The Court may include any conditions on interim accommodation orders, family preservation orders, family reunification orders and permanent care orders.
As a response to the individual and particular circumstances of the identified protective issues, the purpose of attaching conditions to an order is to expressly allow, require or prohibit an action occurring or not occurring, which:
- Promote the safety and development of a child
Conditions to an IAO may be required to promote a child's safety, development and protection of rights, during the initial or ongoing period of child protection involvement.
- Inform, planning and decision-making
Conditions of an IAO may be required to enable continued assessment of identified protective concerns.
- Facilitate investigation and assessment:
Conditions of a temporary assessment order may be necessary to ensure investigation and assessment of report to the Secretary is completed.
- Manage the ongoing safety, development and wellbeing of a child:
Conditions to a protection order may be required to maintain safety and allow for the continued development and wellbeing of a child.
Child protection should consider what conditions would be in a particular child's best interests. This can include conditions for appropriate services and supports for a parent/carer which support the child's best interests. Conditions sought by child protection must be reasonably capable of being carried out by each person who will be subject to the condition, and promote the intent of the order. Conditions on court orders will usually include conditions that relate to contact of a parent or other person with the child, and will be considered with regard to whether, and what, contact is in a child's best interests.
- an IAO may include any condition that either the Court or a bail justice considers to be in the best interests of the child
- a family preservation order must not include any conditions about where a child lives unless it is with a specified parent, or living, as far as possible, for an equal period of time with each parent
- no conditions may be attached to a care by Secretary order or long-term care order
- Unless the Court otherwise provides, a permanent care order must include a condition that the person caring for the child must preserve the child’s identity, connection to the child’s culture of origin and the child’s relationships with the child’s birth family. A permanent care order may include conditions concerning contact by the child's parent/s and may provide for contact up to 4 times per year. The order may include other conditions the Court considers to be in the best interests of the child concerning contact with their siblings and other persons significant to the child.
In relation to the variation of orders, the Secretary can make an application to the Children’s Court for a variation of the conditions on an interim accommodation order, family preservation order or family reunification order.
Under s. 278(1) of the CYFA, the Court may require the child, the parent or a person living with a child to enter into an undertaking. The application to vary an undertaking under s. 279 of the CYFA can only be made by the child, the parent or the person living with the child.
The conditions attached to an order should be linked to the assessment of risk and needs and case planning. Practitioners should consider the following factors when seeking conditions to an order:
The assessment of risk and needs will inform what conditions are appropriate to ensure ongoing safety, allow for any continuing assessment and promote the development and wellbeing of the child. Conditions requested of the Court should be targeted at the protective issues and be a logical extension of the assessment.
Where an action which arises from a case plan requires a parent to undertake an action or task that is intrusive upon the usual parental responsibilities but central to the plan, such as attendance at a residential program for the family, or a medical examination of a child, this requirement should appear as a condition of an order. Conditions may be essential to ensure compliance and to monitor the safety and development of the child.
There may be multiple factors or combinations of factors within a family which impact on the care and protection of children. A casework task for the practitioner, in conjunction with the family (where possible) and other professionals (where possible and appropriate), is to identify the priorities according to the assessed risks. In all cases the safety, development and wellbeing of the child takes priority over all other needs. A child's best interests are paramount in decision-making. This means, where a family is expected to undertake a large number of tasks or obligations at one time, the likelihood of failure increases. Hence the need for the conditions sought by child protection to be reasonably capable of being carried out by each person who will subject to the condition and promote the intent of the order.
Conditions must have a specific purpose and usefulness related to the assessment of risk and needs of the case plan. Added to this, some conditions are not particularly useful when not used in conjunction with other conditions. For example:
- If issues of drug use are identified as a protective issue, the practitioner might seek a condition around drug screens that relate to contact, for example, the parent being allowed to have contact on the basis of clean drug screens. It would be helpful if this condition included the frequency of screens required, the duration of screens and an allowance for reports to be made available to the Department of Health and Human Services. A condition to be used in conjunction with drug screens may be one requiring a drug and alcohol assessment and treatment.
- If issues of family violence are not identified as a protective issue then a condition around family violence counselling is not appropriate.
Conditions should be achievable and not be unduly onerous on the family. It is not in the interests of the child, family, court or child protection to have an order with conditions that the child, parent or other person is unlikely to be able to comply with. When recommending a condition, consider and check for the following:
- that conditions relate to supports and services which are in the child's best interests
- that the person to whom the condition relates is likely to be able to meet the obligations of the condition, for example, is able to get to and keep appointments
- whether services are available and willing to work with the family or individual member before seeking a condition requesting a particular service
- any cost that may be involved with a condition, for example, assessment reports, and who will pay
- whether the condition takes into account (as much as possible) the needs of and demands on the family, for example, that conditions around contact take into account the parent's capacity to meet the requirements if they have responsibility for other children or work obligations.
Focus and flexibility
Through the life of an order the case plan will work towards ensuring and promoting the safety, development and wellbeing of a child. When considering conditions to an order, ensure these are clear and align with the case plan. This can be particularly relevant to contact conditions. For example, where a child is placed in out-of-home care, it is desirable that contact conditions are flexible enough to include the capacity for increasing contact closer to the resumption of care by the parent without the requirement to return to court to vary the contact condition.
CSOs provide services on a voluntary basis and therefore reserve the right to deny service or terminate service at any time. A court order may require the child, the child's parents or person with whom the child is living to use a particular CSO because this is considered to be in the best interests of the child. However, the Court cannot force a CSO to provide a service to a child and their family. The child protection practitioner needs to request the general condition 'accept support services as agreed' or seek to vary the order if a condition regarding a particular CSO is made and the condition cannot be met because the CSO will not provide the service.
Where service by a CSO is to be requested as a condition on a court order, the agreement of the CSO to be involved with the family for the nominated period of time must be sought prior to the request being made.