If you find yourself before the Children’s Court in respect to an Application, it is likely that documents have been served on you.
There are several stages to Court proceedings and several options available in Court proceedings in the care and protection area.
If Family and Community Services (FACS) makes a determination that it is appropriate to remove a child from his or her parent’s care, or from the care of a person with parental responsibility, then this action should be the last resort and should only occur when no other option is sufficient to enable protection of the child.
Emergency Care and Protection
A child can be removed under an Emergency Care and Protection Order. These are often called ECPO however FACS must commence proceedings in the Children’s Court without delay following the removal of the child. This is usually the next working day.
In making the application for an ECPO, FACS must explain to the Court why the removal was necessary and this is usually done by way of a sworn statement called an Affidavit which sets out what the circumstances were for that particular case and it must say why the child was at risk of harm at the time of the removal.
If the Children’s Court Magistrate is satisfied that the child was at risk of serious harm, then an ECPO will be granted that can only last for 14 days. If an extension is required this must be made within the 14 day period and the Court can then make a further Order for another 14 days, brining the ECPO to a total of 28 days. If no application is formally made to the Court within the 28 day period, then the ECPO would simply expire and the child or children should then be returned to the parents’ care. In our experience, once an ECPO is granted an application is usually made to the Court or some arrangements are made in consultation with FACS after the ECPO is granted. Very few matters have ECPOs that simply expire.
Establishment Phase
Once FACS determines that a child is in need of care and protection, they may apply to the Children’s Court for a Court Order on that basis.
Some of the circumstances under which FACS will bring applications include:
- Where no parent is available to care for the child, for instance, where the primary carer has been incarcerated or put into jail.
- Each or both of the parents acknowledge they have serious difficulties in being able to continue to care for the child.
- Where there is current physical or sexual abuse or ill treatment or a risk of such occurring.
- Where the child’s basic physical, psychological and educational needs are not being met for some reason.
- Where the child’s domestic environment is creating a risk of serious developmental impairment or serious psychological harm.
- The child is exhibiting sexually abusive behaviour.
- There has been non compliance with the care and protection order of another state or territory.
Once the application is brought by Family and Community Services, documents will be served on each of the parents and any other person with parental responsibility for the child, including any current carer.
Once you are served documents, you will then be given the opportunity to reply by way of a sworn statement called an Affidavit that sets out what is agreed and what is not agreed in the material presented by FACS.
When a matter first comes before the Court, it is usually listed for a “mention”. This is a Court date, in which the Court gets the opportunity to quickly deal with a number of applications and determine whether each matter needs a hearing on the issue of establishment or whether it can simply be established by consent.
If a matter is established by consent, this is often referred to as “a finding being made”. This is where, by consent, a finding is made that your child or children requires care or protection at the time they were removed. Once a finding is made, your matter can then progress forward to a consultation process with FACS whereby a Care Plan will be formulated as outlined below.
In the event that you do not agree that your child was in need of care or protection at the time of removal, your matter would need to progress to a hearing on the issue of establishment and this is usually listed for one or more days before a Magistrate.
In a large majority of cases, findings are generally made by consent after advice from your solicitor. This is because Family and Community Services as a general rule does not remove children unless there is serious reason to do so. In addition, it is always positive to work in conjunction with FACS to look at restoration of the children back into your care, rather than arguing the point at the time of removal. Your solicitor can discuss this and provide legal advice to you in more detail once we have read all of the documents and material filed on behalf of FACS.
Interim Urgent and Temporary Orders
Once a child has been removed by FACS, in some cases, an interim or urgent Order will be sought.
Interim Orders are short term Orders that only last until a final hearing or determination. If your child has been removed, it is likely that FACS will seek an interim or short term Order to have temporary parental responsibility for your child or children pending a final hearing in your matter.
This Order is made in nearly every matter where an application is filed because otherwise a situation could arise in which a child is placed in the care of someone whom the parents do not know and are not aware of their whereabouts, and nobody would have responsibly for the child, pending the final hearing.
Other temporary Orders can be made, including regular and ongoing contact between parents and the children pending a final hearing or agreement. It is important to discuss this with your solicitor to ensure that you obtain regular and consistent contact. In cases where the child or children are very young or babies, this could be up to three or four times a week and would be supervised by either FACS or a trusted family member.
Assessment Orders
In some cases Family and Community Services, or another party to the proceedings, can make an application to have a Children’s Court clinic assessment completed. These assessments are not ordered in every case, but mainly in cases where there are concerns about parenting capacity, perhaps involving drug or alcohol use or cases where there are issues of possible psychological harm. If an application is made for an assessment, a further statement would be filed and served on you to read through the reasons why an assessment is considered necessary.
If the Order is made it will only be made if you consent to participate in this assessment. If one or both parents do not consent to participate, then the assessment will not occur. In the event that you do participate in an assessment, a report would be released by the psychologist who prepares the report and this is usually released to the parties, their solicitors and the Court.
Care Plan
After a finding is made that the children are in need of care and protection, and before any final orders are made after an application for removal of the child or children from your care, FACS must present a Care Plan to the Court.
This is a plan of care for the future arrangements for your children and will include details of the following:
- Long term goals for the child’s care, often referred to as permanency planning.
- Who will have parental responsibility for the child, which could be Family and Community Services, one or both parents, other family members/carers, or a joint arrangement between any of the parties mentioned.
- Contact permitted with each of the parents, other siblings and family members.
- Other services and assistance that will be provided or are proposed to help support your children.
Under the Act it is a requirement that, as far as possible, the Care Plan is made in consultation with you and you will normally be contacted by FACS to participate in the planning process. Minutes are usually taken at these meetings and we request that you retain a copy for your own records. Your Solicitor does not attend the Care Plan meeting but we do highly recommend that you attend and participate as far as is possible. Your children, depending on their age, will also have their views put into the Care Plan and you will be able to read these in the document that is produced and filed with the Court.
Care Plans are often amended and updated especially if your matter takes some time to be resolved. It is an evolving document that can be updated depending on the needs of the children at any given time.
Preliminary Conferences
After the Care Plan is released, your matter will normally be scheduled for a preliminary conference.
These conferences are scheduled after the release of the Care Plan and after you have had an opportunity to reply in writing to the Care Plan. Everybody will attend and the conferences are held at the Court where your matter is being heard, before a Registrar of that Court. These conferences give an opportunity for you in consultation with your Solicitor to talk to FACS about proposals for settlement of your matter and working out long term arrangements for the children.
In most cases, there will normally be a case worker and case manager present, the Registrar of the Court, the other parent and their Solicitor if they have one, yourself and your Solicitor and any carer or other person joined as party to the proceedings. The children’s independent representative will also be present. Everybody will have the opportunity to have a say.
After the conclusion of the preliminary conference if there is no agreement your matter will then proceed to a placement or final hearing.
Placement hearings are generally scheduled for anywhere from one day up to five days in duration, depending on how many witnesses and evidence is given. Once there has been a finding that your child needs care and protection at the placement hearing the Magistrate determines what orders should then be made to promote the welfare of your child or children.
In some cases hearings can be conducted on the papers alone, which means that the Magistrate would simply read your statement and hear submissions from your Solicitor and then make a determination.
In other cases you will be called to the witness box to give evidence and your Solicitor will run through this with you in more detail prior to the hearing.
Child’s Legal Representatives
In care and protection cases, children are always provided with their own legal representative. If you have children under the age of 10 and children over the age of 10 it is likely that more than one Lawyer will be appointed. One Lawyer would represent the children under the age of 10 and one Lawyer would represent the children over the age of 10. For children under the age of 10, the children’s Lawyer acts in their best interest, meaning that they assist the Court in promoting what is best for the child but do not necessarily put forward the child’s view.
With children over the age of 10, there is a presumption that they are able to instruct their own Lawyer and accordingly, their Lawyer should put their views to the Court and to each of the parties in a clear and concise manner. In some instances, the Lawyer will file a statement with the Court that clearly sets out the views of the children over the age of 10.
Contact our Sydney Family Law Office if you need any help.