Powers of the Secretary when the Secretary has parental responsibility

This advice provides information regarding the powers of the Secretary when the Secretary has parental responsibility pursuant to part 4.3, Division 2 of the CYFA.

Introduction

The Secretary, in relation to a child for whom he or she has parental responsibility, has a wide range of rights, powers, duties, responsibilities and liabilities. The Secretary may delegate many of these functions and powers. It is important that child protection practitioners and managers understand the authority and the associated responsibilities conferred on them as delegates of the Secretary, and not exceed those powers.

The legislation gives the Secretary powers to intervene in families to protect children from abuse and neglect, and balances these powers with procedures to protect the rights of children and parents. It requires that intervention into the lives and privacy of families is no more than that which is required to ensure the safety, development and wellbeing of children. It also requires participation in decision making by parents and children as far as is possible and timely decision making and actions in the best interests of children.

Human rights

In addition, child protection practitioners are required to act in a way that is compatible with the Charter of Human Rights and Responsibilities Act 2006. See Human rights and child protection.

Powers of the Secretary when the Secretary has parental responsibility

Section 172 of the CYFA sets out the powers of the Secretary when the Secretary has parental responsibility for a child.

Pursuant to section 172(1), the Secretary, in relation to a child for whom the Secretary has sole parental responsibility:

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

In relation to a child for whom the Secretary has parental responsibility, the Secretary :

  • has the sole right to care for the child, and thus the power to decide where a child resides (s. 172(2)(a))
  • the power to order that a child be examined to determine their medical, physical, intellectual or mental condition (s. 597(1))
  • the power to give consent to the medical treatment, surgical or other operation or admission to hospital, on the advice of a registered medical practitioner that such treatment, operation or admission is necessary (s. 597(3))
  • the capacity to demand, sue for and recover any money due to a child (s. 172(2)(b)), and
  • in the name and on behalf of the child, may commence and prosecute any proceeding relating to any property or rights of the child (s. 172(2)(c))
  • the power to detain the child without a warrant (s. 172(3))
  • in some circumstances, the power to enrol a child in an educational institution
  • the power to authorise a carer to make certain decisions on behalf of a child in their care (ss. 175A – 175C).

Detaining a child without warrant

Section 172(3) of the CYFA grants 'the Secretary the power to detain without warrant any child for whom the Secretary has parental responsibility as a result of a protection order’.

In exercising this delegation, practitioners should:

  • not unnecessarily restrict a young person's rights or liberty
  • consider the child's best interests
  • act in accordance with the law and in consultation with a supervisor.

Practitioners should always seek legal advice where there is any doubt about the exercise of this power, and must consider the compatibility of the decision with the Charter of Human Rights. See procedure Secure welfare service placement for tasks that must be undertaken.

The power is most often used when a young person subject to a family reunification order or care by Secretary order is absent from their placement without lawful authority and is detained without a warrant until they are either returned to placement, or placed in secure welfare because substantial and immediate risk of harm exists.

As with all departmental administrative decisions, children and parents may appeal against a decision to detain a child through the internal review process and, subsequently, through VCAT, once all internal avenues have been exhausted. See Internal review of decisions and VCAT Review.

When a child is detained without warrant under s. 172(3) of the CYFA the child protection practitioner must inform the child and their parents of the reason for the child's detention, and their right to request a review of the decision.

Placement of children - including in a secure welfare service

Section 173 – Placement of children

This section of the Act applies to the placement of children for whom the Secretary has parental responsibility pursuant to the CYFA; and to children of whom the Secretary is guardian or in respect of whom the Secretary has authority under the Adoption Act 1984 to exercise any rights of custody. It allows for:

  • the placement of children
    • in an out-of-home care service
    • in a secure welfare service (to which specific restrictions and requirements apply), or
    • in any other suitable situation as circumstances require, and
  • the placement for adoption of children under the Adoption Act if the Secretary has sole parental responsibility for the child and the child is available for adoption.

Section 174 – Secretary's duties in placing child

In placing a child pursuant to s. 173, Secretary must:

  • have regard to the best interests of the child
  • make provision for the physical, intellectual, emotional and spiritual development of the child
  • have regard to the fact that the child's lack of accommodation is not by itself a sufficient reason for placing the child in secure welfare, and
  • have regard to the treatment needs of the child.

Section 175 – Support for child moving from secure welfare service

This section establishes the requirement that every child or young person exiting SWS has a written plan to support them once they leave, which is aimed at reducing the likelihood that it may become necessary for the child to be placed in SWS again. The primary purpose of a transition and exit plan is to facilitate the child or young person's safe transition to the community and plan for their ongoing needs.

Section 175A – Secretary may specify certain issues

This section provides the Secretary with the capacity to specify certain issues relating to a child for whom the Secretary has parental responsibility about which the child’s carer may be authorised to make a decision.

For example, the Secretary may specify issues including, but not limited, to –

  • the signing of school consent forms
  • obtaining routine medical care for the child
  • the day to day treatment of a child who suffers from a chronic or serious health condition.

The Secretary cannot authorise a carer to make decisions on behalf of a child in relation to a long-term issue if the child is subject to an interim accommodation order, a family reunification order or a therapeutic treatment (placement) order.

Issues may be specified in relation to a particular child, or a child subject to a particular order, or a person providing a certain category of care.

Section 175B Authorisation of carer to make certain decisions

This section allows the Secretary to authorise a carer to make decisions on certain issues (outlined in s.175A) in relation to a child in their care. It enables authorised carers to make decisions relating to the specified issues only, without consulting the Secretary.

The section applies if a child is placed in out-of-home care and subject to an interim accommodation order, a family reunification order, a care by Secretary order or a long-term care order. See Authorising carers for additional information.

Section 175C – When Secretary must consult with the parent of child

This section requires the Secretary to work with and engage, to the fullest extent possible, any parent with whom a child is intended to be reunified, when making case planning decisions for the child. It applies if

  • if a child is subject to an interim accommodation order and has been placed in out-of-home care, or
  • the Secretary has parental responsibility for a child under a family reunification order or therapeutic treatment (placement) order.

Section 176 – Cultural support for Aboriginal child

Under this section the case plan for an Aboriginal child in out-of-home care must address the cultural support needs of the child. It must respect and be consistent with those needs, having regard to the child’s individual circumstances, so as to

  • maintain and develop the child’s Aboriginal identity, and
  • encourage the child’s connection to their Aboriginal community and culture.

In addition, all Aboriginal children in out-of-home care must be provided with a cultural plan that aligns with their case plan.

See Cultural plans for additional information.

Section 177 – State guardianship fund

Section 177 sets out the obligations on the Secretary in relation to any money received by the Secretary as guardian of the estate of a child.

All money received by the Secretary as guardian of the estate of a child must be paid into the State Guardianship Fund. The Secretary is required to maintain an account on behalf of each child showing the amount held in credit. Money not immediately required for use by a child may be invested in accordance with the Trustee Act 1958, and interest earned must be credited to the account of the child each year. Money in the account may only be used for the benefit of the child for whom it is held, and with the approval of the Secretary. On ceasing to have sole parental responsibility for the child the Secretary must notify the child of the amount in their account and, if the child is over 18 years of age, the money must be paid to the child. If the Secretary ceases to have sole parental responsibility for the child prior to the child turning 18, the Secretary may pay the money to the child or, if the Secretary considers it to be in the interests of the child to do so, retain all or part of the money in the account until the child is 18 years of age.

Practitioners should refer to Compensation proceedings and seek legal advice before taking any action regarding a child's estate.

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