Care and Protection of Children and Young People

In July 2000, the Children, Young Persons and their Families Act 1997 (Tas) (CYPFA) came into force. The Act is based on the United Nations Convention on the Rights of the Child and establishes the rights of the child to be brought up in a family and the family’s responsibility towards the child. The Act moves away from the traditional ‘child rescue model’ that took children away from the family unit, and instead recognizes that under most circumstances, the child’s best interests are served within the family.

The CYPFA together with the Youth Justice Act 1997 (Tas) are the two main laws governing the rights of children in Tasmania.

Objectives and Principles

The object of the Children, Young Persons and their Families Act 1997 (Tas) (CYPFA) is to provide for the care and protection of children in a manner that maximises a child’s opportunity to grow up in a safe and stable environment and to reach the child’s full potential (s7(1)). The administration of the Act is founded on the adoption of the following key principles (s8(1)):

• the primary responsibility for a child’s care and protection lies with the child’s family;
• a high priority is given to supporting and assisting the family to carry out that primary responsibility in preference to commencing legal proceedings and;
• if a family is not able to meet its responsibilities to the child and the child is at risk, then the Secretary (currently the Department of Communities but soon to be the Secretary of the Department of Education) may accept those responsibilities.

The Act states that ‘the best interests of the child must be the paramount consideration’ (s8(2)(a)) and emphasises that children should, where possible, remain within their own family, culture and community setting (s8(2)(b)).

This blend of legal protection by the State and emphasis on family responsibility within the community reflects the principles expressed in the United Nations Convention On The Rights of the Child.

In addition, the child’s views must be sought and given serious consideration, taking into account the child’s age and maturity. Where the child is likely to be separated from their family, the child’s family and other persons interested in the child’s well-being must be given the opportunity to present their views and be provided with sufficient information to enable them to participate as fully as is appropriate in the circumstances.

Commissioner for Children

The Tasmanian Commissioner for Children is an independent statutory officer and focuses on matters that affect children and young people. The Commissioner is governed by the Children, Young Persons and their Families Act 1997 (Tas) (CYPFA). The purpose of the Commissioner is to research issues around legislation, policy and practices that impact on children and young people in Tasmania.

The role of the Commissioner is to:

• encourage the development of policies and services in the interests of children;
• provide independent advice on policy and practice standards to involved parties, including the Minister;
• co-ordinate and provide community education programs; and
• perform independent investigations of complaints, often at the request of the Minister.

The Commissioner for Children has several other functions (s79, CYPFA) including:

• the capacity to act as an advocate for a detainee under the Youth Justices Act 1997; and
• to advise the Minister for Children on any matter relating to the health, welfare, education, care, protection and development of detainees under the Youth Justice Act 1997.

The Commissioner does not investigate individual complaints unless referred by the relevant Minister for Children. Complaints about child welfare processes should be referred to the Tasmanian Ombudsman.

The Commissioner is also required to establish the Children and Young Persons Advisory Council, Children’s Consultative Committee and other appropriate committees.

Intervention by the State or another party

The term ‘ward of the state’ has been replaced by the term ‘guardianship’ in the Children, Young Persons and Their Families Act 1997 (Tas). Children do not automatically stay in the care of the State until they are 18 years old – care and protection orders last for shorter periods and there will be clear statements about when orders are to be reviewed. People other than the government can be granted guardianship of a child so the child can stay in a familiar but protected situation.