Children, Young Persons and Their Families Act 1997 (Tas)

Children, Young Persons and Their Families Act 1997 An Act to provide for the care and protection of children and for related purposes [Royal Assent 5 November 1997] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Children, Young Persons and Their Families Act 1997 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – Aboriginal child means a child who is an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 ; abuse or neglect means – (a) sexual abuse; or (b) physical or emotional injury or other abuse, or neglect, to the extent that – (i) the injured, abused or neglected person has suffered, or is likely to suffer, physical or psychological harm detrimental to the person's wellbeing; or (ii) the injured, abused or neglected person's physical or psychological development is in jeopardy – and "abused or neglected" has a corresponding meaning; amend means – (a) omit matter; and (b) insert matter; and (c) omit matter and substitute other matter; another State includes a Territory; assessment order means an order made under section 22(2) ; at risk has the meaning given by section 4 ; authorised officer means – (a) a police officer assisting the Secretary in an assessment of a child's circumstances; and (b) an employee of the Department authorised by the Secretary to take action under section 20 as an authorised officer; authorised police officer means a police officer – (a) who is of or above a rank as specified by the Commissioner of Police for the purpose of this Act; or (b) who is designated as an authorised police officer by the Commissioner of Police for the purpose of this Act; care agreement means an agreement entered into under section 11 ; care and protection order means an order made under section 42 ; child means a person under 18 years of age; child care means the provision of care or accommodation to a child by a person other than the child's parent or a member of the child's extended family; child care service means operations concerned with child care, including a person or agency that is involved with organising or arranging placements for children in child care or placements of child carers with children; Children and Young Persons Advisory Council means the committee established under section 81(1)(b) ; Children and Young Persons Consultative Council means the committee established under section 81(1)(a) ; committee means – (a) the Children and Young Persons Advisory Council; or (b) the Children and Young Persons Consultative Council; or (c) any other committee established under section 81 ; Community-Based Intake Service means an organisation that has entered into an agreement with the Secretary under section 53D ; comply with includes not contravene; contravene includes fail to comply with; contribution order means an order under section 74 ; Court means the Magistrates Court (Children's Division); district registrar means a district registrar appointed under section 16A of the Magistrates Court Act 1987 ; employee of the Department means a State Service officer or State Service employee employed in the Department; enactment means an Act, order or other instrument of a legislative character of Tasmania, another State, the Commonwealth, another country or any other place; extended family means – (a) all persons, other than the child's immediate family, to whom the child is or has been related by blood, adoption or marriage; and (b) if a child is an Aboriginal child who has traditional Aboriginal kinship ties, those persons held to be related to the child according to Aboriginal kinship rules; and (c) if the child is a member of a community that accepts relationships other than those referred to in paragraph (a) or (b) as kinship ties, those persons held to be related to the child by that community; facilitator means a person approved as a facilitator under section 86 ; family means a child's immediate family and extended family; family group conference means a family group conference convened under section 30 , 39 or 53 ; function includes duty; Fund means the Tasmanian Guardianship Fund established and maintained under section 72 ; Government Agency means – (a) a Government department within the meaning of the State Service Act 2000 ; and (b) an incorporated or unincorporated body that – (i) is established, constituted or continued by or under an Act or under the royal prerogative; and (ii) is, or has a governing authority that is, wholly or partly comprised of a person or persons appointed by the Governor, a Minister of the Crown or another such body; Government authority of another State means a Minister of the Crown, or a person appointed by the Crown, in right of another State; guardian means – (a) a parent of a child; and (b) a person (other than the Secretary) who is the legal guardian of a child; and (c) a person (other than the Secretary) who has the legal custody of a child; and (d) any other person (other than the Secretary) who generally acts in the place of a parent of a child and has done so for a significant length of time; immediate family, in relation to a child, includes all of a child's guardians; interim assessment order means an order made under section 26(1) ; interim care and protection order means an order made under section 46(1) ; information-sharing entity means – (a) a prescribed person within the meaning of section 14(1) ; or (b) a State Service officer or State Service employee employed in or for the purposes of the Department or another department, within the meaning of the Administrative Arrangements Act 1990 ; or (c) a person conducting an establishment, within the meaning of the Health Service Establishments Act 2006 ; or (d) a controlling authority of an approved hospital, approved assessment centre or secure mental health unit, all within the meaning of the Mental Health Act 2013 ; or (e) the person in charge of an organisation that – (i) is a disability services provider within the meaning of the Disability Services Act 2011 ; and (ii) receives funding under a funding agreement, within the meaning of that Act, to provide specialist disability services to a child; or (f) the person in charge of an organisation that receives funding from the Secretary under a funding agreement to provide drug or alcohol treatment services; or (g) the person in charge of an organisation that receives a referral from the Secretary or a Community-Based Intake Service; or (h) any other person or organisation prescribed in the regulations; parent includes a stepmother or stepfather of the child; recognised Aboriginal organisation means an organisation declared to be a recognised Aboriginal organisation under section 106 ; regulations means regulations made and in force under section 112 ; risk notification means – (a) information voluntarily provided to the Secretary or a Community-Based Intake Service under section 13(2) , or any similar voluntary notification to the Secretary or a Community-Based Intake Service; or (b) information provided to the Secretary or a Community-Based Intake Service under section 14(2) ; or (c) a report provided to the Secretary under section 18(3) or (5) ; Secretary means the Secretary of the Department; significant person means a person who is considered significant in the life of a child by – (a) the Secretary or his or her nominee; or (b) the guardian of the child; State includes a Territory; supervision order has the meaning given by section 42A ; working day means any day other than – (a) a Saturday; or (b) a Sunday; or (c) a statutory holiday as defined in the Statutory Holidays Act 2000 ; young person means a child who is 16 or 17 years old. (2) For the purposes of this Act, a person is married to another person if – (a) he or she is legally married; or (b) he or she is in a significant relationship, within the meaning of the Relationships Act 2003 , with the other person. 4. Meaning of "at risk" (1) For the purposes of this Act, a child is at risk if – (a) the child has been, is being, or is likely to be, abused or neglected; or (b) any person with whom the child resides or who has frequent contact with the child (whether the person is or is not a guardian of the child) – (i) has threatened to kill or abuse or neglect the child and there is a reasonable likelihood of the threat being carried out; or (ii) has killed or abused or neglected some other child or an adult and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person; or (ba) the child is an affected child within the meaning of the Family Violence Act 2004 ; or (c) the guardians of the child are – (i) unable to maintain the child; or (ii) unable to exercise adequate supervision and control over the child; or (iii) unwilling to maintain the child; or (iv) unwilling to exercise adequate supervision and control over the child; or (v) dead, have abandoned the child or cannot be found after reasonable inquiry; or (vi) are unwilling or unable to prevent the child from suffering abuse or neglect; or (d) the child is under 16 years of age and does not, without lawful excuse, attend a school, or other educational or training institution, regularly. (2) For the purposes of subsection (1) , it does not matter whether the conduct that puts a child at risk occurred or, as the case requires, is likely to occur wholly or partly outside Tasmania. 5. Responsibilities and powers of guardian A person (including the Secretary) who has guardianship, or has been granted guardianship, of a child under this Act – (a) is the guardian of the child and administrator of the estate of the child to the exclusion of any person who does not have guardianship, or has not been granted guardianship, under this Act; and (b) has the same rights, powers, duties, obligations and liabilities as a natural parent of the child would have. 6. Responsibilities and powers of person who has custody A person (including the Secretary) who has custody, or has been granted custody, of a child under this Act – (a) has the right to have, and the responsibility for, the daily care and control of the child; and (b) has the right to make, and the responsibility for making, decisions concerning the daily care and control of the child. 7. Object (1) The object of this Act is to provide for the care and protection of children in a manner that – (a) maximises a child's best interests; and (b) recognises that a child's family is the preferred environment for his or her care and upbringing; and (c) recognises that the responsibility for the protection of a child rests primarily with the child's parents and family. (2) The Minister is to seek to further the object of this Act in partnership with Government Agencies, councils, non-government organisations (whether incorporated or unincorporated), families and communities. 8. International conventions For the purposes of, and without limiting, section 8B of the Acts Interpretation Act 1931 , any international convention relating to children to which Australia is a signatory and which is in force is extrinsic material in relation to the interpretation of a provision of this Act. Note Examples of conventions are the UN Convention of the Rights of the Child (1990) and the International Declaration on the Rights of Indigenous Peoples (2007). 9. . . . . . . . . 10. Determining age (1) In determining the age of a person, the Court, the Secretary or any other person involved in the administration of this Act – (a) must act on the best evidence or information that is reasonably available; but (b) in the absence of any such evidence or information, may estimate the age of the person and act on that estimate. (2) For the purposes of subsection (1) , a statement in an application under this Act that a person is of a particular age is evidence that the person is that age. PART 1A - Principles to be Observed in Dealing with Children 10A. Principles In performing or exercising a function or power under this Act, a person is to – (a) uphold the principles set out in sections 10B , 10C , 10D , 10E , 10F and 10G as far as practicable; and (b) have regard to any national standards or charters relating to the rights or treatment of children published by the Commonwealth Government that are relevant. 10B. Responsibility of Government The Tasmanian Government has responsibility for promoting and safeguarding the wellbeing of children and, if required, assisting families in fulfilling their responsibilities for the care, upbringing and development of their children. 10C. Role of child's family (1) The family of a child – (a) has the primary responsibility for the care, upbringing and development of the child; and (b) is entitled to be treated with respect at all times. (2) In fulfilling its responsibilities, the family of a child is entitled to – (a) bring up the child in any language or tradition that is otherwise legal; and (b) foster in the child any cultural, ethnic or religious values that are otherwise legal. (3) A child should only be removed from his or her family if there is no other reasonable way to safeguard his or her wellbeing. (4) Should a child need to be removed from his or her family, regard should be had to the following principles as far as is consistent with the best interests of the child and as far as is practicable: (a) contact between the child and his or her family and community should be encouraged and supported so as to preserve and strengthen the relationships between the child and the members of his or her family, whether or not the child resides within his or her family; (b) eventually the child should be returned to reside within the family. 10D. Treating child with respect (1) A child is a valued member of society and is entitled to be treated in a manner that respects the child's dignity and privacy. (2) All children are entitled to have their rights respected and ensured without discrimination. (3) Any decision under this Act relating to a child should be made – (a) promptly having regard to the child's circumstances; and (b) in a manner that is consistent with the cultural, ethnic and religious values and traditions relevant to the child; and (c) with, as far as practicable, the informed participation of the child, the child's family and other persons who are significant in the child's life. 10E. Best interests of child (1) In performing functions or exercising powers under this Act, the best interests of the child must be the paramount consideration. (2) Without limiting the matters that may be taken into account in determining the best interests of a child, the following matters are to be taken into account for that purpose: (a) the need to protect the child from physical, psychological and other harm and from exploitation; (b) the views of the child, having regard to the maturity and understanding of the child; (c) the capacity and willingness of the child's parents or other family members to care for the child; (d) the nature of the child's relationships with his or her parents, other family members and other persons who are significant in the child's life, including siblings; (e) the child's need for stable and nurturing relationships with his or her parents, other family members, other persons who are significant in the child's life and the community; (f) the child's need for stability in living arrangements; (g) the child's physical, emotional, intellectual, spiritual, developmental and educational needs; (h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's guardians; (i) the need to provide opportunities for the child to achieve his or her full potential; (j) the child's age, maturity, sex, sexuality and cultural, ethnic and religious backgrounds; (k) any other special characteristics of the child; (l) the likely effect on the child of any changes in the child's circumstances; (m) the least intrusive intervention possible in all the circumstances; (n) the opportunities available for assisting the child to recover from any trauma experienced – (i) in relation to being separated from his or her parents, family and community; or (ii) as a result of abuse or neglect; (o) any persuasive reports of the child being harmed or at risk of harm and the cumulative effects of such harm or risk. 10F. Child participation If a decision is, or is to be, made under this Act in relation to a child – (a) the child – (i) should be provided with adequate information and explanation about the decision in a manner that the child can understand; and (ii) if appropriate having regard to the child's maturity and understanding, should be provided with the opportunity to respond to the proposed decision; and (iii) if appropriate having regard to the child's maturity and understanding, should be provided with the opportunity to express his or her views freely; and (iv) should be provided with assistance in expressing those views; and (b) the views of the child should be taken into account, having regard to the child's maturity and understanding. 10G. Aboriginal children (1) Aboriginal families, kinship groups, Aboriginal communities and organisations representing the Aboriginal people have a major, self-determining role in promoting the wellbeing of Aboriginal children. (2) A kinship group, Aboriginal community or organisation representing the Aboriginal people nominated by an Aboriginal child's family should be allowed to contribute to the making of a decision under this Act in relation to the child. (3) An Aboriginal child, as far as is practicable, should be placed with a person in the following order of priority: (a) a member of the child's family; (b) an Aboriginal person in the child's community in accordance with local community practice; (c) another Aboriginal person; (d) a person who – (i) is not an Aboriginal person; but (ii) in the Secretary's opinion, is sensitive to the child's needs and capable of promoting the child's ongoing affiliation with the culture of the child's community and, if possible, the child's ongoing contact with his or her family. (4) As far as is practicable, an Aboriginal child removed from his or her family and community, should be placed in close proximity to them. PART 2 - Care agreements 11. Voluntary care agreement (1) The guardians of a child, acting together, and the Secretary – (a) may enter into an agreement under which the Secretary will have the care and custody of the child for the period not exceeding 3 months specified in the agreement; and (b) before the termination of a care agreement, may extend the agreement. (2) Despite subsection (1) – (a) if the whereabouts of a guardian of a child cannot be ascertained after reasonable enquiries; or (b) if a guardian of a child has failed to respond within a reasonable period of time to a request that he or she enter into a care agreement; or (c) if a guardian of a child does not have ongoing contact with the child; or (d) if it is not, in all the circumstances of the case, reasonably practicable to request a particular guardian of a child to enter into a care agreement – the remaining guardians may enter into a care agreement in respect of the child. (3) Despite subsection (1)(a) , the Secretary may not enter into a care agreement if he or she has reasonable grounds for suspecting or believing, or knows, that the child is at risk for any reason other than that the guardian is or will be temporarily unable to maintain the child or exercise adequate supervision and control over the child. (4) Despite subsection (1)(b) , a care agreement may not be extended so that it will operate for a total period of more than 3 months. (5) A care agreement relating to a child who is a young person must not be entered into or extended unless the young person consents to the agreement or the extension of the agreement. (6) Subsection (5) does not apply if the Secretary is of the opinion that the young person is unable to understand, or give informed consent to, the care agreement. (7) If a child under the age of 16 years appears to have a sufficient understanding of the consequences of a care agreement, the child must be consulted by the Secretary before a care agreement relating to the child can be entered into or extended. (8) A care agreement and any extension of a care agreement must be – (a) in writing; and (b) signed by – (i) the Secretary; and (ii) the guardians of the child; and (iii) if the child is a young person, the young person. 12. Termination of care agreement (1) A care agreement may be terminated at any time by the agreement of – (a) the Secretary; and (b) the guardians who signed the agreement; and (c) if the child is a young person, the young person. (2) The Secretary must not agree to terminate a care agreement unless the Secretary is satisfied that proper arrangements exist for the care of the child. (3) A care agreement will be taken to have been terminated on any order being made under this Act or any other enactment for the guardianship or custody of the child. (4) The Secretary must terminate a care agreement that relates to a young person if – (a) the young person requests it in writing; and (b) the Secretary is satisfied that proper arrangements exist for the care of the young person. (5) Unless the agreement is earlier terminated under this section, a care agreement has effect for the period specified in the agreement or an extension of the agreement. PART 3 - Informing of concern about abuse or neglect 13. Responsibility to prevent abuse or neglect or certain behaviour (1) An adult who knows, or believes or suspects on reasonable grounds, that a child is suffering, has suffered or is likely to suffer abuse or neglect has a responsibility to take steps to prevent the occurrence or further occurrence of the abuse or neglect. (1A) If, while a woman is pregnant, an adult knows, or believes or suspects on reasonable grounds, that the child of that pregnancy once born – (a) is reasonably likely to suffer abuse or neglect; or (b) is reasonably likely to require medical treatment or other intervention as a result of the behaviour of the woman, or another person with whom the woman resides or is likely to reside, before the birth of the child – that adult has a responsibility to take steps to prevent the occurrence of that abuse or neglect or that behaviour. (2) One step the adult may take to prevent the occurrence of abuse or neglect of a child, or behaviour referred to in subsection (1A)(b) , is to inform the Secretary or a Community-Based Intake Service of – (a) his or her knowledge, belief or suspicion; and (b) the basis of that knowledge, belief or suspicion. 14. Informing of concern about abuse or neglect or certain behaviour (1) In this section, prescribed person means – (a) a medical practitioner; and (b) a registered nurse or enrolled nurse; and (ba) a person registered under the Health Practitioner Regulation National Law (Tasmania) in the midwifery profession; and (c) a person registered under the Health Practitioner Regulation National Law (Tasmania) in the dental profession as a dentist, dental therapist, dental hygienist or oral health therapist; and (d) a person registered under the Health Practitioner Regulation National Law (Tasmania) in the psychology profession; and (e) a police officer; and (f) (g) a probation officer appointed or employed under section 5 of the Corrections Act 1997 ; and (h) a principal and a teacher in any educational institution (including a kindergarten); and (i) a person who provides child care, or a child care service, for fee or reward; and (j) a person concerned in the management of an approved education and care service, within the meaning of the Education and Care Services National Law (Tasmania), or a child care service licensed under the Child Care Act 2001 ; and (ja) a member of the clergy of any church or religious denomination; and (jb) a member of the Parliament of this State; and (k) any other person who is employed or engaged as an employee for, of or in, or who is a volunteer in – (i) a Government Agency that provides health, welfare, education, child care or residential services wholly or partly for children; and (ii) an organisation that receives any funding from the Crown for the provision of such services; and (l) any other person of a class determined by the Minister by notice in the Gazette to be prescribed persons; religious confession has the same meaning as in section 127 of the Evidence Act 2001 . (2) If a prescribed person, in carrying out official duties or in the course of his or her work (whether paid or voluntary), believes, or suspects, on reasonable grounds, or knows – (a) that a child has been or is being abused or neglected or is an affected child within the meaning of the Family Violence Act 2004 ; or (b) that there is a reasonable likelihood of a child being killed or abused or neglected by a person with whom the child resides; or (c) while a woman is pregnant, that there is a reasonable likelihood that after the birth of the child – (i) the child will suffer abuse or neglect, or may be killed by a person with whom the child is likely to reside; or (ii) the child will require medical treatment or other intervention as a result of the behaviour of the woman, or another person with whom the woman resides or is likely to reside, before the birth of the child – the prescribed person must inform the Secretary or a Community-Based Intake Service of that belief, suspicion or knowledge as soon as practicable after he or she forms the belief or suspicion or gains the knowledge. Penalty: Fine not exceeding 20 penalty units. (3) Whether a person informs the Secretary or a Community-Based Intake Service under subsection (2) verbally or in writing, the person must include in the information a statement of the observations, information, opinions and other grounds upon which the belief, suspicion or knowledge is based. (4) For the purposes of this section, the Secretary may issue or approve guidelines relating to the manner in which a person may inform the Secretary or a Community-Based Intake Service under subsection (2) . (5) Without limiting the matters and procedures that may be included in the guidelines, the guidelines may provide that a person may inform the Secretary or a Community-Based Intake Service under subsection (2) by following the procedure set out in the guidelines or by informing another person for or with whom the person works. (6) It is a defence to a charge for an offence against subsection (2) – (a) if the person charged can prove that he or she honestly and reasonably believed that the Secretary or a Community-Based Intake Service had been informed of all the reasonable grounds on which his or her belief, suspicion or knowledge was based by another person; or (b) if the person charged has complied with guidelines issued under subsection (4) that apply to him or her in respect of the organisation, body or other person for whom or in which the person works. (7) Despite section 127 of the Evidence Act 2001 , a member of the clergy of any church or religious denomination is not entitled to refuse to comply with subsection (2) on the grounds that he or she formed the belief or suspicion or gained the knowledge as a consequence of information communicated to that member of the clergy during a religious confession. 15. . . . . . . . . 16. Confidentiality of person informing of knowledge, belief or suspicion of abuse or neglect or certain behaviour (1) In this section – law enforcement agency means – (a) the Police Service or the police force of another State or a Territory or of an overseas jurisdiction; or (b) any other authority or person responsible for the investigation or prosecution of offences against the laws of the State or of the Commonwealth, another State or a Territory or an overseas jurisdiction; notifier means a person who provides the Secretary or a Community-Based Intake Service with a risk notification. (2) Subject to this section, a person who receives a risk notification from a notifier, or who otherwise becomes aware of the identity of a notifier because he or she is engaged in the administration of this Act, must not disclose the identity of the notifier to any other person unless the disclosure – (a) is made in the course of official duties under this Act to another person acting in the course of official duties; o