Preparing the court report - advice

This advice provides information regarding the legislative requirements for preparing court reports.

Introduction

The purpose of a court report is to assist the Court and other parties to obtain a clear understanding of the protective concerns held by the department and the rationale for the recommended disposition. As a government agency report, child protection practitioners have a duty to the Court to ensure the court report provides it with all the information necessary to assist the Court to make a decision, not only the information that supports the recommended disposition.

A court report provides the main opportunity to convey to the Court an understanding of child protection’s rationale for the decisions that have been made in relation to the child.

A court report forms the basis for the practitioner's evidence and an effective tool to state the risk of harm to the child and articulate the child's best interests in a formal manner. A strong court report allows for early resolution of cases in court and assists practitioners if evidence is required to be given at a later stage.

Types of reports

Temporary assessment order report

The purpose of the temporary assessment order report is to inform the Court of the:

  • details of the action taken by the child protection practitioner under the order
  • the results of the investigation and assessment
  • any other information that the child protection practitioner considers to be in the child’s best interests or the Court directs to be included in the report
  • recommendation regarding child protection involvement with the child and family.

The practitioner needs to complete the temporary assessment order report in CRIS. A copy of the format can be found in Court report templates.

When the Court has issued a temporary assessment order, the practitioner is required to complete the protective investigation within the timeframe specified in the order.

Protection report

The protection report (s. 553 of the CYFA) should be provided to the Court in the following circumstances:

  • a protection application has been issued
  • the magistrate in the Criminal Division of the Melbourne Children's Court requests a protection and disposition report by the Secretary.

The protection report must only deal with matters that are relevant to the question of whether the child is in need of protection. This includes:

  • the reasons the application was issued and how these relate to the legislated ground(s) for a child being in need of protection
  • why the child cannot be adequately protected without a Children’s Court protection order.
  • which of the best interests principles are relevant and how they have been considered.

Disposition report

In accordance with the provisions of s. 557(1), CYFA, the child protection practitioner must prepare and submit a disposition report if the Court is satisfied that:

  • a child is in need of protection
  • there is a substantial and presently irreconcilable difference between the person who has parental responsibility for the child and the child to such an extent that the care and control of the child are likely to be seriously disrupted
  • there has been a failure to comply with a family preservation order.

or where:

  • the Secretary applies for a permanent care order, or
  • the Secretary applies, or is notified that a person has applied for:
    • the variation or revocation of a family preservation order, a family reunification order or a permanent care order
    • the extension of a family preservation order, a family reunification order or a care by Secretary order
    • the revocation of a care by Secretary order or a long-term care order or when the Court orders the Secretary to do so.

Section 558 requires that the following matters be included in a disposition report:

  • the case plan, if any, prepared for the child
  • recommendations, where appropriate, regarding the order child protection believes the Court ought to make, including recommended conditions if any
  • where a recommendation is made that the child be removed from the parent’s care, a statement outlining the steps taken by child protection to provide the services necessary to enable the child to remain in the parent’s care must be included.
  • Also include advice to the magistrate, as set out in s.276A –
    • the child’s current case plan (prints as an attachment to Disposition and Addendum reports)
    • care arrangements for siblings (include in disposition report 1.1 Child and family context);
    • the age of the child and time spent in out-of-home care by them during their lifetime (whether court ordered or not) (section 1 Disposition 1.1 Child and family context);
    • the likelihood of parent permanently resuming care (section 1 Disposition 1.1 Child and family context);
    • the outcome of any previous attempts to reunify any child with the parent (section 1 Disposition 1.1 Child and family context); 
    • desirability of an early decision where the parent has previously had a child permanently removed (section 5 Reasons for the recommendation); and
    • an order supporting permanent care if the child has been out-of-home for 12 months and there is no realistic prospect of reunification (section 5 Reasons for the recommendation). 
  •   any other information as directed by the Court or that the regulations require (for example, as per permanent care applications).

It may assist to outline the steps taken by child protection to provide the services necessary in the best interests of the child, and to address why the Court should be satisfied that all reasonable steps have been taken.

The practitioner needs to complete the disposition report in CRIS. A copy of the format can be found in Court report templates.

Disposition report in support of application to extend/breach/vary/revoke a protection order

The child protection practitioner must prepare and submit a disposition report to the Court if any party has made an application to extend, breach, vary or revoke a protection order.

In this type of disposition report the practitioner should:

  • outline the reasons for the application to extend/breach/vary/revoke
  • provide factual evidence regarding harm to the child
  • articulate the rights of the child that are affected and need to be protected
  • describe the developmental status of the child
  • articulate parental capability to protect the child from harm and promote positive development
  • outline what actions need to be undertaken to ensure the child's best interests are adhered to
  • include the case plan and permanency objective as defined in CYFA s167(1).
  • outline the steps taken by the child protection practitioner to provide the services necessary to enable the child to remain in the parent’s care, if it is recommended that the child be removed from the parent’s care
  • also include advice for the magistrate, as set out in s.276A (see above).

The practitioner needs to complete the disposition report in support of application to extend/breach/vary/revoke as per the format.

Additional reports (known as Addendum reports)

Section 560, CYFA, stipulates that the Court may order the submission of an additional report by:

  • the Secretary
  • the Department of Justice and Regulation, or
  • another person specified by the Court

if it requires further information to determine a matter and the most appropriate disposition.

In practice, where the Court has requested an additional report by the Department of Justice and Regulation, it is provided by the Children's Court Clinic. The clinician will prepare a Children's Court Clinic report for the Court. See service description 2714 Children's Court Clinic.

The Court may request an additional report to be provided by any community agency or service provider, for example, foster care agency, family support service, drug and alcohol service or mental health service.

When the Court orders that the child protection practitioner is to provide an additional report, an addendum report will need to be completed. Additionally, the practitioner is required to prepare and submit an addendum report when:

  • there has been an adjournment period of a reasonable length
  • the facts or circumstances have changed and the assessment has been affected, or there has been a significant change to the case plan
  • a long period has elapsed since the last report was prepared
  • the practitioner is seeking to amend the grounds of the application
  • the practitioner is seeking to withdraw the application
  • the recommended disposition is different from the previous report.

The addendum report provides a summary of the circumstances and events since the previous adjournment and the current recommendation regarding the application. It is not necessary to outline the original protective concerns or repeat any information included in previous reports. It may be helpful to use sub-headings that emphasise those protective concerns where improvement or further evidence of concern has been observed. The purpose of the addendum report is to provide an update to the Court of the current situation, reiterate the department's recommended disposition and explain the reasons for any changes in the practitioner's assessment, recommendation or the child’s case plan if applicable. The practitioner needs to complete the addendum report in CRIS. A copy of the format can be found in Court report templates.

Access to and distribution of court reports

If a court report is required, the practitioner must forward a copy of the report to:

  • the Court (original)
  • the child (aged 12 years or over)
  • the child's parents
  • the legal practitioners representing the child and the child's parents
  • the legal practitioner representing the child protection practitioner
  • a party to the proceeding
  • any other person specified by the Court.

Service of court reports

The service of court reports to parents or any other person who is a party to the proceeding needs to occur-

  • in person, or
  • via registered post if the person is living some distance away or cannot meet with the practitioner in person and is willing to accept service via post.

It is not acceptable practice to leave a private document such as a court report in an open or public place such as at the door of a family home. Court reports contain personal information and all attempts should be made to avoid them being easily accessed by third parties.

It is usual practice that a court report is provided to a child aged 12 years or over, as this is the age that a child is legally required to be served with any application. If however, it is the practitioner's opinion (in consultation with the supervisor or more senior officer) that the whole or part of the court report should not be provided to the child, then consideration needs to be given to withholding the whole or part of the report. If this is being considered, consult with CPLO or your divisional legal representative as an application to withhold part or all of the report may need to be made to the Court.

For a child aged under 12 years, it is usual practice to provide a copy of the court report to the child's legal representative only. However, in some instances a child aged under 12 years may request a copy of the court report and the practitioner needs to consider whether this is appropriate or whether an application to withhold the whole or part of the court report is required.

At the time when a directions hearing is booked, the Court will make a procedural order to the effect that the practitioner must file and serve all reports by a particular date or otherwise no later than three days before the directions hearing. The child protection practitioner must comply with the procedural order, which is made by the Court in relation to directions hearings. If this does not occur, it is possible that costs may be awarded against the department.

Confidentiality of court reports

The practitioner can only provide a copy of the court report to the persons outlined above and must not disclose any information or provide a copy of the court report to any person without the consent of the child or the parents.

The practitioner cannot provide a copy of the court report to a community agency or service provider, including the police, without consent of the child or the parents.

Inclusion of private information in court reports

A court report should only contain information relevant to the application. In some circumstances the unauthorised release of private or contact information may have significant unintended consequences, including risk to the safety of clients, family members, carers or professionals.  The court report templates on CRIS do not include address or contact details for a child, their family, carers or professionals. Therefore, it is very important to generate reports from CRIS as opposed to working off-line. If a report is created off-line practitioners must ensure contact details are not included. If the Court requires a professional’s contact details, child protection must supply this information to the Court at the time of the request.

All court reports must be checked prior to submitting to court and providing a copy to the child and parents to ensure no private information has been inappropriately included in the report.

Practitioners should exercise caution about including contact details in court or case plan documents to avoid placing children, family members, carers or professionals at risk, or contravening an existing order. See Use of personal information in court reports.

When determining whether private information will be withheld from court reports, particular consideration should be given to:

  • the existence of any prior alerts or decisions regarding the protection of the child, parent's, carers or professionals' address or other information, including the existence of intervention orders
  • any history of violence or threats, including criminal assaults, between parents, or against other family members, carers or professionals
  • the relevance of the information to the matter considered by the Court
  • the appropriateness of seeking the parent's consent to the release of the information.

Where there is uncertainty, legal advice should be obtained from the divisional solicitor or CPLO, regarding the appropriateness of and legal requirements relating to withholding relevant information or inserting 'details withheld' in lieu of address details. This must be recorded accurately in CRIS.

Withholding court reports

The child protection practitioner, the author of the report, the child or the parent may make an application to the Court to withhold the whole or part of the report from:

  • the child
  • the parent
  • a party to the proceeding
  • any other person specified by the Court

if:

  • the practitioner or the author of the report is of the opinion that information contained in the report may be prejudicial to the physical or mental health of the child or the parent of the child, or
  • the child or a parent of the child or any other party to the proceeding notifies the practitioner of their objection to the forwarding of copies of the report.

Where part of a report is withheld from a person, the practitioner must provide the remainder of the report to that person.

The practitioner must make an application to the Court for an order to withhold the whole or part of the report not less than two working days before the hearing of the proceeding. This applies to all types of court reports, including the Children's Court Clinic report, where the clinician of the Children's Court Clinic may apply to withhold the whole or part of the report. The Court will then decide whether to uphold the decision to not distribute the report or to release the report. This decision must be made prior to the hearing, with the hearing being stood down for the decision to be made, if necessary.

Preparation of court reports

A court report:

  • must not identify the reporter or a person who provides information in confidence or contain information that may lead to the identity of the reporter or person who provided information in confidence, without that person's written permission
  • contains the facts as disclosed by the child or observed by the practitioner or other professionals
  • critically examines all the available information
  • must clearly identify the source of all information and must clearly state information as being an allegation where there is little or no independent evidence to support it

In writing a court report:

  • Consider whether the information will impact on an individual's reputation or privacy and only include that information if it is necessary and relevant to the case.
  • Ensure the timely recording of notes and retain hand written notes, as required. See 3203 Case recording for advice.
  • Select what information is relevant to the report. Specifically, the evidence in the protection report must indicate what risk of harm the child has suffered or is likely to suffer, how the parents have not or are unlikely to protect the child and must relate to the question of whether the child is in need of protection.
  • Present the factual information in a succinct way using dot points and sub-headings. Assist the magistrate to answer the question “is this child in need of protection?”
  • List the protective concerns using dot points. These should relate to the confirmed and verified areas of concern. There is no need to elaborate or describe, as further information is included in the section ‘Evidence and analysis of the concerns’.
  • Use sub-headings (that emphasise the protective concerns) in the ‘evidence and analysis of the concerns’ section.
  • Use direct quotes, as appropriate.
  • When quoting from other professionals or using their professional opinion to formulate a risk assessment, ensure the information is accurate.
  • Use clear, simple language and be succinct.
  • Avoid unnecessary repetition.
  • Parents should be referred to as Mr, Mrs, Miss or Ms or by their full name
  • Write in the first person, that is, use “I” rather than “the worker”.
  • Use short sentences. Make every sentence count.

Unless the grounds relate solely to an absence of carer, the practitioner needs to be able to demonstrate how the protective concerns place the child at risk of significant harm. There should be a link between the risk factors and the impact on the child's safety and development. It is not sufficient to indicate what the protective concerns are. Being able to articulate how the risk factors compromise the child's safety and development will provide for a strong court report. For example, parental mental illness or substance abuse alone may not necessarily be a significant protective concern. The practitioner will need to indicate how the mental illness or substance use impacts on the parent's ability to care for and protect the child and consequential risk of harm to the child.

Harm to a child may include physical injury, harm from sexual abuse, emotional or psychological harm damaging emotional or intellectual development, or harm to physical development or health, including as a result of neglect or failure to ensure safety. Where harm has accumulated through a series of acts, omissions or circumstances

In writing the disposition report (following a protection application):

  • The disposition report will include the child’s case plan, and explain how it addresses the protective concerns in a way that promotes the child’s best interests.
  • The report will recommend the making of an order consistent with the permanency objective and other aspect of the case plan. The permanency objective will often determine the type of order to be recommended and the case plan may determine the recommended duration of the order and, if appropriate, conditions to be attached to the order. The case plan’s permanency objective should be chosen from the permanency hierarchy contained in s. 167 of the CYFA as being the earliest in the hierarchy that will promote the child’s best interests.
  • Where the permanency objective is family preservation, a family preservation order should be recommended.
  • Where a child is in out-of-home care, a family reunification order will usually be recommended following a protection application, noting the limitations on the maximum duration of this order. There will be a small number of cases where a care by Secretary order or other order would be appropriate following a protection application, because it has been assessed that family reunification cannot be achieved. If there have been extensive delays in decision-making and an IAO is still in force, or if siblings are already placed in out-of-home care and there has been no change in the parents’ circumstances, or where parents have abandoned or relinquished care of the child, a long-term care order may be recommended if the child is already placed with carers who are prepared to be long-term carers, or an application for a permanent care order can be made if the child is with carers who are able to be recommended, and are prepared to become permanent carers, where the child has been out of their parents’ care for six months, or for six of the previous 12 months.

The case plan

A case plan is to be prepared for each child, endorsed and provided to the parents and children within 21 days of substantiation. The most recent, endorsed case plan recorded on CRIS will automatically generate with disposition and any addendum report. In the case of a protection application by emergency care, this initial case plan will often be developed with the family during an adjournment period, prior to the completion of the report.  

Attendance at court by the author of the report

The author of a court report may be required to attend court to give evidence at the hearing of the proceeding to which the report is relevant. The child, a parent of the child, the Secretary or the Court, may give notice requiring the author to attend.

If the author of the report is a child protection practitioner or employed within the Department of Health and Human Services, then a subpoena is not required to be issued, unless the practitioner is no longer employed by the department.

If the author of the report is from a community agency or service provider, then a subpoena should be issued to ensure the person's attendance at the proceeding.

However, all witnesses, including report authors should be given as much notice as possible of their required attendance at court.

Distribution of non-court ordered reports

Often the child protection practitioner may rely on reports prepared by community agencies or service providers that have not been court ordered. The practitioner may utilise the information in these reports when articulating risk of harm to the child. These reports may be from services such as drug and alcohol agencies, mental health services, a doctor, the Gatehouse Centre, Parenting Assessment and Skills Development Service (PASDS) or a foster care agency. During court proceedings, the legal representatives may request a copy of these reports, particularly if the practitioner's assessment is based on information obtained from the reports.

In relation to reports that have been commissioned by child protection, that is, requested and paid for by child protection, these become the property of the department and the practitioner can use these as deemed necessary. This includes distributing them to all parties for the purposes of a court hearing, if required.

In relation to reports from community agencies that have not been commissioned by child protection, that is the report may have been requested by child protection for the purposes of formulating a risk assessment and decision-making, however has not been paid for (for example progress report of a parent's drug and alcohol treatment, mental health treatment, forensic medical report or foster care placement report) the practitioner needs to ensure that the author of the report is advised that information contained within the report may be used for the purposes of a protection application.

SIDS information in court reports for children under two years

In all cases involving infants under the age of two years where protective issues are present, the child protection practitioner must discuss SIDS risk factors with parents, strategies to reduce these risks and must record this information on CRIS. See advice SIDS and safe sleeping. The practitioner should note in the court report the presence of SIDS risk factors and the parents' response to these, as appropriate and relevant to the case.

Considerations for good practice

Constraints

There are occasions when the child or family refuses, or is unable to be involved in the assessment, for example, when the child absconds, where a parent is unwell or where families create unreasonable barriers. Although the practitioner is responsible for attempting to engage the family, the practitioner cannot be accountable for the situations described above. In such circumstances, the practitioner will need to describe in the court report the attempts to engage the family and will need to complete the report as thoroughly as possible, outlining to the Court the constraints to the assessment. The practitioner is not compelled to make a recommendation for a disposition if it is felt that the assessment has been so seriously constrained that a recommendation for an appropriate disposition is not possible.

Early preparation of the report

The preparation and writing of court reports can be time-consuming. It is therefore important that the practitioner allows adequate time for the writing and re-reading of the report to ensure that the all relevant information is presented in a clear, succinct and logical manner. Taking time to plan the report, highlight the assessment and evidence, and present the evidence using subheadings and dot points to organise the content and make every sentence count, will benefit the child and family, as well as practitioner’s reputation.

It is good practice to allow sufficient time for a colleague to read and provide feedback on the report prior to providing it to a supervisor, for final review and sign off.

Practitioners are required to give the report to families three (3) days prior to the hearing. It is good practice to discuss the content of the report with the family prior to the court date. The value in the family reading the report prior to the court hearing is that it provides them an opportunity to correct any factual errors, ensures that they are aware of the protective concerns, assessment, case plan and recommended disposition. This allows the parents to process the information and to ask questions outside the court environment.

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