New child protection laws come into effect in Queensland today, aimed at making the system more responsive to the needs of vulnerable children and their families.
The Child Protection Reform Amendment Act 2016 and Director of Child Protection Litigation Act 2016, will support reforms to how matters are dealt with in the Childrens Court.
The laws implement a number of recommendations made by the 2013 Queensland Child Protection Commission of Inquiry.
Along with the broader court reform program, they enable children and families to have a stronger voice in child protection proceedings by:
- clarifying the role of various representatives for a child during proceedings, including a separate legal representative appointed by a Court to act in a child‘s best interests during proceedings; and
- providing a court with the ability to allow a person who is significant to the child to participate in proceedings.
Other measures in the new laws include supporting the establishment of the Office of the Child and Family Official Solicitor within the Department of Communities, Child Safety and Disability Services, which will improve the way evidence is prepared to support child protection order applications.
The Director of Child Protection Litigation Act 2016 supports the establishment of an independent statutory agency within the Justice portfolio.
Who is the Director?
The Director of Child Protection Litigation Act 2016 (the Act) established a new statutory officer, the Director of Child Protection Litigation (DCPL) and the office of the DCPL, who commenced operations on 1 July 2016. Mr Nigel Miller was appointed as the Director of Child Protection Litigation.
What is the Role of the DCPL?
The DCPL is responsible for deciding whether an application for a child protection order should be made, the type of order to be applied for and to litigate the application.
From 1 July 2016, the DCPL is now deemed the applicant for all pending child protection order applications.
The DCPL is now also the applicant in other related child protection order matters including the transfer of child protection orders and proceedings to participating states and appeals from decisions about child protection orders.
The Director may also provide advice to, or appear for the Department of Communities, Child Safety and Disability Services (DCCSDS) on its instructions for the following matters: adoption; family law; QCAT reviews; Hague Child Abduction Convention or other matters relating to the safety, wellbeing or protection of a child.
Where are Director and staff located?
The office is located in Brisbane but there are two lawyers located in Cairns and Atherton.
The Office of the Director comprises 29 lawyers (including the Director) - who have been appointed from Crown Law, DCCSDS (former court coordinators) and externally; and who have demonstrated experience in child protection or litigation.
Who is the Office of the Child and Family Official Solicitor (OCFOS)?
The Office of the Child and Family Official Solicitor (OCFOS) is an in-house legal unit within DCCSDS. Key responsibilities of the OCFOS include:
- providing high quality legal advice and support services to child safety service centres (CSSC) about the chief executive’s statutory functions relating to the protection of children;
- applying for temporary assessment orders, court assessment orders and temporary custody orders (emergency orders);
- working with CSSCs to prepare briefs of evidence for child protection matters that are being referred to the DCPL;
- working in partnership with the DCPL to prepare matters for filing in the Childrens Court and in the ongoing review and management of those matters.
What is the Role of the OCFOS?
The OCFOS is the principal DCCSDS point of contact for the DCPL. The OCFOS is responsible for preparing referrals of child protection matters to the DCPL and for ongoing consultation with the DCPL about that matter. The OCFOS also liaises with CSSCs and the DCPL as necessary to progress child protection matters in a timely manner and in a manner consistent with the best interests of the child
Where are the OCFOS staff located?
The OCFOS comprises legal officers and senior advisors in each CSSC, with the majority appointed from the exiting court coordinators. Four senior legal officers are also located across the State who will supervise the legal officers in each CSSC. The Official Solicitor and a small management team is located in Brisbane with the majority of OCFOS officers located across the State in CSSCs.
What are the main changes?
DCPL officers will now appear in all court matters as the applicant in child protection order applications.
As the DCPL is based in Brisbane, lawyers will travel across Queensland to attend mentions, court ordered conferences (COCs) and hearings, when required.
However, DCPL lawyers will use telephone or video link up to attend court mentions where appropriate and with leave of the court, for example when the mention involves a procedural or uncontroversial matter for determination.
DCCSDS officers will appear for emergency orders (court assessment orders, temporary assessment orders and temporary custody orders).
CSSC staff will continue to attend court in situations where they normally would, as requested by the DCPL.
If a staff member from the CSSC does not attend court they will be available by telephone to give information to the DCPL.
Court Ordered Conferences (COCs)
The DCPL will attend the COC with the CSSC staff who usually attend – that is the child safety officer and team leader.
OCFOS can attend if it is negotiated with the DCPL and the Child Protection Conferencing Unit at the Dispute Resolution Branch.
Childrens Court Rules 2016
The Department of Justice and Attorney-General has revised the rules of the Childrens Court, which commenced on 1 July 2016.
The Rules provide for a court case management framework (Part 7 of the Rules) that will allow the court to actively manage proceedings, minimise delay, clarify issues and evidence and determine who should be a party or participate in the proceeding.
DCPL - Duty of Disclosure
From 1 July 2016, the DCPL is subject to a new duty of disclosure. The Child Protection Reform Amendment Act 2016 inserts new sections 189C to 189E into the Child Protection Act 1999 (CP Act) to provide that the DCPL has a duty to disclose to parties in the proceeding all documents relevant to the proceeding; and this duty continues until the matter is finalised.
The duty of disclosure is subject to section 191 of the CP Act that allows the DCPL to refuse to disclose particular documents on certain grounds; where such refusal may be subject to an application to the court by a party who disagrees with the decision of the DCPL.
Part 6 of the new Rules (rules 50 to 61) provide the procedures for how the DCPL will comply with the duty of disclosure, including the provision of a disclosure form that may list documents or classes of documents that are in the possession and control of the DCCSDS and relevant to the proceeding. The list may include documents or classes of documents the DCPL refuses to disclose on the grounds set out in section 191 of the CP Act.
Disclosure will occur between the DCPL and parties to a proceeding and will not involve the court, apart from its consideration of applications made under section 191 of the CP Act regarding a refusal to disclose a document.
From 1 July 2016, the court has expanded authority under section 113 of the CP Act to make an order or give a direction to allow a significant person in a child's life to take part in the proceeding. Upon an application by a person, the court has discretion to allow a person to do all or some of the things a party to a proceeding can normally do.
Section 113 of the CP Act was amended by the Child Protection Reform Amendment Act 2016. Part 5 of the new Rules (rules 35 to 49) provide guidance about who can be a participant and how the person may participate.