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Stage one - Initial assistance

Assessment criteria

Applications for aid from parties, non-parties and children (direct representation) for initial assistance in child protection proceedings are not subject to merits testing.

For legal aid to be granted the following tests must be satisfied:

Parties to proceedings:

Non-parties:

Direct Representation:

Documentary requirements

Application received from client

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

  • A completed and signed Legal Aid Queensland application form.
  • Proof of income and assets (refer to the means test) – not applicable for direct representation matters.
  • Copies of any relevant court documentation.
  • For non-parties - a copy of the s113 order allowing the non-party to participate in proceedings.

Application received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance must electronically submit an application for aid via Grants Online attaching:

  • For non-parties - a copy of the s113 order.
  • The appropriate checklist.

The following documents may be submitted or retained on file but may be requested by Legal Aid Queensland:

Interpretation

Assessment orders

The Department of Child Safety, Youth and Women (the department) is responsible for the investigation and assessment of notifications that suggest a child may be in need of protection.

Assessment orders authorise the department to take actions during the investigation and assessment process where the consent of the parents has not been obtained. The Office of the Child and Family Official Solicitor (OCFOS) acts as the lawyer for the department when it applies to the court for an assessment order.

Temporary assessment order (TAO)

In circumstances where the parents will not consent to the actions necessary to allow the department to complete an investigation and assessment a TAO can be sought directly from a magistrate.

TAOs can authorise a number of actions including the authority to temporarily place a child into the custody of the chief executive (Director-General) of the department, however, guardianship remains with the child's parents. A TAO remains in effect for three days from midnight on the date it was decided and can only be extended once, for one business day, if the magistrate is satisfied that an application will be made for a court assessment order or a child protection order.

Court assessment order (CAO)

The department must apply to the court for a CAO. CAO’s provide the authority for a number of actions that allow for the completion of an investigation including temporarily placing a child into the custody of the chief executive (Director-General) of the department, when it has been determined that more than three business days will be needed to complete the investigation and assessment. Guardianship remains with the child's parents. CAO’s are granted for a maximum of 28 days, however the Child Protection Act 1999 allows for one extension of a further 28 days.

Child Protection Order

There are four main types of child protection orders:

  • ‘Directive orders’ - require the parent to do or not to do something directly related to the child’s protection. For example, a direction that the parent take the child for medical treatment. Other common directions concern contact. For example, the parent is only allowed to have supervised contact with the child.
  • ‘Protective Supervision Orders’ - allow the child to remain at home but also allow the department to check on the child and have contact with the child and the parents.
  • ‘Custody orders’ - give a suitable person or the department the right to day to day care of the child, and to make decisions about the child’s daily care. In practice this decision making responsibility is usually delegated to the person caring for the child however the department will oversee them. For example, the carer will make the day to day decisions about what the child will eat each day, what clothes the child will wear and what daily activities the child will participate in, however the department will be responsible for ensuring those decisions are in the child’s best interests.
  • ‘Guardianship orders’ - give a suitable person or the department custody of the child as well as all the powers, rights and responsibilities in relation to the child that a parent would have. For example the right to make long-term decisions about the child’s care, welfare and development including decisions about where the child will go to school, the child’s name, what religion the child will be and whether the child needs ongoing medical treatment.

The Director of Child Protection Litigation (DCPL) is the applicant for child protection orders.  The department assists the DCPL by providing evidence to support the application.

The Children’s Court may make a combination of orders if it considers that is appropriate in a particular case.

Where the DCPL obtains a custody order then the parents will retain guardianship so they will still be able to make any long-term decisions about their child even though the child is cared for by someone else on a daily basis.

Guideline 1.4 – child protection (non-parties)

In order to satisfy guideline 1.4, an order has to have been made under s113 of the Child Protection Act 1999 allowing the applicant for aid to participate in proceedings.

Non-parties

s113 of the Act allows the court to join as parties to a proceeding, significant people in the child's life. The court has discretion to make an order allowing these people to participate as a 'non-party'. 

The order must indicate how and when the person will take part. For example, a non-party may be allowed to participate in the whole of the proceedings or only a specified part. The order may also provide that a non-party be treated as a party for some or all provisions under the Act. 

Guideline 1.5 – child protection (direct representation)

In order to make a determination as to whether a child seeking direct representation is competent to provide instructions to a solicitor the application for aid will be referred to a specialist practitioner within the in-house  practice who will meet with the child and make a determination regarding competence. In circumstances where the in-house practice is unable to provide this advice due to a conflict of interest the application will be referred to a suitably experienced preferred supplier to provide an opinion in this regard.

Family Group Meeting (FGM)

A family group meeting is to be an inclusive and participative process for the child, family, the department and service providers, to develop a case plan that is child-centred, family-focussed, strengths-based and based on shared responsibility. It brings together family, extended family, services and support people in a forum that allows families to participate in planning for the protection of their children.

Under the Child Protection Act 1999, section 51H, the department must convene a family group meeting, or have a private convenor convene a family group meeting, to develop the initial case plan for a child. This is to occur in an inclusive and participative process with the child, the child's family and other significant people.

Further information is available at the Department of Child Safety, Youth and Women website.

Case Plan Review Meeting (CPRM)

Every case plan developed for a child under the Child Protection Act 1999, part 3A, must be regularly reviewed. The purpose of the case plan review is to assess progress towards achieving the case plan goal and outcomes and inform the development of a new case plan where the decision has been made to continue ongoing intervention. 

A case plan must be reviewed regularly, taking into consideration the following factors:

  • the child’s age and developmental needs
  • the provisions of the case plan
  • any change that has a significant impact on the direction of the case plan.

The following people must be given an opportunity to participate in the review of a case plan (Child Protection Act 1999, section 51W):

  • the child, if age and developmentally appropriate
  • the child's parents
  • other members of the child's family group who are considered likely to make a significant contribution to the case plan
  • other people with whom the child has a significant relationship, for example, the child's approved carer or guardian
  • any legal representative for the child
  • a member of the recognised entity, when the child is an Aboriginal or Torres Strait Islander child
  • relevant service providers.

When reviewing a case plan, the use of a family group meeting is not required, but may be an appropriate way of engaging people, particularly when:

  • there is disagreement between family members and the department about the case plan
  • previous actions have not been completed
  • changes to the case plan are being proposed which would significantly change the goal or outcomes.

When a family group meeting is not to be used for the case plan review, a combination of strategies to conduct the review will be used to ensure it occurs in an inclusive and participative way, for example, meetings with the family, meetings with individuals or groups of individuals or, where necessary, telephone interviews.

Further information is available at the Department of Child Safety, Youth and Women website

Allocation of a solicitor

Direct Representation matters

Representation for children in child protection proceedings will be provided on an in-house basis unless there is a conflict of interest.

If a conflict of interest exists, Legal Aid Queensland will provide funding to a preferred supplier to meet with the child, assess their ability to provide instructions and provide them with initial advice and representation.

Grant(s) of aid

The initial stage one grants of aid available to children (direct representation) is CP1A.

The initial stage one grants of aid available to parties and non-parties with a s113 order, are CP1A and CP2 (both grants of aid will be issued at the same time).

The CP1A (stage one – read material and provide advice) grant is a maximum fee grant of aid that allows for:

  • reading of material
  • providing initial advice
  • an assessment of competence (if the applicant is a child)
  • taking instructions
  • attendance at a court mention

The CP2 (stage one – initial family group meeting) grant is a maximum fee grant of aid that allows for:

  • preparation and attendance at an initial family group meeting or case plan review meeting
  • attendance at a further court mention

The CP1A will issue for applications for direct representation of a child to allow an assessment of competence to be completed.

The CP1A and the CP2 will issue for all other parties or non-parties with a s113 order.

 

Extension(s) of aid

Where the matter relates to a direct representative, the CP2 grant is available.

The CP3 grant of aid is available if a practitioner is required to attend at more court attendances than provided on any existing grants of aid.

The CP3 grant of aid allows for appearances at a further 2 attendances and can be issued more than once if required.

Court attendances include appearances at court for a mention, hearing, or attendances to inspect subpoena material.

An extension of aid may be available for additional preparation during stage one if the nature and extent of funding criteria are met.

If the matter proceeds beyond stage one, extensions of aid may be available to continue representation at the following stages:

Decision makers of a higher delegation

Requests for aid for a child to be directly represented in proceedings:

  • immediately following a competency assessment, and
  • where a separate representative is appointed

will be referred to a Grants Manager for determination

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

 

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