Hidden away in the Children, Youth and Families Act 2005 (the Act), being the legislation which binds the operation of the Children’s Courts of Victoria and the Department of Health and Human Services (DHHS), are 2 sections which allow DHHS to unilaterally make decisions without the input of parents or children, which could overturn Orders previously made by the Court.
Sections 288A and 289A were introduced as part of the amendments to the Act in 2016, and were included as part of the new format for the Orders the Children’s Court was able to make. Respectively these sections allow for the conversion of Family Reunification Orders and Care by Secretary Orders (Orders where a child is typically out of parental care) to Family Preservation Orders, placing the child back in the care of a parent.
As defined in s289 of the Act a Care by Secretary Order, inter alia, removes parental responsibility from the parents and places this with DHHS to the exclusion of all others, can be in place for a period of 2 years, and must provide that if, while the order is in force, the Secretary is satisfied that it is in the child’s best interests, the Secretary may in writing direct that a parent of the child is to resume parental responsibility for the child. This is not an insignificant step, as the Care by Secretary Order can only be in existence by Order of the Children’s Court who would have assessed the removal of parental responsibility to be appropriate. Under the Act parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority that, by law or custom, parents have in relation to children.
The exercise of 288A and 289A can be wholly appropriate in special circumstances, for example if a parent was previously incarcerated but has not been released, or if the protective concerns were unable to be addressed in a timely manner due to circumstances outside a parent’s control. This being said, the sections do not pose any restrictions on their own operation in terms of time restraints, consent of the parties, prior consultation, or permissions of the Court. Therefore, a scenario may exist whereby a Court, upon hearing the evidence of all parties, determines that a Care by Secretary Order is appropriate, and this Order is unilaterally overturned by DHHS without prior advising the Court, within a short period of time.
Further, as the decision to overturn the Order is not made by the Court, there are limited avenues of appeal for the other parties to the proceedings, other than to request an internal review of the decision, and possibly later an appeal of the decision to VCAT.