees to that person’s presence;

(e)the public guardian.

(3)Despite subsection (2), the child may elect to give evidence or express the child’s views in the presence of the parties and their representatives if the child—

(a)is 12 years or more; and

(b)is represented by a lawyer or a separate representative.

99WQuestioning of children

(1)A child giving evidence or expressing the child’s views in a proceeding before the tribunal must not be cross-examined.

(2)Also, only the following persons may ask questions of a child giving evidence or expressing the child’s views in a proceeding—

(a)the constituting members;

(b)the lawyer, if any, representing the child;

(c)the separate representative, if any, for the child.

99XProvisions applying if party to review is a child who is a parent of the child about whom the reviewable decision was made

(1)This section applies if—

(a)a party to a proceeding before the tribunal to have a reviewable decision reviewed is—

(i)a child; and

(ii)a parent of the child about whom the reviewable decision was made; and

(b)in the proceeding the parent elects to give evidence.

(2)Sections 99V and 99W do not apply to the parent.

(3)Before the parent gives evidence, the tribunal must tell the parent that—

(a)he or she may be cross-examined by the tribunal or a party to the proceeding; and

(b)he or she may, at any time while the cross-examination is continuing, refuse to be further cross-examined; and

(c)if he or she acts under paragraph (b), this may affect the weight given by the tribunal to his or her evidence.

99YPresident or tribunal may authorise medical examination of child

(1)For a review, the president or the tribunal may, by order, authorise a medical examination of a child and require a report of the examination to be filed with the registrar.

(2)The order must state the particular issues the report must address.

(3)The president or tribunal must not make the order unless the president or tribunal is satisfied—

(a)the medical information, if any, available to the tribunal about the child is insufficient to allow the tribunal to decide the review; and

(b)the child’s interests will be best served by making the order.

(4)In deciding whether the child’s interests will be best served by making the order, the president or tribunal must consider the child’s views and wishes, if any, and the effect the medical examination may have on the child having regard to the number and frequency of any previous medical examinations the child has undergone.

99ZCarrying out medical examinations

(1)This section applies if an order under section 99Y authorises a child’s medical examination.

(2)A doctor may medically examine the child.

(3)Subsection (2) applies even though the child’s parents or guardian has not consented to the examination.

(4)However, subsection (2) is subject to the rights the child has in relation to the examination.

(5)For deciding any liability in relation to the carrying out of the examination, the doctor is taken to have the consent of the child’s parents or guardian to the examination.

99ZAParties to review

The parties to a review are—

(a)the applicant for the review; and

(b)the decision-maker; and

(c)a person who elects to become a party under section 99ZB; and

(d)a person joined as a party under section 99ZC.

99ZBCertain persons may elect to become parties

(1)This section applies to a person who is given an information notice under section 99E(6).

(2)The person may elect to become a party to the review to which the notice relates by filing a notice of election with the registrar.

(3)The notice of election must be filed with the registrar within 7 days after the person receives the information notice.

(4)The tribunal may shorten the period for filing the notice of election.

(5)The tribunal may act under subsection (4) only if satisfied that not to do so will result in a child’s interests being adversely affected or another party to the review suffering hardship.

99ZCJoinder of person as party to review

(1)The tribunal may join a person as a party to a review if it is satisfied the person is genuinely concerned in the subject matter of the review.

(2)However, if the review concerns a child, the tribunal may not join a person as a party unless it is satisfied that to do so would be in the child’s best interests.

(3)The tribunal may join a person as a party to the review on its own initiative or on application by the person.

(4)The tribunal may join a person as a party to the review at any time before the review application is finally decided by the tribunal.

99ZDConfidentiality order

(1)The tribunal may, by order (a confidentiality order), prohibit or restrict the disclosure to a party to a proceeding before the tribunal of all or some of the evidence given before the tribunal, or of the whole or part of the contents of a document given to, or received in evidence by, the tribunal for the review.

(2)Subsection (3) applies for the purpose of the tribunal—

(a)deciding whether to make a confidentiality order; or

(b)giving effect to a confidentiality order.

(3)The tribunal may—

(a)exclude a party, and any representative of the party, from part of the proceeding before the tribunal; or

(b)deal with a document in a way that ensures it is not disclosed to a party.

(4)The tribunal may make a confidentiality order only if it is satisfied that if it does not do so—

(a)a child is likely to be harmed; or

(b)the safety of another person is likely to be endangered; or

(c)there would be undue interference with the privacy of a child or another person.

(5)The tribunal may act under subsection (1) on its own initiative or on application by a party to the proceeding before the tribunal.

(6)A confidentiality order does not act to prohibit or limit the disclosure of material to a separate representative in a proceeding before the tribunal.

99ZELimited access to tribunal’s register of proceedings

(1)This section applies to the register of proceedings kept by the principal registrar under the QCAT Act, section 229(1).

(2)Despite the QCAT Act, section 229(2) the principal registrar must ensure that part of the register which relates to proceedings before the tribunal to which this part applies is not available for inspection by the public.

(3)The QCAT Act, section 229(4) does not apply to that part of the register which relates to proceedings before the tribunal to which this part applies.

99ZFLimited access to tribunal’s record of proceedings

(1)This section applies to a record kept under the QCAT Act, section 230 for a proceeding before the tribunal to which this part applies.

(2)Despite the QCAT Act, section 230(3) a person who is not a party to the proceeding may not inspect, or obtain a copy of, the record or a part of the record.

99ZGCertain information not to be published

(1)A person must not publish—

(a)information given in evidence or otherwise in a proceeding before the tribunal; or

(b)information that is likely to identify a person who—

(i)appears as a witness before the tribunal in a proceeding; or

(ii)is a party to the proceeding; or

(iii)is mentioned, or otherwise involved, in the proceeding.

Maximum penalty—

(a)for a corporation—1,000 penalty units; or

(b)for an individual—100 penalty units or 2 years imprisonment.

(2)Subsection (1)(a) does not apply to—

(a)a person if the tribunal or the president of the tribunal consents to the publication of the information by the person; or

(b)the tribunal publishing its final decision in a proceeding, with or without the reasons for the decision.

(3)The tribunal or the president may only consent to the publication as mentioned in subsection (2) if the tribunal or the president is satisfied the publication of the information—

(a)is in the public interest; and

(b)does not conflict with the best interests of the child.

(4)In this section—

information includes—

(a)a matter contained in a document filed with, or received by, the tribunal; and

(b)the tribunal’s decision or reasons for a decision.

publish, for information, means to publish it to the public by way of the internet, newspaper, radio, television or other form of communication.

99ZHApplication of pt 7

(1)This part applies to each decision of the tribunal on a review application other than a decision to confirm the reviewable decision.

(2)This part also applies to recommendations made by the tribunal, after reviewing a reviewable decision, to the chief executive about policies, practices and procedures of the entity relevant to the making of reviewable decisions.

99ZIRequests to chief executive

The president may ask the chief executive to notify the president, within a reasonable stated time—

(a)of the steps taken to give effect to the tribunal’s decision; or

(b)of the steps taken to give effect to the tribunal’s recommendations and, if no steps have been taken, the reasons for this.

99ZJWhat happens if decision not given effect etc.

(1)This section applies if the president, after considering the response of the chief executive given under section 99ZI, is of the opinion that—

(a)the tribunal’s decision has not been given effect; or

(b)no steps have been taken to give effect to the tribunal’s recommendations or the steps taken are inadequate or inappropriate.

(2)The president may report on the matter to the Minister responsible for the department.

(3)The president must attach the following to the report—

(a)if the report is about the tribunal’s decision—copies of the decision and response;

(b)if the report is about the tribunal’s recommendations—copies of the recommendations and response.

100Application of ch 3

This chapter applies to a proceeding under this Act.

101Definition for ch 3

In this chapter—

order means a court assessment order or child protection order.

102Court’s jurisdiction and constitution

(1)The Childrens Court must be constituted by a judge when exercising its jurisdiction to hear appeals against decisions of the court constituted in another way.

(2)The Childrens Court must be constituted by a judge or magistrate when exercising its jurisdiction to decide applications for child protection orders.

(3)The Childrens Court must be constituted by a judge or magistrate or 2 justices of the peace (magistrates court) when exercising its jurisdiction to—

(a)decide applications for court assessment orders; or

(b)make interim orders on applications for court assessment orders or child protection orders or adjourn the hearing of the applications.

Note—

Under the Acts Interpretation Act 1954, section 24AA, the court has power to amend or repeal an instrument or decision it is authorised or required to make. The power is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

(4)Subsection (3) has effect despite the Justices of the Peace and Commissioners for Declarations Act 1991, section 29(4).

Note—

Under the Justices of the Peace and Commissioners for Declarations Act 1991, section 29(4), the exercise of powers of justices of the peace (magistrates court) constituting a court are limited unless expressly provided in the Act conferring powers on the justices.

103Court’s jurisdiction unaffected by pending criminal proceeding

(1)The Childrens Court’s jurisdiction is not affected merely because a criminal proceeding is pending against—

(a)the child concerned; or

(b)a parent of the child; or

(c)another party to the proceeding in the court; or

(d)anyone else.

(2)Subsection (1) applies whether or not the criminal proceeding has arisen out of the same or similar facts as those out of which the proceeding in the court has arisen.

104Court must have regard to particular principles and state reasons

(1)In exercising its jurisdiction or powers, the Childrens Court must have regard to the principles stated in sections 5A to 5C, to the extent the principles are relevant.

(2)When making a decision under this Act, the Childrens Court must state its reasons for the decision.

105Evidence

(1)In a proceeding, the Childrens Court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate.

(2)If, on an application for an order, the Childrens Court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.

106Court to ensure parties understand proceeding

(1)In a proceeding for a child, the Childrens Court must, as far as practicable, ensure the child’s parents and other parties to the proceeding (including the child if present) understand the nature, purpose and legal implications of the proceeding and of any order or ruling made by the court.

(2)If the child, parent of a child or other party to a proceeding has a difficulty communicating in English or a disability that prevents him or her from understanding or taking part in the proceeding, the Childrens Court must not hear the proceeding without an interpreter to translate things said in the proceeding or a person to facilitate his or her taking part in the proceeding.

107Expert help

(1)In a proceeding on an application for an order, the Childrens Court may appoint a person having a special knowledge or skill to help the court.

(2)The court may act under subsection (1) on the court’s own initiative or on the application of a party to the proceeding.

108Right of appearance and representation

(1)In a proceeding on an application for an order for a child—

(a)the child may appear in person or be represented by either or both of the following—

(i)a lawyer engaged as the child’s direct representative to act on the child’s instructions;

(ii)a lawyer appointed under section 110 to act in the child’s best interests; and

(b)the child’s parents and other parties may appear in person or be represented by a lawyer.

(2)Also, if the child’s parents for any reason can not appear in person, another person appointed in writing by the parents may, with the leave of the court, present their views and wishes.

108BRight of appearance of public guardian

(1)The public guardian may appear in a proceeding on an application for an order for a child.

(2)If the public guardian intends to appear at a proceeding, the public guardian must give written notice of the intention to the registrar of the Childrens Court at the place where the hearing is to be conducted within a reasonable time before the hearing of the application starts.

(3)However, a failure to give notice as required under subsection (2) does not prevent the public guardian appearing at the hearing.

(4)A reference in this part to the public guardian includes a reference to someone authorised in writing by the public guardian for this part.

(5)A person authorised in writing by the public guardian for this part must, if asked, produce evidence of the authorisation.

108CPublic guardian’s role at hearing

(1)The public guardian’s role in a proceeding on an application for an order for a child is—

(a)to support the child by presenting the child’s views and wishes to the Childrens Court; and

(b)to make submissions, call witnesses and test evidence, including by cross-examining witnesses.

(2)The public guardian’s role in the proceeding is not diminished even if there is a direct representative or separate representative for the child.

(3)The public guardian is not a party to the proceeding.

(4)The public guardian’s role in the proceeding ends when the application is decided or withdrawn.

108DAccess

(1)This section applies if, in a proceeding in the Childrens Court on an application for an order for a child, a document is before the court.

(2)The public guardian may access a document, and make copies of the document, if a party to the proceeding may also access the document.

(3)Without limiting section 108C(1)(b), the public guardian may make submissions about a document accessed under this section.

(4)In this section—

document includes information.

109Legal representation of child’s parents

(1)If, in a proceeding on an application for an order for a child, a parent of the child appears in the Childrens Court but is not represented by a lawyer, the court may continue with the proceeding only if it is satisfied the parent has had reasonable opportunity to obtain legal representation.

(2)Subsection (1) does not prevent the court exercising powers under chapter 2, part 5, division 1.

110Appointment of a separate representative

(1)If, in a child protection proceeding, the Childrens Court considers it is necessary in the child’s best interests for the child to be separately represented by a lawyer, the court may—

(a)order that the child be separately represented by a lawyer (the child’s separate representative); and

(b)make any other orders it considers necessary to secure the child’s separate legal representation.

(2)Without limiting subsection (1), the court must consider making an order for the child to have a separate representative if the proceeding concerns an application that is contested by the child’s parents or opposed by the child.

(3)The rules of court may prescribe matters that the court must consider when deciding whether to make an order for the child to have a separate representative.

(4)If a separate representative is appointed, he or she must—

(a)to the extent that is appropriate, taking into account the child’s age and ability to understand—

(i)meet with the child; and

(ii)explain the separate representative’s role; and

(iii)help the child take part in the proceedings; and

(b)as far as possible, present the child’s views and wishes to the court.

(5)The separate representative must act in the child’s best interests regardless of any instructions from the child.

(6)The separate representative is not a party to a proceeding on the application but—

(a)must do anything required to be done by a party; and

(b)may do anything allowed to be done by a party.

(7)The parties to the proceeding must act in relation to the proceeding as if the separate representative were a party to the proceeding.

(8)The separate representative’s role ends when—

(a)the application is decided or withdrawn; or

(b)if there is an appeal in relation to the application—the appeal is decided or withdrawn.

111Legal representation of more than 1 child

(1)A lawyer may represent more than 1 child in the same proceeding.

(2)However, if the court considers a lawyer should not represent more than 1 child because of a conflict of interest, or a possible conflict of interest, the court may order that a child be represented by another lawyer.

112Child can not be compelled to give evidence

(1)In a proceeding on an application for an order for a child, the child may only be called to give evidence with the leave of the Childrens Court.

(2)The court may grant leave only if the child—

(a)is at least 12 years; and

(b)is represented by a lawyer; and

(c)agrees to give evidence.

(3)If the child gives evidence, he or she may be cross-examined only with the leave of the court.

113Court may allow non-parties to take part in proceedings

(1)This section applies in relation to a proceeding on an application for an order for a child.

(2)On application by a person who is not a party, the court may, by order, allow the person to take part in the proceeding by doing all or some of the things that a party is or may be allowed to do.

(3)Before deciding the application, the court must—

(a)give the other parties a reasonable opportunity to make submissions about the person’s participation; and

(b)consider—

(i)the extent to which the person may be able to inform the court about a matter relevant to the proceeding; and

(ii)the person’s relationship with the child.

(4)An order allowing the person to take part in the proceeding—

(a)must state—

(i)how the person may take part; and

(ii)whether the participation is allowed until the proceeding ends or only for a stated part of the proceeding; and

(b)may be subject to conditions; and

(c)may require the person to do a thing that a party is or may be required to do; and

(d)may provide that a stated provision of this Act, or all provisions, apply in relation to the person as if the person were a party.

(5)This Act applies in relation to the person, as if the person were a party, to the extent provided in the order.

(6)The person may be represented by a lawyer for the purpose of taking part in the proceeding.

114Transfer of proceedings

(1)If a magistrate constituting the Childrens Court is of the opinion a proceeding before the magistrate should be heard by the court constituted by a magistrate at another place, the magistrate may order that the proceeding be transferred to the court constituted by a magistrate at the other place.

(2)A magistrate may act under subsection (1) on the magistrate’s own initiative or on the application of a party to the proceeding.

115Hearing of applications together

(1)The Childrens Court may hear 2 or more applications for orders together if the court considers it is in the interests of justice to do so.

(2)Subsection (1) applies even though the parties, or all of the parties, to the proceedings are not the same.

(3)The court may decide to act under subsection (1), at any time before the applications are decided, on its own initiative or on the application of a party to the proceeding.

116Costs

The parties to a proceeding in the Childrens Court for an order must pay their own costs of the proceeding.

117Who may appeal

(1)The following persons may appeal to the appellate court against a decision on an application for a temporary assessment order or a temporary custody order for a child—

(a)the applicant;

(b)the child;

(c)the child’s parents.

(2)A party to the proceeding for an application for a court assessment order or child protection order for a child may appeal to the appellate court against a decision on the application.

(3)In this section—

parent, of a child, means each of the following persons—

(a)the child’s mother or father;

(b)a person in whose favour a residence order or contact order for the child is in operation under the Family Law Act 1975 (Cwlth);

(c)a person, other than the chief executive, having custody or guardianship of the child under—

(i)a law of the State, other than this Act; or

(ii)a law of another State;

(d)a long-term guardian of the child.

118How to start appeal

(1)The appeal is started by filing a written notice of appeal with the registrar of the appellate court.

(2)The appellant must serve a copy of the notice on the other persons entitled to appeal against the decision.

(3)The notice of appeal must be filed within 28 days after the decision is made.

(4)The court may at any time extend the period for filing the notice of appeal.

(5)The notice of appeal must state fully the grounds of the appeal and the facts relied on.

119Stay of operation of decisions

(1)The appellate court may stay a decision appealed against to secure the effectiveness of the appeal.

(2)A stay—

(a)may be given on the reasonable conditions the court considers appropriate; and

(b)operates for the period fixed by the court; and

(c)may be revoked or amended by the court.

(3)However, the period of a stay must not extend past the time when the court decides the appeal.

(4)An appeal against a decision affects the decision, or carrying out of the decision, only if the decision is stayed.

120Hearing procedures

(1)An appeal against a decision of a magistrate on an application for a temporary assessment order or a temporary custody order is not restricted to the material before the magistrate.

(2)An appeal against another decision must be decided on the evidence and proceedings before the Childrens Court.

(3)However, the appellate court may order that the appeal be heard afresh, in whole or part.

122Statement of standards

(1)The chief executive must take reasonable steps to ensure a child placed in care under section 82(1) is cared for in a way that meets the following standards (the statement of standards)—

(a)the child’s dignity and rights will be respected at all times;

(b)the child’s needs for physical care will be met, including adequate food, clothing and shelter;

(c)the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to the child’s positive self-regard;

(d)the child’s needs relating to his or her culture and ethnic grouping will be met;

(e)the child’s material needs relating to his or her schooling, physical and mental stimulation, recreation and general living will be met;

(f)the child will receive education, training or employment opportunities relevant to the child’s age and ability;

(g)the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour;

(h)the child will receive dental, medical and therapeutic services necessary to meet his or her needs;

(i)the child will be given the opportunity to participate in positive social and recreational activities appropriate to his or her developmental level and age;

(j)the child will be encouraged to maintain family and other significant personal relationships;

(k)if the child has a disability—the child will receive care and help appropriate to the child’s special needs.

(2)For subsection (1)(g), techniques for managing the child’s behaviour must not include corporal punishment or punishment that humiliates, frightens or threatens the child in a way that is likely to cause emotional harm.

(3)For subsection (1)(j), if the chief executive has custody or guardianship of the child, the child’s carer must act in accordance with the chief executive’s reasonable directions.

(4)The application of the standards to the child’s care must take into account what is reasonable having regard to—

(a)the length of time the child is in the care of the carer or care service; and

(b)the child’s age and development.

123Purpose of pt 2

The purpose of this part is to provide a system of licensing services, and approving individuals, to provide care for children to enable the chief executive to ensure the care of children in the chief executive’s custody or guardianship meets the standards of care in the statement of standards.

124Individuals can not hold licences

An individual is not eligible to hold a licence.

125Application for, or renewal of, licence

(1)An application for, or renewal of, a licence to provide care services must—

(a)be made by a corporation; and

(b)be made to the chief executive in the approved form; and

(c)nominate an adult to be nominee for the licence; and

(d)be accompanied by a notice that—

(i)is signed by the nominee for the licence; and

(ii)states whether or not, for each person mentioned in section 126(b)(i) or (ii), the person hasholds a working with children authority or negative notice; and

(iii)if the person hasholds a working with children authority—states the expiry date for the authority; and

(iv)if the person does not havehold a working with children authority—states whether or not the person has made a working with children check application and whether the application has been decided or withdrawn; and

(e)if the application is for renewal of a licence—be made at least 30 days before the licence ends.

(2)The application form approved by the chief executive may require the disclosure of the domestic violence history and traffic history of a person to whom section 142A(a) applies.

126Restrictions on granting application

The chief executive must not grant the application unless the chief executive is satisfied—

(a)the applicant is a suitable entity to provide care services; and

(b)the following persons are suitable persons—

(i)the directors of the applicant;

(ii)the nominee for the licence;

(iii)the persons who will be, or are, responsible for directly managing thea care service the subject of the application;

(iv)the persons who will be, or are, engaged in relation to the provision of care services by the service; and

(iv)the persons who will be, or are, performing risk-assessed roles for a care service the subject of the application; and

(c)each person mentioned in paragraph (b)(i) or (ii) hasholds a working with children authority; and

(d)the applicant will comply with the Working with Children Act, chapter 7, in carrying on a regulated business or employing persons in regulated employment under that Act; and

(e)the standard of care provided complies, and will continue to comply, with the statement of standards; and

(f)methods for the selection, training and management of people engaged in providing the services are suitable; and

(g)the applicant’s primary function is a function relating to the care of children in need of protection who are in the custody or guardianship of the chief executive; and

(h)any accommodation provided by the applicant to children in need of protection is, and will continue to be, at a place that the applicant has a suitable right to occupy.

Example of a place that an applicant has a suitable right to occupy—

residential premises leased, rented or owned by the applicant

Example of a place that an applicant does not have a suitable right to occupy—

a motel room booked by the applicant

127Grant of application

(1)If the chief executive decides to grant the application, the chief executive must issue and give to the applicant a licence.

(2)The licence may be issued subject to the reasonable conditions the chief executive considers appropriate.

(3)The licence must be in the approved form.

(4)The approved form must provide for the inclusion of the following—

(a)the licensee’s name;

(b)the name of the nominee for the licence;

(c)the address of the licensed premises;

(d)any conditions of the licence.

128Duration of licence

The licence or its renewal has effect for 3 years.

129Refusal of application

(1)If the chief executive decides to refuse the application, the chief executive must give written notice of the decision to the applicant.

(2)The notice must—

(a)be given within 10 days after the decision is made; and

(b)state the reasons for the decision; and

(c)unless the application is refused because a person mentioned in section 126(b)(i) or (ii) does not havehold a working with children authority—

(i)state the applicant may apply to the tribunal to have the decision reviewed; and

(ii)state how, and the time within which, the applicant may apply to have the decision reviewed; and

(iii)state any right the applicant has to have the operation of the decisions stayed.

129ALicensee’s obligations

A licensee must ensure that—

(a)care services provided by a licensed care service operated under the licence comply with the standards of care stated in the statement of standards; and

(b)each person performing a risk-assessed role for a licensed care service operated under the licence is a suitable person; and

(a)care services provided by the licensee comply with the standards of care stated in the statement of standards; and

(b)each person the licensee engages to provide care services is a suitable person; and

(c)for carrying on a regulated business or employing persons in regulated employment under the Working with Children Act—the Working with Children Act, chapter 7 is complied with.

130Nominees

(1)The nominee for a licence is responsible for ensuring the licensee complies with section 129A unless—

(a)if the nominee is in a position to influence the conduct of the licensee in relation to the licensee’s compliance—the nominee took reasonable steps to ensure the licensee complied; or

(b)the nominee was not in a position to influence the conduct of the licensee in relation to the licensee’s compliance.

(2)An adult may be a nominee for more than 1 licence.

131Application of div 3

This division applies to—

(a)a certificate of approval as an approved foster carer (a foster carer certificate); or

(b)a certificate of approval as an approved kinship carer (a kinship carer certificate).

132Holding a certificate

(1)Only an individual is eligible to hold a certificate.

(2)Two or more individuals may hold a certificate jointly.

(3)A person living with his or her spouse may only hold a certificate jointly with the spouse.

(4)A person may hold more than 1 kinship carer certificate.

133Process for initial issue of a certificate

(1)A person may apply to the chief executive to be issued with a certificate.

(2)The application must be in the approved form.

(3)The approved form may require the disclosure of any of the following—

(a)the applicant’s criminal history, domestic violence history and traffic history;

(b)the membership of the applicant’s household;

(c)information of which the applicant is aware, or that the applicant reasonably suspects, about the criminal history, domestic violence history and traffic history of each member of the applicant’s household;

(d)information about whether the applicant and each adult member of the applicant’s household haseither—

(i)a working with children authority or negative notice; or

(ii)made a working with children check application;

(i)holds a working with children authority or negative notice; or

(ii)has made a working with children check application;

(e)if the applicant or an adult member of the applicant’s household hasholds a working with children authority—the expiry date for the authority.

(4)The application must be signed by the applicant and each adult member of the applicant’s household.

Note—

Under division 7, the chief executive may obtain information about the applicant and adult members of the applicant’s household direct from the police commissioner and the chief executive for transport.

(5)If the chief executive decides to grant the application, the chief executive must issue a certificate and give it to the applicant.

(6)The certificate may be issued subject to the reasonable conditions the chief executive considers appropriate.

(7)If it is a kinship carer certificate, it must relate only to the care of 1 child.

(8)The matters stated in the certificate must include the following—

(a)the approved carer’s name;

(b)whether the carer is an approved foster carer or approved kinship carer;

(c)for a kinship carer certificate—the name of the child for whom the carer is approved;

(d)any conditions of the certificate;

(e)the day of its issue;

(f)the day on which it is due to expire (the expiry day).

(9)The expiry day must be—

(a)for a foster carer certificate—1 year from the day of issue; or

(b)for a kinship carer certificate—not more than 1 year from the day of issue.

(10)Subject to this Act, the certificate has effect until the expiry day.

134Process to renew a certificate

(1)Before a certificate ends, the holder may apply to the chief executive to renew the certificate.

(2)The application must be in the approved form.

(3)The approved form may require the disclosure of a change to any of the following information that has not been previously notified to the chief executive—

(a)the applicant’s criminal history, domestic violence history and traffic history;

(b)the membership of the applicant’s household;

(c)information of which the applicant is aware, or that the applicant reasonably suspects, about the criminal history, domestic violence history and traffic history of a member of the applicant’s household;

(d)information about whether the applicant and each adult member of the applicant’s household haseither—

(i)a working with children authority or negative notice; or

(ii)made a working with children check application;

(i)holds a working with children authority or negative notice; or

(ii)has made a working with children check application;

(e)if the applicant or an adult member of the applicant’s household hasholds a working with children authority—the expiry date for the authority.

(4)The application must be signed by the applicant and each adult member of the applicant’s household.

Note—

Under division 7, the chief executive may obtain information about the applicant and adult members of the applicant’s household direct from the police commissioner and the chief executive for transport.

(5)If the chief executive decides to grant the application, the chief executive must issue a new certificate and give it to the applicant.

(6)The matters stated in the certificate must include the following—

(a)that it is a renewed certificate;

(b)the approved carer’s name;

(c)whether the carer is an approved foster carer or approved kinship carer;

(d)for a kinship carer certificate—the name of the child for whom the carer is approved;

(e)any conditions of the certificate;

(f)the day of its issue;

(g)the day on which it is due to expire (the expiry day).

(7)The conditions may only include conditions that applied immediately before the renewal.

Note—

The conditions may be changed by amending the certificate under division 4.

(8)The expiry day must be—

(a)for a foster carer certificate—23 years from the day of issue; or

(b)for a kinship carer certificate—not more than 23 years from the day of issue.

(9)Subject to this Act, the certificate has effect until the expiry day.

135Restrictions on granting application

(1)The chief executive must not grant an application for, or to renew, a certificate unless the chief executive is satisfied of the following matters—

(a)for a foster carer certificate—

(i)the applicant is a suitable person to be an approved foster carer; and

(ii)all members of the applicant’s household are suitable persons to associate on a daily basis with children; and

(iii)the applicant and each adult member of the applicant’s household havehold a working with children authority; and

(iv)the applicant is able to meet the standards of care in the statement of standards; and

(v)the applicant is able to help in appropriate ways towards achieving plans for the protection of a child placed in the carer’s care;

(b)for a kinship carer certificate—

(i)the applicant is kin to the child to whom the approval relates; and

(ii)the applicant is a suitable person to be an approved kinship carer for the child; and

(iii)all members of the applicant’s household are suitable persons to associate on a daily basis with the child; and

(iv)the applicant and each adult member of the applicant’s household havehold a working with children authority; and

(v)the applicant is able to meet the standards of care in the statement of standards; and

(vi)the applicant is able to help in appropriate ways towards achieving plans for the child’s protection.

(2)However, subsection (1)(b)(ii) to (v) does not apply if the applicant is an approved kinship carer for 1 or more other children.

(23)In this section—

adult member, of an applicant’s household, means a person who is an adult member of the household both at the time when the application is made and when it is decided.

136Refusal of application

(1)If the chief executive decides to refuse an application for, or to renew, a certificate, the chief executive must give written notice of the decision to the applicant.

(2)The notice must—

(a)be given within 10 days after the decision is made; and

(b)state the reasons for the decision; and

(c)unless the application is refused because a person mentioned in section 135(1)(a)(iii) or (b)(iv) does not havehold a working with children authority—

(i)state the applicant may apply to the tribunal to have the decision reviewed; and

(ii)state how, and the time within which, the applicant may apply to have the decision reviewed; and

(iii)state any right the applicant has to have the operation of the decisions stayed.

136AApplication and purpose of div 3A

(1)This division applies to a certificate of approval as a provisionally approved carer.

(2)The purpose of this division is to enable the chief executive to give limited approval to a person to care for a particular child in circumstances where—

(a)the person has been provisionally assessed as suitable to care for the child; and

(b)it is not possible, or not in the child’s best interests, for the child to be placed in the care of an approved kinship carer for the child, approved foster carer, entity conducting a departmental care service or licensee.

136BHolding a certificate

(1)Only an individual is eligible to hold a certificate.

(2)Two or more individuals may hold a certificate jointly.

(3)A person living with his or her spouse may only hold a certificate jointly with the spouse.

(4)A person may hold more than 1 certificate.

136CBasis for issuing a certificate

The chief executive may decide to issue a person with a certificate relating to the care of a particular child if—

(a)the chief executive proposes to place the child in care under this Act; and

(b)the person has applied for a certificate of approval as—

(i)an approved foster carer; or

(ii)an approved kinship carer for the child; and

(c)the application has not yet been decided; and

(d)the person agrees to being issued with a certificate of approval as a provisionally approved carer for the child; and

(e)the chief executive is satisfied of the following matters—

(i)the person is a suitable person to be a provisionally approved carer for the child;

(ii)all members of the person’s household are suitable persons to associate on a daily basis with the child;

(iii)the person is able to meet the standards of care in the statement of standards.

136DIssue of certificate

(1)If the chief executive makes a decision under section 136C, the chief executive must issue a certificate and give it to the applicant.

(2)The certificate may be issued subject to the reasonable conditions the chief executive considers appropriate.

(3)The certificate must relate only to the care of 1 child.

(4)The matters stated in the certificate must include the following—

(a)the approved carer’s name;

(b)that it is a certificate of approval as a provisionally approved carer;

(c)the name of the child for whom the carer is approved;

(d)any conditions of the certificate;

(e)the day of its issue;

(f)the day on which it is due to expire (the expiry day).

(5)The expiry day must be not more than 60 days from the day of issue.

(6)Subject to this Act, the certificate has effect until the earlier of the following days—

(a)the expiry day;

(b)the day the carer is—

(i)issued with a foster carer certificate or kinship carer certificate for the child; or

(ii)given written notice that the carer’s application for a foster carer certificate or kinship carer certificate for the child has been refused.

(7)If the approved carer starts to live with his or her spouse after the issue of the certificate but before its expiry day, the certificate continues to have effect until the day mentioned in subsection (6).

137Amendment of authority on application of holder

(1)The holder of an authority may apply to the chief executive for an amendment of the authority.

(2)A certificate of approval as an approved kinship carer or a provisionally approved carer may not be amended to change the child for whom the carer is approved.

(3)The chief executive must consider the application and decide whether to grant or refuse it within 28 days after receiving it.

(4)If the chief executive is satisfied the amendment is necessary or desirable, the chief executive must grant the application.

(5)If the amendment is about changing the nominee for a licence, in deciding whether the amendment is necessary or desirable, the chief executive must consider—

(a)whether the proposed nominee is a suitable person; and

(b)whether the proposed nominee haseither—

(i)a working with children authority; or

(ii)made a current working with children check application.

(i)holds a working with children authority; or

(ii)has made a current working with children check application.

(6)If the amendment is about adding a licensed premises to a licence, the chief executive must, in deciding whether the amendment is necessary or desirable, consider the following matters—

(a)whether each care service that is, or will be, provided at the premises complies with the standards of care stated in the statement of standards;

(b)whether each person responsible for directly managing a care service that is, or will be, provided at the premises—

(i)is a suitable person; and

(ii)either—

(A)holds a working with children authority; or

(B)has made a current working with children check application;

(c)whether the methods for the selection, training and management of people engaged in providing a care service, that is, or will be, provided at the premises are suitable;

(d)if the premises are a licensed residential facility—whether the premises are suitable for providing accommodation to children in need of protection.

(67)If the chief executive is not satisfied the amendment is necessary or desirable, the chief executive must—

(a)refuse the application; and

(b)give written notice to the applicant of the decision.

(78)The notice must—

(a)be given within 10 days after the chief executive decides to refuse the application; and

(b)state the reasons for the decision; and

(c)state the applicant may apply to the tribunal to have the decision reviewed; and

(d)state how, and the time within which, the applicant may apply to have the decision reviewed; and

(e)state any right the applicant has to have the operation of the decisions stayed.

(89)Subsection (7)Subsection (8)(c) and (d) dodoes not apply to a provisional certificate.

138Amendment of authority by the chief executive

(1)The chief executive may amend an authority at any time if—

(a)the holder agrees to the amendment; or

(b)the chief executive considers it is necessary or desirable because—

(i)the holder is not meeting the standards required under the authority or a condition of the authority; or

(ii)the holder has contravened a provision of this Act; or

(iii)the authority was issued because of a materially false or misleading representation or declaration (made either orally or in writing); or

(iv)of another circumstance prescribed under a regulation.

(2)Also, the chief executive may amend a licence at any time, to remove a licensed premises from the licence, if the chief executive considers it is necessary or desirable because—

(a)a licensed care service provided at the premises does not comply with the standards of care stated in the statement of standards; or

(b)a person responsible for directly managing a licensed care service provided at the premises—

(i)is not a suitable person; or

(ii)does not hold a working with children authority; or

(c)the methods for the selection, training and management of people engaged in providing a licensed care service at the premises are not suitable; or

(d)if the premises are a licensed residential facility—the premises are not suitable for providing accommodation to children in need of protection; or

(e)of another circumstance prescribed under a regulation.

(23)If the chief executive considers it necessary or desirable to amend an authority under subsection (1)(b) or (2), the chief executive must give the holder a written notice under this section.

(34)The notice must state the following—

(a)the proposed amendment and the grounds for the amendment;

(b)the facts and circumstances forming the basis for the grounds;

(c)that the holder may make written representations to the chief executive to show why the authority should not be amended;

(d)the term, at least 28 days after the notice is given to the holder, within which the representations may be made.

(45)After the end of the term stated in the notice, the chief executive must consider the representations properly made by the holder.

(56)If the chief executive is satisfied the amendment is necessary or desirable, the chief executive must give written notice to the holder of the decision.

(67)The notice must—

(a)be given within 10 days after the decision is made; and

(b)state the reasons for the decision; and

(c)state the holder may apply to the tribunal to have the decision reviewed; and

(d)state how, and the time within which, the holder may apply to have the decision reviewed; and

(e)state any right the holder has to have the operation of the decisions stayed.

(78)If the chief executive is not satisfied the amendment is necessary or desirable, the chief executive must, as soon as practicable, give written notice to the holder of the decision.

(89)The chief executive may not act under this section—

(a)to amend a certificate of approval to extend the period for which the certificate has effect; or

(b)to amend a provisional certificate.

138AAmendment of kinship carer certificate to extend its expiry day

(1)This section applies to a certificate of approval as an approved kinship carer.

(2)The chief executive may amend the certificate to extend its expiry day if—

(a)the certificate is still in force; and

(b)the chief executive is satisfied the amendment is appropriate and desirable to meet the needs of the child for whom the holder is approved; and

(c)the holder agrees to the amendment.

(3)The expiry day may only be extended to a day that is—

(a)for an initial certificate—not more than 1 year after the day it is issued; or

(b)for a renewed certificate—not more than 23 years after the day it is issued.

(4)In this section—

expiry day means the day on which the certificate is due to expire.

138BAmendment of provisional certificate to extend its expiry day

(1)This section applies to a certificate of approval as a provisionally approved carer.

(2)The chief executive may amend the certificate to extend its expiry day if—

(a)the certificate is still in force; and

(b)the chief executive is satisfied the amendment is appropriate and desirable to meet the needs of the child for whom the holder is approved; and

(c)the holder agrees to the amendment.

(3)Despite section 136D(5), the expiry day may be extended to a day that is more than 60 days after the day the certificate was issued.

(4)The expiry day may not be extended by more than 30 days.

(5)The expiry day may only be extended once.

(6)In this section—

expiry day means the day on which the certificate is due to expire.

138COther amendment of provisional certificate by the chief executive

(1)This section applies to a certificate of approval as a provisionally approved carer.

(2)The chief executive may amend the certificate at any time if—

(a)the holder agrees to the amendment; or

(b)the chief executive considers it is necessary or desirable because—

(i)the holder is not meeting the standards required under the certificate or a condition of the certificate; or

(ii)the holder has contravened a provision of this Act; or

(iii)the certificate was issued because of a materially false or misleading representation or declaration (made either orally or in writing); or

(iv)the chief executive has obtained further information relating to the holder’s application for a certificate of approval as an approved foster carer or approved kinship carer; or

(v)of another circumstance prescribed under a regulation.

(3)If the chief executive decides to amend the certificate under subsection (2)(b), the chief executive must give the holder a written notice stating—

(a)the amendment; and

(b)the reasons for the decision to make the amendment.

(4)This section does not apply to an amendment of the certificate to extend its expiry day.

139Authority may be suspended or cancelled

(1)The chief executive may suspend or cancel an authority on the following grounds—

(a)if the authority is a licence—a relevant person, for the licence, is not a suitable person;

(b)if the authority is a certificate of approval as an approved foster carer—

(i)the holder of the certificate is not a suitable person to be an approved foster carer; or

(ii)a member of the holder’s household is not a suitable person to associate on a daily basis with children;

(c)if the authority is a certificate of approval as an approved kinship carer—

(i)the holder of the certificate is not a suitable person to be an approved kinship carer for the child to whom the approval relates; or

(ii)a member of the holder’s household is not a suitable person to associate on a daily basis with the child to whom the approval relates;

(d)if the authority is a certificate of approval as a provisionally approved carer—

(i)the holder is not a suitable person to be a provisionally approved carer for the child to whom the approval relates; or

(ii)a member of the holder’s household is not a suitable person to associate on a daily basis with the child to whom the approval relates; or

(iii)the chief executive has decided to refuse the holder’s application for a certificate of approval as an approved foster carer or approved kinship carer;

(e)the holder is not meeting the standards required under the authority or another condition of the authority;

(f)the holder has contravened a provision of this Act;

(g)the authority was issued because of a materially false or misleading representation or declaration (made either orally or in writing);

(h)it is inappropriate for the holder to continue to hold the authority because of—

(i)information given to the chief executive under division 6 or the Working with Children Act, other than information in relation to which the chief executive must suspend or cancel the authority under subdivision 3; or

(ii)a circumstance prescribed under a regulation.

(2)The chief executive may cancel a certificate of approval if the holder lives with the holder’s spouse but does not hold the certificate jointly with the spouse.

(3)The chief executive may cancel a certificate of approval held jointly by 2 persons if—

(a)when the certificate was issued to them, they were spouses living together; and

(b)they have stopped being spouses or stopped living together; and

(c)the chief executive considers it inappropriate in all the circumstances for them to continue to jointly hold the certificate.

(4)However, if the holder of a certificate of approval mentioned in subsection (2) or (3) (the current certificate) applies for another certificate of approval, the chief executive must not cancel the current certificate under subsection (2) or (3) until the application is decided.

(5)Also, the chief executive may suspend or cancel an authority if any of the following persons does not havehold a working with children authority—

(a)if the authority is a licence—a relevant person for the licence;

(b)if the authority is a certificate of approval—the holder of the certificate or an adult member of the holder’s household.

(6)Subsection (5) does not apply to an authority that may be suspended or cancelled under subdivision (3).

(7)In this section—

relevant person, for a licence, means—

(a)a director of the licensee; or

(b)the nominee for the licence; or

(c)a person responsible for directly managing the care service the subject of the licence; or

(d)a person who is engaged in relation to the provision of care services by the service.

(c)a person responsible for directly managing a licensed care service operated under the licence; or

(d)a person who is performing a risk-assessed role for a licensed care service operated under the licence.