The ACT Childrens Court can make a care and protection order for a child or young person if the Court is satisfied that the child or young person is in need of care and protection, that the Order is necessary to ensure their care and protection, and that the Order is in the best interests of the child or young person.
Often, care and protection orders are made where there are risks (or allegations of risk) to the child or young person arising from parental drug use, family violence or mental health issues, resulting in circumstances where there is no parent ‘willing and able’ to care for the child or young person.
Depending on the circumstances of the case and the alleged risks to the child or young person, the Court may make orders that enable the ACT Child and Youth Protection Services (‘CYPS’) to decide where the child or young person should live, and who they should have contact with. Often, the child or young person is placed with another family member, or with foster careers.
These orders can be made on an interim basis, or on a longer-term basis. Depending on the circumstances, the final orders may provide an opportunity for the parent to address the issues that led to an order being put in place, and for the child to be gradually returned to their care (for example over a 12 or 24 month period).
The Court may be satisfied, however, that the Order should be made on a ‘final’ basis, until the child or young person turns 18. Often this means that CYPS will determine where the child lives, and who they have contact with, including how often (and in what way) they have contact with their parents: which may be limited to a few occasions each year.
There may be grounds, however, for a person to apply for the care and protection order to be revoked (i.e. for the order to be removed/dismissed by the Court). The Court may decide to revoke the order (or a provision of the order) if satisfied that:
- The child or young person would not be in need of care and protection if the order were revoked. For example, if an order was made because the parent caring for the children was experiencing serious illicit substance abuse, and the parent is now clean of illicit drug use, they could argue that the order is no longer necessary to ensure the protection of the child or young person;
- The child or young person is persistently refusing to comply with a residence provision. For example, a decision may have been made by CYPS for the child or young person to live with foster carers, but the child or young person may be insisting on returning to the care of their parent (even if the Court has formed the view that that parent is not willing and able to care for them); or
- If it is otherwise in the best interests of the child or young person to revoke the order.
In making a decision about whether or not the order should be revoked, the Court also needs to consider the child or young person’s age, maturity, views, wishes and the risk of harm if the order is revoked.
A person seeking to revoke a care and protection order will need to file with their Application an Affidavit which addresses the basis on which they say the Court should revoke the Order, including any necessary supporting evidence, such as drug test results or a letter from a psychologist, and addresses the other factors the Court needs to consider, such as the age of the child and their wishes.
To obtain further information or book an initial appointment please contact us on 02 6225 7040, by email info@rmfamilylaw.com.au or get started online now by clicking here.