Appeals to the County or Supreme Court
Follow this procedure when an appeal is being considered by child protection or an appeal has been filed with the County or Supreme Courts by another party related to child protection proceedings.
Document ID number 1216, version 5, 17 July 2020.
Appeals can be filed against decisions made in the Children’s Court. These procedures apply when a young person, parent or a person with parental responsibility advises they have filed an appeal, or when child protection decides to file an appeal or make an application for judicial review, to the County or Supreme Court including:
- appeals against interim accommodation orders (IAOs)appeals against temporary assessment orders (TAOs)
- appeals to the County Court or Supreme Court regarding a protection order
- appeals to the Supreme Court on a question of law
- Supreme Court judicial reviews.
For additional information see Appeals - advice.
Case practitioner tasks
Appeals initiated by a young person, parent or carer
- Advise supervisor, team manager, and CPLO as soon as possible after being served with a notice of appeal.
- For rural areas, confirm with the divisional solicitor that CPLO has been advised of the notice of appeal.
- Review and prepare the file in consultation with the CPLO in preparation for the appeal hearing.
Considering an appeal
The decision to seek an appeal should always consider the best interests of the child.
Appeals may be appropriate where child protection determines:
- that a child remains at risk of significant harm, or their development or permanency will be significantly impacted following a Children’s Court decision
- the Court decision places impractical or highly onerous requirements on the department, or
- it is assessed the Children’s Court has made an error of law.
Management and legal consultation is required prior to recommending an appeal or judicial review. The area executive director, or director, child protection must consult and seek written approval from the chief practitioner, office of professional practice and financial endorsement by the divisional deputy secretary for any appeal or judicial review to proceed.
- Consult with your team manager, deputy area operations manager and CPLO at the earliest possible time if considering an appeal or an application for judicial review.
- If the initial discussion suggests a possible appeal, the deputy area operations manager will consult with the area operations manager or director, child protection.
- If after the initial discussion an appeal is not recommended but you remain concerned for the child’s situation, escalate concerns to the area operations manager or assistant director, child protection.
- If the outcome of a submission hearing is contrary to the department’s position, consider in consultation with your supervisor or team manager the appropriateness of booking an interim accommodation order contest at the earliest possible time. However, if the child protection assessment is that the risk to the child is immediate and unacceptable, and cannot be ameliorated through the conditions on the IAO and the department’s supervision of the family, then urgent consultation with CPLO should be pursued in relation to an appeal. Where you are significantly concerned about the possible outcomes of a contested hearing, raise these concerns with your legal representative and CPLO at the earliest possible opportunity.
- See Appeals for further advice.
- After consultation with CPLO and receiving written approval from the chief practitioner, office of professional practice and divisional deputy secretary endorsement, file the appropriate paperwork with the relevant court to initiate the appeal or application for judicial review.
- If the appeal is to be made to the County Court against a final order pursuant to section 328 of the Children, Youth and Families Act 2005 (the CYFA), file a ‘Form 2-2d Notice Of Appeal And Undertaking To Prosecute Under Section 328 CYFA, County Court (Miscellaneous) Rules 2009’, with the registrar of the Children’s Court in the Secretary’s name, signed by a practitioner with the appropriate delegation to do so. See Court -Appeals forms.
- If the appeal is to be made to the Supreme Court against an IAO pursuant to section 271 of the CYFA, file a ‘Notice of Appeal - Form 58A’ or if the appeal is against a final order made by the President of the Children’s Court, file a ‘Form 58B’ directly with the Supreme Court registry. See Court - Appeals forms.
Appeals against IAOs and TAOs are made to the Supreme Court. This includes the making of an IAO or dismissing an appeal for an IAO.
The Secretary may appeal to the County Court or, if the Children’s Court was presided by the President, to the Trial Division of the Supreme Court. For a detailed list of when an appeal pursuant to s.328 of the CYFA can be made, see Appeals - advice.
- Notices of Appeal must be filed with the appropriate registry and served on all parties within the legislative timeframe of the making of the Children’s Court order.
- for an appeal against a final order, this is within 28 days
- for an appeal to the Supreme Court on a question of law, this is within 30 days
- for an application for judicial review, this is within 28 days
- for an appeal against an IAO, there is no legislative timeframe for filing of a Notice, however it is anticipated that these appeals will generally occur in urgent circumstances. In circumstances where there are immediate concerns for the safety of a child as a result of a Children’s Court decision, the filing and serving of the Notice of Appeal will occur as quickly as possible and often on the same day that the decision of the Children’s Court was made.
- Serve the issued notice of appeal on all parties within 30 days of the Children’s Court order, unless it is an urgent appeal to be heard at the Supreme Court where it will be heard within 24 hours of the Children’s Court decision.
- If the appeal is against a final order, prepare an addendum report for the appeal hearing detailing the events since the Children’s Court order was made and serve all parties with a copy of the addendum report three days prior to the hearing date.
- Consult with CPLO as to the most appropriate manner in which to provide all unmarked reports prepared for the Children’s Court proceedings to the court.In consultation with CPLO, consider preparing the following information and documents:
- a chronology of relevant events including child protection history, history of protection applications, court dates, court outcomes, services engaged with the family and significant contact visits and home visits
- summary of protective concerns and recommendations to the court
- list of relevant witnesses
- list of all child protection reports and other relevant reports or assessments, specifying the author, date and type of report and who the report relates to.
This information will assist if an affidavit needs to be prepared in a short time frame.
- If witnesses are to be called, advise any witnesses of the intention to issue subpoenas and inform them when they may be required to give evidence. Issue and serve subpoenas for witnesses either personally or by a process server.
- If the file has been subpoenaed, prepare the file (CRIS and paper file) and deliver the file to the court registrar with a copy of the subpoena and cover letter that includes a return address for the file to be returned at conclusion of the appeal. Protect or remove reporter details, any information that may lead to the identification of the reporter and any legally privileged information by placing the material in a sealed envelope in the front of the file marked ‘Not to be opened except at the direction of a judge’.
- Contact CPLO if you are unsure if there is any information in the file that should be removed.
- With your supervisor and manager, and in consultation with CPLO, liaise with the DHHS barrister in preparation for the appeal.
- Contact the court or police to arrange security if there are worker safety issues.
- Complete CRIS requirements including court screen and record of activity, decisions and rationales.
Considering an appeal
- Provide ongoing supervision and consultation including with the principal practitioners should there be concerns regarding the safety of the child or issues in relation to the grounds and merits of an appeal.
- With the practitioner and your manager, and in consultation with CPLO, liaise with the DHHS barrister to ensure comprehensive preparation for the appeal.
Deputy area operations manager, child protection tasks
Considering an appeal
- Provide consultation before an appeal application is initiated.
- Seek approval from your area operations manager or director, child protection to request an application to appeal.
- Liaise with CPLO to ensure comprehensive preparation for the appeal.
Area operations manager or director, child protection tasks
- If recommending an appeal, brief the area executive director .
- If circumstances permit, arrange a conference to consider the decision to appeal, including where there is any disagreement, with the following attendees:
- director, Families and Children, Legal Services
- manager CPLO and, where relevant, divisional lawyer’s manager
- CPLO lawyer or divisional lawyer
- divisional principal practitioner
- area operations manager or director, child protection
- deputy area operations manager, child protection
- team manager
- child protection practitioner.
Divisional principal practitioner tasks
- Provide consultation before an appeal application is initiated and seek consultation with the chief practitioner, office of professional practice where required.
Area executive director tasks
- Provide consultation before an application for an appeal is filed.
- Consult with director, families and children, legal services/manager CPLO.
- If recommending an appeal, brief the divisional deputy secretary and seek written approval from the chief practitioner, office of professional practice.
- Brief the Secretary, the Minister and the media unit about the appeal or judicial review as appropriate.
Divisional deputy secretary tasks
- Subject to the chief practitioner’s approval, endorse the appeal application (financial endorsement).
Chief practitioner, office of professional practice tasks
- Provide consultation to divisions and CPLO about whether an appeal may be appropriate.
- Record or confirm the recording of the consultation and approval decision including rationale on CRIS.
- Consult the deputy secretary, Community Services Operations Division.
- Inform the director, children and families policy where appropriate.
- Brief the Secretary and Minister as required.