How the courts work

Courts

When Child Safety Services is worried you are not safe with your parents, they may seek help from a court to keep you safe. Child Safety Services might tell the court everything that has them worried for your safety and wellbeing and ask the court to decide what should happen. The courts are like steps on a ladder, from the lowest to the highest. Some of the courts you might see are:

Magistrates Court

The Magistrates Court is the lowest level of court in Queensland. The Childrens Court is part of the Magistrates Court, so the person making decisions in the Childrens Court is called a Magistrate.

Childrens Court

The Childrens Court deals with things that happen to people under 18 years of age, when people need help to keep children safe.

This is the court Child Safety Services may go to when deciding the best way to keep you safe.

Family Court

The Family Court makes decisions about where children live, and who looks after children, when parents don't agree after breaking up.

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    What can the court do?

    The court protects your rights and your parents' rights, and helps everyone decide what needs to happen to keep you safe.

    The court can make several different Child Protection Orders, which tell people how to make sure you are safe. Some of these are:

    Temporary Custody Orders

    A Temporary Custody Order can let Child Safety Services take care of you for up to 3 days, to keep you out of danger.

    Temporary Assessment Orders

    A Temporary Assessment Order (TAO) allows Child Safety Services to do specific things, like place you in a safe place away from your parents' care for up to 3 days. While the TAO is in place a Child Safety Officer will keep working with you and your family to figure out what needs to happen, to make sure you are safe in the future and you and your family get the right help.

    Court Assessment Order

    A Court Assessment Order will let Child Safety Services take care of you for up to 28 days so they can look into ways to better keep you safe. The Court Assessment Order can be extended once, for another 28 days.

    Directive Order

    A Directive Order tells a parent to do something, or not do something, to care for you. It may also tell a parent not to see you if it could be dangerous, or they can only see you if someone else is there. It can last for up to 1 year.

    Protective Supervision Order

    A Short-term Custody Order lets someone else in your family, or Child Safety Services, look after you for up to 2 years.

    Short-term Guardianship Order

    Guardianship means someone has the right to make decisions about your life. Sometimes parents aren’t able to do this, for instance if they are missing or hard to find in an emergency, or because things like drug use or mental health issues get in the way of making good decisions. A Short-term Guardianship Order makes Child Safety Services your guardian, meaning they can make decisions with you about your life, for up to 2 years.

    Transition Order

    If you have been in out-of-home care for a while, a Transition Order would help you gradually move back to your family home, over a period of 28 days.

    Long-term Guardianship Order

    If it would not be safe for you to go back to live with your parents, Child Safety Services can apply for a Long-term Guardianship Order. This would make another member of your family, Child Safety Services, or someone else (like a foster carer or kinship carer) your legal guardian until you turn 18.

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    Who might go to a court?

    Some of the people you might see at court are:

    • lawyers, who help to give information about the law to help the Magistrate make a decision
    • your parents
    • anyone else who lives with you
    • your long-term guardian, if you have one
    • your own lawyer, if you have one – this could be either a Direct Representative, who will ask you what you’d like the court to know, or a Separate Representative, who will decide what the courts need to know to help keep you safe
    • your Child Advocate from the Office of the Public Guardian
    • an Independent Person may be present if you are Aboriginal and/or Torres Strait Islander. They may provide the court with information on how you can stay connected to your culture and community.

    Other people may attend court, if they’re involved in your life and the court has allowed them to be there.

    To find out more about what an Independent Person is and how they can help, check out Independent Person: Information for Aboriginal and Torres Strait Islander children and young people.

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    Office of the Child and Family Official Solicitor and Office of the Director of Child Protection Litigation

    Child Safety Services’ job is to work with you and your family to find out what is working well, whether there are any worries, how safe you are right now, and how to keep you safe in the future.

    The Office of the Child and Family Official Solicitor (OCFOS) is part of Child Safety Services. OCFOS provides legal advice to Child Safety Services staff and helps them to figure out what they can legally do to keep you safe. The OCFOS worker will make a referral to the Director of Child Protection Litigation (DCPL) if necessary.

    The DCPL will then consider all the information and make the final decision about whether to go to court, and if so, what type of child protection order to apply for.

    Having different people involved is important because it means that decisions made are more likely to be fair, considered and based on the evidence. 

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    Going to court

    You have a right to go to court and to have a say in decisions made about you. Depending on how old you are, if you do need to go to court, you may be able to speak to a lawyer who can help you have your say. If you’d like to find out whether this is possible, you can call:

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    Preparing for court

    If you go to court, everyone else will be dressed in neat business clothes. This is to show respect to the court. If you attend court, dress in a way that makes you feel comfortable but shows respect to the people around you.

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    Appearing in court

    When you’re actually in court, the following things can help you get the most out of the session:

    • be polite, and call the Magistrate ‘Your Honour’
    • stand when the Magistrate is talking to you
    • act calmly, to help the court make its decision
    • if you don’t understand what’s happening, you can ask the Magistrate or any lawyers around you to explain.

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    Stages of court proceedings

    Court proceedings will go through some of the following stages:

    Mention

    A mention is where the case is reviewed by the court, and the court can then move the case to the next stage.

    Adjournment

    An adjournment (pronounced add-jern-ment) is where the court puts off the session to a later date. This is common and doesn’t mean anything is wrong.

    Hearing (or trial)

    A hearing or trial is where the court hears the facts and people’s views, then makes a decision.

    Interim order

    If a court makes an adjournment, which means it puts off the session to a later date, the court can also make an interim order to make sure something important happens in the meantime. For example, an interim contact order would allow your parents to spend time with you between court dates.

    Subpoena

    A subpoena (pronounced sub-peener) is an order to give information to the court. A person can be ‘subpoenaed’ to give information in person, but documents, like Child Safety Services records, can also be ‘subpoenaed’ so court officials can read them before making a decision.

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    What happens at a court hearing?

    At a court hearing (also called a trial), the Magistrate hears all the evidence from people involved in your care and then decides:

    • whether you need help to be protected and safe
    • which type of child protection order would most help you
    • whether you need a new case plan
    • if you are Aboriginal or Torres Strait Islander, whether your cultural needs have been considered.

    In the court, the words 'hearing' and 'trial' mean basically the same thing - the process a court goes through to listen to people and make decisions.

    The hearing will normally begin with a lawyer calling witnesses - which means talking to people who know about the issue. Other lawyers might also talk to these witnesses. If a lawyer talks to witnesses called by another lawyer, this is called cross-examination.

    If a lawyer talks to their own witness a second time, this is called re-examination.

    If you are called as a witness, you should tell the court what you have actually seen and heard. It is very important that you give honest answers. Try not to worry, because the decisions made by the court take into account everyone's evidence.

    If you're asked a question that is not relevant to the case, the Magistrate can tell you not to answer the question. If you don't know an answer just say so. You cannot get into trouble for not knowing an answer – it is not a test. If you don’t understand a question then ask for an explanation. While you are giving evidence you are the most important person in the room – everyone is there to listen to you so it is important you get across your story.

    It is important everyone in court is respectful, polite and quiet when questions are being asked, so the court hearing can go smoothly.

    After all the witnesses have been spoken to, each party can give a short speech about their side of the case, called a closing address. Once this is finished the Magistrate will make their decision. This may take a while because the Magistrate has to consider everything they have heard in court.

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    Other parts of the process

    Family Group Meetings

    A Family Group Meeting is held when Child Safety Services believes that you are in need of protection under the Child Protection Act 1999. A family group meeting brings together the most important people in your life. The meeting will help you and the department to develop a plan to keep you safe from harm and ensure your family gets help and support. You can go to the meeting along with members of your family and staff from Child Safety Services. There’ll be a convenor, who runs the meeting and makes sure everything is prepared in advance. If you have a Community Visitor or Child Advocate you can ask them to attend with you and help you present your views and wishes.

    If you are Aboriginal or Torres Strait Islander, an Independent Person can also come along to ensure your culture is understood and respected. A Cultural Support Plan may be discussed at the Family Group Meeting as well.

    Just because a person goes to a Family Group Meeting or agrees to help develop a case plan doesn’t mean they did anything wrong. However, the things people say in Family Group Meetings may be heard by the court, to help the court make decisions.

    You can also have a support person or lawyer with you at the meeting.

    To find out more about what an Independent Person is and how they can help, check out Independent Person: Information for Aboriginal and Torres Strait Islander children and young people.

    Court-ordered Conferences

    Court-ordered conferences are meetings held when someone doesn’t agree with Child Safety Services about a Child Protection Order.

    An independent chairperson runs the meeting, with the aim of getting everyone to agree to an outcome.

    The meeting might ask questions like:

    • what are we worried about?
    • what is working well?
    • what more needs to happen?

    Usually, a court-ordered conference will be held before the court makes a decision, unless the court is worried that someone may not be safe at a meeting. There may be more than one court-ordered conference while the issue is being heard.

    An Independent Person should be present at a court-ordered conference for all Aboriginal and Torres Strait Islander children and young people to ensure all cultural matters are mentioned and considered.

    To find out more about what an Independent Person is and how they can help, check out Independent Person: Information for Aboriginal and Torres Strait Islander children and young people.

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    Court documents

    You may hear people talk about ‘court documents’. Court documents are the papers containing information and evidence that people involved in the process believe the court needs to have in order to make the best most informed decisions. Some of these might be:

    Application for a Court Assessment Order or Child Protection Order

    This application will explain why Child Safety Services believes the court should make an order. The date of the court session will be near the end of this document.

    Affidavit

    An affidavit (pronounced affy-dave-it) is a statement a person makes “under oath”, which means they swear it is true. Normally, this means the person has signed a written statement in front of a Justice of the Peace, who has a licence to approve these documents. Saying things that are untrue in an affidavit is against the law. Affidavits should only contain facts, not opinion.

    Submission

    A submission lets you, or your parents or someone else involved in your care, tell the court the personal reasons why you’d like the Magistrate to decide one way or the other. You can make a submission in person or in writing.

    The difference between a submission and an affidavit is that a submission is your personal view, but an affidavit should only contain facts.

    Social assessment report

    This is a report about your history, views and wishes written by an expert in child protection, such as a psychologist or social worker. The person writing the social assessment report will speak to you about your life, will speak to other people close to you and will look at Child Safety Services records. The court will look at this report when it makes a decision.

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    The usual order of court events

    The court process might happen differently each time, but usually it will go something like this:

    Application filed in the Childrens Court.

    First mention at the Childrens Court. This is where the court first reviews the case, and finds out whether the child protection order is accepted by your parent.

    Family group meeting/s. If you haven't already had any family group meetings, there may be one or more of them to make or review case plans.

    Court-ordered conference. If one or both of your parents disagree with Child Safety Services about how to protect you, there may be a court-ordered conference to discuss this.

    Another mention at the Childrens Court. This is likely to make sure everything that needs to be done before the hearing is done.

    Hearing (or trial). This is where people get to test each other's evidence by asking questions of witnesses. The court makes a decision and final orders are given to all parties.

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    29 October 2018