Children, Young Persons and Their Families Amendment Act 2013

Children, Young Persons and Their Families Amendment Act 2013

An Act to amend the Children, Young Persons and Their Families Act 1997

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Children, Young Persons and Their Families Amendment Act 2013 .

2.   Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3.   Principal Act

In this Act, the Children, Young Persons and Their Families Act 1997 is referred to as the Principal Act.

4.    Section 3 amended (Interpretation)

Section 3(1) of the Principal Act is amended as follows:

(a) by omitting the definition of advisory panel ;

(b) by inserting "family group" after "a" in the definition of family group conference ;

[Commences: Never commenced

(c) by inserting the following definition after the definition of family group conference :

family meeting means a family meeting convened under section 29A or 53 ;

]

(d) by omitting paragraph (c) from the definition of information-sharing entity and substituting the following paragraph:

(c) a person conducting an establishment, within the meaning of the Health Service Establishments Act 2006 ; or

(e) by inserting the following definition after the definition of State :

supervision order has the meaning given by section 42A ;

5.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

6.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

7.    Section 11 amended (Voluntary care agreement)

Section 11 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsections:

(1)  In this section –

extension period means –

(a) 12 months for an agreement made under subsection (1A) in relation to a child if the Secretary considers that –

(i) the child has special needs arising from a disability; or

(ii) special circumstances exist and it is in the best interests of the child; or

(b) 3 months in any other case;

initial period means –

(a) 6 months for an agreement made under subsection (1A) in relation to a child if the Secretary considers that –

(i) the child has special needs arising from a disability; or

(ii) special circumstances exist and it is in the best interests of the child; or

(b) 3 months in any other case.

(1A)  If the guardians of a child temporarily are unable to care for or maintain the child or exercise adequate supervision of, and control over, the child –

(a) the guardians, acting together, and the Secretary may enter into an agreement under which the Secretary will have the care and custody of the child for a period not exceeding the initial period specified in the agreement; and

(b) before the termination of a care agreement, the guardians, acting together, and the Secretary may extend the agreement for a period not exceeding the extension period.

(b) by omitting from subsection (2) " subsection (1)  –" and substituting " subsection (1A)  –";

(c) by omitting subsections (3) and (4) and substituting the following subsections:

(3)  Despite subsection (1A)(a) , the Secretary may not enter into a care agreement if –

(a) the Secretary has reasonable grounds for suspecting or believing, or knows, that the child is at risk for any reason other than that the guardians are or will be temporarily unable to care for or maintain the child or exercise adequate supervision of, and control over, the child; and

(b) the Secretary reasonably suspects that the guardians cannot or will not be able, while temporarily being without the care of the child, to change their behaviours so that when the child is returned to their care there will be no such risk to the child.

(4)  Despite subsection (1A)(b) , a care agreement may not be extended so that it will operate for a total period of more than –

(a) 18 months in the case where the Secretary, in making the agreement, considered that –

(i) the child had special needs arising from a disability; or

(ii) special circumstances exist and it is in the best interests of the child; or

(b) 3 months in any other case.

8.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

9.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

10.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

11.    Part 5, Division 1AA inserted

Before Division 1 of Part 5 of the Principal Act , the following Division is inserted in Part 5:

Division 1AA - Family meetings

29A.   Family meeting held in certain circumstances

(1)  The Secretary may cause a family meeting to be convened in respect of a child if the Secretary is of the opinion that –

(a) the child is at risk; and

(b) that a family meeting is appropriate in the circumstances.

(2)  The Secretary must cause a family meeting to be convened if the Secretary is required under section 53 to convene a family meeting.

29B.   Purpose of family meeting

(1)  The purpose of a family meeting convened under section 29A(1) is to provide an opportunity for a child's family and other persons attending the meeting –

(a) to make informed recommendations as to the arrangements for best securing the care and protection of the child; or

(b) to review those arrangements and make further recommendations in respect of the arrangements from time to time.

(2)  The purpose of a family meeting convened under section 29A(2) is to provide an opportunity for a child's family and other persons attending the meeting to review the arrangements for care and protection of the child implemented under a care and protection order.

29C.   Convening family meeting

(1)  If a family meeting is to be held, the Secretary must assign a facilitator to convene and facilitate the family meeting.

(2)  In assigning a facilitator, the Secretary may consult with the child and the child's immediate family.

(3)  The facilitator –

(a) must consult with the child, the child's immediate family and, in the case of an Aboriginal child, with an appropriate recognised Aboriginal organisation as to –

(i) who should be invited to attend the family meeting; and

(ii) the time and place of the meeting; and

(iii) whether or not any person, including the child, should be permitted to be represented by an advocate at the meeting; and

(iv) the meeting's agenda and the procedure to be followed at the meeting; and

(b) must fix a time and place for the family meeting; and

(c) must issue a notice specifying the time and place of the family meeting.

(4)  The facilitator must invite the following persons to attend the family meeting and provide each of them with a copy of the notice issued under subsection (3)(c) :

(a) the child;

(b) the immediate family of the child;

(c) the other persons who, during the consultation referred to in subsection (3)(a) , it is agreed are to be invited to attend;

(d) an employee of the Department authorised by the Secretary, either generally or in respect of the child, to present a report into the child's circumstances to the meeting;

(e) if the meeting is convened as required by section 53(a) , any person who the care and protection order specifies is to be invited.

(5)  Despite subsection (4) , the facilitator is not required to invite any person specified in that subsection to the family meeting if the attendance of that person at the meeting could result in the contravention of –

(a) a restraint order made under the Justices Act 1959 ; or

(b) a family violence order, interim family violence order or police family violence order made under the Family Violence Act 2004 ; or

(c) an order under Part VII of the Family Law Act 1975 of the Commonwealth; or

(d) any other order of a court, wherever made.

(6)  Despite subsection (4)(a) and (b) , the facilitator is not required to invite the child or any guardian of the child to the family meeting if the facilitator is of the opinion that it would not be in the best interests of the child for the child or that other person to attend.

(7)  Despite subsection (4)(a) , the facilitator is not required to invite the child to the family meeting if the facilitator is of the opinion that the child is unable to understand or participate in the proceedings of the conference by reason of his or her age or for any other reason.

(8)  The facilitator may invite one or more of the following persons to attend the family meeting and provide them with a copy of the notice issued under subsection (3)(c) :

(a) members of the child's extended family whom the child or the child's guardians have requested the facilitator to invite;

(b) other members of the child's extended family that the facilitator considers should attend;

(c) any other person who has had a close association with the child and that the facilitator considers should attend;

(d) any person who has been counselling, advising or aiding the child or the child's guardians and that the facilitator considers should attend;

(e) if the child is an Aboriginal child, a person nominated by a recognised Aboriginal organisation;

(f) any person who has examined, assessed, counselled or treated the child in the course of the assessment of the child's circumstances and that the facilitator considers should attend;

(g) if there are concerns about the child's education and the child attends a State school, a person nominated by the Head of Agency of the responsible Department in relation to the Education Act 1994 ;

(h) if there are concerns about the child's education and the child receives home education, within the meaning of the Education Act 1994 , a person nominated by the Minister administering that Act;

(i) if there are concerns about the child's education and the child attends a registered school within the meaning of the Education Act 1994 , a person nominated by the principal of the school;

(j) if there are concerns about the child's education and the child attends the Tasmanian Academy continued by the Education and Training (Tasmanian Academy) Act 2008 , a person nominated by the Head of Agency of the responsible Department in relation to that Act;

(k) if there are concerns about the child's education and the child attends TasTAFE created by the Training and Workforce Development Act 2013 , a person nominated by TasTAFE;

(l) any other person the facilitator considers should attend.

(9)  In determining whether a person is to be invited or not to be invited to a family meeting under subsection (8) , the facilitator must take into account any relevant restraint order made under the Justices Act 1959 or any other relevant order of a court.

29D.   Constitution of and attendance at family meeting

A family meeting consists of –

(a) the facilitator; and

(b) those persons who attend the meeting in response to the invitation of the facilitator.

29E.   Procedure at family meeting

(1)  The procedure to be followed at a family meeting is the procedure agreed during the consultation referred to in section 29C(3)(a) or as agreed by the family meeting.

(2)  The facilitator is to conduct a family meeting in an informal manner.

(3)  If the facilitator considers it appropriate, the facilitator may adjourn the family meeting from time to time and from place to place.

29F.   Finalising family meeting

(1)  Before the facilitator declares a family meeting ended, the recommendations, or further recommendations, of the meeting as to the arrangements for best securing the care and protection of the child must be put in writing and signed by –

(a) the facilitator; and

(b) each of the following persons who are attending the meeting and concur in the decision:

(i) the child, if present and not excused by the facilitator from the obligation and, in the opinion of the facilitator, capable of participating in making the decision in an independent, rational and informed manner;

(ii) the child's advocate, if one is appointed;

(iii) the child's guardians, if present.

(2)  The decision of the family meeting must include the following information:

(a) the names of the persons who attended the family meeting;

(b) details of the time and place at which the meeting was held;

(c) if the meeting was convened under section 29A(1) , recommendations for the review of the arrangements for securing the care and protection of the child.

(3)  As soon as practicable after a family meeting ends, the facilitator must do the following:

(a) if the family meeting failed to reach a decision, prepare a written report stating that fact and containing –

(i) a summary of any proposals for recommendations discussed at the meeting; and

(ii) the reasons, in the facilitator's opinion, for that failure to reach a decision;

(b) for all family meetings, provide a copy of the decision of the family meeting or the report referred to in paragraph (a) to –

(i) the Secretary; and

(ii) the child; and

(iii) each guardian of the child; and

(iv) any other person involved in implementing the arrangements for securing the care and protection of the child recommended in the decision; and

(v) each person who attended the meeting; and

(vi) any other person the facilitator considers appropriate.

29G.   Action by Secretary after family meeting

(1)  On receipt of the decision of a family meeting convened under section 29A(1) , the Secretary may –

(a) if the Secretary considers the arrangements for securing the care and protection of the child recommended in that decision to be suitable, approve those arrangements; or

(b) if the Secretary does not consider those arrangements suitable –

(i) reconvene the family meeting for the purpose of reconsidering those arrangements and recommending other or further arrangements; or

(ii) take action under Division 1 or 2 in relation to the child.

(2)  On receipt of the report as to the failure of a family meeting to reach a decision, the Secretary may –

(a) reconvene the family meeting for the purpose of reaching a decision recommending arrangements for securing the care and protection of the child; or

(b) take action under Division 1 or 2 in relation to the child.

(3)  The Secretary must provide notice, in writing, of his or her decision under subsection (1) or (2) to the facilitator and –

(a) to –

(i) the child; and

(ii) each guardian of the child; and

(iii) any other person involved in implementing the arrangements for securing the care and protection of the child recommended in the decision; and

(iv) each person who attended the meeting; and

(v) any other person the facilitator considers appropriate; or

(b) to each person who was invited to attend a family meeting if the Secretary does not consider the arrangements for securing the care and protection of the child recommended by the meeting suitable and decides to reconvene the family meeting or take action under Division 1 or 2 in relation to the child; or

(c) to each person who was invited to attend a family meeting that failed to reach a decision if the Secretary decides to reconvene the family meeting.

29H.   Publication of discussion at, and reports on, family meeting

(1)  Except as allowed by this Act, a person must not publish in any manner –

(a) a decision of a family meeting; or

(b) any report relating to a family meeting; or

(c) anything said or done at a family meeting.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 18 months, or both.

(2)  Evidence of anything said at a family meeting is not admissible in any proceedings.

(3)  Despite subsection (2) , the written record of the decision made by a family meeting, or the written report of the facilitator made following the failure of a family meeting to reach a decision, is admissible in proceedings under Division 2 for the purpose of establishing that a decision was or was not made.

(4)  The Right to Information Act 2009 does not apply in relation to –

(a) any report on a family meeting; or

(b) the written record of the decision of a family meeting; or

(c) the written report of a facilitator following the failure of a family meeting to reach a decision.

29I.   Members of immediate family whose whereabouts are unknown

This Division does not apply in relation to a member of a child's immediate family whose whereabouts cannot, after reasonable inquiry, be ascertained.

12.   

The amendments effected by this section have been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

13.   

The amendments effected by this section have been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

14.   

The amendments effected by this section have been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

15.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

16.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

17.    Section 42 amended (Care and protection order)

Section 42 of the Principal Act is amended as follows:

[Commences: Never commenced

(a) by omitting subsection (2) and substituting the following subsection:

(2)  The Secretary may apply to the Court for a care and protection order if –

(a) a family meeting or family group conference has been held in relation to the child; or

(b) the Secretary considers that it is in the best interests of the child for the application to be made without delay.

]

(b) by omitting from subsection (3) "Secretary," and substituting "Secretary and subject to subsection (6) ,";

[Commences: Never commenced

(c) by omitting from subsection (3)(b)(i) "group conference" and substituting "meeting or family group conference,";

]

(d) by omitting paragraph (a) from subsection (4) and substituting the following paragraph:

(a) a supervision order;

(e) by omitting from subsection (4)(b) "period not exceeding 12 months," and substituting "period,";

(f) by omitting from subsection (4)(c) "period not exceeding 12 months," and substituting "period,";

(g) by omitting from subsection (4)(c)(ii) "persons;" and substituting "persons; or";

(h) by inserting the following subparagraph after subparagraph (ii) in subsection (4)(c) :

(iii) the Secretary and one or 2 other persons;

(i) by omitting paragraph (d) from subsection (4) ;

(j) by inserting the following subsection after subsection (4) :

(4A)  Without limiting the orders the Court may make under subsection (4)(g) and the matters to which the Court may have regard to in determining whether to make such an order, the Court may have regard to any relevant prescribed matter in making such a determination.

(k) by omitting from subsection (5)(c) "living" and substituting "residing";

(l) by omitting subsection (6) and substituting the following subsection:

(6)  The Court may not make a care and protection order unless satisfied that –

(a) the views of the child have been duly considered, having regard to the age, understanding and maturity of the child; and

(b) the views of the parents or other existing guardians have been duly considered; and

(c) if the order places a child under the guardianship of a person who is not an existing guardian (whether in addition to, or in substitution for, the guardianship of an existing guardian) –

(i) all reasonable steps have been taken to provide the services required to enable the child's protection and care needs to be met within the home of a parent or other existing guardian of the child; and

(ii) the person proposed as guardian is suitable to have guardianship of the child, having regard to any prescribed matters, and is willing and able to assume guardianship; and

(d) either –

(i) a family meeting or family group conference has been held in relation to the child; or

(ii) it is in the best interests of the child for the order to be made without further delay; and

(e) no other order, apart from the order considered, would be in the best interests of the child.

18.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

19.    Section 44 amended (Extension of care and protection order)

Section 44 of the Principal Act is amended as follows:

[Commences: Never commenced

(a) by inserting in subsection (1)(a) "family meeting or" after "a";

]

(b) by omitting subsection (2) and substituting the following subsection:

(2)  A care and protection order may be extended for the period the Court considers appropriate in the best interests of the child.

20.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

21.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

22.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

23.   

The amendments effected by this section have been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

24.    Section 53 amended (Review of arrangements for care and protection of child)

Section 53 of the Principal Act is amended as follows:

(a) by inserting "family meeting or" after "A";

(b) by inserting in paragraph (a) "meeting or" after "a";

(c) by inserting in paragraph (b) "meeting or" after "a";

(d) by inserting in paragraph (c) "meeting or" after "a".

25.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

26.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

27.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

28.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

29.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

30.   

The amendments effected by this section have been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

31.   

The amendments effected by this section have been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

32.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

33.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

34.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

35.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

36.    Section 87 amended (Functions of facilitator)

Section 87(a) of the Principal Act is amended by inserting "family meeting or" after "a".

37.    Section 88 amended (Guidelines for facilitator)

Section 88(1) of the Principal Act is amended by inserting "family meeting or" after "a".

38.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

39.    Section 103 amended (Duty to maintain confidentiality)

Section 103(2) of the Principal Act is amended as follows:

(a) by inserting "family meeting or" after "attends a";

(b) by inserting "meeting or" after "at the".

40.   

The amendments effected by this section have been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

41.   

The amendments effected by this section have been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

42.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

43.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

44.   

The amendment effected by this section has been incorporated into the authorised version of the Children, Young Persons and Their Families Act 1997 .

45.   Repeal of Act

This Act is repealed on the three hundred and sixty fifth day from the day on which all of the provisions of this Act commence.