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Child Protection and Avenues for Intervention

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The world we live in is fragile and subject to unforeseen and unfortunate events. It is a reoccurring nightmare of mine to think about what might happen if, for whatever reason, my daughter was no longer safe or no longer had appropriate care. This nightmare extends to include all children in my life, including my nieces and nephews, my friends’ children, and even one day, my grandchildren.

While incredibly difficult to think about, this could occur for several reasons, with the outcome varying, depending on the surrounding circumstances.

Family Court of Western Australia

Death of a Parent or Guardian

It is a well-known fact that one day, we will die. We hope that this only happens once we have lived our lives to the fullest, and our children are grown and capable of caring for their children. However, it is naïve to think that our death can not arrive prematurely.

As such, it is crucial to plan for the care of our children in case of our untimely death. In Western Australia, a parent or legal guardian of a child may appoint a testamentary guardian for a child under the age of 18 years by Will. The appointment of a testamentary guardian only comes into effect upon the death of the last surviving parent or legal guardian of the child. The testamentary guardian’s appointment ends when the child attains the age of 18 years.

Once appointed, the testamentary guardian is responsible for making long term decisions regarding the welfare and development, and has the daily care, of the child. However, a testamentary guardian is not obligated to accept the appointment to serve as a guardian to the child. As such, more than one contingent guardians should be named in your Will to ensure that a guardian may be appointed, even if the first-named guardian is unable or unwilling to accept the appointment.

If guardianship is contested, an application could be made to the Family Court of Western Australia. The Court would take into account the wishes expressed in the Will as part of the decision regarding the best interests of the child.

The inability for a Parent or Guardian to properly care for the child/children

If a parent or guardian of a child, whether biological or legal (including those appointed by Will) are not capable of adequately caring for a child, a concerned relative or a person with a “sufficient interest” may apply to the Family Court for parenting orders concerning a minor child. There are many reasons why a person may not be capable of adequately caring for a child, including alcohol or drug addiction, neglect, abuse or domestic violence.

However, these types of applications may only be dealt with in the Family Court in circumstances where an application for a Protection Order has not already been made by the Department of Communities Child Protection and Family Support (“the Department”) in the Children’s Court. If an application for a Protection Order has already been made, the Family Court will usually delay any further proceedings in the Family Court until the Protection application has been finalised.

As such, we recommend that those concerned relatives, or people with a sufficient interest in the welfare of a child,  seek legal advice to discuss the options available.  

Children’s Court of Western Australia

Involvement of the Department of Communities Child Protection and Family Support

The Children and Community Services Act 2004 (WA) is the applicable law when the Department believes that a child is not safe in its current living arrangements. The Department can provide necessary assistance and resources to support families to look after the child, or if required to ensure the child’s safety, welfare and well-being can remove the child from its parents.

If the Department deems necessary, the Department will apply to the Children’s Court for a Protection Order. Concerned relatives or people with a “direct and significant interest” in the well-being of the child can apply to be a party to the proceedings, to be involved in the Court process in relation to decisions about the care of the children.

The Court can make Orders to ensure the protection of the child, including that:

  • the child remains with its parents, and the Department supervise and monitor various conditions in relation to the child’s living situation and well-being. This type of “supervision” order can last for up to two years.
  • the child is removed from the parents and placed into foster care or with relatives for up to two years. The Department has Parental Responsibility for the child during this time. These types of Orders are intended to enable the parent to undertake whatever may be necessary to reunite the child with its parents.
  • the child is removed from the parents and placed into foster care or with relatives, with the Department to retain Parental Responsibility, until the child reaches the age of 18 years. In some circumstances, the Court may order Special Guardianship in which the carer of the child (ie the foster carer or relative) is given Parental Responsibility for the child until the age of 18 years.

Children’s Court orders can be revoked if a party to the first case makes an Application, and the Court considers that it is in the best interests of the child for the Order to be revoked.

As you can see, child protection is multi-faceted and governed by different legislation and jurisdictions depending on the specific situation of the matter. Our team at Butlers has the skills and experience to navigate the Family Court and Children’s Court and ensure that appropriate action is taken concerning the welfare and well-being of a child. Should you have any concerns or questions in relation to the care of a child, please contact us on (08) 9386 5200.

Of course, if you have concerns for the immediate safety of a child, you should contact the police on 131 444 or 000 for life-threatening emergencies.

 

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Wednesday, 02 December 2020

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