Court processes

When a child or young person is assessed as being in need of protection, and a parent is not able and willing to protect them, an application will be made to the Childrens Court for a Court Assessment Order or a Child Protection Order.

A new statutory body called the Director of Child Protection Litigation will appear in all court matters as the applicant in child protection order applications, from 1 July 2016.

What is the role of the Director of Child Protection Litigation (DCPL)?

The DCPL is responsible for deciding whether an application for a child protection order should be made, the type of order to be applied for and whether to litigate the application.

The DCPL is 'deemed to be' the applicant for all pending child protection order applications at 1 July 2016 and will be the applicant for all child protection order applications filed from that date.

The DCPL will also be the applicant in other related child protection order matters including the transfer of child protection orders and proceedings to participating states and appeals from decisions about child protection orders.

The Director may also provide advice to, or appear on behalf of the department for adoption, family law, QCAT reviews and Hague Child Abduction Convention or other matters relating to the safety, wellbeing or protection of a child.

Departmental staff will continue to attend court in situations where they normally would, as requested by the DCPL.

Court ordered conferences

The DCPL will attend court ordered conferences with the child safety officer and team leader.

The Office of the Child and Family Official Solicitor

The department has established a new Office of the Child and Family Official Solicitor (OCFOS) to provide child safety service centres with legal advice and support with child protection matters that are in, or likely to be in court. OCFOS commences from 1 July 2016.

OCFOS officers are located in child safety service centres, and may provide legal support to more than one service centre.

Who appears in court?

The DCPL will now appear in all court matters as the applicant in child protection applications.

The OCFOS officers will appear for emergency orders such as court assessment orders.

Disclosure

The Childrens Court Rules 2016 and the Director of Child Protection Litigation Act 2016 introduce a duty of disclosure in child protection proceedings in Queensland. This duty is applicable to departmental staff and the DCPL.

Documents that initially need to be disclosed

The Rules say that when the DCPL files a child protection application, it must also at the same time, file an affidavit exhibiting the following documents (if relevant):

  • an assessment from the department of whether the child is in need of protection (the assessment and outcome form)
  • an assessment of the most recent strengths and needs of the child and their parent/s
  • documents from the most recent family group meeting including a case plan (if it was developed)
  • any previous applications or orders for the child (including court assessment orders, temporary assessment orders and temporary custody orders)
  • referrals to an external agency supporting the child or their family members (for example, Evolve or a domestic violence refuge)
  • any independent assessment or report about the child or their parent/s (such as a psychiatric assessment)
  • the child’s birth certificate
  • any child protection history report; criminal history, domestic violence history or traffic history of someone relevant to the proceedingsi.

OCFOS staff will prepare this affidavit on behalf of the child safety officer and will ensure the above documents do not reveal any notifier or sensitive information.

Disclosure after proceedings commence

Within 20 days of the first mention, the DCPL must file and serve a ‘disclosure form’ii. The disclosure form includes a list of the types of documents that are normally held by the department that can be made available to the parties, if requested. The form may also give a list of any specific documents that the parties may wish to see a copy of such as a particular report or a medical report on a child.

The DCPL may also file and serve an updated disclosure form at other times in the child protection proceedings.

The Rules say that a party in a child protection proceeding may make a written request to the DCPL for disclosure of a particular document that is relevant to the proceeding. The DCPL must respond.

The DCPL can disclose documents at any time or upon request. The DCPL is likely to provide a copy of relevant documents to the parties from time to time.

In addition, the court can order that disclosure occur on or by a particular date. For example, the court may order that it occur a reasonable time before a hearing. The Rules also provide that a court might order that the DCPL is to file and serve a disclosure form prior to a court ordered conference.

A court can make an order about how the document is disclosed, for instance, it can order that the document be redacted or be disclosed only to the party’s legal representative.

The DCPL can serve a copy of the document on the party or make it available for inspection – in person or by sending a physical or electronic copy. When producing documents, the DCPL should tell the party that is an offence to further disclose that document.

Once the DCPL has disclosed a document to one party, they may notify and invite the other parties to request disclosure.

The DCPL has to file a written notice before a child protection proceeding is finally decided stating that the director understands their duty of disclosure and has complied with it.

What if a document shouldn’t be disclosed?

Sometimes it won’t be in a child’s best interest to disclose a document in the proceedings. For example, the document may contain a record of a therapeutic relationship or may jeopardise an ongoing police investigation.

The Child Protection Act 1999 allows the department to refuse to disclose a document or information if it:

  • may or does endanger a person’s safety or psychological health
  • may or does identify a notifier
  • may hamper a criminal investigation
  • is a record of a therapeutic counselling with a child or their family member and disclosure would prejudice that relationship
  • contains personal information not relevant to the proceedings.

If a party disagrees that it should be withheld, and wants to see the document, then a court will hear from them and the DCPL, and will make a decision about whether the document should be disclosed.

If a request is made for disclosure, the DCPL will discuss this with the OCFOS officer and a joint decision will be made about whether the DCPL should refuse to disclose any material of this type.

i Rule 13

ii Rule 52