Part 10Proceedings before the Youth Court of South Australia

Part 10—Proceedings before the Youth Court of South Australia Division 1—Parties and procedures etc in relation to Court orders 103—Application for Court orders (1) An application for an order under this Part 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 an order. (2) Subject to this section, an application for an order under this Part (other than an order under section 115) may be made— (a) if the applicant— (i) reasonably suspects that a child or young person is at risk of harm; and (ii) is of the opinion that the making of such an order is necessary or appropriate to— (A) protect the child or young person from harm; or (B) allow 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; and (ii) it would be in the best interests of the child or young person for the arrangements to be the subject of such an order; or (c) if the applicant is acting under Division 5; 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. (3) An application for an order under section 115 may be made if the applicant is of the opinion— (a) that there is information or evidence leading to a reasonable suspicion that a child or young person is at risk of harm; and (b) that further assessment of the matter is warranted; and (c) that— (i) the assessment cannot properly proceed without an order of the Court under section 115; or (ii) it is desirable that the child or young person be protected from the potential risk of harm while the matter is being assessed. (4) Without limiting any other provision of this Part, a person may apply for more than 1 order, or more than 1 kind of order, in a single application made to the Court. (5) Before applying for a prescribed Court order in relation to a child or young person removed under this Act, the Chief Executive must assess the viability of reunification and, if reunification is viable, the period within which reunification is likely to occur. prescribed Court order means the following orders of the Court: (a) an order placing a child or young person under the guardianship of the Chief Executive or another person (except a specified person guardianship order made under section 128); (b) an order granting custody of a child or young person to the Chief Executive or another person; (c) any other order prescribed by the regulations. 104—Parties to proceedings (1) Each of the following persons is a party to an application for an order in relation to a child or young person under this Part, or for the variation, extension or revocation of such an order: (a) the applicant; (b) the child or young person; (c) each parent or guardian of the child or young person; (d) in the case of an application for a specified person guardianship order, or an order placing the child or young person in the custody, or under the guardianship, of a specified person or persons—each person under whose custody or guardianship the child or young person is to be placed under the order sought; (e) in the case of an application for revocation or discharge of a specified person guardianship order—the Chief Executive. (2) If the Court is satisfied in any proceedings that it should make an order under this Part 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. 105—Copy of application to be served on parties (1) A copy of an application for an order under section 115 or 116, 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 10 years of age—the child or young person to whom the application relates; 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 person, or the whereabouts of the person cannot, after reasonable enquiries, be ascertained, the copy of the application may instead be served on that person in accordance with section 51(2)(b) or (c) of the Legislation Interpretation Act 2021 or in any other manner authorised by the Court. (4) The Court must not proceed to hear an application for an order under section 115 or 116 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. 106—Approved carers to be provided opportunity to be heard (1) Without limiting any other provision of this Act, the Court should, unless the Court is of the opinion that it would not be in the best interests of the child or young person to do so, allow an approved carer of a child or young person a reasonable opportunity to make representations to the Court in any proceedings relating to the child or young person under this Act. (2) The Court may determine the manner and form in which such representations are to be heard. 107—Other interested persons may be heard (1) 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. (2) The Court may determine the manner and form in which such submissions are to be heard. 108—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. 109—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. 110—Duties of legal practitioners 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, in the case of a child or young person who is 10 or more years of age, take reasonable steps to meet with the child or young person; (b) the legal practitioner must, as far as is reasonably practicable, act in accordance with any instructions given by the child or young person; (c) 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, having regard to Part 2; (d) 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); (e) 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 contents and effect of any documents given to, or orders relating to, the child or young person under this Act; (f) 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. 111—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; or (c) the child or young person has expressed a desire to not do so. (3) Subsection (1) applies whether or not the child or young person is represented by a legal practitioner in the proceedings. Division 2—Case management 112—Expeditious hearings and 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) 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. (4) The Court may, on an adjournment, make such of the orders it is empowered to make under this Part as it thinks appropriate. 113—Conferences of parties (1) The Court may, if the Court considers it desirable to do so, convene a conference between the parties to proceedings for the purpose of determining the matters that are in dispute in the proceedings, or resolving any such matters. (2) A conference may be convened before or during the hearing of proceedings. (3) 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. (4) A conference is to be conducted in accordance with any rules determined by the Court. (5) Counsel for parties to the proceedings are to be admitted to such a conference. (6) Evidence of anything said or done at such a conference is, except by consent of all parties to the proceedings, not admissible in the proceedings. Division 3—Court may convene family group conference 114—Court may convene family group conference (1) The Court may, if the Court considers that it would be appropriate in all of the circumstances to make arrangements in relation to the care of a child or young person by means of a family group conference, convene a family group conference in respect of the child or young person. (2) A family group conference convened under subsection (1) is to be conducted by a coordinator nominated by the Judge of the Court. (3) Subject to this Act, the provisions of Part 8 (including, in the case of a family group conference convened in respect of an Aboriginal or Torres Strait Islander child or young person, any modifications made by Part 4) apply to a family group conference convened by the Court under this section as if it were a conference convened by the Chief Executive under that Part. Division 4—Court orders 115—Assessment orders (1) The Court may, on an application under this Part, make an order (an assessment order) granting custody of a specified child or young person to the Chief Executive for a specified period not exceeding 8 weeks to enable an assessment of the circumstances of the child or young person to be carried out. (2) The Court may only make an assessment order in relation to a particular child or young person once in any 6 month period. (3) An application for an assessment order— (a) may only be adjourned once (and the period of adjournment cannot exceed 7 days); and (b) must be determined within 2 weeks after the application is made. (4) The Court may, on an application by the Chief Executive, extend the period that an assessment order remains in force for an additional period not exceeding 4 weeks. (5) The Court may, on making an assessment order, make such ancillary orders as the Court thinks fit (including, to avoid doubt, orders authorising the Chief Executive to take such action as may be reasonably necessary to facilitate the assessment). (6) An order made by the Court under this section is not subject to appeal. 116—Other orders that may be made by Court (1) If, on an application under this Act and having regard to Part 2, 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 or mental health assessment); (d) in the case of a child or young person who is at risk of being removed from the State for a purpose set out in section 5(2)(c)(i) or (ii)—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; This is also a specified person guardianship order. (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 for a specified period; (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 a specified course of instruction or a programmed activity in order to increase their capacity to care for the child or young person. (2) 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. 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 subsection (4). (3) Subject to this section, an order under this section has effect for the period specified in the order. (4) If the Court places a child or young person under the guardianship of the Chief Executive or any other person or persons, 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. (5) An order under this section ceases to have effect when the child or young person to whom the order relates attains 18 years of age. 117—Interim orders (1) The Court may make such interim orders in relation to an application under this Part as the Court thinks fit. (2) However, interim orders relating to an assessment order must not be inconsistent with section 115. 118—Limitations on orders that may be made by Court (1) Nothing in this Act authorises the Court to make orders of the following kinds (including in an interim order, or as part of any other order, under this Part): (a) an order relating to the placement (including removing a child or young person from a particular placement) of a child or young person who is in the custody, or under the guardianship, of the Chief Executive; (b) an order making contact arrangements (however described) in respect of a child or young person (including by varying or revoking arrangements made by the Chief Executive); and, to the extent that an order of the Court purports to do so, the order will be void and of no effect. (2) The Court must not, on an application for an order placing a child or young person in the custody, or under the guardianship, of a person, place a child or young person in the custody, or under the guardianship, of a person other than a person specified in the application except with the agreement of the Chief Executive. 119—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 Part 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 Part 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 116 (however the interim orders will only have effect for the period of the adjournment). 120—Consent orders (1) Without limiting section 118 or 119, the Court may, in proceedings under this Act, make an order under this Part with the consent of such of the parties to the proceeding who participate in the proceedings. (2) An order may be made without consideration of the matters that the Court must otherwise consider in the proceeding. 121—Court may make declaration as to name of child or young person (1) Without limiting the orders that can be made under this Part, 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, the Court may make a declaration of the name by which the child or young person is to be known. (2) However, the Court may only make a declaration under this section if the Court is satisfied that it is in the best interests of the child or young person to do so. (3) If the Court makes a declaration under this section— (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 set out 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. (4) 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. (5) Nothing in this section prevents the name of a child or young person being later changed in accordance with the law of the State. 122—Variation, revocation or discharge of orders (1) The Court may, on an application by a party to the proceedings, vary or revoke an order made under this Part. (2) The Court may, on an application by the Chief Executive, discharge an order made under this Part. 123—Orders for costs If the Court dismisses an application for an order under section 116 (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. 124—Noncompliance with orders (1) A person who, having been personally served with an order made by the Court under this Part, contravenes the order is guilty of an offence. Maximum penalty: Imprisonment for 2 years. (2) However, subsection (1) does not apply to the child or young person to whom the order relates. Division 5—Specified person guardianship orders 125—Certain approved carers may apply to Chief Executive to seek specified person 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 under this Division for a specified person guardianship order placing the child or young person under the guardianship of the proposed guardian until they attain 18 years of age. (2) An application under subsection (1)— (a) must be made in a manner and form determined by the Chief Executive; and (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 under subsection (1)— (a) 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; and (b) make a determination as to whether, in the opinion of the Chief Executive, the proposed guardian is suitable to be the guardian of the child or young person. 126—Guardianship care plan to be prepared (1) If the Chief Executive determines that the proposed guardian is suitable to be the guardian of the child or young person to whom an application relates, the Chief Executive must cause a plan (a guardianship care plan) to be prepared in respect of the child or young person. (2) A guardianship care plan must contain the information required by the regulations (and may contain any other information the Chief Executive thinks fit). 127—Chief Executive to apply to Court for specified person guardianship order (1) Subject to this Act, the Chief Executive must, on completion of the preparation of a guardianship care plan in respect of a child or young person, apply to the Court for a specified person guardianship order and any other order under this Part that the Chief Executive considers necessary or appropriate. (2) However, the Chief Executive need not apply to the Court under subsection (1)— (a) if following the completion of a guardianship care plan, the Chief Executive— (i) becomes aware (by any means) of information not considered in the course of an assessment under section 125(3), or in the course of preparing a guardianship care plan under section 126(1); and (ii) having considered the information, is of the opinion that the proposed guardian is not suitable to be the guardian of the relevant child or young person; or (b) in any other circumstances prescribed by the regulations. (3) An application to the Court under subsection (1) must be made without undue delay. (4) The Chief Executive must cause a copy of the guardianship care plan in respect of the child or young person to be provided to the Court in any application under subsection (1). 128—Court may make specified person guardianship order (1) If, on an application under this Act and having regard to Part 2, the Court is satisfied that it is in the best interests of a child or young person to do so, the Court may make a specified person guardianship 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. (2) A specified person guardianship order ceases to have effect when the child or young person to whom the order relates attains 18 years of age. 129—Onus on objector to prove order should not be made (1) If in proceedings under this Division a person objects to the making of a specified person guardianship order by the Court, the onus is on the person to prove to the Court that the specified person guardianship order should not be made. (2) However, subsection (1) does not apply if the person objecting to the making of the order is— (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. 130—Variation or revocation of specified person guardianship orders etc (1) The Court may, on an application by a party to the proceedings, vary or revoke a specified person guardianship order. (2) On the revocation of a specified person guardianship order (including, to avoid doubt, a specified person guardianship order made under section 116(1)(h)), the child or young person to whom the order relates will, unless the Court otherwise orders, by force of this section, be taken to be under the guardianship of the Chief Executive until they attain 18 years of age. (3) On the death of all persons under whose guardianship a child or young person is placed under a specified person guardianship order (including, to avoid doubt, a specified person guardianship order made under section 116(1)(h)), the child or young person to whom the order relates will, unless the Court otherwise orders, by force of this section, be taken to be under the guardianship of the Chief Executive until they attain 18 years of age. Division 6—Court may issue warrants for apprehension and return of certain children and young people 131—Court may issue warrant for apprehension and return of certain children and young people (1) An application for a warrant under this section may be made by— (b) a police officer of or above the rank of inspector; or (c) a person authorised by the Chief Executive to apply for such a warrant, where— (d) a child or young person has been placed in the custody, or under the guardianship, of the Chief Executive under this Act or a repealed Act but the Chief Executive has not been able to take the child or young person into custody; or (e) a child or young person who has been placed in the custody, or under the guardianship, of the Chief Executive or another person or persons under this Act or a repealed Act is absent from a State care placement without lawful authority. (2) The Court may, on an application under this section, if satisfied by information given on oath, personally or by affidavit that— (a) it is reasonably necessary to return a specified child or young person to the custody of the Chief Executive; or (b) a specified child or young person has been unlawfully removed from the custody or guardianship of the Chief Executive or another person or persons; or (c) a specified child or young person has been lawfully removed from the custody or guardianship of the Chief Executive or another person or persons but kept beyond the period allowed for the removal, issue a warrant under this section for the apprehension of the child or young person. (3) An application for the issue of a warrant under this section— (a) may be made either personally or by telephone; and (b) must be made in a manner and form determined by the Court; and (c) must be accompanied by such documents and information as may be required by the Court. 132—Care of children and young people apprehended on interstate warrants (1) If a child or young person is apprehended in this State on an interstate child protection warrant, the Chief Executive may arrange for the safe and appropriate care of the child or young person until it is practicable to take the child or young person before a magistrate or court. (2) The Chief Executive may, for the purposes of subsection (1), exercise any power the Chief Executive may have under this Act in relation to a child or young person apprehended on an interstate child protection warrant. interstate child protection warrant means a warrant (however described) corresponding to a warrant issued under section 131 issued in another State or Territory.