Div 4Information and involvement in decision‑making

Division 4—Information and involvement in decision‑making 78—Interpretation In this Division— placement agency, in relation to a child or young person, means— (a) if the child or young person was, or is to be, placed with an approved carer by a licensed foster care agency—the licensed foster care agency; or (b) if the child or young person was, or is to be, placed with an approved carer other than by a licensed foster care agency—the Chief Executive. 79—Approved carers to be provided with certain information prior to placement (1) Subject to this section, if a placement agency is considering placing a child or young person with an approved carer under this Act, the agency must, before so placing the child or young person, provide to each proposed approved carer any information in the possession of the agency that may be relevant to the person's decision whether or not to accept the placement. (2) In determining whether to provide particular information to an approved carer, a placement agency must have regard, and may give effect, to any wishes expressed by the child or young person relating to the disclosure of such information. 80—Children and young people to be provided with certain information prior to placement If a placement agency is considering placing a child or young person with an approved carer under this Act, the agency must, before so placing the child or young person, provide to the child or young person the prescribed information in relation to the approved carer. 81—Approved carers to be provided with certain information (1) A placement agency must provide to each approved carer with whom a child or young person is placed any information (including, to avoid doubt, any medical reports) held by the agency that is reasonably necessary to ensure— (a) that the approved carer is able to provide appropriate care to the child or young person in all of their circumstances; and (b) the safety of the approved carer and any other member of the approved carer's household. (2) An approved carer who is provided with information under this section, and any other person who becomes aware of the information, must not disclose the information except— (a) to a health professional for a purpose related to the examination, assessment or treatment of the child or young person; or (b) to a child protection officer performing a function under this Act; or (c) to a member of the approved carer's household; or (d) with the consent of the child or young person; or (e) in any other circumstances prescribed by the regulations. 82—Approved carers entitled to participate in decision‑making process (1) Without limiting Chapter 2, but despite any other provision of this Act or any other Act, an approved carer in whose care a child or young person is placed is entitled to participate in any decision‑making process relating to the health, safety, welfare or wellbeing of the child or young person. (2) Subsection (1) does not apply in relation to a particular decision if the decision‑maker is satisfied that the participation of the approved carer would not be in the best interests of the child or young person. (3) This section applies whether the decision is made under this or any other Act or law. 83—Non-compliance with Division not to invalidate placement A refusal or failure to comply with a requirement under this Division does not, of itself, invalidate a placement of a child or young person with an approved carer. Part 2—Children and young people in Chief Executive's custody or guardianship 84—Chief Executive's powers in relation to children and young people in Chief Executive's custody or guardianship (1) Subject to this Act, the Chief Executive may, in relation to a child or young person who is in the custody, or under the guardianship, of the Chief Executive, from time to time do 1 or more of the following: (a) place the child or young person, or permit the child or young person to remain, in the care of a member of their family; (b) place the child or young person in the care of any other suitable person; (c) remove the child or young person from the care of a person referred to in a preceding paragraph; (d) place the child or young person in a licensed children's residential facility, or a residential facility (not being a training centre) established or licensed under the Family and Community Services Act 1972, or in any other suitable place; (e) give such directions relating to the care of a child or young person referred to in a preceding paragraph as the Chief Executive thinks fit; (f) make arrangements for the education of the child or young person; (g) make arrangements (including admission to hospital) for the professional examination, assessment or treatment of the child or young person; (h) make such other provision for the care of the child or young person as the circumstances of the case may require. (2) To avoid doubt, nothing in this section limits the operation of section 71 or 77. (3) In exercising a power under this section, the Chief Executive— (a) must have regard to the principles of intervention, the placement principles and, if relevant, the Aboriginal and Torres Strait Islander Child Placement Principle; and (b) must keep in mind that leaving the child or young person under the guardianship, or in the custody of, the Chief Executive is the least preferred option; and (c) should exercise the power in a manner that is consistent with this Act and any relevant policy published under section 19. (4) To the extent that the child or young person is willing and able to do so, a child or young person who is affected by a decision of the Chief Executive under this section should be involved in the decision-making process (and, in particular, their views should be given due weight in making the decision, in accordance with their developmental capacity and the circumstances of the case). (5) The Chief Executive must keep each parent and guardian (if the Chief Executive is not the guardian) of a child or young person informed about where the child or young person is placed and how the child or young person is being cared for, unless the Chief Executive is of the opinion that it would not be in the best interests of the child or young person to do so. 85—Review of circumstances of prescribed child or young person (1) Subject to this section, the Chief Executive must cause a review of the circumstances of each prescribed child or young person to be carried out— (a) if the child or young person, or another person who, in the opinion of the Minister, has a legitimate interest in the affairs of the child or young person, has requested the review—as soon as is reasonably practicable after the request; or (b) in any case—at least once in each 12 month period. (2) However, the Chief Executive need not cause a review to be carried out under subsection (1)(a) if— (a) a review of the child or young person's circumstances has been carried out within the 12 months preceding the request; and (b) the Chief Executive is of the opinion that the request is frivolous or vexatious, or otherwise not made in good faith. (3) A review must comply with the following provisions: (a) the review must be carried out by a panel appointed by the Chief Executive for the purpose; (b) in carrying out a review, the panel must— (i) having regard to Chapter 2, consider whether the existing arrangements for the care of the prescribed child or young person— (A) continue to be in the best interests of the child or young person; and (B) provide the support necessary to meet the needs of the child or young person; and (ii) notify each person who has care of the prescribed child or young person of the review and give them a reasonable opportunity to make submissions to the panel for the purposes of the review; and (iii) notify the prescribed child or young person of the review and give them a reasonable opportunity to make submissions (in whatever manner the child or young person thinks fit including, if they so wish, in the absence of a person who has care of them) to the panel for the purposes of the review; and (iv) have regard to any submissions made under subparagraph (ii) or (iii); and (v) comply with any other requirement set out in the regulations; (c) on completing a review, the panel must prepare and provide to the Chief Executive a written report on the review setting out— (i) the conclusions of the panel in respect of the existing arrangements for the care of the prescribed child or young person; and (ii) if the panel wishes to make recommendations in relation to the care of the prescribed child or young person—those recommendations. (4) A child or young person may, in making submissions to a panel in the course of a review, be accompanied by a support person if they so wish. (5) The Chief Executive must appoint a member of a panel appointed to carry out a review (being a member who has not previously been involved with the prescribed child or young person's case) to be the presiding member of the panel. (6) Subject to this Act, and to any directions of the Chief Executive, a panel may determine its own procedures. (7) Except where the Chief Executive is of the opinion that it is inappropriate to do so, the Chief Executive must cause a copy of a report under subsection (3)(c) to be given to— (a) the prescribed child or young person; and (b) each person who has care of the prescribed child or young person, and may give a copy of the report to any other person the Chief Executive thinks fit. (8) The regulations may make further provision in relation to reviews under this section (including, to avoid doubt, provisions relating to the appointment of members to a panel). (9) In this section— prescribed child or young person means— (a) a child or young person placed under the guardianship of the Chief Executive until they attain 18 years of age; or (b) a child or young person of a class prescribed by the regulations for the purposes of this definition. 86—Direction not to communicate with, be in company of, harbour or conceal child or young person (1) The Chief Executive may, by notice in writing, direct a specified person not to communicate, or attempt to communicate, (whether in any way or in a way specified in the notice) with a specified child or young person who is in the custody, or under the guardianship, of the Chief Executive during the period specified in the notice. (1a) The Chief Executive may, by notice in writing, direct a specified person not to be in the company of, or otherwise associate with, a specified child or young person who is in the custody, or under the guardianship, of the Chief Executive during the period specified in the notice. (2) The Chief Executive may, by notice in writing, direct a person not to harbour or conceal, or assist another person to harbour or conceal, a specified child or young person who is in the custody, or under the guardianship, of the Chief Executive during the period in the notice. (3) However, the Chief Executive may only give a direction under this section if the Chief Executive believes it is reasonably necessary to— (a) prevent harm to the child or young person; or (b) prevent the child or young person from engaging in, or being exposed to, conduct of a criminal nature. (4) A person who, without reasonable excuse, refuses or fails to comply with a direction under this section is guilty of an offence. (a) for a first offence—Imprisonment for 3 years; or (b) for a second or subsequent offence—Imprisonment for 4 years. (4a) Despite section 267 of the Criminal Law Consolidation Act 1935 or any other Act or law, a child or young person— (a) with whom a person communicates, or attempts to communicate, in contravention of a direction under this section; or (b) in whose company a person is, or with whom a person associates, in contravention of a direction under this section; or (c) who is harboured or concealed in contravention of a direction under this section, commits no offence in relation to that conduct. (5) A notice under this section must be served personally on the person to whom the notice is directed (however, if it is not reasonably practicable to serve a notice personally on a person, or the whereabouts of the person cannot, after reasonable enquiries, be ascertained, the notice may be served on that person in accordance with section 168). (6) Despite a provision of the Evidence Act 1929 or any other Act or law, a child or young person to whom a direction under this section relates is competent, but is not compellable, to give evidence in proceedings relating to a charge of an offence against this section. 87—Offence of harbouring, concealing etc absent child or young person (1) A person must not— (a) harbour or conceal, or assist another person to harbour or conceal, a child or young person; or (b) prevent, or assist another person to prevent, the return of a child or young person to a State care placement, if the person knows that the child or young person is absent from a State care placement without lawful authority. Maximum penalty: Imprisonment for 12 months. State care placement, in relation to a child or young person, means the placement of the child or young person in the care of a person, or in a place, by the Chief Executive pursuant to section 84(1). 88—Unlawful taking of child or young person (1) This section applies to a child or young person placed in the care of a person under this Act. (2) A person who, without lawful excuse— (a) induces or encourages a child or young person to whom this section applies to leave a place in which the child or young person has been placed under this Act; or (b) takes a child or young person to whom this section applies from a place in which the child or young person has been placed under this Act; or (c) harbours or conceals a child or young person contemplated by a preceding subsection, is guilty of an offence. Maximum penalty: Imprisonment for 12 months. Part 3—Transition to long‑term guardianship 89—Certain approved carers may apply to Chief Executive to seek long‑term guardianship order (1) An approved carer in whose care a child or young person has been for a period of at least 2 years (or such shorter period as the Chief Executive may determine) (the proposed guardian) may apply to the Chief Executive for an application to be made in accordance with section 91 for a Court order placing the child or young person under the approved carer's guardianship. (2) An application under subsection (1)— (b) may be made on behalf of a proposed guardian; and (c) must be accompanied by such information and documents as the Chief Executive may reasonably require. (3) The Chief Executive must, as soon as is reasonably practicable after receiving an application, cause an assessment to be undertaken as to whether the proposed guardian is suitable to be the guardian of the child or young person to whom the application relates. 90—Long‑term care plan to be prepared (1) If, following an assessment referred to in section 89(3), the Chief Executive is satisfied that a proposed guardian is suitable to be the guardian of a particular child or young person, the Chief Executive must cause a plan (a long‑term care plan) to be prepared in respect of the child or young person. (2) A long‑term care plan must contain the information required by the regulations (and may contain any other information the Chief Executive thinks fit). 91—Chief Executive to apply to Court for order to place child or young person under long‑term guardianship (1) Subject to this Act, the Chief Executive must, on completion of the preparation of a long‑term care plan in respect of a child or young person, apply to the Court for such orders under section 53 as the Chief Executive considers necessary or appropriate to place the child or young person under the long‑term guardianship of the proposed guardian. (2) An application to the Court under subsection (1) must be made without undue delay. (2a) The Chief Executive must cause a copy of the long‑term care plan in respect of the child or young person to be provided to the Court in any application under subsection (1). (3) The regulations may make further provision in relation to an application under this section (including, to avoid doubt, by prescribing circumstances in which the Chief Executive need not comply with subsection (1)). Part 4—Contact arrangements in respect of children and young people 92—Application of Part (1) This Part applies to the following children and young people: (a) a child or young person who is under the guardianship, or in the custody, of the Chief Executive pursuant to this Act (including, to avoid doubt, a child or young person who is placed in the care of an approved carer); (b) a child or young person who is placed under the guardianship, or in the custody of, a person other than the Chief Executive pursuant to this Act; (c) any other child or young person declared by the regulations to be included in the ambit of this section. (2) This Part does not apply to the following children and young people: (a) a child or young person placed under the long‑term guardianship of a person following an application under section 91; (b) a child or young person placed under the long‑term guardianship of a person (other than the Minister) under the Children's Protection Act 1993; (c) a child or young person of a kind prescribed by the regulations. 93—Contact arrangements to be determined by Chief Executive (1) For the purposes of this Act, contact arrangements in respect of a child or young person to whom this Part applies are to be determined by the Chief Executive. (2) To avoid doubt, the Chief Executive may, for any reason the Chief Executive thinks fit, determine that there is to be no contact between a specified child or young person and a specified person. (3) In making a determination under this section, the Chief Executive must have regard to the following provisions: (a) if the Chief Executive is satisfied that a reunification is likely, the primary aim of the contact arrangements should be to establish or maintain attachment relationships between the child or young person and the person or persons with whom the child or young person is to be reunited; (b) if the Chief Executive is not satisfied that a reunification is likely, or is satisfied that a reunification is unlikely, particular consideration must be given to the need to not undermine or compromise the ability of the child or young person to establish or maintain attachment relationships with their guardian or guardians. (4) Nothing in this Part authorises or requires contact arrangements to be made in favour of a particular person if, in the opinion of the Chief Executive— (a) there is a significant possibility that a child or young person would be at risk in the course of contact with the person; or (b) such contact arrangements would not be consistent with a provision of Chapter 2; or (c) it would otherwise not be in the child or young person's best interest to have contact with the person. (5) A determination under this section— (a) must be by notice in writing; and (b) must set out— (i) the frequency of contact visits in a specified period; and (ii) the duration of each contact visit; and (iii) the venue or venues at which contact visits are to take place; and (iv) the persons who may be present during contact visits; and (v) whether contact visits are to take place under the supervision of a person or persons determined by the Chief Executive, and may make any other provision the Chief Executive thinks appropriate; and (c) must comply with any other requirements set out in the regulations for the purposes of this paragraph, however a failure to comply with this subsection does not, of itself, invalidate a determination. (6) The Chief Executive may, from time to time and by notice in writing, vary, substitute or revoke the contact arrangements in respect of a child or young person. (7) The Chief Executive must cause a copy of each determination under this section, and any variation, substitution or revocation of the determination, to be included as part of the case plan for the child or young person. (8) The regulations may make further provision in respect of contact arrangements (including by prohibiting contact arrangements being made in specified circumstances and prescribing or limiting the kinds of conduct or activities that can be the subject of contact arrangements). 94—Contact Arrangements Review Panel (1) The Minister must, in accordance with the regulations, establish a panel (the Contact Arrangements Review Panel) for the purposes of reviewing contact arrangements under this Part. (2) The Contact Arrangements Review Panel has the functions and powers conferred on it by the regulations. (3) The regulations may make further provisions in relation to the Contact Arrangements Review Panel (including by limiting the jurisdiction of the Contact Arrangements Review Panel to review matters of a specified kind). 95—Review by Contact Arrangements Review Panel (1) Subject to this Part, the following persons may apply to the Contact Arrangements Review Panel for a review of a determination of the Chief Executive under section 93 in respect of contact arrangements relating to a particular child or young person: (a) the child or young person; (b) a person allowed contact with the child or young person pursuant to the determination; (c) a person who is refused contact with the child or young person pursuant to the determination. (2) An application under subsection (1)— (a) must be made within 14 days after the Chief Executive's determination (or such longer period as the Contact Arrangements Review Panel may allow); and (b) must be made in a manner and form determined by the Contact Arrangements Review Panel. (3) However, the Contact Arrangements Review Panel may only allow an extension of time under subsection (2)(a) if satisfied that special circumstances exist. (4) The Contact Arrangements Review Panel need not conduct a review under this section if the Contact Arrangements Review Panel believes that the application— (a) is frivolous, vexatious, misconceived or lacking in substance; or (b) is being used for an improper purpose; or (c) is otherwise an abuse of process, and, in such a case, a further application relating to the same matter may only be made with the permission of the Contact Arrangements Review Panel. (5) The Contact Arrangements Review Panel may, on a review under this section— (a) affirm the determination that is being reviewed; or (b) vary the determination that is being reviewed; or (c) set aside the determination being reviewed and— (i) substitute its own determination; or (ii) send the matter back to the Chief Executive for determination in accordance with any directions or recommendations that the Contact Arrangements Review Panel considers appropriate. (6) The Chief Executive's determination as affirmed, varied or substituted by the Contact Arrangements Review Panel— (a) will be taken to be a determination of contact arrangements in respect of the relevant child or young person; and (b) has effect from the time specified by the Contact Arrangements Review Panel. (7) A determination that has been affirmed, varied or substituted under this section cannot be the subject of a further review by the Contact Arrangements Review Panel. (8) Subject to this Act, the Contact Arrangements Review Panel may determine its own procedures. (9) The regulations may make further provision in relation to reviews under this section. Part 5—Voluntary custody agreements 96—Voluntary custody agreements (1) Subject to this section, the parents or guardians of a child or young person and the Chief Executive may enter into an agreement (a voluntary custody agreement) under which the Chief Executive will have the custody of the child or young person while the agreement has effect. (2) If— (a) the whereabouts of a particular parent or guardian of a child or young person cannot, after reasonable enquiries, be ascertained; or (b) a particular parent or guardian of a child or young person has failed to respond within a reasonable period of time to a request that they enter into a voluntary custody agreement; or (c) it is not, in all the circumstances of the case, reasonably practicable to request a particular parent or guardian of a child or young person to enter into a voluntary custody agreement, the remaining parent or guardian (as the case requires) may enter into a voluntary custody agreement in respect of the child or young person. (3) Negotiations for a voluntary custody agreement may be initiated by a parent or guardian of a child or young person, or by a child or young person of or above the age of 16 years. (4) A voluntary custody agreement in relation to a child or young person of or above the age of 16 years can only be entered into, or extended, with the consent of the child or young person. (5) If the Chief Executive is satisfied that a child or young person under the age of 16 years has a sufficient understanding of the consequences of a voluntary custody agreement, the child or young person must be consulted before a voluntary custody agreement relating to them can be entered into or extended. (6) A voluntary custody agreement— (a) must be in writing; and (b) may be terminated at any time— (i) by a parent or guardian who is a party to the agreement; or (ii) by agreement between the parties to the agreement; and (c) will be taken to have been terminated on any order being made under this Act or any other Act or law placing the child or young person under the guardianship or in the custody of a person. (7) A termination of a voluntary custody agreement under subsection (6)(b)(i) must be by notice in writing to the Chief Executive. (8) If a voluntary custody agreement relates to a child or young person of or above the age of 16 years, the Chief Executive must, if the Chief Executive is satisfied that proper arrangements exist for the care of the child or young person, terminate the agreement on the request of the child or young person. (9) Unless the agreement is terminated earlier under this section, a voluntary custody agreement— (a) has effect for the period (not exceeding 3 months) specified in the agreement; and (b) may, on its expiration, be extended by the parties to the agreement (but not so that the agreement will operate for a total period of more than 6 months). Part 6—Foster care agencies 97—Interpretation For the purposes of this Part, a reference to the business of a foster care agency will be taken to be a reference to the placement of children and young people in the care of approved carers (whether on a commercial basis or otherwise). 98—Foster care agencies to be licensed A person must not carry on the business of a foster care agency unless the person is the holder of a licence under this Part. (a) in the case of a natural person—Imprisonment for 2 years; or 99—Licence to carry on business as foster care agency (1) The Chief Executive may, on an application under this section and by notice in writing, grant a licence to a person to carry on the business of a foster care agency. (2) An application for a licence— (b) must be accompanied by any information or documents as may be required by the Chief Executive. (3) The Chief Executive must not grant a licence to a person unless satisfied that— (a) the person is a fit and proper person to hold a licence (including by having regard to the qualifications and experience in the field of foster care, or any other related field, of the persons who will be carrying on or managing the business, and of any employees of the business); and (b) the person (or, in the case of a body corporate, each director of the body corporate) is not a prohibited person under the Child Safety (Prohibited Persons) Act 2016; and (c) a working with children check has been conducted in relation to the person (or, in the case of a body corporate, in relation to each director of the body corporate) within the preceding 5 years; and (d) the system of management within the agency is appropriate; and (e) the procedures proposed by the agency for the selection, approval, training and support of approved carers are appropriate; and (f) the procedures proposed by the agency for the placement and supervision of children and young people are appropriate, and may refuse to grant a licence for any reason the Chief Executive thinks fit. (4) A licence may be conditional or unconditional. (5) The Chief Executive may, by notice in writing, vary, substitute or revoke a condition of a licence. (6) The holder of a licence under this Part must not refuse or fail to comply with a condition of the licence. (7) Subject to this Act, a licence remains in force for a period of 12 months from the day on which it was issued, and may be renewed in accordance with the regulations for successive periods of 12 months. 100—Cancellation of licence (1) The Chief Executive may, by notice in writing, cancel a licence under this Part if the Chief Executive reasonably suspects that— (a) a child or young person placed in the care of an approved carer pursuant to the licence is not being adequately cared for; or (b) the provisions of this Act are not being complied with by the licensed foster care agency to which the licence relates; or (c) the holder of the licence no longer meets a requirement for granting the licence under section 99(3); or (d) the holder of the licence has refused or failed to comply with a condition of the licence; or (e) the holder of the licence (or, if the holder of the licence is a body corporate, a director of the body corporate) is a prohibited person under the Child Safety (Prohibited Persons) Act 2016; or (f) a working with children check has been not conducted in relation to the holder of the licence (or, if the holder of the licence is a body corporate, in relation to a director of the body corporate) within the preceding 5 years; or (g) it is otherwise appropriate that the licence be cancelled. (2) The Chief Executive must (except in relation to a cancellation for a reason referred to in subsection (1)(d) or (e)) give the holder of a licence under this Part at least 28 days notice in writing of the Chief Executive's intention to cancel the licence. 101—Record keeping (1) The holder of a licence under this Part must make such records as may be required by the regulations. (2) The holder of a licence under this Part must keep the records referred to in subsection (1) in accordance with the requirements set out in the regulations. 102—Ongoing reviews of approved carers by agency The holder of a licence under this Part must, in relation to each approved carer in whose care the foster care agency places children and young people pursuant to the licence— (a) undertake regular assessments of the provision of care by the approved carer under this Act; and (b) assess any requirement of the approved carer for financial or other assistance.