Part 6Court orders relating to children and young people

Chapter 6—Court orders relating to children and young people Part 1—Applications for Court orders 49—Who may make application for Court orders An application for an order under section 53 may be made by— (a) the Minister; or (b) the Chief Executive; or (c) a person authorised by the Chief Executive to apply for such orders. 50—When application can be made for Court orders (1) An application for an order under section 53 must be made if an instrument of guardianship or a restraining notice in relation to a child or young person has been issued. (2) An application under subsection (1) must be made as soon as is practicable after the issue of the instrument of guardianship or restraining notice (and in any case within the applicable guardianship period or restraining notice period). (3) An application for an order under section 53 may be made— (a) if the applicant— (i) reasonably suspects that a child or young person is at risk; and (ii) is of the opinion that the making of such orders is necessary or appropriate to protect the child or young person from harm, or to allow the exercise of powers or the performance of functions under this Act in respect of the child or young person; or (b) if the applicant is of the opinion that— (i) proper arrangements exist for the care and protection of a child or young person (whether pursuant to a decision of a family group conference or an exercise of administrative powers under the Family and Community Services Act 1972); and (ii) the child or young person would be likely to suffer psychological harm if the arrangements were to be disturbed; and (iii) it would be in the best interests of the child or young person for the arrangements to be the subject of such orders; or (c) if the applicant is acting in accordance with Chapter 7 Part 3; or (d) if the order is to be made with the consent of the parties to the proceeding; or (e) in any other circumstances with the permission of the Court. (4) Before applying for a prescribed Court order in relation to a child or young person removed from a person under this Act, the Chief Executive must assess the likelihood of a reunification occurring and, if reunification is likely, the period within which reunification is likely to occur. prescribed Court order means an order of the Court under section 53— (a) placing a child or young person under the guardianship of the Chief Executive; or (b) placing a child or young person under the guardianship of a person other than the Chief Executive; or (c) granting custody of a child or young person to the Chief Executive or another person; or (d) of a kind specified by the regulations for the purposes of this definition. 51—Parties to proceedings (1) The following persons are parties to an application for an order under section 53, or for the variation, extension or revocation of such an order: (a) the applicant; (b) the child or young person who is the subject of the application; (c) each parent or guardian of the child or young person. (2) If the Court is satisfied in any proceedings that it should make an order under section 53 binding on a person who is not a party to the proceedings, the Court— (a) may join that person as a party to the proceedings; and (b) must allow the person a reasonable opportunity to make representations to the Court as to why such an order should not be made. (3) Without limiting subsection (2), the Court should, unless the Court is of the opinion that it would not be in the interests of the child to do so, allow— (a) in the case of an application for the placement of a child or young person under the guardianship of a person or persons other than the Chief Executive—the person or persons; or (b) if the child or young person is in the care of an approved carer—the approved carer, a reasonable opportunity to make representations to the Court in any relevant proceedings. 52—Copy of application to be served on parties (1) A copy of an application for an order under section 53, or for the variation, extension or revocation of such an order, must be served personally on— (a) if the child or young person who is the subject of the application is of or above the age of 10 years—the child or young person; and (b) each other party to the application. (2) A copy of an application must be endorsed with a notification of the place, date and time for the hearing of the application. (3) If it is not reasonably practicable to serve a copy of an application personally on a party, or the whereabouts of such a party cannot, after reasonable enquiries, be ascertained, the copy of the application may be served on that person in accordance with section 168 or in any other manner authorised by the Court. (4) The Court must not proceed to hear an application for an order under section 53 unless each party served with the application has had at least 3 business days of notice of the hearing. (5) The Court may, for any proper reason, dispense with service under this section, or reduce the period between service and the time for the hearing of the application. Part 2—Orders that can be made by Court 53—Orders that may be made by Court (1) If, on an application under this Act, the Court is satisfied that it is appropriate to do so, the Court may make 1 or more of the following orders in relation to a child or young person: (a) an order requiring— (i) the child or young person; or (ii) a parent or guardian of the child or young person; or (iii) any other person who has the care of the child or young person, to enter into a written undertaking (for a specified period not exceeding 12 months) to do a specified thing, or to refrain from doing a specified thing, and, if the Court thinks fit, requiring the child or young person to be under the supervision of the Chief Executive or some other specified person or body during the period of the undertaking; (b) an order authorising or requiring examination and assessment of the child or young person; (c) an order authorising or directing the assessment, by such person as the Court may specify, of a parent, guardian or other person who has, or is responsible for, the care of the child or young person to determine the capacity of that person to care for the child or young person (including, to avoid doubt, a drug and alcohol assessment); (d) in the case of a child or young person who is at risk of being removed from the State for a purpose referred to in section 18(1)(c)—such orders as the Court thinks necessary or appropriate to prevent the child or young person from being so removed, including (without limiting the generality of this paragraph)— (i) an order preventing a specified person from removing the child or young person from the State; or (ii) an order requiring that the child or young person's passport be held by the Court for a period specified in the order or until further order; (e) an order placing the child or young person, for a specified period not exceeding 12 months, under the guardianship of the Chief Executive; (f) an order placing the child or young person, for a specified period not exceeding 12 months, under the guardianship of a specified person or persons (not exceeding 2); (g) an order placing the child or young person under the guardianship of the Chief Executive until they attain 18 years of age; (h) an order placing the child or young person under the guardianship of a specified person or persons (not exceeding 2) until they attain 18 years of age; (i) an order granting custody of the child or young person, for a specified period not exceeding 12 months, to— (i) a parent or guardian of the child or young person; or (ii) a member of the child or young person's family; or (iii) any other person that the Court thinks appropriate in the circumstances of the case; (j) an order granting custody of the child or young person to the Chief Executive; (k) an order directing a person to do 1 or more of the following: (i) to cease or refrain from residing in the same premises as the child or young person; (ii) to refrain from coming within a specified distance of a specified place; (iii) to do any specified thing, or to refrain from doing any specified thing, in order to minimise the risk of harm to the child or young person; (l) an order revoking an instrument of guardianship or a restraining notice; (m) such consequential or ancillary orders as the Court thinks fit, including (without limiting the generality of this paragraph) an order— (i) requiring a person who has guardianship or custody of the child or young person pursuant to an order of the Court to care for the child or young person in a specified way; or (ii) requiring a parent, guardian or other person who has the care of a child or young person to undertake specified courses of instruction, or programmed activities, in order to increase their capacity to care for the child or young person. (1a) Without limiting the orders that can be made under subsection (1), the Court may make an order placing a child or young person under the guardianship of a specified parent of the child or young person. Note— Such an order would confer guardianship on the specified parent to the exclusion of the rights of any other parent of the child or young person—see section 68. (1b) Without limiting the orders that can be made under subsection (1), the Court may, if the Court makes an order placing a child or young person under the guardianship of the Chief Executive or a specified person or persons— (a) until the child or young person attains 18 years of age; or (b) such that the child or young person has been under the guardianship of the Chief Executive, or the person or persons, for a period of at least 24 continuous months, make a declaration of the name by which the child or young person is to be known. (1c) However, the Court may only make a declaration under subsection (1b) if the Court is satisfied that it is in the best interests of the child or young person to do so. (1d) If the Court makes a declaration under subsection (1b)— (a) the Registrar of the Court must give notice of the declaration to the Registrar of Births, Deaths and Marriages in accordance with any requirements in the regulations; and (b) the Registrar of Births, Deaths and Marriages must, as soon as is reasonably practicable after receiving the notice, register the change of name under section 28(1) of the Births, Deaths and Marriages Registration Act 1996. (1e) Sections 26, 27 and 28(2) and (3) of the Births, Deaths and Marriages Registration Act 1996 do not apply in relation to a change of name under this section. (1f) Nothing in this section prevents the name of a child or young person being later changed in accordance with the law of the State. (2) The Court may make such interim orders in relation to an application under this Act as the Court thinks fit. (3) Subject to this section, an order under this section has effect for the period specified in the order. (4) An order under this section ceases to have effect when the child or young person to whom the order relates turns 18 years of age. 54—Consent orders (1) The Court may, in proceedings under this Act, make an order under section 53 with the consent of the parties to the proceeding. (2) An order may be made without consideration of the matters that the Court must otherwise consider in the proceeding. 55—Variation, revocation or discharge of orders (1) The Court may, on an application by a party to the proceedings, vary or revoke an order under section 53. (2) The Court may, on an application by the Chief Executive, discharge an order under section 53. 56—Adjournments (1) All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case. (2) Without limiting subsection (1), once a trial under this Act commences— (a) it should, as far as is practicable, continue without adjournment until all evidence has been presented; and (b) judgement should be delivered as soon as is practicable after all evidence has been presented. (3) The Court may, on an adjournment, make such of the orders it is empowered to make under section 53 as it thinks appropriate (and such an order will have effect for the period of the adjournment). (4) A person who, having been served personally with an order made under this section, contravenes or fails to comply with the order is guilty of an offence. (5) Subsection (4) does not apply to a child or young person to whom the order relates. 57—Court not bound by rules of evidence Subject to this Act, in any proceedings under this Act the Court— (a) is not bound by the rules of evidence but may inform itself as it thinks fit; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. 58—Standard of proof A fact to be proved in proceedings under this Act (other than proceedings for an offence) is to be proved on the balance of probabilities. 59—Onus on objector to prove order should not be made (1) This section applies to proceedings on an application to the Court for orders relating to a child or young person who is, pursuant to an order of the Court, under the guardianship, or in the custody, of the Chief Executive or another person or persons. (1a) However, this section does not apply to proceedings of a kind prescribed by the regulations. (2) If in proceedings to which this section applies a person objects to the making of an order by the Court, the onus is on the person to prove to the Court that the order should not be made. (3) However, subsection (2) does not apply where the person objecting to the making of the order is— (a) the Crown; or (b) if the Court is satisfied that the child or young person to whom the proceedings relate is not being unduly influenced by any person to object to the making of the order—the child or young person. 60—Orders for costs If the Court dismisses an application for an order under section 53 (not being an application for a variation or revocation of an order), the Court may make such order for costs against the Crown in favour of any other party to the proceedings as the Court thinks fit. 61—Non-compliance with orders A person who, having been personally served with an order made by the Court under section 53, contravenes or fails to comply with the order is guilty of an offence. Part 3—Child or young person to be heard in proceedings 62—Views of child or young person to be heard (1) In any proceedings under this Act, a child or young person to whom the proceedings relate must be given a reasonable opportunity to personally present to the Court their views related to their ongoing care and protection. (2) However, subsection (1) does not apply if the Court is satisfied that— (a) the child or young person is not capable of doing so; or (b) to do so would not be in the best interests of the child or young person. (3) Subsection (1) applies whether or not the child or young person is represented by a legal practitioner in the proceedings. Part 4—Representation of children and young people 63—Legal practitioners to comply with this section when representing child or young person (1) In acting for a child or young person under this Act, a legal practitioner must, to the extent that it is consistent with the legal practitioner's duty to the court to do so, comply with the following provisions: (a) the legal practitioner must, as far as is reasonably practicable, act in accordance with any instructions given by the child or young person; (b) to the extent that the child or young person has not given, or is not capable of giving, instructions, the legal practitioner must act in accordance with the legal practitioner's own view of the best interests of the child or young person; (c) the legal practitioner must, in a manner appropriate to the capacity of the child or young person to understand, explain to the child or young person the nature of the legal practitioner's role in relation to the child or young person (including any limitations on the legal practitioner's ability to act in accordance with their instructions); (d) in any proceedings before the Court, the legal practitioner must explain to the Court the basis on which submissions are made, having regard to the preceding paragraphs. (2) A legal practitioner cannot, in complying with this section, be held to have breached any code of professional etiquette or ethics, or to have departed from any accepted form of professional conduct. 64—Limitations on orders that may be made if child or young person unrepresented (1) Subject to this section, the Court must not hear an application under this Act unless— (a) the child or young person to whom the application relates is represented in the proceedings by a legal practitioner; or (b) the Court is satisfied that the child or young person has made an informed and independent decision not to be so represented. (2) However, the Court may proceed to hear an application under this Act in the absence of legal representation if the Court is satisfied that the application should be heard as a matter of urgency (however in such a case the Court should make interim orders in respect of the application and then adjourn the proceedings so as to enable the child or young person to be represented by a properly instructed legal practitioner if they so wish). (3) The Court may, in interim orders under subsection (2), make any order the Court could have made under section 53 (however the interim orders will only have effect for the period of the adjournment). (4) A person who, having been served personally with an interim order made under subsection (2), contravenes or fails to comply with the order is guilty of an offence. (5) Subsection (4) does not apply to a child or young person to whom the interim order relates. Part 5—Miscellaneous 65—Conference of parties (1) If the Court considers it desirable to do so, the Court may, before or during the hearing of proceedings, convene a conference between the parties to the proceedings for the purpose of determining what matters are in dispute, or resolving any matters in dispute. (2) A judicial officer of the Court, other than the one who is hearing or is to hear the proceedings, will preside over such a conference. (3) Counsel for parties to the proceedings are to be admitted to such a conference. (4) Evidence of anything said or done at such a conference is inadmissible, except by consent of all parties to the proceedings, in the proceedings. 66—Interested persons may be heard In any proceedings under this Act relating to a child or young person, the Court may, on the application of— (a) a member of the child or young person's family; or (b) a person who has at any time had the care of the child or young person; or (c) a person who has counselled, advised or aided the child or young person, hear submissions the applicant wishes to make in respect of the child or young person, despite the fact that the applicant is not a party to the proceedings. 67—Court may refer a matter to a family group conference Without limiting the reasons for which the Court may adjourn proceedings under this Act, the Court may adjourn the hearing of an application for the purpose of referring specified matters to a family group conference for consideration and report to the Court by the conference. 68—Effect of guardianship order If the Court places a child or young person under the guardianship of the Chief Executive or any other person or persons under section 53, the Chief Executive or the other person or persons is, or are, the lawful guardian, or guardians, of the child or young person to the exclusion of the rights of any other person. Chapter 7—Children and young people in care Part 1—Approved carers Division 1—Preliminary 69—Interpretation In this Chapter— out of home care means— (a) care provided to a child or young person where— (i) the child or young person is under the guardianship or custody of the Chief Executive; and (ii) the care is provided by a person with whom the child or young person is placed pursuant to section 84; and (iii) the care is provided on a residential basis in premises other than the child's home; and (iv) the provider of the care receives, or may receive, payment, or financial or other assistance, in relation to the care provided; or (b) any other care of a kind declared by the regulations to be included in the ambit of this definition, but does not include care of a kind declared by the regulations to be excluded from the ambit of this definition. 70—Chief Executive may establish different categories of approved carers (1) The Chief Executive may establish such categories of approved carer as the Chief Executive from time to time considers appropriate. (2) Subject to this Act, the Chief Executive may determine the circumstances in which children or young people are to be placed with a particular category of approved carer. (3) To avoid doubt, a determination under this section must be consistent with any relevant policies published under section 19.