Section 99 of the Lukautim Pikinini Act 2015 is the order-making power at the end of a child protection hearing.
On an application made to the Court by the Director, the Court may make a temporary or permanent order.
Why section 99 says so little
Section 99 does not list the orders available. It does not need to, because by the time the Court reaches it the shape of the order has been settled by four other provisions:
- Section 97 — the Court has found the child in need of protection;
- Section 98 — the Court has obtained and considered the Office’s written care plan;
- Section 94(2) — before ordering removal, the Court has considered placement with a family member, neighbour or community member;
- Section 5(1) — best interests paramount, least intrusive intervention, aimed at return.
Section 89(a) also imports the powers provided in the District Courts Act (Chapter 40) for child protection cases, and section 88 closes with “any other powers given under this Act”.
The District Courts Act (Chapter 40) is not available on PacLII at the time of writing.
The two kinds of order
| Temporary order | Permanent order | |
|---|---|---|
| Purpose | Protection while the situation is remedied | A settled long-term arrangement |
| Consistent with | s 5(1)(h) — a plan to return the child | s 5(1)(h) where return is contrary to best interests |
| Director’s duties | s 52(2) — provision for the child’s care | s 52(1) — responsible for the child’s care, well-being and property until 18; s 52(3) — regard to settled and permanent living arrangements |
Section 52(1) attaches to an order placing a child in the permanent care of the Director: notwithstanding any other law relating to guardianship or custody, the Director becomes responsible for the child’s care and well-being and for the child’s property, until the child reaches 18.
That displaces the parents’ role entirely for the remainder of childhood, which is why sections 94(2), 97 and 98 impose so many prior steps.
The practical content of an order
An order will normally provide for one of the arrangements the Director may make:
(a) placing the child, or permitting the child to remain, in the care of a member of the child’s family;
(b) placing the child with an approved foster parent or other suitable person;
(c) placing the child in an approved child-friendly place;
(d) arrangements for education;
(e) arrangements for medical examination and treatment under section 51(2);
(f) such other provision as the circumstances require.
“Or permitting the child to remain” matters. A protection order does not necessarily move the child. It may confirm an existing arrangement, with supervision and support.
That is the outcome section 5(1)(f) and (g) point to: support the family so the child may remain, and take the least intrusive course consistent with protecting the child from harm.
Section 100 — allowance from the Fund
The Office may, out of moneys from the Fund, contribute towards the upkeep of a child placed, in accordance with an order under this Act, in an out-of-home care.
A relative willing to take a child may not be able to afford to. Section 100 allows the Office to contribute to the child’s upkeep, so that poverty is not the reason a family placement fails.
The Child Protection Trust Fund is established by section 77: its monies are to be used solely for supporting child safety and protection and prevention programs; the Government shall annually allocate an appropriate amount to it; it is managed by the National Child and Family Services Council, which reports to the Minister; and its account is managed under the Public Finances (Management) Act 1995.
Once an order is made
Enforcement. The Office applies the four section 94(1) considerations — siblings together, contact with relatives and friends, cultural, racial and linguistic heritage, and continuity of education and religion.
Protection. The child is a child in care, protected by section 78, including the offence of breaching a care plan in section 78(2)(b).
Privacy. Publishing information identifying the child is an offence under section 96.
Appeal. An appeal lies to the National Court within 40 days, and the Family Court’s decision is stayed until the appeal is determined.
Where the child was placed in an out-of-home care service whose licence is later cancelled, section 73(2) requires the Office to restore the child to his parents or place the child in another out-of-home care centre.
Sources
- Lukautim Pikinini Act 2015 — ss 5, 51, 52, 73, 77, 78, 88, 89, 93–100, 115
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.