Explainer – Supreme Court action on court power and parental rights in child protection matters

Explainer – Supreme Court action on court power and parental rights in child protection matters

Wednesday, 22 November 2017

We are running an appeal on behalf of a young mother to test court power and clarify parental rights for many other families caught up in the child protection system.

The Supreme Court will hear the appeal on Wednesday 22 November 2017.

This explainer covers:

  • About the case
  • What are the broader community benefits in running this appeal?
  • What are we saying in this appeal?

About the case

The Supreme Court will consider if the Department of Health and Human Services (DHHS) can be authorised by the Children’s Court of Victoria to do something that will affect a child in the long-term.

It will consider if the court can do this without the consent of a parent, and before the court has made a final decision about the safety of a child and if the child is to remain at home.

In this case, the mother opposes a condition made by the Children’s Court for her children to be immunised while they are in the temporary care of the DHHS. The Children’s Court added a new condition to a previously made interim accommodation order (IAO), to state that the children may be immunised by the department. A decision to rule on immunising the children in this case had been declined in an earlier hearing of the Children’s Court.

This appeal is not about taking a position on immunisation. Victoria Legal Aid respects the important public health directive for children to be immunised.

It is also not about the main proceedings in this matter. For all child protection matters, the main proceedings are about whether the children need formal protection provided by the government, and whether they should remain at home or be placed in out-of-home care.

What are the broader community benefits in running this appeal?

Broadly, this appeal is about helping to protect the important checks and balances of independent oversight. Government intervention in a family to keep children safe or to remove children may unfortunately be necessary in some cases – but it is a big decision and requires proper scrutiny.

If successful, this appeal could affect all sorts of major decisions about children, including decisions about schooling, medical procedures and religion. It would confirm that the power to make a decision about a major long-term issue affecting a child remains with the parent – not the government – in the interim stage of a court proceeding.

Many other families are involved in the child protection system at the interim stage of proceedings, when safety concerns for a child have not yet been determined.

In 2014–15, the Children’s Court made over 8,000 interim accommodation orders (IAOs) and considered the extension of 15,540 further IAOs.* The court issues an IAO to say where the child must live until the next court date.

Pending the outcome of this appeal, these families are at potential risk of having their parenting views on major long-term issues overridden.

*Most recent figures available from the Children's Court of Victoria's Annual Report 2014–15, p. 23.

What are we saying in this appeal?

We are saying that the government should not be able to make major long-term decisions about children against the parents’ wishes unless safety concerns are proven and children cannot return home. This is what the law says.

The Children, Youth and Families Act 2005 acknowledges that the relationship parents have with a child is significant, and it protects their responsibility as parents.

  • s. 11 requires the DHHS Secretary to take an inclusive and collaborative approach to decision making and, unless it is harmful to the child, to include parents in the decision-making process
  • s. 175A specifically prevents the DHHS from making major long-term decisions where the child is on an IAO
  • s. 175C forbids the Secretary from making a long-term decision about a child on an IAO if the parent who has parental responsibility disagrees with the decision. This applies unless the decision is one the Secretary is expressly authorised to make under the Act.

Media enquiries

If you have a media enquiry, please contact Senior Communications Adviser Paula Wilson – (03) 9269 0620 or 0438 612 289.

Also read the Law Institute Journal: VLA says anti-vax case a test of government power over children in care, 24 November 2017.

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