Family & Relationship Law 16 August 2022

Best Interests Principles in Children’s Court proceedings

Proceedings in the Family Division of the Children’s Court typically arise when Child Protection, the state body responsible for the safety and welfare of children, legally intervenes with a family. In serious cases, this can result in a child being removed from parental care.

The Children, Youth and Families Act 2005 (Vic) (“the Act”) governs the operation and decision making of both the Children’s Court of Victoria and Child Protection.

The Act clearly states at section 10(1) that the best interest of the child must always be paramount. This is sometimes called the “Best Interests Principles”.

The Best Interests Principles are also the standard in the family law context. Section 60CA the Family Law Act 1975 (Cth) states that: “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” Further information about the Best Interests Principles in family law matters can be found here.

Origin of the Best Interests Principles

The Best Interest Principles in the Act (outlined below) find their origin in the United Nations Convention on the Rights of the Child – an important international agreement by countries who have promised to protect children’s rights.

The inclusion of the Best interest Principles in the legislation serves as a recognition that vulnerable children involved with Child Protection, like all children, have a right to grow up safe from harm, to have a relationship with their parents and family members and to have their wishes and perspectives heard and considered in any decision or service intervention.

What are the best interests of a child?

When determining what is in a child’s best interests, it is not unusual for there to be different views by different parties or even the child themselves. To assist with decision making, the Act specifies 18 different matters which the Court must consider where relevant.

These include, but are not limited to:

Principles which are family orientated

  • The need to strengthen, preserve and promote positive relationships between child and the child’s parent, family members and persons significant to the child – at section 10(3)(b) of the Act.
  • The capacity of each parent or other adult relative or potential caregiver to provide for the child’s needs and any action taken by the parent to give effect to the goals set out in the case plan – at section 10(3)(j) of the Act.
  • The desirability of siblings being placed together when they are placed in out of home care – at section 10(3)(q) of the Act.

Principles which serve to dictate the operation of Child Protection and their involvement with a family

  • The need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child – at section 10(3)(a) of the Act.
  • The desirability, when the child is removed from the care of his or her parent, to plan the reunification of the child with his or her parent – at section 10(3)(i) of the Act.
  • That if a child is to be removed from the care of his or her parent, consideration is to be given first to the child being placed with an appropriate family member or other appropriate person significant to the child before any other placement option is considered – at section 10(3)(h).

Principles which promote a child’s culture

  • The need, in relation to an Aboriginal child, to protect and promote his or her Aboriginal cultural and spiritual identity and development by, wherever possible, maintaining and building their connections to their Aboriginal family and community – at section 10(3)(c) of the Act.
  • Where a child with a particular cultural identity is placed in out of home care with a care giver who is not a member of that cultural community, the desirability of the child retaining a connection with their culture – at section 10(3)(m) of the Act.

A child should not be removed from a parent’s care unless there is an unacceptable risk of harm

While all of the principles are important, there is one which is arguably the basis of the majority of disagreements before the Court. This is the principle contained at section 10(3)(g) of the Act, being the need to ensure that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child.

This provision limits the removal of a child insofar as not just any risk can result in a child’s removal – the risk must be established to be “unacceptable.”

The standard has been considered multiple times by the Court. One of the most useful interpretations was provided by Justice Zammit in Secretary to DHHS v Children’s Court of Victoria, Rosa Darcy (A Pseudonym) & Walter Ronny (A Pseudonym) [2018] VSC 183, who said:

“It is well established that a risk that might otherwise be unacceptable can be made acceptable by the imposition of conditions, whether this be in the context of granting bail, or in the context of an interim accommodation order.”

This means that while a risk might be unacceptable, what measures can be taken to mitigate that risk must be considered.

What happens if the Best Interest Principles conflict with each other?

In the same case of Secretary to DHHS v Children’s Court of Victoria, Rosa Darcy (A Pseudonym) & Walter Ronny (A Psuedonym) [2018] VSC 183, the Court established that:

the considerations ….are not hierarchical and should not be treated as such; rather, where they are in conflict, the [Court] must determine which considerations should be prioritised based on all the circumstances of the case.”

As such, the Children’s Court should always be provided with as much information as possible in relation to what is in a child’s best interests, to ensure they have sufficient information available to them to make a decision.

How we can help

If you have any queries regarding Children’s Court proceedings, or how the Best Interest Principles should be applied in your particular case and what evidence is needed, please contact our expert, Mr Alastair Noakes of our Family & Relationship Law Team for advice and support.

Alastair Noakes.
Alastair Noakes Senior Associate Family & Relationship Law View profile
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