Protection order descriptions

This advice provides details of protection orders available under the Children, Youth and Families Act 2005 (CYFA).  

Introduction

A protection application must be found proven by the Children's Court before a protection order can be made. This document provides information about the protection orders available under the CYFA, when they should be considered, and the Secretary’s role in administering orders.

Undertaking (s. 278)

Note: This information relates only to an undertaking ordered under s. 278. It does not relate to undertakings made under s. 272. An undertaking made pursuant to s. 272 is a 'common law' undertaking and does not require the protection application to be found proven. Therefore, an undertaking made under s. 272 is not a protection order.

What does an undertaking provide for?

An undertaking may require:

  • the child
  • the child's parent(s)
  • the person with whom the child is living

to undertake in writing to do or refrain from doing actions specified in the undertaking.

An undertaking can only be made where the person consents to the making of the order.

When is an undertaking appropriate?

An undertaking may be appropriate when the family has demonstrated a willingness to address protective concerns through involvement with community agencies or in other satisfactory ways.

An undertaking is not intended to:

  • protect a child where there are serious protective concerns
  • provide statutory supervision of the child.

 A recommendation of an undertaking is only appropriate where the future risk of significant harm to the child can be adequately managed in the community.

How long can an undertaking be made for?

An undertaking is generally made for a period of up to six months, however it can be for a longer period not exceeding 12 months in special circumstances.

Can the undertaking include conditions?

An undertaking may include conditions that the Court considers to be in the best interests of the child.

The role of the practitioner

This order is not intended to involve the practitioner in any statutory capacity. Where it is anticipated that support of a community agency may be part of an undertaking, it is the practitioner's role, before seeking the order, to assist the family in contacting the nominated agency and sending a written agreement to that agency confirming its proposed role with the family. It is not appropriate for a condition of an undertaking to establish an ongoing role for child protection. The practitioner does not have a continuing role with the family once the community agency becomes involved and therefore the case must be closed when an undertaking is made.

Can an undertaking be varied, revoked or breach?

An undertaking can be varied or revoked by application to the Children's Court by the child, the parent or the person with whom the child is living.

An undertaking cannot be breached.

Can an undertaking be extended?

No.

Contact arrangements

Not applicable.

Notice of direction

Not applicable.

Family preservation order (s. 280)

What does a family preservation order provide for?

A family preservation order gives the Secretary responsibility for the supervision of the child. It does not affect a person’s parental responsibility for the child. It provides for the child to be placed in the day-to-day care of one or both parents.

When is a family preservation order appropriate?

A family preservation order is designed to promote the continuing care of the child by a parent. Support and assistance will be provided to the family while the child's safety within the family is monitored, and can be made to one or both parents.

A family preservation order may be appropriate when the protective concerns can be sufficiently managed with the child remaining in the care of one or both parents. Issues such as the parents' preparedness to acknowledge and address the protective concerns, and the level of support and monitoring necessary to maintain the child's safety should be considered. A family preservation order is not intended to resolve parental responsibility issues between the parents or issues about the contact separated parents have with the child where there are no protective concerns. This is the jurisdiction of the Family Law Courts.

How long can a family preservation order be made for?

A family preservation order is generally made for a period not exceeding 12 months. If the court is satisfied there are special circumstances that warrant the making of an order for a longer period, an order can be made for a period over 12 months but not exceeding two years.

In its disposition report, child protection will recommend the duration of a family preservation order. This will be based on the assessment of how long the family will need to make enduring changes that will address the protective concerns and lead to permanent family preservation.

It is important to undertake focussed, goal oriented work with children and families where a child is subject to a family preservation order, with a view to empowering the family to sustain their capacity to protect their child and promote the child’s development without the need for court-ordered intervention.

However, a family preservation order can be continuously extended (for up to two years at a time) where the Court views this as in the child's best interests and is satisfied that there are special circumstances. A recommendation for a family preservation order of more than 12 months duration must include an outline of the special circumstances that support the making of an order for such a period (s. 280(2)(b), CYFA).

What if a family preservation order runs for more than 12 months?

Where a family preservation order is made for a period exceeding 12 months, the Court must direct the Secretary to review the operation of the order before the end of the first 12 months.

If the review determines that an order should continue, no action is required.

Following this review, with the agreement of the child (if they are 10 years or older) and parent, the Secretary may determine that the family preservation order should end. The Court must be notified, and the order will end at 12 months or on the date of the notification, whichever is later.

The team manager has the delegation to make the decision to end a family preservation order following the annual review.

Can a family preservation order include conditions?

A family preservation order may impose conditions to be observed by:

  • the child, or
  • the parents.

The Court may include conditions it considers:

  • to be in the best interests of the child; and
  • reasonably able to be carried out by each person who will be subject to the condition; and
  • promote the continuing care of the child by a parent.

The value of a condition is that:

  • it may strengthen a particular direction to the parent or child by virtue of being sanctioned by the Court
  • it can assist the child or parent to focus on addressing the protective concerns.

Requirements which may be intrusive upon parents' usual parental responsibility rights, for example a residential program for the family, should be provided for as a condition of the order.

The conditions should relate to the identified protective concerns for the child and endeavour to support addressing these, in the child's best interests. Conditions must be reasonably capable of being carried out.

Conditions should generally be worded to allow for changes during the period of the order for example, '...attend counselling as directed by the Secretary' rather than '...attend counselling with x service'. Other conditions that may be appropriate relate to addressing the specific protective concerns, the child's developmental needs and the parents' capacity to maintain the care of the child and so on. See Conditions on court orders – advice.

Conditions to reside as directed, or at a specific address

A family preservation order cannot include any condition as to where the child lives, unless the condition relates to the child living with a specified parent, or living as far as possible for an equal amount of time with each parent, if the parents do not live in the same house (s. 281(2)(a)-(b), CYFA).

Contact arrangements

Contact conditions may be included on a family preservation order; however these conditions are to relate to the safety of the child and should not attempt to address issues more appropriately dealt with by the Family Law Courts. Decisions regarding contact between a child and parent are based on the best interests principles outlined in section 10 of the CYFA.

See procedure Contact for tasks that must be undertaken and Contact – advice.

Is there funding available to support family preservation?

Flexible funding packages are available to support family preservation for children to remain in the care of parents – see Family preservation and reunification packages – guidelines for child protection. This funding can be tailored to prevent children entering out-of-home care and can be used to assist with access to services to address the protective concerns.

The role of the practitioner

The Secretary has responsibility for supervising the child, and for the operation of the order for its duration. The practitioner is responsible for working to engage the family in the interrelated functions of case practice – assessment, planning and actions and reviewing outcomes. The practitioner will work with the family to develop a case plan to reduce risk and increase the safety, development, and wellbeing of the child. See Child protection best interests case practice.

Can a family preservation order be varied?

A family preservation order or conditions can be varied on application to the Children's Court by the child, the parent, or the Secretary (s. 290 and 301).

A decision to vary a family preservation order can be:

  • Connected with implementation of the case plan, that is, the action specified in the condition is no longer appropriate, for example, the treatment has ended, the agency is no longer prepared to provide the service, the family has achieved the goal and so on.
  • A means of reducing conflict and clarifying the order, that is, as a result of the process of reviewing outcomes, the practitioner and client agree that the condition is unworkable and move to have the order varied accordingly.
  • A means of further assessing the protective concerns. That is, although the practitioner has the authority to issue a 'notice of direction' to the parent, and to breach if directions are not complied with, under certain circumstances, an application to have a further condition added to the order may provide sufficient reinforcement of the protective concerns. For example, there may be situations where existing conditions are being complied with, but further conditions are needed to ensure the safety of the child.

All decisions are to be based on the child's best interests and recommended conditions are to be reasonably capable of being carried out and promote the continuing care of the child by a parent.

An application to vary an order does not have any effect on the expiry date of the order, that is, it does not hold the order in force beyond its expiry date. If an application to vary a family preservation order is before the Court when the expiry date approaches, a separate relevant application will be needed if the child continues to be in need of protection.

Can a family preservation order be revoked?

A family preservation order can be revoked on application to the Children's Court by or on behalf of the child, by the parent, or by the Secretary.

An application to revoke a family preservation order should only be made where a decision has been made that there is no longer a need for Child Protection to remain involved with the child, and the intention is to have no further protection order.

The Court cannot make a further protection order if an application to revoke a family preservation order is granted. If further protection is required a new protection application will need to be issued.

Can a family preservation order be breached?

The Secretary may apply to breach a family preservation order when:

  • there has been a failure to comply with any condition of the order
  • there has been a failure to comply with any direction given by the Secretary under s. 282(2)
  • the child is living in conditions that are unsatisfactory in terms of the safety and wellbeing of the child.

For example:                 

  • there are specific protective concerns for the child
  • the functioning of the child or person with whom the child is living, falls below the accepted minimum.

The choice between a breach by notice and a breach by emergency care is determined by what is in the child's best interests with consideration being given to the urgency of the situation, the degree of risk to the child, and the willingness of the parents to cooperate and adhere to the conditions of the order.

If the decision is to breach, the practitioner must be clear about:

  • the best interests of the child
  • the significant and immediate risk to the child
  • the legal grounds for the breach
  • the evidence to support the breach
  • what is to be achieved by the breach.

If an application is made to breach a family preservation order, the order continues in force until the matter is determined by the Court (s. 316).

The Court may make an IAO if it adjourns the hearing. The IAO is the prevailing order as the family preservation order is suspended for the period of the IAO, but it is not extended (s. 262(7)).

If an application to breach a family preservation order is before the Court when the expiry date approaches, a separate application will be needed if the child continues to be in need of protection.

Can a family preservation order be extended?

An extension application may be made by the Secretary at any time while a family preservation order is in force.

A review of the family preservation order is to occur six weeks prior to the expiry of the order, and before any application for an extension being lodged with the Court. For an extension to be sought, the review needs to identify that extension of the order is in the best interests of the child.

Once an extension application is made the order continues in force until the Court makes the decision.

On each extension of a family preservation order, the Court may extend the order for a period of up to two years.

Can there be a change to the nature of a family preservation order

There is no provision for a change in the nature of a family preservation order by direction of the Secretary.

Can a notice of direction be given under a family preservation order?

The practitioner has the authority to give a direction to a parent, or the child that is both reasonable and lawful, within the framework of the family preservation order (s. 282(2)).

The direction should be:

  • in the best interests of the child, and for their wellbeing, that is, specifically aimed at preventing harm to the child or the child's circumstances leading to a breach of the order on the basis of unsatisfactory conditions
  • lawful, that is, it must be a direction that can lawfully be given and cannot include a direction to do something that would be unlawful to do
  • reasonable, that is, it must be based on what has been assessed as a protective concern and established as requiring intervention, and is reasonably able to be carried out by the parent.

The child and parents should be assisted to participate in the decision making process (CYFA s 11) and in defining the problems facing the family. They should have been clearly informed of the changes needed, in the course of preparing the case plan and associated actions table.

Procedure

If the practitioner has clear concerns for the safety, development or wellbeing of the child, they should initially explain these to the family and attempt to negotiate with the parents to reduce the risk to the child.

If, in spite of this, the child remains at risk of significant harm, the practitioner should discuss the use of a notice of direction with their supervisor or, alternatively, whether the level of risk justifies a breach of the order and an emergency care placement.

If the practitioner’s supervisor agrees with the use of a 'notice of direction', the practitioner is required to sign the written direction (as contained in CRIS). A copy of the Form 6, Schedule 2, Notice of direction pursuant to ss. 282(2) and 265(2) form can be found in Court owned forms. The written direction must quote in full s. 282(2) of the CYFA, which outlines the notice of direction authority.

The practitioner is to inform the child and parents of the direction, discuss the implications and provide the child and parents with the signed written direction. A copy of the signed direction is placed on the client file (to be available as documentary evidence).

Family reunification order

What does a family reunification order provide for?

A family reunification order confers parental responsibility for, and sole care of, the child on the Secretary (s. 287).

The Secretary must seek the parent’s agreement for decisions about major long-term issues, except as provided for under the CYFA or by order of the Court and, where possible, engage the parents to the fullest extent possible in case planning decisions.

When is a family reunification order appropriate?

A family reunification order may be made by the Children's Court when it has found that a child is in need of protection and cannot safely remain in their parents’ care. Its purpose is to promote the reunification of the child with a parent.

A family reunification order should be recommended where:

  • the child has been in out-of-home care for less that a total of 12 months, and
  • reunification is considered to be in the child’s best interests, and
  • safe reunification is likely to be achieved.

This order will be particularly appropriate where the parents are motivated to change and to accept support and assistance from relevant services to address the protective concerns.

How long can a family reunification order be made for?

A family reunification order can be made for a period that will have the effect of a child being in out-of-home care for no more than 12 months.

Determining the period of a family reunification order will involve a calculation of the length of time a child has spent, cumulatively, in court-ordered out-of-home care in the current period of court-ordered intervention. This includes time in out-of-home care under an interim accommodation order.

To find the latest valid expiry date for a family reunification order refer to Counting time in out-of-home care and use the time in out-of-home care calculator.

Can a family reunification order include conditions?

A family reunification order may include conditions the Court considers:

  • to be in the best interests of the child; and
  • are reasonably capable of being carried out by each person subject to the condition; and
  • promote the reunification of a child with a parent.

Contact arrangements

Contact arrangements may be included as a condition of the order. Contact is necessary to promote a child’s reunification with a parent.

It is desirable that contact conditions are flexible enough to include the capacity for increasing contact closer to the resumption of care by the parents without returning to court.

Other conditions that may be appropriate relate to addressing the parents' capacity to resume the care of the child by addressing specific protective concerns, for example, development of parenting skills, engagement in drug counselling, and so on.

Is there funding available to support family reunification?

Flexible funding packages are available to support family reunification for children to return the care of parents – see Family preservation and reunification packages – guidelines for child protection. This funding can be tailored to prevent children entering out-of-home care, and to enable children to return home, and can be used to assist with access to services to address the protective concerns.

The role of the practitioner

The practitioner is responsible for monitoring the care and wellbeing of the child in their placement and promoting the child’s developmental needs. This includes making decisions for the child and, where decision affecting a child’s long-term health or wellbeing is required, working with the parents to enable the parents to make a decision in the best interests of the child.

The practitioner is also responsible for implementing the case plan, participating in the child’s care team and supporting and monitoring the parents' efforts to address the protective concerns against the goals and tasks outlined in the actions table. The practitioner should engage the parents in working towards the child safely returning to their care and addressing issues related to the child's wellbeing, development and best interests.

Can a family reunification order be varied, revoked or breached?

The child, parent, or Secretary can apply to the Court for a variation or revocation of the order.

Neither will hold the order in force beyond its expiry date. If the expiry of the order is approaching while an application to breach or vary the order is before the Court, a separate relevant application will be required to secure protection for the child beyond the order expiry date.

A variation may be needed where parents do not agree with a decision about a major long-term issue that would be in the child’s best interests.

An application cannot be made to breach a family reunification order. This is not required as the Secretary has sole care of the child under the order.

Can a family reunification order be extended?

The Secretary may apply to extend a family reunification order at any time while the order is in force.

Once an extension application is made the order continues in force until the application is determined.

The Court must not extend a family reunification order unless it is satisfied that:

  • there is compelling evidence that it is likely that a parent will permanently resume care of the child during the period of the extension, and
  • the extension will not have the effect of the child being in out-of-home care for longer than 24 months.

In exceptional circumstances the Children’s Court may extend a family reunification order for a further 12 months as long as this does not have the effect of the child being in out-of-home care and subject to a relevant order for longer than two years.

Once a child has been in out-of-home care and subject to a relevant order for a total of two years a family reunification order is no longer available to the Court and cannot be further extended.

Can there be a change to the nature of a family reunification order?

The Secretary can direct a parent or parents to resume full parental responsibility for a child under a family reunification order.

On and from the date of the direction, the Secretary ceases to have parental responsibility for the child and the order is to be taken to be a family preservation order.

This gives the Secretary responsibility for supervision of the child and returns the child to parental care.

The conditions of the family reunification order continue to apply as conditions of the family preservation order.

The Secretary may apply to the Court to have conditions included, and if it sees fit, the Court may decide on this without requiring the parties to attend or be represented.

If the permanency objective of family reunification is achieved during the period of the order and the child returns home, child protection will direct the parents to resume parental responsibility in this way.

This is a case planning decision. This direction must be given from the date the child returns to their parents’ care. If a child goes home and there is no expected date of return to placement, a change in nature of order direction must be given.

Procedure

The Secretary must give a copy of the notice of the direction to the Court, the child and the parents. From the date of the direction, the order will be taken to be a family preservation order.

Care by Secretary order

What does a care by Secretary order provide for?

A care by Secretary order confers parental responsibility for the child on the Secretary to the exclusion of all others.

Section 172 of the CYFA outlines the responsibilities of the Secretary when the Secretary has parental responsibility for a child. Subsection (1) states the Secretary, in relation to a child for whom the Secretary has sole parental responsibility:

  1. is the guardian of the person and estate of the child to the exclusion of all other persons: and
  2. has the same rights, powers, duties, obligations and liabilities as a natural parent of the child would have.

When is a care by Secretary order appropriate?

A care by Secretary order is appropriate when a child has been in an out-of-home care for a period of 24 months, or earlier where it has been determined that a child will not be able to safely return to the care of a parent and the appropriate permanency objective is adoption, or permanent care, long-term out-of-home care.

How long can a care by Secretary order be made for?

A care by Secretary order remains in force for a period of two years.

Can a care by Secretary order include conditions?

A care by Secretary order cannot include conditions. The Secretary has parental responsibility for the child to the exclusion of all others, and conditions have never been included on such orders. All significant decisions, including about contact, are case planning decisions, and subject to the same review mechanisms as decisions of government administrators.

The role of the practitioner

The practitioner is responsible for monitoring and promoting the care and wellbeing of the child in their placement, promoting the child’s developmental needs and participating in the child’s care team. They will recommend decisions to the case planner including about authorising the child’s carer to make decisions concerning the child. See Authorising carers - advice.

The child protection practitioner is responsible for implementing the child’s case plan and monitoring outcomes against the goals and tasks outlined in the actions table.

Can a family reunification permanency objective be pursued for a child on a care by Secretary order?

Family reunification may be an appropriate permanency objective for a child under a care by Secretary order in exceptional circumstances. This provision in the legislation recognises that children’s circumstances are complex. Legislation, policy and practice need to have sufficient flexibility for decisions to be made in the best interests of each child, even in unusual situations. Ensuring children have a sense of permanency and belonging that accords with their best interests will be central to the decision making process.

One example may be where a child requires out-of-home care because a parent who could otherwise safely care for them is incarcerated for longer than two years. In this circumstance family reunification could continue to be the permanency objective until the parent’s release.

Can a care by Secretary order be varied, revoked or breached?

A care by Secretary order cannot be varied, as it does not include conditions, and cannot be breached as this capacity is not needed where the Secretary has parental responsibility for a child.

An application to revoke a care by Secretary order may be made by:

  • the Secretary
  • the child in respect of whom the order is made
  • a parent of the child,

noting that the child or parent may only apply to revoke a care by Secretary order if the circumstances have changed since the order was made, and an internal review of the case plan has been requested and either refused, or decided in a way the applicant finds unsatisfactory.

The order must be revoked by the Court if the Secretary and the child and the parents have all agreed to the revocation and it is in the child’s best interests.

In any other case it may revoke the order if it is satisfied it is in the child’s best interests to do so.

If the Court revokes a care by Secretary order and is satisfied that the child continues to be in need of protection, it may then make:

  • an order requiring a person to give an undertaking; or
  • a family preservation order in respect of the child.

The Court may only make a long-term care order if the application to revoke the care by Secretary order was made by the Secretary.

A care by Secretary order cannot be breached.

Extension of a care by Secretary order

An extension application may be made by the Secretary at any time while a care by Secretary order is in force.

A review of the care by Secretary order is to occur within six weeks prior to the expiry of the order, and before any application for an extension being lodged with the Court. For an extension to be sought, the review needs to identify that extension of the order is in the best interests of the child and is not prevented by the restrictions on the Court regarding extending a care by Secretary order.

Once an extension application is made the order continues in force until the application is determined.

The Court must not extend a care by Secretary order unless it is satisfied that:

  • firstly, a permanent care order is not appropriate in the circumstances; and
  • secondly, a long-term care order is not appropriate in the circumstances.

Despite these restrictions, the Court may extend a care by Secretary order if it is satisfied that there are exceptional circumstances which justify making a further care by Secretary order.

If extended, a care by Secretary order remains in force for two years.

Despite any of this, a long-term care order may be made instead of extending a care by Secretary order.

Administrative review of a care by Secretary order

The Court must direct the Secretary to review the operation of a care by Secretary order prior to its 12 month anniversary. If the review determines that an order should continue, no action is required.

Following the review, with the agreement of the child (if they are 10 years or older) and parent, the Secretary may determine that the care by Secretary order should end. The Court must be notified, and the order will end at 12 months or on the date of the notification, whichever is later.

The team manager has the delegation to make the decision to end a care by Secretary order following the annual review.

Can there be a change to the nature of a care by Secretary order?

The Secretary can direct a parent or parents to resume full parental responsibility for a child under a care by Secretary order.

On and from the date of the direction the Secretary ceases to have parental responsibility for the child and the order to be taken to be a family preservation order.

This gives the Secretary responsibility for supervision of the child and returns the child to parental care.

The Secretary may apply to the Court to have conditions included, and if it sees fit, the Court may decide on this without requiring the parties to attend or be represented.

If the permanency objective of family reunification is achieved during the period of a care by Secretary order and the child returns home, Child Protection will direct the parents to resume parental responsibility in this way.

This is a case planning decision. This direction must be given from the date the child returns to their parents’ care. If a child goes home and there is no expected date of return to placement, a change in nature of order direction must be given.

The Secretary must give a copy of the notice of the direction to the Court, the child and the parents. From the date of the direction, the order will be taken to be a family preservation order.

Long-term care order

What does a long-term care order provide for?

A long-term care order places the child with a specified carer until the child reaches 18 years of age, or marries, whichever occurs first. It confers parental responsibility for the child on the Secretary to the exclusion of all others.

When is a long-term care order appropriate?

A long-term care order may be appropriate for a child of any age where it is consistent with the permanency objective for the child and a suitable long-term carer has been identified.

A long-term care order cannot be made unless the Court is satisfied that:

  • there is a carer with whom the child will live for the duration of the order
  • the carer will not consent to a permanent care order
  • the Secretary consents to the long-term care order
  • a child aged 10 years or older does not oppose the order, and
  • making the order is in the child’s best interests.

There are a variety of reasons a carer may not be willing to agree to becoming a permanent care parent, even though they are willing to commit to caring for the child until they are 18. Examples include: where the child has complex medical or other issues that mean they will need on-going casework support; for cultural reasons; or where there is a significant degree of conflict with the birth parents they could not safely manage without ongoing assistance.

Long-term out of home care is the least preferred approach as the child will continue to experience having the state involved in decision-making for them. However, it may be the best available option and provides a degree of permanency.

Long-term care orders cannot be made with respect to a child in short-term kinship or foster care, or residential care.

How long can a long-term care order be made for?

A long-term care order remains in force until the child reaches 18 years or marries, which ever happens first.

Can a long-term care order be revoked?

An application to revoke of a long-term care order may be made by:

  • the Secretary
  • the child in respect of whom the order is made
  • a parent of the child, within the first 12 months of the order being made. If a long-term care order has been in force for more than 12 months, a parent of the child may only make an application to revoke the order with the leave of the Court.

The Secretary must apply to revoke the order if the Secretary has become aware that:

  • the child or identified carer has withdrawn their consent to the continuation of the order, or
  • the relationship between the child and their identified carer has irretrievably broken down
  • the child has not lived with their identified carer for a period of three months and it seems unlikely that the child will be able to return to live with them in the foreseeable future.

The Court may revoke a long-term care order if it is satisfied it is in the child's best interests to do so. If the Court revokes a long-term care order and is satisfied that the child continues to be in need of protection, the Court may then make:

  • an order requiring a person to give an undertaking
  • a family preservation order in respect of the child
  • a care by Secretary order.

Administrative review of a long-term care order

The Court must direct the Secretary to review the operation of a long-term care order prior to its 12 month anniversary and then every 12 months.

If the review determines the order should continue, no action is required.

Following an annual review, with the agreement of the child (if they are 10 years or older) and parent, the Secretary may determine that the long-term care order should end. The Court must be notified, and the order will end at 12 months or on the date of the notification, whichever is later.

The team manager has the delegation to make the decision to end a long-term care order following the annual review. The carers’ views and wishes are to be carefully considered in reaching the decision.

Related procedures

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