Key Takeaways

• Understanding Your Rights – Learn how family members and carers can have a say in child protection cases.
• Applying to Intervene – Discover how to apply under s113 to be legally recognised in proceedings.
• Legal Considerations – Understand when legal action is necessary versus when negotiation may be a better option.
• Court Priorities – Gain insight into how the Court determines the best interests of the child.
• Your Role in Proceedings – Learn how being joined as a party can allow you to provide input on decisions affecting the child’s future.

It’s a reality that when the Department of Child Safety, Seniors and Disability Services (as it’s currently known, “the Department”) becomes involved in a child protection matter concerning a family, usually due to allegations of harm or risk to children, other family members may feel undervalued, forgotten, ignored, or discredited.  

The Department is often coming into a family either initially, or due to longer term issues, and they have certain information that may lead them to make certain decisions.  It's not unusual for the immediate or more wider family to not agree with the decisions that are made, or the reasons for the decisions.

If you find yourself in that situation, what can you do? 

The Role of Family Members in Child Protection Cases

When a family member, significant other, or long-term carer approaches us, we first determine whether proceedings are already underway. Sometimes the Department may decide (alongside their legal teams) to commence proceedings in certain circumstances, in the Children’s Court. 

The proceedings may be due to the expiry of a child protection order that had previously  been made, with neither parent yet being ready or approved to have the child reunified. Alternatively, they may arise due to new allegations or areas of risk or harm.  

In either of these circumstances you may be able to become an intervenor.  Essentially, such applications are made pursuant to s113 of the Child Protection Act, (2009) Qld (“the Act”), which governs child protection proceedings in Queensland.

The Process for Becoming an Intervenor

To make an application to be joined as a party, you need to show the Court that you have significant knowledge and involvement with the child or family. Such intervention would be of assistance to the decision makers, whether that is the Court or the Department.   

Often the person that knows the child the best, such as a carer who has had the primary care of a child for a significant period of time, may be this person. Further, if you are someone who is wanting to be considered as the long term carer or kinship carer for the child as an outcome of the proceedings, whether by way of long term guardianship to you or the Department, then a s113 application may also be required.  

Such an application can also provide you with some or all of the material otherwise before the Court, so that you are in an even better position to receive legal advice tailored to your specific case. 
 
The Court is required to consider general principles of the Act and in this regard s5B is of relevance as it provides that:

• The child’s family has primary responsibility for the upbringing, protection and development of the child;
• It’s preferred to ensure the child’s safety and wellbeing through supporting the child’s family;
• If a child must be removed, to ensure the safety of the child, the family needs to be supported to assist for the return of the child, if that is in the child’s best interests;
• The first option of care, if appropriate, should be with kin; and
• Ongoing, positive, trusting and enduring relationships with persons of significance to the child, should be maintained, if appropriate for the child.

 Do you need legal advice on whether an application is necessary?  Can the same result be achieved by taking other steps, or simply negotiation with the department and other stake holders?  Do you have support from the Department or the child’s biological parents?
 
As with most family law matters, such applications are all different.  There’s no one size fits all approach, so it's critical that we are provided with all of the information you have in order to provide you with the best legal advice on prospects, difficulties you may have, or whether we are of the view this can simply be a negotiated outcome.
 
Essentially, if you are joined as a party in proceedings, you may be provided with leave to assist the Court in making their determination by informing the Court, and the Department, as to your position, and why it is held.  You have the right to be heard, including on interim matters. These may include where the child will live and how much time they will spend with others during the proceedings.  It may include informing the court as to matters relevant to the final Orders the Court may seek to make.

Conclusion

If you are a kinship carer, long-term foster carer, or significant person in the child’s life, consider your involvement in child protection proceedings or negotiations to ensure the best possible outcome for the child.