One of the types of orders we deal with here at Hickman Family Lawyers are Child Protection Orders. These are issued in the best interest of the child, but where parents are in a position to care for their children, they may contact us to find out how to contest a Child Protection Order that has been issued by the Department of Communities.
While it’s not always a clear-cut process, here are our insights into how to contest a Child Protection Order in Western Australia. We always recommend getting legal advice if you are considering contesting a Child Protection Order.
What Is A Child Protection Order?
A Child Protection Order is a Court Order issued by the Department of Communities (sometimes called the Department of Child Protection), if it believes that the safety or wellbeing of a child (under 18 years of age) may be at stake.
It is possible to contest a Child Protection Order, but as it usually is a highly sensitive and complicated affair, legal advice from a trusted family lawyer is strongly recommended.
Are There Different Types Of Child Protection Orders?
The Department of Communities has set out 4 different types of Protection Orders, each with their own terms and conditions, to ensure the safety and wellbeing of the child/children, to suit each set of circumstances.
Type 1 – Protection Order (Supervision): The child/children remain in the care of either or both parents, who are served with a set of conditions, and the DoC check regularly that the child/children are safe and the conditions are adhered to. The Order can last for up to 2 years, but can be extended by the DoC for a further 2 years but must end when they turn 18.
The child/children may also be removed from the care of the parent/s, if the department thinks the parents have not complied with any of the conditions, or there is a risk to the child/children’s wellbeing. It does however need to first bring the case back to Court.
Type 2 – Protection Order (Time-limited): This can have serious consequences, because the DoC has total responsibility over the child, even if they are living with their parents. This Order however, is usually issued when the child/children have been removed and kept in the Department’s care, but there is an overall plan for an eventual reunion with one or both parents.
The Order may last for up to 2 years but can extended for a further 2 years or even longer, which could mean the child/children remain in the care of the department until they turn 18. The Order could also be replaced with another type of Order, with a different set of conditions.
The department will file a document (Section 143 Written Proposal) laying out the conditions of the Order, including care and contact arrangements, and what the parent/s need to do to have their child returned to them.
Parents and the child/children have a say in drawing up the conditions of this proposal, if the Court has appointed a lawyer for them. If the parent/s are unhappy with any of the conditions of the Order, they can contest them at through the Children’s Court.
The good news is that the department can also terminate the Order at any time, if it believes that all has gone well and there is no further risk to the child/children’s safety and wellbeing.
Type 3 – Protection Order (Until 18): This order is more serious and applies to extreme cases. It means that the department has total parental responsibility over the child/children, until the age of 18 years.
The Department’s written proposal to the Court, will set out the terms of the Order, deciding where the child will live and makes all other important decisions, such as contact arrangements with either parent. It is possible for the child/children to be returned to the care of either parent, but this is extremely rare for such Orders.
Type 4 – Protection Order (Special Guardianship): This Order hands over full parental responsibility and guardianship to a third party, meaning that neither the parents nor the Department will be involved or responsible for the day to day care and long-term arrangements ofthe childor children. This Order remains valid until it is cancelled, the child/children reach the age of 18, or an adoption order is made.
Special Guardianship is usually granted to people who may be related to, or are important to the child/children, and can provide them with a secure and stable environment in which to live. The Court may order the Department to make special payments to the guardian to help in the upkeep of the child/children. The Department, however can also apply for Special Guardianship.
The other conditions that may apply involve ensuring Aboriginal, Torres Strait Islander children, or other children of cultural diverse backgrounds, are allowed to develop and maintain their own cultural traditions.
How To Contest A Child Protection Order In Western Australia
While each case will vary, here are the most commonly needed steps when it comes to contesting a Child Protection Order in WA.
Step 1 – You will be served with an application for the children to be kept in the Department’s care for a period of time. This period is usually 1-2 years, but it could be until they turn 18, which means that the child will be in care until they are 18 years old.
Step 2 – The Department of Communities will make a decision about the amount of time you will be allowed to spend with your children, while the proceedings are ongoing.
Step 3 – Next, you will go to the Children’s Court. The Court can make further interim decisions about how much contact you will have with the children., should you not be happy with the initial arrangements the Department of Communities has made in the previous step.
Step 4 – The Department will file a document with the Court called a Section 143 written proposal. This document will set out the steps to reunification with your children, and may include a progression in contact and visitation arrangements.
Step 5 – In some cases, a mediation style conference may be held to see if there can be scope to agree and resolve the matter. This may be a Pre-Trial Conference at the Court, or a Signs of Safety Conference at Legal Aid.
Step 6 – If the matter cannot be resolved by consent, in terms of the parties agreeing to either there being no care and protection order or a care and protection order for a specific period of time, the matter will be listed for a trial.
Step 7 – At a trial, everyone will give evidence. The Magistrate will then make a decision about whether they think there needs to be a care and protection order.
Can Any Child Protection Order Be Contested Or Changed?
The short answer would be yes. Either parent, legal guardian, or the department itself, may apply to change the conditions or the type of Order or even revoke it, by applying to the Children’s Court, but evidence of change in circumstances must be shown, raising the need for such changes or for the cancellation.
This can be a fairly emotional and complex process, often making legal advice unavoidable. Sometimes a mutual agreement can be reached through a mediation-style conference at the Courts between all the relevant parties. If the matter/s cannot be resolved in this fashion, it will then proceed to the Court.
During the trial, all parties will give evidence and the Magistrate will make the final ruling, regarding all the terms of the appropriate Child Protection Order, or whether such an Order is in fact required. Magistrates’ decisions are always based on what is in the best interests of the child.
For more information about this, read about how we can help get your child out of foster care, and get in touch for a free confidential information call with one of our trusted family lawyers in Perth.
