If the Department decide that they need to take action to protect your children, they may remove your children and start legal action.
If this happens, there are time limits that say when the Department needs to start a case in the Children’s Court or Youth Court.
The laws about when the Department can remove children and the time limits that apply are different in each State and Territory.
Sometimes, the Department may take legal action and go to court while your children are still in your care.
You don’t have to wait until a case goes to court to speak to a lawyer. If the Department becomes involved with your family, you should get legal advice as soon as possible.
Once your case is in the Children’s Court or Youth Court, the Department needs to show the court that action (for example – removing your children) was necessary to protect your children or to make sure they are properly cared for.
If your matter goes to court, it’s important to try to work with the Department, even if you don’t agree with the reasons they are getting involved with your family. See tips for working with the Department.
See resources for more information.
They can also be called Care and Protection Orders, Child Protection Orders or Protection Orders depending on which State or Territory you are in. Also see resources for more information about the different types of Care Orders.
Care Orders can includes things like:
• orders about who makes decisions about your children’s daily life and the big long-term decisions like who cares for them, where they live, where they go to school and what medical treatment they get. This could be by you, the other parent, the Department, someone else (such as a family member) or by a combination of these people
• orders about how much contact you children should have with you, other family members and other important people
• orders that return your children to your care but places your children under the ‘supervision’ of the Department which allows them to monitor your children’s safety, welfare and wellbeing
• orders that you, or anyone else who is caring for your children, give promises (called ‘undertakings’) to the court about what you will do or not do in the future
• orders that you, or anyone else who is caring for you children, cannot do certain things.
The court can make one or many of these orders at the same time.
The court can make these orders on a temporary basis― called interim orders. The court can also make these orders as final orders. The court will say how long the order will last for – sometimes, for a short period or sometimes until your children turn 18.
In some States and Territories, the Children’s Court or Youth Court can also make or change a Domestic Violence Order during a care and protection case. You can get legal adviceACTNSWNTQldSATasVicWA about this.
The court can appoint a lawyer to represent your child in a care and protection case.
- Sometimes the lawyer represents your child’s best interests and makes recommendations to the court about what they think is best for them. This may be different to what your child wants.
- Sometimes, if your child is older, the lawyer has to follow what your child says and tell the court what your child wants.
One of the most important decisions the court will make is whether or not your children can be returned to your care.
In making this decision, the court will consider whether or not you have addressed issues affecting your parenting and whether your children will be safe and properly cared for if they are returned to your care. This can include showing the court that your children will not be exposed to domestic and family violence if they come back to live with you.
Sometimes, children are returned to live with family straight away. Sometimes, children will stay living with someone else for a short period while you meet certain goals for them to be returned. And sometimes, children stay in care until they become adults. It will depend on your situation, so you should get legal adviceACTNSWNTQldSATasVicWA.
For some practical tips about what may help you get your children back, see what can I do to help me get my children back? You should also get legal adviceACTNSWNTQldSATasVicWA about your situation.
If the Department decides to remove your child from your care, you may want them to stay with a family member or friend.
That person will need to be a suitable carer and their house will need to be a safe place for your children to live.
The Department can ‘assess’ your family members to see whether they can be approved as your children’s carers. This can sometimes take some time – so it is important that you give the Department the details of anyone in your family who you want to care for your children, as early as possible.
Even if you hope that your children will be returned to your care at the end of the case, it is usually a good idea to put forward family members who might be able to care for them.
This way your family members can care for your children while the court case is happening, even if your children are returned to your care later. If your children are not returned to your care, sometimes having them live with family can be a good back-up plan.
What about Aboriginal and Torres Strait Islander children?
When the Department or a court decides where your children should live, the most important consideration is about what is in your children’s best interests.
However, the law also says that when Aboriginal or Torres Strait Islander children cannot live with their parents, they should be placed within their own kin, culture and community if this is possible.
For more information, also see resources.
- Community Services– Going to court and working to reunite families: What’s involved and what can I do?
- Community Services – Representing yourself in court: What do I need to know to navigate care and protection court processes?
- Community Services – What happens with my child when they are in care and what can I do to have them come home?
- Community Services – Why Child Protection take court action?
- Magistrates Court ACT – Children’s Court
- Children’s Court – Care and protection cases
- Children’s Court – Care applications
- Children’s Court – Contact Orders
- Children’s Court – Parent Capacity Orders
- Family and Community Services – Going to the Children’s Court
- Family and Community Services – Removing children and young people
- Family and Community Services – Orders in care and protection matters
- Legal Aid NSW – Aboriginal and Torres Strait Islander kids in care
- Legal Aid NSW – Going to the Children’s Court – available in English, Arabic, Bengali, Chinese, Dinka, Kirundi, Swahili, Tamil and Vietnamese
- Legal Aid NSW – What happens when my kids are in care? – available in English, Arabic, Bengali, Chinese, Dari/Farsi, Dinka, Kirundi, Swahili, Thai, Tamil and Vietnamese
- NT Law Handbook – Child Welfare
- NT Legal Aid Commission – Child protection matters
- Legal Aid Qld – Child protection duty lawyer
- Legal Aid Qld – Child protection legal information
- Legal Aid Qld – How will a separate representative help my child in their child protection matter?
- Qld Law Handbook – Child protection
- South West Brisbane CLC – Information kit on child protection for parents
Video
- Aboriginal and Torres Strait Islander Legal Service – Knowing your rights, child protection
- Legal Services Commission of SA – Child Protection
- SA Law Handbook – Care and Protection Orders
- SA Law Handbook – Child Protection Restraining Orders and other measures
- Courts Administration Authority of SA – Care and protection jurisdiction
- Legal Aid Commission of Tasmania – Child Protection Brochure
- Tasmanian Law Handbook – Care and Protection Orders
- Department of Communities Tasmania – Legal Orders in Child Protection
- Department of Communities Tasmania – Family Group Conference
- Department of Communities Tasmania – Rights of Parents of Children in out of home care
- Department of Communities Tasmania – Brochures on Child Protection
- Child Protection Manual – Going to the Children’s Court for parents – also available in Arabic, Mandarin, Turkish, Vietnamese, Burmese, Cantonese, Dari and Dinka
- Child Protection Manual – Identifying Aboriginal and/or Torres Strait Islander children
- Child Protection Manual – Orders – also available in in Arabic, Mandarin, Turkish, Vietnamese, Burmese, Cantonese, Dari and Dinka
- Children’s Court of Victoria – The Family Division
- Department of Health and Human Services – Child Protection Orders
- The Law Handbook – Child Protection
- Victoria Legal Aid – Going to court for a child protection case
- Children’s Court of WA – Child Protection Proceedings
- Children’s Court of WA – Protection Proceedings
- Legal Aid WA – Going to court for a child protection case
- Legal Aid WA – Child representatives in the Children’s Court
- Legal Aid WA – Preparing for a final hearing in a protection and care matter in the Children’s Court of WA
- Legal Aid WA – Protection Orders in the Children’s Court
- Legal Aid WA – Representing yourself at a final hearing for a protection and care matter in the Children’s Court of WA
- The Family Inclusion Network of WA – Finding your way with the Department
- Community Services– Going to court and working to reunite families: What’s involved and what can I do?
- Community Services – Representing yourself in court: What do I need to know to navigate care and protection court processes?
- Community Services – What happens with my child when they are in care and what can I do to have them come home?
- Community Services – Why Child Protection take court action?
- Magistrates Court ACT – Children’s Court
- Children’s Court – Care and protection cases
- Children’s Court – Care applications
- Children’s Court – Contact Orders
- Children’s Court – Parent Capacity Orders
- Family and Community Services – Going to the Children’s Court
- Family and Community Services – Removing children and young people
- Family and Community Services – Orders in care and protection matters
- Legal Aid NSW – Aboriginal and Torres Strait Islander kids in care
- Legal Aid NSW – Going to the Children’s Court – available in English, Arabic, Bengali, Chinese, Dinka, Kirundi, Swahili, Tamil and Vietnamese
- Legal Aid NSW – What happens when my kids are in care? – available in English, Arabic, Bengali, Chinese, Dari/Farsi, Dinka, Kirundi, Swahili, Thai, Tamil and Vietnamese
- NT Law Handbook – Child Welfare
- NT Legal Aid Commission – Child protection matters
- Legal Aid Qld – Child protection duty lawyer
- Legal Aid Qld – Child protection legal information
- Legal Aid Qld – How will a separate representative help my child in their child protection matter?
- Qld Law Handbook – Child protection
- South West Brisbane CLC – Information kit on child protection for parents
Video
- Aboriginal and Torres Strait Islander Legal Service – Knowing your rights, child protection
- Legal Services Commission of SA – Child Protection
- SA Law Handbook – Care and Protection Orders
- SA Law Handbook – Child Protection Restraining Orders and other measures
- Courts Administration Authority of SA – Care and protection jurisdiction
- Legal Aid Commission of Tasmania – Child Protection Brochure
- Tasmanian Law Handbook – Care and Protection Orders
- Department of Communities Tasmania – Legal Orders in Child Protection
- Department of Communities Tasmania – Family Group Conference
- Department of Communities Tasmania – Rights of Parents of Children in out of home care
- Department of Communities Tasmania – Brochures on Child Protection
- Child Protection Manual – Going to the Children’s Court for parents – also available in Arabic, Mandarin, Turkish, Vietnamese, Burmese, Cantonese, Dari and Dinka
- Child Protection Manual – Identifying Aboriginal and/or Torres Strait Islander children
- Child Protection Manual – Orders – also available in in Arabic, Mandarin, Turkish, Vietnamese, Burmese, Cantonese, Dari and Dinka
- Children’s Court of Victoria – The Family Division
- Department of Health and Human Services – Child Protection Orders
- The Law Handbook – Child Protection
- Victoria Legal Aid – Going to court for a child protection case
- Children’s Court of WA – Child Protection Proceedings
- Children’s Court of WA – Protection Proceedings
- Legal Aid WA – Going to court for a child protection case
- Legal Aid WA – Child representatives in the Children’s Court
- Legal Aid WA – Preparing for a final hearing in a protection and care matter in the Children’s Court of WA
- Legal Aid WA – Protection Orders in the Children’s Court
- Legal Aid WA – Representing yourself at a final hearing for a protection and care matter in the Children’s Court of WA
- The Family Inclusion Network of WA – Finding your way with the Department