Section 97 of the Lukautim Pikinini Act 2015 is the decision on which everything in a child protection case turns.
At a protection hearing, the court shall determine whether the child is in need of protection.
The question the court answers
The court is not asked whether the parents are good parents, or whether the Office acted reasonably, or whether the child would be better off elsewhere. It is asked whether the child falls within the definition in section 2.
That definition has eleven paragraphs, running from a child whose parents are dead or incapacitated with no adequate provision made, through abandonment, physical harm, sexual or emotional abuse, refusal of treatment for a treatable condition, exposure to domestic violence, harmful exhibition and child labour, to a child involved in child trafficking.
The hearing is brought by the Director, who under section 93(1) shall, as soon as practicable, make an application for an order under section 97 where Part V applies to a child.
Section 97(2) — the child goes home
Where the Court is satisfied that a child is not a child in need of protection, it shall, where the child was removed, order the return of the child to the parent.
A negative finding produces a mandatory order for return. The Court cannot decide that, although the threshold is not met, the child would nevertheless do better in care.
That follows from section 7: a child is entitled to live with his parents unless it is determined that separation is in his best interests and the placement is made in accordance with this Act. If the statutory threshold is not met, there is no lawful basis for keeping the child.
It is also the end of the Office’s temporary custody: section 51(1) gives the Office care of the child until the child is returned or a Court makes an order.
Section 97(3) — what follows a positive finding
Where the Court is satisfied that a child is a child in need of protection, it —
(a) shall consider the plan of care presented by the Office for Child and Family Services; and
(b) may hear any more evidence the Court considers necessary to help it determine an appropriate order.
The Court shall, before making an order under section 97, obtain and consider a plan for the child’s care, prepared in writing by the Office.
| Finding | Consequence |
|---|---|
| Not in need of protection | Shall order return to the parent, where the child was removed — s 97(2) |
| Is in need of protection | Shall consider the care plan; may hear further evidence; then makes a temporary or permanent order under s 99 |
A finding under section 97(1) establishes the Court’s power to act. What is then done is a separate decision, governed by:
- Section 5(1)(f) — support the family so the child may remain;
- Section 5(1)(g) — the least intrusive intervention;
- Section 5(1)(h) — interventions aimed at returning the child;
- Section 94(2) — before ordering removal, consider placement with a family member, neighbour or community member.
So a positive finding does not mean the child is removed. It frequently means an order supporting the child at home.
How the finding is made
The Court may summon evidence itself. Section 93(2) gives the Court power, on its own initiative, to summon any person to testify or produce documents, and to enforce obedience.
Procedure is informal. Section 95(1) allows proceedings to be conducted informally and without regard to legal forms — important where the parents are unrepresented.
The child has a voice. Section 5(1)(l) requires that a child able to form views be given the opportunity to express them freely, with due weight according to the child’s developmental capacity; section 5(2) sets out what the Office must provide to make that real.
A child found to be in need of protection is entered on the register the Office keeps under section 15(1)(a). Where the Court makes an order placing the child in out-of-home care, the Office may contribute towards the child’s upkeep from the Child Protection Trust Fund under section 100. Either way, an appeal lies to the National Court within 40 days, and the Family Court’s decision is stayed until the appeal is determined.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 7, 15, 51, 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.