Child Protection (Qld)

In Queensland, the protection of children is governed by the Child Protection Act 1999. The Act gives the Department of Communities (Child Safety) and the Children’s Court powers to intervene where they suspect or know that a child is at risk of harm. When the Department forms the view that a family is struggling to care for children, it will generally try to support the parents to ensure the children’s needs are met. If the Department is of the view that the parents are incapable of adequately caring for children even with its support, it can temporarily remove the children from the home and make an application to the Children’s Court for short term or long term Protection Orders in respect of the children.

Child protection law is different from family law. Family law relates to disputes between different members of a family, while child protection law relates to disputes between the Department of Communities and a family. When Child Protection proceedings are ongoing, family law proceedings generally cannot be started or continued until the Child Protection matter has been resolved (Family Law Act, Section 69ZK). 

Who is a child in need of protection?

Section 10 of the Child Protection Act defines a child in need of protection as a young person under the age of 18 who either has suffered significant harm, is currently suffering significant harm, or is at an unacceptable risk of suffering significant harm and who does not have a parent who is both able and willing to protect them from that harm.

Harm is defined as including any significant adverse effect on the child’s physical, psychological or emotional wellbeing. Harm may be caused by neglect or physical, emotional or sexual abuse.

Reporting child protection concerns

Child protection concerns can be reported to the Department in a range of ways. Reports may be made by professionals, family members, neighbours or anyone who is concerned about the wellbeing of the children. 

Mandatory reporting

The Child Protection Act requires members of certain professions to report any suspicion they form during the course of their work that a child is at risk of harm. Mandatory reporting applies to doctors, nurses, teachers, police and early childhood professionals.

Mandatory reporting must be done in writing to the Chief Executive of the Department of Communities (Child Safety).

Reporting by the general community

Any member of the community can voluntarily decide to report child protection concerns to the Department of Communities. This can be done online, by phone, or by mail. The identity of a person who makes a child protection notification is kept confidential.

The department is required to investigate all concerns that are reported to it and to take action if the allegations are substantiated.

Children at risk of harm

Where the Department of Communities forms a suspicion that a child is at risk of harm, it must immediately investigate the situation and assess the risk of harm and the needs of the child. The Department must inform the child’s parents or long-term guardians of the allegations that have been made and of the outcome of its investigation.

If the department considers it necessary to make contact with the child prior to informing the parents of the investigation, its officers are allowed to make contact with the child at the child’s school or daycare, after informing the principal or person in charge.

What immediate action can the department take?

If the Department if of the view that immediate action is necessary it can do any of the following. 

• take the child into custody if they believe they are at risk of immediate harm;
• enter into an Intervention with Parents’ Agreement (IPA) if the parents are willing to work with the department to meet the child’s needs;
• apply for Assessment Orders to allow further investigation into the child’s needs.

What if the child is in need of protection?

If the department considers that a child is in need of protection, it may enter into a voluntary care arrangement. Alternately, it may refer the matter to the Director of Child Protection Litigation (DCPL) to apply for a protection order.

Voluntary care agreement

If it considers that it is in the child’s best interests to do so, the department can make a voluntary care agreement with the parents for the child to be placed in another person’s care for a period. The agreement must state:

• Whose care the child is to be placed in;
• The period of the agreement;
• Where the child will live;
• What arrangements have been made for contact between the child and the parents;
• Whether the parents must be consulted about decisions about the child. 

A voluntary care agreement may be appropriate where the child is at risk due to circumstances that are temporary and where the child can safely be returned to their parents once those circumstances no longer exist.

Protection Orders

If the department considers that the child’s parents are not able or willing to protect them adequately, it will refer the case to the Director of Child Protection Litigation (DCPL). The DCPL will decide whether to litigate and what order to apply for.

The DCPL may apply for:

• A short-term custody or guardianship order for up to two years.
• A long-term guardianship order (until the child turns 18).

If a short-term order is made, the department will have the care and responsibility of the child for the period stated in the order, after which these will revert to the parents. If a long-term order is made, the department will continue to be responsible for the child until their 18th birthday.

What happens next?

When an application for a protection order is made, it must be served on both of the child’s parents. Each parent can file a response, indicating whether they agree to the order that is sought by the Department, or whether they oppose the order.

If there is another person who has a significant interest in the child, such as a grandparent or aunt, that person may apply to participate in the proceedings. Family members may also ask to be assessed as kinship carers. If a kinship carer an assessment is positive, orders may be made that the child live with the family member in a placement that is supervised and supported by the Department.

The court may decide to appoint a Separate Representative to represent the child’s interests to the court. A Separate Representative is a lawyer whose job is to talk to the child and to others involved with them and form an assessment of what is in the child’s best interests. The Separate Representative then makes submissions to the court about what is in the child’s best interests.

To obtain the order it is seeking, the DCPL must demonstrate that the child is in need of protection and that the order being applied for is appropriate and desirable for their protection. They must also satisfy the court that no less intrusive order could protect the child (Section 59).

If you require legal advice or representation please contact Armstrong Legal.