Northern Territory Explanatory Statements

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CARE AND PROTECTION OF CHILDREN AMENDMENT BILL 2019

2019

2019

LEGISLATIVE ASSEMBLY OF THE

NORTHERN TERRITORY

MINISTER FOR TERRITORY FAMILIES

Care and Protection of Children Amendment Bill 2019

SERIAL NO.82

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Care and Protection of Children Act 2007. The purpose of this Bill is to give effect to the intent and direction of 12 Royal Commission Recommendations and further technical amendments across the following themes:

mandating early assessment, intervention and support;

updating the principles underlying the operation of the Act;

strengthening care planning;

improving court orders;

enhancing legal processes; and

formalising the transition to independence.

NOTES ON CLAUSES

Clause 1. Short Title

This is a formal clause which provides for the citation of the Bill. The Bill, when passed, will be cited as the Care and Protection of Children Amendment Act 2019.

Clause 2. Commencement

This is a formal clause that provides that the commencement of the Act will occur on a day fixed by the Administrator by Gazette notice.

Clause 3. Act amended

This is a formal clause that identifies that the legislation being amended is the Care and Protection of Children Act 2007.

Clause 4. Section 8 amended (Role of family)

This clause amends the current section 8 which outlines the primary role of the family as an underlying principle of the Act. Sub-section (3) provides that a child may only be removed from their family where there is no other reasonable way to safeguard their wellbeing.

This amendment alters the wording of this sub-section to provide that a child may only be removed where there is an unacceptable risk of harm to the child. This reflects the principle that harm to a child does not always warrant removal from their family and that unnecessary removal of a child can lead to worse outcomes. Furthermore, removing a child from their family places a long-term consequence decision on a short-term situational risk. The test of “unacceptable risk” creates a higher threshold for removal of a child and is determined by considering the risk of harm by reference to the balance of probabilities as at the “stricter end of the spectrum” (per the test in Briginshaw v Briginshaw (1938) 60 CLR 336).

This amendment aligns with best practice standards for implementing the Aboriginal and Torres Strait Islander Aboriginal Child Placement Principle as developed by the Secretariat of National Aboriginal and Islander Child Care and prioritises addressing concerns for a child’s wellbeing by supporting families to fulfil their primary responsibility for the care, upbringing and development of their children.

Clause 5. Section 10 amended (Best interests of child)

This clause amends the current section 10 which states that one of the underlying principles of the Act is that the best interest of the child are the paramount concern when making a decision about a child and lists the matters to consider when determining the best interests of the child. The purpose of this amendment is to add new matters to consider when determining the best interests of the child. This includes the importance of a child having a strong as possible connection to their family and culture.

Currently the matters determining the “best interests of a child” under section 10 can be interpreted as overriding consideration of family and culture in relation to Aboriginal children as specified under section 12. This amendment explicitly provides that these considerations are relevant in determining what is in a child’s best interests. These new matters will be considered in light of existing matters to determine the best interests of a child that include existing sub-section (a) the need to protect the child from harm and exploitation.

Sub-clause (1) inserts the new sub-paragraphs (ca) and (cb) under sub-section (2) which include the following specific considerations which relate to a child’s connection with their family and culture:

The need to strengthen, preserve and promote positive relationships between the child and their parents, family members, kinship group and other significant persons; and

If the child has been removed from their parents, all possibilities related to reunifying the child with their parents.

This inclusion will require that these considerations are active factors when making decisions about a child’s life under the Act, for example, when deciding whether a protection order should be made or when making placement arrangements in the best interests of the child. The inclusion of a paragraph specific to reunification reflects the fact that, when a child is removed from their parents, all of the possibilities for their reunification must be fully explored in order to determine what the best interests of that child are.

Sub-clause (2) inserts the new paragraph (ha) to include the following consideration specific to Aboriginal children:

The child's right to enjoy the Aboriginal culture and tradition of their family and community including the need to maintain ongoing contact with their family and connection to country and language.

Aboriginal children are over-represented in out of home care placements and are disproportionately placed outside of their family, kin or community. The Royal Commission noted that “the maintenance and expression of Aboriginal cultures has the potential to be one of the most significant protective factors” in addressing the challenges facing our child protection system. This amendment seeks to draw upon connection to family, culture, tradition, language and country as protective factors that are to be considered when determining the best interests of Aboriginal children. This amendment also further embeds the Aboriginal Child Placement Principle throughout the Act.

Clause 6. Section 10A inserted

This clause inserts a new section 10A, under the heading ‘Decisions involving an intervention in the life of a child’. This section embeds the principle of least intrusive intervention as a principle underlying the operation of the Act by requiring that, where an intervention is necessary, it is the least intrusive intervention that is consistent with the best interests of the child.

Evidence provided to the Royal Commission demonstrated that unnecessary coercive interventions often exacerbate causes of vulnerability and serve to disempower families to the detriment of their children. This provision embeds the notion that the family of a child has the primary responsibility for their care and that intervention into the lives of that family must be limited to the minimum degree required to protect the child. This amendment also promotes the provision of earlier support and services as further incorporated by the amendment to section 42 (see clause 8).

Clause 7. Section 12 amended (Aboriginal children)

This clause amends the current section 12 which provides for the Aboriginal Child Placement Principle and includes specific principles in relation to the participation of relevant people when making decisions about Aboriginal children. This amendment alters the wording of sub-section (2) to expressly state that an Aboriginal child, in addition to the child’s family, has the right to nominate a kinship group, representative organisation or community of Aboriginal people to participate in the making of a decision involving the child.

Clause 8. Section 42 amended (What CEO may do generally)

This clause amends the current section 42 which outlines what the CEO may do generally as part of their general powers under Division 5 of the Act. The Royal Commission produced a wealth of evidence indicating that early intervention and preventative measures are the most effective in promoting the wellbeing of children and young people. However, until now, there has been nothing in this Act which places responsibility on the Northern Territory Government to provide or help provide these supports and services to families.

This amendment inserts several new paragraphs to empower and place an obligation on the CEO of the agency to provide or facilitate the provision of preventative and support services that are designed and delivered in a way that is accessible to and engaging of vulnerable families.

Sub-clauses (1) and (2) insert paragraphs (ab), (ca) and (cb) under sub-section (1) to provide that the CEO may do the following to promote the wellbeing of children:

provide or facilitate the provision of services or support to children, families and communities aimed at promoting or safeguarding the wellbeing of children;

provide information to children, families and the community generally about the development and safety of children; and

provide or facilitate the provision of assistance to Aboriginal communities to establish programs for preventing or reducing incidents of harm to children in Aboriginal communities.

The intention of the wording “provide or facilitate the provision” is to recognise that the agency is not the sole provider of services and supports to children, families and communities. This Bill recognises that the agency primarily responsible for ensuring the wellbeing of children should also be obliged to facilitate the provision of externally provided services and supports to fully meet this responsibility.

Sub-clause (4) inserts the new sub-sections (3) and (4). Sub-section (3) requires the CEO take reasonable steps to ensure that services provided include:

preventative and support services to strengthen and support families to reduce the incidents of harm to children; and

services to protect a child where a risk of harm has been identified.

This sub-clause aims to embed the principle of least intrusive intervention by prioritising preventative and proactive responses to concerns for a child’s wellbeing in order to prevent reactive and crisis-driven responses to incidents of harm.

Sub-section (4) requires the CEO take all reasonable steps to ensure that services provided to families:

involve meaningful engagement in a manner and language they understand;

are culturally responsive;

involve a holistic assessment of children and families to ascertain risk factors to enable tailored supports and services to be provided; and

promote decision-making processes that seek to empower and strengthen families to make decisions for themselves which actively involve children and their families and which are developed with regard to the age, maturity, health, cognitive ability and cultural background of the children involved.

This sub-clause intends to address the issues identified by the Royal Commission concerning the lack of understanding and the feelings of distrust and disengagement experienced by families in the child protection system by requiring that the services provided under the Act engage families in a manner that is most appropriate and relevant to their needs.

This amendment supports the direction of the National Framework for Protecting Australia’s Children 2009 – 2020 by introducing a greater emphasis on early intervention and prevention to move towards a public health model for care and protection.

Clause 9. Section 70 amended (CEO must prepare care plan)

This clause amends the current section 70 which requires the CEO to prepare a care plan after a child is taken into their care. The purpose of this amendment is to improve the process of preparing a care plan, clarify what is to be included and provide that they are written in such a way that they can be understood by the child’s family. This means that care plans will be tailored to, and reflective of, a child’s individual needs and interests.

Sub-clauses (1) and (2) amend the language of sub-section (2) to provide that a care plan must be “written in clear and plain language”. The relevance of a care plan is diminished when the people they most affect, namely the child and their family, do not understand what they mean. This amendment reiterates the importance of developing care plans that are written in a way that clearly and fully articulates the needs of the child and how these needs will be met when in the CEO’s care, without detracting from the substance of the care plan.

Sub-clause (3) explicitly provides that the needs of the child which are to be identified in their care plan includes their cultural needs to emphasise the importance of maintaining and developing a child’s connection to culture when in care. In doing so, this amendment further incorporates the amendments to the best interests of the child under section 10 (see clause 5).

Sub-clause (4) is a minor amendment to replace the word “measures” with “actions” to provide that the identified needs of a child are to be addressed in a more action-oriented manner. This amendment also aligns the Act with the new Signs of Safety practice reform, which involves the implementation of action-oriented plans.

Sub-clauses (5) and (6) insert a new paragraph (d) for section 70(2) requiring that a care plan set out what is required to reunify the child with their parents, unless the CEO determines that reunification is not in the best interests of the child. The purpose of this amendment is to strengthen the obligation on the CEO to plan for the reunification of children with their families, where it is appropriate to do so.

Sub-clause (6) also inserts the new sub-sections (3), (4) and (5). Sub-section (3) provides that the care plan of a child 15 years of age or over must identify the needs of the child in their transition to independence and outline the actions to be taken in addressing these needs. Transition planning for children in care is important to ensure that by the time they leave care, they are equipped with the skills and supports to assist them in achieving positive life outcomes as independent adults. Sub-section (4) provides that the actions taken to address these needs may include the provision of assistance under the newly inserted section 85A, ‘Assistance for child or young person’ (see clause 15).

Sub-section (5) stipulates that a care plan for an Aboriginal child must include reasonable actions to:

maintain and develop the child’s Aboriginal identity; and

encourage the child’s connection to the Aboriginal culture, tradition, language and country of the child.

The inclusion of a sub-section specifically relating to care plans for Aboriginal children here and under section 76 (see clause 14) is in recognition of the over-representation of Aboriginal children in the child protection system and their disproportionate placement outside of their family, kin or community. By requiring that culturally-specific actions be included in care plans for Aboriginal children, this amendment provides that Aboriginal children will receive the necessary cultural support when separated from their family. This amendment also further incorporates the Aboriginal Child Placement Principle throughout the Act.

Clause 10. Section 71 amended (Modification of care plan)

This clause amends the current section 71 which provides for the requirements concerning the modification of care plans by the CEO. The requirements upon the CEO in modifying care plans mirror the CEO’s requirements in preparing a care plan under section 70 (see clause 9). This amendment creates consistency between these two sections by referring to the transitional arrangement matters listed under the new section 70(3) as those which must also be included when modifying a care plan if the child is 15 years of age or over or if they are about to leave the CEO’s care and their care plan does not already include them.

Clause 11. Section 72A inserted

This clause inserts a new section, under the heading ‘Participation in a care plan’, which stipulates the CEO’s requirements to encourage and facilitate the participation of relevant people when preparing or modifying a care plan. The involvement of the child, their parents and family in the preparation or modification of their child’s care plan is essential to ensure that it accurately reflects the strengths, needs and vulnerabilities of that child. The language and cultural barriers and the inherent power imbalance between a government agency, such as Territory Families, and a vulnerable child or family member justifies the placing of positive obligations upon the CEO to encourage and facilitate their participation in preparing or modifying a care plan. It is important to note that these obligations extend only so far as to what the CEO considers appropriate in the circumstances in recognition of the fact that there will be cases where the involvement of all relevant people in preparing or modifying a care plan will not be realistic or appropriate.

Under paragraph (a), the CEO must take proactive steps to encourage and facilitate the participation of:

the child;

each parent of the child;

an appropriate member of the child’s family;

if the child is an Aboriginal child – a person from the kinship group of the child or an Aboriginal representative organisation nominated by the child or their family;

if the child is not an Aboriginal child – a person nominated by the child or their family who represents the cultural group to which the child belongs.

Paragraph (b) requires that the CEO must, as considered necessary, take all reasonable steps to arrange for the provision of services to facilitate and encourage the participation of the people listed under paragraph (a). These services can include an interpreter or health services, such as disability support services, to support the full and effective involvement of the participants.

Under paragraph (c), the CEO must also ensure that any information about the preparation or modification of the care plan is given in a timely way and in a language and manner that the participants can understand. This inclusion further promotes the full and effective involvement of the participants and helps them to understand what a care plan means and how they can be involved in its preparation or modification.

Finally, paragraph (d) requires that the CEO must have regards to the wishes of the participants as is reasonable and appropriate in the circumstances. This requirement will make the involvement of the participants in the preparation or modification of their child’s care plan a more meaningful and engaging process.

Clause 12. Section 73 amended (Provision of care plan to interested parties)

This clause amends the current section 73 which provides for the provision of a care plan to interested parties. Currently section 73(2) excuses the CEO from providing the care plan if it is inappropriate or impracticable to do so in the circumstances. This amendment strengthens the obligation upon the agency to provide the care plan to the child, their parents, their carer and any other person with a direct and significant interest in the child’s wellbeing. Sub-clause (1) amends the wording of sub-section (2) to require that the CEO provide a care plan regardless of whether it is impracticable to do so, unless it would be inappropriate in the circumstances. Sub-clause (2) inserts a new sub-section (3) which places an obligation on the CEO to take reasonable steps to assist a person provided with a care plan to understand the contents of the care plan. Children, families and other people relevant to the child have a right to be fully informed of the care arrangements in place for the child when in the CEO’s care. This amendment gives effect to this right by providing that a child and significant people in their life are not only provided with, but are supported to understand, their care plan.

Clause 13. Section 74 amended (Review of care plan)

This clause amends the current section 74 which requires the CEO to conduct reviews of care plans under certain circumstances and at the expiry of certain time frames. This amendment expands the list of circumstances for when the CEO must conduct a review of the plan and inserts new requirements upon the CEO to facilitate the participation of relevant people when conducting a review of a care plan. The purpose of this amendment is to ensure that care plans reflect the developments and changes in a child’s life.

Sub-clause (1) inserts “the making of a significant medical diagnosis for the child” as a circumstance when the CEO must conduct a review. Sub-clause (2) replaces the current sub-section (4) to mirror the provisions which stipulate the CEO’s requirements to facilitate the participation of relevant people in the preparation or modification of a care plan under section 72A (see clause 11). This amendment creates consistency across the Act in the CEO’s obligations to facilitate the participation of relevant people where a child’s care plan is concerned.

Sub-clause (3) replaces “these persons” with “the participants” to account for the inclusion of an Aboriginal representative organisation in the amended sub-section (4).

Clause 14. Section 76 amended (CEO must prepare interim care plan)

This clause amends the current section 76 which requires the CEO to prepare an interim care plan as soon as a child is taken into the CEO’s care. A child will receive an interim care plan when they are taken into care without a protection order or a court order being in place, for example, when they are subject to a temporary protection order.

This amendment incorporates some of the new requirements for preparing a care plan under section 70 for consistency across the Act (see clause 9). Sub-clauses (1) and (2) requires that interim care plans be “written in clear and plain language” to emphasise the importance of developing care plans which are able to be easily understood. Sub-clause (3) explicitly provides that the needs of the child which are to be identified in their interim care plan include their immediate cultural needs to emphasise the importance of maintaining and developing a child’s connection to culture. In doing so, this amendment incorporates the amendments to the best interests of the child under section 10 (see clause 5). Sub-clause (4) is a minor amendment to replace the word “measures” with “actions” to provide that the identified needs of a child are to be addressed in a more action-oriented manner.

Sub-clause (5) inserts a new subsection (3) which mirrors section 70(5) to provide the reasonable measures which may be included in an interim care plan for an Aboriginal child. These measures are aimed at:

Maintaining and developing the child’s Aboriginal identity; and

Encouraging the child’s connection to the Aboriginal culture, tradition, language and country of the child.

The purpose of these amendments are the same as described in clause 9, however some of the obligations for care plans prepared under section 70 are not included or are less prescriptive in recognition of the short timeframes under which interim care plans are prepared and implemented.

Clause 15. Part 2.2, Division 5 heading replaced and section 85A inserted

This clause replaces the current heading ‘Assistance for young person who has left the CEO’s care’, with the new heading ‘Transition to independence’. This amendment makes way for the insertion of section 85A, under the heading ‘Assistance for child or young person’, which expands upon the assistance that a child or young person can receive in their transition to independence. Whilst section 86 currently provides that the CEO has the power to provide assistance for a young person who has left their care, they are not obligated to support a young person’s transition to independence. This amendment formalises this obligation in recognition of the fact that young people who have been in the CEO’s care are typically more vulnerable and in need of additional support in order to become independent and capable adults.

Sub-section (1) stipulates that children who are in the care of the CEO and are at least 15 years of age and young people who have left the CEO’s care are entitled to receive assistance from the CEO in transitioning to independence. A young person who has left the CEO’s care is defined under section 68 as a young person who is between 15 and 25 years of age, was last in the CEO’s care for a continuous period of at least 6 months and is unlikely to be in the CEO’s care in the future.

Sub-section (2) provides that the CEO must ensure that children or young people who are transitioning to independence are supported to do so through the provision of services. Sub-section (3) outlines the types of services and assistance the CEO may assist the child or young person to obtain, including support to access entitlements, education, housing, employment, legal and other health and community services. Sub-section (4) explicitly requires that children who turn 18 whilst in the CEO’s care are to be supported to maintain their living arrangements until they have finished their schooling or training. Sub-sections (5) and (6) were formerly located under section 86 and provide that the CEO may also give financial assistance to a child and young person on terms and conditions considered appropriate for the purposes of education, training and accommodation.

Clause 16. Section 86 amended (Assistance for young person who has left CEO’s care)

This clause replaces the current heading of section 86, ‘Assistance for young person who has left CEO’s care’, with the new heading ‘Access to personal items’. Sub-clause (2) removes sub-sections (2) to (5) as these provisions are now provided for under the new section 85A, ‘Assistance for child or young person’ (see clause 15). This means that this section now solely concerns a child or young person’s entitlement to possession of their personal items upon leaving the CEO’s care, with the new section 85A governing a child or young person’s entitlement to assistance when transitioning to independence.

Clause 17. Section 104A inserted

This clause inserts a new section 104A, under the heading ‘Notice of application’. This section requires that notice be given to each parent and carer of a child after an application for a temporary protection order is made, but before the matter is heard by the Court. Applications for temporary protection orders are made when there is an urgent need to safeguard the wellbeing of the child and, if granted, have the effect of giving daily care and control of the child to the CEO for up to 14 days.

Sub-section (1) requires that the CEO must take the steps considered reasonable in the circumstances to provide notice as soon as practicable after applying for a temporary protection order, but before the application is heard by the Court. The urgency and sensitivity surrounding the making of an application for a temporary protection order is reflected in the timing of this notice requirement by ensuring that applications will not be delayed by the requirement to provide notice under this section. Sub-section (1) also provides that this notice include information as to when and where the application is to be heard and that it may be heard and decided in the absence of the child’s parents and carer. Sub-section (2) provides that, if practicable, the CEO may also provide a copy of the application. This makes the provision of notice to parents and carers more meaningful by providing them with the necessary information to understand what an application means and how they can be involved in the matter.

Clause 18. Section 106 amended (Notice of order)

This clause amends the current section 106 which stipulates the requirements upon the CEO to provide notice of a temporary protection order to the relevant people after it has been made.

The Royal Commission produced a wealth of evidence about the lack of understanding on the part of families to understand the child protection system and processes, causing distrust, disempowerment and reluctance to engage with Territory Families. The urgency by which temporary protection orders are sought can exacerbate these issues. The following sub-clauses intend to ensure that, regardless of the circumstances, children and their families are able to understand the reasons for, and effect and duration of, a temporary protection order.

Sub-clause (1) strengthens the CEO’s obligation to explain the effect of the order to the child by requiring that this explanation be provided “in a language and manner the child understands”. Sub-clause (2) amends the language of sub-section (2) to make the requirement that the parents or the person with parental responsibility be served with a copy of the order prescriptive, rather than discretionary. Notice by personal service will be required, unless the CEO considers it impracticable to do so, in which case service by leaving it or posting it to their last known address will suffice. Personal service is effected by physically giving a copy of the notice to the recipient and is the preferred method of giving notice to parents. To further improve upon these notice requirements, sub-clause (3) inserts a new sub-section (2A) to provide that, if personally served, the CEO must explain the duration and effect of the order to the parent or other person in their preferred language or, if not reasonably practicable, in a language the person understands.

Sub-clause (3) also inserts a new sub-section (2B) which requires that, in addition to providing a copy of the order itself, a copy of the initial application must also be provided to the parent if not already provided under section 104A(2). This is to ensure that they are provided with all the information relevant to why their child has been taken into temporary protection and the effect and duration of a temporary protection order.

Clause 19. Section 121 amended (Applying for protection order)

This clause amends the current section 121 which outlines the circumstances under which the CEO may apply for a protection order. This amendment prioritises least intrusive decision making by requiring that, when applying to the Court for a protection order, the CEO must reasonably believe that the proposed order is appropriate and the least intrusive means to safeguard the wellbeing of the child. This amendment further embeds the principle of least intrusive intervention as provided by the newly inserted section 10A, ‘Decisions involving an intervention in the life of a child’ (see clause 6) and is similar to section 9 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and section 59 of the Child Protection Act 199 (Qld) which provides that any protection order must be the least intrusive order possible that is consistent with the best interests of the child. This amendment acknowledges the disruptive and potentially destabilising effect which decisions can have upon a child’s life and the need to, where appropriate, minimise this disruption by opting for the least intrusive means to safeguard the child’s wellbeing.

Clause 20. Section 122 amended (How application is made)

This clause amends the current section 122 which provides the information which the CEO must specify in an application for a protection order.

Sub-clause (1) replaces the current heading, ‘How application is made’, with ‘Applications’ and sub-clauses (2) and (3) alter the structure of the section to separate it into 3 distinct sub-sections.

The new sub-section (2) requires that a care plan, interim care plan or proposed care plan must be provided with the application, unless it is not reasonably practicable to do so. If not provided, sub-section (3) allows the Court to set a date, not more than 21 days after applying to the Court, by which the plan is to be provided. The purpose of this amendment is to strengthen the requirement upon the agency to have prepared a child’s care plan prior to applying for a protection order to take them into care. This amendment also assists the Court to determine whether the needs and best interests of a child will be met by the making of a protection order.

Clause 21. Section 123 amended (Directions in protection order)

This clause amends the current section 123 to insert a new supervision direction which may be included in the proposed protection order. Currently, the Court has the power to make a protection order with supervision directions holding parents to account for their role in the care, development and welfare of the child. It is unclear, however, whether the Court has the same power to apply supervision directions which “fetters the discretion of the CEO” following the decision of the Supreme Court in WM & FM v CEO Department of Children and Families & Ors [2012] NTSC 67. This amendment clarifies this point of law to ensure consistent practice across the Territory by explicitly including that a supervision direction can require that the CEO do, or refrain from doing, a specified thing related to the care of the child. This means that the CEO will be subject to the same level of accountability as that which is currently expected of vulnerable families. The amendments to section 128 under clause 26 requires that, if the Court proposes to issue directions that were not included in the application, they must hear submissions from the parties in relation to these directions.

Clause 22. Section 124 replaced

This clause replaces the current section 124, under the heading of ‘Notice of application’, which outlines the requirements upon the CEO to provide families with notice of protection orders. The Royal Commission identified that in many cases where a child has been removed, families have not been informed about the reasons for removal and the steps they must take to address the wellbeing concerns concerning their child. This amendment places more accountability on the agency to personally serve notice of applications, as well as other relevant information, on parents when seeking a protection order over their child.

Sub-sections (1) and (2) provide that as soon as practicable after applying for an order, the CEO must give each parent and carer a copy of the application and a written notice with information relevant to the hearing, including a list of contact details for local legal service providers. This intends to promote the participation of families in legal matters concerning their children. Sub-section (5) provides that, where personal service is effected, the CEO must explain the duration and effect of the order in their preferred language or, if not reasonably practicable, in a language they understand. The requirement for personal service under sub-section (2) would be rendered meaningless if the person being served was unable to understand the language in which the notice was provided. This sub-section ensures that personal service remains the most effective form of notice by accounting for the potential language barriers encountered across the Northern Territory.

Sub-section (3) provides that the Court may order that the documents need not be personally served on the parents if it is impracticable to do so. Sub-section (4) provides a list of what the Court is to have regard to in making such an order, including whether attempts have been made and why they were unsuccessful and the nature of the proposed service and why it is likely to be successful. This sub-section places a greater obligation on the agency to attempt personal service, which is the best method of ensuring that families understand what an order means, before resorting to other, more indirect methods of service.

Sub-section (6) requires that the CEO must explain the effect of the application and notice to the child it concerns and may provide the child with a copy of these documents if it is appropriate to do so. A child is entitled to understand the nature of the decisions being made for them and, where appropriate, the reasons why these decisions have been made. This amendment gives effect to this right and further embeds the underlying principle of child participation under section 12 of the Act.

Clause 23. Section 128 amended (Order of Court)

This clause amends the current section 128 which outlines the orders that a Court may make after considering an application for a protection order. This amendment inserts a new sub-section (1A) to provide that, if the Court proposes to specify other directions as listed under the newly amended section 123 (see clause 21), they are required to hear submissions from the parties in relation to those directions. The purpose of this amendment is to ensure procedural fairness between the parties by giving them the opportunity to be heard and allows the Court to make an informed decision as to what is necessary to ensure that the best interests of the child are met.

Clause 24. Section 129 amended (When Court must make order)

This clause amends the current section 129 which outlines the circumstances under which the Court must make a protection order. This amendment mirrors the requirement upon the CEO in section 121 (see clause 19) and further embeds the principle of least intrusive intervention under section 10A (see clause 6) by requiring that the Court be satisfied that the protection order is appropriate and the least intrusive means to safeguard the wellbeing of the child before making the order.

Clause 25. Section 130 amended (Court to consider certain matters)

This clause amends the current section 130 which outlines certain matters that the Court must consider when making a decision regarding a protection order.

Sub-clause (1) provides that the Court must consider the steps taken by the Territory to provide services aimed at addressing any likely risks of harm to the child and to ensure that these services were provided in accordance with the newly inserted section 42(4) (see clause 8). In doing so, the Court is not limited to considering the actions of one agency to provide support to the family. Neglect is the most common reason for removing children from their families in the Northern Territory and is often the result of a complex layering of disadvantage, which may include poverty, overcrowding, mental health issues and substance abuse. It is clear that one agency cannot adequately support a family to address all of these issues. The purpose of expanding the Court’s power to consider “the steps taken by the Territory” is to make it clear that the responsibility to provide services that address risks of harm to children rests upon the Northern Territory Government in its entirety. This amendment will also have the derivative effect of increasing the accountability upon the Northern Territory Government to provide prevention and early intervention services and supports to families as set out under section 42(4).

Sub-clause (2) amends the language of sub-section (2) which requires that a Court must not give a person, other than a parent of the child, parental responsibility under a long-term parental responsibility direction unless satisfied of certain criteria, including that there is no one else better suited to be given the responsibility. Currently this presumption works against a family member or member of the child’s kinship group from being giving personal responsibility for the child. This amendment addresses this by including “family member of the child or a member of the kinship group to which the child belongs” to provide that these people are not subject to the same criteria as people who are seeking parental responsibility, but who have no family or kinship ties to the child.

Sub-clause (3) inserts a new-subsection (3) to require that a protection order must not be made unless a care plan, interim care plan or proposed care plan has been provided to the Court. The making of a protection order is a significant decision in the life of a child and should only be made when the Court is satisfied that the order is the best means of safeguarding their wellbeing. A child’s care plan is an important document for the Court to consider in making this decision and warrants a legislative safeguard against the making of a protection order without a care plan having been provided to the Court.

Clause 26. Section 137 amended (Variation and revocation of order)

This clause amends the current section 137 which allows applications to be made to the Court to vary, revoke or replace an order before it ceases to be in force. This is a technical amendment to remove the references to the replaced section 124, and insert references to correspond to the new section 124 (see clause 22).

Clause 27. Section 137B amended (How application is made)

This clause amends the current section 137B which provides the information which the CEO must specify in an application for a permanent care order. This amendment mirrors the newly amended section 122 which concerns the making of applications for protection orders (see clause 20) to create consistency across the Act.

Sub-clause (1) replaces the current heading, ‘How application is made’, with ‘Applications’ and sub-clauses (2) and (3) alter the structure of the section to separate it into 3 distinct sub-sections. The new sub-section (2) requires that a care plan must be provided with the application, unless it is not reasonably practicable to do so. If not provided, sub-section (3) allows the Court to set a date, not more than 21 days after applying to the Court, by which the care plan is to be provided. The purpose of this amendment is to strengthen the requirement upon the agency to have prepared a child’s care plan prior to applying for a permanent care order. This amendment also assists the Court to determine whether the needs and best interests of a child will be met by the making of a permanent care order.

Clause 28. Section 137C replaced

This clause replaces the current section 137C, under the heading ‘Notice of application’. This amendment mirrors the amendments made to section 124, which concerns the notice requirements for protection orders (see clause 22), and creates consistency across the Act in regards to the requirements upon the CEO to personally serve parents with notice of applications regarding their children.

Sub-sections (1) and (2) provide that as soon as practicable after applying for an order, the CEO must give each parent and the person proposed to be given parental responsibility for the child a copy of the application and a written notice with information relevant to the hearing, including a list of contact details for local legal service providers.

Sub-section (3) provides that the Court may order that the documents need not be personally served on the parents if it is impracticable to do so. Sub-section (4) provides a list of what the Court is to have regard to in making such an order, including whether attempts have been made and why they were unsuccessful and the nature of the proposed service and why it is likely to be successful.

Sub-section (5) requires the CEO to explain the effect of the application and notice to the child it concerns and may provide the child with a copy of these documents if it is appropriate to do so.

Clause 29. Section 139 amended (Order on adjournment)

This clause amends the current section 139 which outlines the orders a Court may make on granting an adjournment. Sub-section (6) currently specifies that the Court must not require the CEO to supervise any contact between the child and a specified person, without the CEO’s agreement. This amendment amends sub-section (6) to provide that the Court may only issue supervision directions binding upon the CEO after hearing from the parties in relation to the requirement. The purpose of this amendment is to give effect to the Court’s increased powers to make protection orders with supervision directions binding the CEO under section 123 (see clause 21).

Clause 30. Part 5.6, Division 4 inserted

This clause inserts the new Division 4, under the heading ‘Transitional matters for Care and Protection of Children Amendment Act 2019’, in Part 5.6. Included in this Division are sections 337, 338, 339, 340, 341 and 342.

The new section 337, under the heading ‘Definition’, provides the definition of ‘amending Act’ to mean the Care and Protection of Children Amendment Act 2019.

The new section 338, under the heading ‘Care plans’, provides that a care plan in force under section 70 immediately before the commencement of section 9 of this Bill will be taken to be a care plan prepared under section 70 after commencement. This means that care plans already in place before this Bill comes into effect will remain valid after commencement.

The new section 339, under the heading ‘Interim care plans’, provides that a care plan in force under section 76 immediately before the commencement of section 15 of this Bill will be taken to be a care plan prepared under section 76 after commencement. This has the same effect as section 338 and provides that interim care plans already in place before this Bill comes into effect will remain valid after commencement.

The new section 340, under the heading, ‘Application of Part 2.3, Division 4, Subdivision 1’, provides the commencement details of Subdivision 1, which concerns temporary protection orders. Sub-section (1) provides that applications for temporary protection orders made after commencement will be subject to the amendments made by section 20 of this Bill. Sub-section (2) provides that an application for a temporary protection order made but not yet decided before the commencement of this Bill will be decided under the previous provisions to prevent operational issues which might otherwise arise at the time of commencement.

The new section 341, under the heading, ‘Application of Part 2.3, Division 4, Subdivision 3’ provides the commencement details of Subdivision 3, which concerns protection orders. Sub-sections (1) and (2) substantially correspond with the equivalent sub-sections under section 340 and provide that only those applications for protection orders made after commencement will be subject to the amendments made by section 22 of this Bill.

The new section 342, under the heading, ‘Application of Part 2.3, Division 4, Subdivision 4’ provides the commencement details of Subdivision 4, which concerns permanent care orders. Again, sub-sections (1) and (2) substantially correspond with the equivalent sub-sections under sections 340 and 341 and provide that only those applications made after the commencement will be subject to the amendments made by section 30 of this Bill.

Clause 31. Repeal of Act

This is a standard clause which provides that the Care and Protection of Children Amendment Act 2019 is repealed on the day after it commences.

 


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