Child and Youth Protection Services (CYPS), otherwise known as “Care and Protection” is the statutory child protection agency in the ACT. In other jurisdictions, child protection agencies may be referred to as “Family Services” or “Social Services”.
The Director-General of CYPS and her delegates (who are known as “case managers”) investigate reports of child abuse and neglect. Any person can make a voluntary report to CYPS, however, it is a criminal offence to give false or misleading information to the Director-General. Mandated reporters such as doctors, nurses, psychologists and school teachers must report suspected child abuse to CYPS.
The ACT Children’s Court has the power to make Care and Protection Orders under the Children and Young People Act 2008 (“the Act”). The Court can make Orders removing children from their parents’ care if satisfied that the child is in need of care and protection. A child is in need of care and protection if the child has been abused or neglected; is being abused or neglected; or is at risk of abuse or neglect – and – there is no person with parental responsibility who is willing and able to protect the child from that risk.
The Act defines “abuse” as physical abuse, sexual abuse, and emotional abuse (including psychological abuse and exposure to family violence). “Neglect” is defined as a failure to provide the child with a necessity of life if the failure has caused or is causing significant harm to the child’s wellbeing or development. Some examples of the necessities of life are food, shelter, clothing and health care treatment.
In the matter of CP v Director-General of Community Services Directorate [2018] ACTCA 32, the ACT’s highest Court found that five children had been wrongly removed from their mother’s care five years prior. The Director-General first commenced proceedings in July 2013. In April 2014, the proceedings were heard before a Magistrate in the ACT Childrens Court, and final care and protection orders in relation to each child were made until the child reached the age of 18 years. The children’s mother filed an appeal to the Supreme Court on the basis that the Magistrate had erred in finding that the children were in need of care and protection.
The appeal was heard in the ACT Supreme Court over the course of three days in April 2015. The Court’s reasons for decision and orders were published in December 2017, more than two and a half years after the hearing of the appeal. In April 2018, further orders were made by the Judge who found that four of the five children were in need of care and protection. Both the Director-General and the mother filed appeals in May 2018.
It was ultimately found by the Court of Appeal of the ACT Supreme Court that none of the children was in need of care and protection when the proceedings commenced in 2013.
This case highlights some of the systemic problems with the child protection system in the ACT, particularly around the delays associated with litigation.
If you require advice about care and protection, call us to make an appointment on (02) 6225 7040 or send us an email at admin@rmfamilylaw.com.au.