The Child Protection Act 1999 (Qld)(‘the Act’) aims to protect children from abuse and neglect as well as provide a regime for children who have been removed from their family’s care. The Act provides a regime for alternate care for children who suffer or have suffered from abuse and neglect whilst in the care of their family.
Care arrangements for children in need of protection should promote the child’s emotional physical social and educational development. One way that the Act provides for this is that if a child is removed from their family, that consideration should be given to placing the child as a first option in the care of their next of kin.
The next of kin in most circumstances is child’s maternal paternal grandparents. However, this does not place an obligation on the Department of Child safety to consider a child Grandparent as being suitable to provide care for the child in need of protection.
The difficulty that grandparents face under the Act is that “parent’ in part 4 of the CPA includes the child’s mother or father, a person whose favour residence has been granted under the Family Law Act 1975 (Cth), a person who has guardianship of the child under a law of the State (other than under the Act) or the law of another State or a long-term guardian of the child. This definition of parent does not explicitly include grandparents.
So then what rights to grandparents have to first get involved in an application that has been made for protection order against a grandchild and if there already is a child protection order in place, and what rights does a Grandparent have to vary or revoke the a long term order granting guardianship to another person.
In the first part of this post I will talk about intervening in applications already before the Court and in the second I will talk about applications where a grandparent is seeking to vary or revoke a Long Term Guardianship Order.
Applications by grandparents to intervein in an application for a protection order
Where an application for a child protection order is before the Court, there is no automatic right for a grandparent to become a party to the proceedings. Section 113 of the Act provides that the Court may allow non-parties to take part in an application before the Children Court. This provides an opportunity to allow a grandparent to make submissions to the Court regarding their participation and the extent to which they may be able to inform the court about a relevant matter before it and any relationship that they may have with the child. However, it is always within the Court’s discretion to decline an application made by a Grandparent.
If the court provides permission to a Grandparent to become involved in proceedings, the extent to which they can be involved in proceedings can be limited in scope by the court and can include conditions on how they are to participate in the application.
Where an Order has been made in naming another person as the Long Term Guardian and time to appeal the order has lapsed
From time to time it is the case that there is a change in circumstances in a child’s extended family which may warrant a variation or revocation of a long-term guardianship order made to another person who may or may not be the child’s biological family.
Ordinarily, a grandparent make seek redress where a person is denying them a meaningful relationship with the child that have standing to apply for parenting orders in the Federal Circuit Court or the Family Court of Australia under section 65C(ba) of the FLA.
However, section 69ZK of the FLA prohibits a Court exercising jurisdiction under the FLA from making a parenting order under that act of a person under a child welfare law unless:
- the order is expressed to come into effect when the child ceases to be under the care; or
- The consent of a child welfare officer of the relevant State or Territory has been obtained.
But what happens if the Child welfare officer (In Queensland, a child welfare officer is taken to mean an officer of the Department of Communities, Child Safety and Disability Services; see Regulation 12B(1)(c) of the Family Law Regulations 1984(Cth)) declines to provide consent?
Applications by grandparents in these circumstances are not recognised under the Child Protection Act. However, there is provision under the Act under section 65 that provides that an order may be varied or revoked upon application by the Director of Child protection Litigation, the child’s parent or child may make an application to the court to repair it or revoke a long-term order.
This leaves grandparents in the position where they must rely on the Director, the child’s parent or the child themselves to take the first step in making the application to the court and then and only then can the grandparents apply under section 113 to become a part of the application.
Obtaining the assistance of a parent may be difficult or impossible where the relationship between the grandparent is strained or non-existent; for some parents simply making the effort may be too much to ask. For a child, it may be difficult to ask them to make the application especially when a guardian disagrees with the application.
If the Grandparent manages to get the parent or child to make the application and the Court grants permission for the grandparent to intervein, the application to vary or revoke the order continues as if it was an application to make a child protection order.
There is a further problem with this approach however, is that the s65(2)(a) specifically precludes a parent from making an application where it is sought to revoke an order and in its place made another long-term order which grants long-term guardianship to another person. This effectively means that a grandparent applicant is limited in the orders they may seek insofar as they cannot seek an order that is inconsistent with an order that a parent may apply for.
When the States referred the power to legislate for the custody, access and guardianship of children (now referred to as ‘lives with’ and ‘spends time with’ under the FLA), the States did not refer their power to legislate for children under the protection of State based welfare legislation.
Amendments to section 67ZK of the FLA that provide that grandparents may make an application with the permission of the a child welfare officer would be suitable to the issues currently found under the Act. However, the uncertainty that this would create under the State based child welfare legislation could lead to ongoing litigation regarding the child which would not be in the best interests of any child, especially those vulnerable children who have suffered abuse or neglect. The simple solution is an amendment to section 65(1) of the Act.