Legislative changes overview

Background

The Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 (the Amendment Act) was passed by the Victorian Parliament in September 2014, and will come into effect on 1 March 2016. The Amendment Act arose from findings and recommendations of the Protecting Victoria’s Vulnerable Children Inquiry (2012). Key findings of the Inquiry relevant to the Amendment Act included:

  • it takes, on average, over five years from a report being received to a child being placed on a permanent care order, which is too long and harmful to children
  • the range of Children’s Court orders should be simplified and their purpose clarified.

It recommended identifying and addressing the barriers to achieving more timely permanency. In response, the department undertook the Stability Planning and Permanent Care Project 2013-14. Key findings included:

  • there is inconsistency between Children’s Court orders and department case plans
  • the existing stability planning framework in the Act has failed to achieve the timely decision-making intended
  • drift in case planning contributes to the long periods of time taken to reach a decision that alternative permanent care is required despite evidence that reunification is unlikely
  • lengthy delays accompanying contested court cases contribute to poor outcomes to children.

Further information about this project can be found on the Stability planning and permanent care project page on department’s website.

What are these changes seeking to achieve?

The amendments provide a legislative framework to drive improved focus on providing children with timely and secure outcomes, and to embed permanency planning for children in need of protection. Permanency refers to the achievement of an enduring care arrangement for a child that promotes the child’s safety, development, and sense of belonging. The intent is to prevent children from drifting in or between placements without early, clear and consistent decision-making for their future. 

The majority of children who come to the attention of child protection remain in the care of a parent. Of those who enter out-of-home care, most are reunified with parents well within two years. This will not change. However, for a smaller group of children a permanent or ongoing out-of-home care placement will be required to ensure their safety and wellbeing. It is important these decisions are made as early as possible and within a timeframe that promotes the child’s development. The legislation will set out the following hierarchy of permanency objectives:

  1. Family preservation
  2. Family reunification
  3. Adoption
  4. Permanent care
  5. Long-term out-of-home care.

The best interests principles will remain paramount for all decisions made by child protection, family services, out-of-home care providers and the Children’s Court.

The location of adoption in the hierarchy recognises it is the most legally secure option for a child where reunification cannot safely be achieved. It is not anticipated this will lead to a change in the number of children adopted in Victoria. The Adoption Act 1984 requires parental consent, or for the Court to dispense with consent.

What changes will be made to case planning?

Case planning will commence from the time child protection is satisfied that a child is in need of protection. This decision is often referred to as substantiation, and follows an investigation. The case plan will include the permanency objective and significant decisions made by the department for the child. Where a Court order is in place, the case plan will be consistent with the order. A copy will be given to the child and their parents. All case plans will be reviewed at least annually and earlier if there is a significant change. Along with the case plan, an actions table will set out the goals, tasks and timelines to implement the case plan

Cultural support will be required for all Aboriginal children in court-ordered out-of-home care. Their case plan will have to reflect and be consistent with the child’s cultural support needs, to maintain and develop their Aboriginal identity and encourage their connection to their community and culture. Each Aboriginal child in out-of-home care will be provided with a cultural plan aligned with their case plan. The child’s cultural support needs may vary, depending on their individual circumstances.

What changes will be made to Court orders?

The amendments will introduce a new simplified scheme of court orders that will make the purpose of intervention clear. The permanency objective will align with the order.

Simplified orders

Key features

Family preservation order

Child in parental care with supervision

 

  • Order can be made or extended for up to 12 months, or, in special circumstances, two years.
  • May include conditions to support family preservation.

Replaces: interim protection order to parental care; supervision order.

Family reunification order

Child in out-of-home care with the intent the child will return to parental care

  • Secretary has parental responsibility – limited by decisions about major long-term issues requiring parental agreement. Parents to be consulted to fullest extent possible.
  • Initial order cannot have the effect that the child will have been in out-of-home care for more than12 months. May be extended where there is compelling evidence that reunification is likely - extension cannot have the effect that the child will have been in out-of-home care for more than 24 months.
  • May include conditions to support reunification.

Replaces: interim protection order to out-of-home care; custody to third party order; supervised custody order; custody to Secretary order where family reunification is the objective and child has been in out-of-home care for less than two years.

Care by Secretary order

Child expected to remain in out-of-home care, except in exceptional circumstances

  • Secretary has parental responsibility to the exclusion of all others.
  • Two year order and may be extended only if neither a permanent care order nor a long-term care order is not viable, except in exceptional circumstances.
  • Does not include conditions. Secretary required to review case plan at least anually.

Replaces: custody to Secretary order where ongoing out-of-home care is required or child has been in out-of-home care for two years or more; guardianship to Secretary order.

Permanent care order

Child with permanent care parents

  • Permanent care parents have parental responsibility to the exclusion of all others, with standard condition for a carer to preserve a child’s identity, connection to culture, and relationships with birth family unless otherwise ordered by the Court.
  • May include additional conditions – contact with siblings; attaching a cultural plan; when first made, conditions for contact with parents for up to four times a year; additional contact can be arranged by agreement;. If varied after 12 months, limit on conditions for contact with parents no longer applies.
  • Parents require leave of Court to apply to vary or revoke.

Amends existing: permanent care order provisions

Long-term care order

Child with specific long-term carer (where permanent care order not an option)

  • Secretary has parental responsibility to the exclusion of all others.
  • Order remains in force until the child turns 18 or marries.
  • Does not include conditions. Secretary required to review case plan at least annually.

Replaces: long-term guardianship to Secretary order.

  • Temporary assessment orders and undertakings will not be affected.
  • Interim accommodation orders will continue to function as now. A restriction will be introduced that an interim accommodation order must not be made if the Court is satisfied that a protection or permanent care order could be made.

Permanency for children preparations

The Permanency for children preparations page on the DHHS intranet provides useful information about preparing for the changes.

Additional information

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