To provide information for child protection workers on the types of legal claims that may arise for children in the CEO's care and the related procedures.
Child protection workers can refer to Managing the Legal Rights of Children in the Care of the CEO and Persons Formerly in the Care of the CEO flowchart in related resources.
Child protection workers should refer to the related entries in the Casework Practice Manual – Chapter 1: Notification of Death, Serious Injurty or Critical Incident, Chapter 7: Safety and Wellbeing Assessment - Allegations of Abuse of Children in the Care of the CEO, and Chapter 7: Responding to Abuse in Care Allegations against approved Foster Carers.
Refer to the Duty of Care Unit at 189 Royal Street, East Perth WA 6004, or by telephone on (08) 9222 2693.
2. Criminal Injuries Compensation (CIC) applications
Criminal injuries compensation may be payable for harm or loss suffered prior or subsequent to a child coming into care. Alleged and proved offences often relate to sexual and physical abuse, domestic violence, extreme neglect and dog bites. Children may be victims themselves or secondary victims, i.e. witnesses to violence.
Maximum compensation awards differ according to the time the offence was committed. The current maximum award is $75,000 per offence.
Child protection workers should ensure that the issue of criminal injuries compensation is considered in developing the child’s first and last care plan. Where a child is not in the CEO’s care, the responsibility for applying for criminal injuries compensation rests with the child’s parents. Child protection workers should ensure that the parents are aware of the child’s eligibility and how they may make an application on the child’s behalf.
The basic steps for the child protection worker to follow are:
- If you think a CIC claim exists, refer to the Civil Litigation Unit (CLU).
- Fill in the Criminal Injuries Compensation Brief to Civil Litigation Unit form and send it to CLU while the child is still in care, as the Unit cannot handle claims if the brief is received after the child leaves care.
- When all the supporting information has been assessed and collated, the CLU will prepare the application for the child and lodge it on their behalf.
- Child protection workers may be asked to help the lawyer from the CLU by assisting the child to write a statement about how the abuse has affected their lives.
- Child protection workers may also be requested to liaise with psychologists and carers if required.
- The lodgement date is determined on a case by case basis and will depend upon whether the injuries have reasonably settled.
It takes between 9 and 12 months from the date of lodgement for a CIC award to be made. It is important to notify CLU of any impending change in the child’s legal status (for example, the end of an order) as this will impact on whether the Department has the legal authority to lodge the application.
In making an award for compensation the Assessor may name the offender. Child protection workers should be aware that the State may pursue the offender (where they have been convicted of the offence) to recover the cost of the Award. This may be particularly significant when the offender is the child’s parent and reunification is being pursued. Such considerations however do not obviate the child protection worker's obligation to pursue compensation on the child’s behalf.
For more information refer to the Criminal Injuries Compensation Brief to Civil Litigation Unit Form (in related resources).
For more information about Criminal Injury Compensation (CIC) claims refer to:
Department of the Attorney General
Assessor of Criminal Injuries Compensation
Level 12, International House
26 St George’s Terrace
PERTH WA 6000
Telephone: (08) 9425 3250
Facsimile: (08) 9425 3271
Refer to Civil Litigation Unit (CLU) via email at firstname.lastname@example.org.
Refer also to the related resource document Potential Legal Claims Checklist.
3. Other potential legal claims
Children in care may be entitled to make civil claims for compensation or monetary entitlement under a variety of circumstances, including events that occurred before the child came into the care of the CEO.
Child protection workers must be aware of the potential for claims and make a referral to the Civil Litigation Unit (CLU) when the child’s circumstances indicate this. This should be done as soon as possible while the child is still in the CEO’s care as limitation periods apply.
Some of the most common possible claims to check for include:
Criminal Injuries Compensation claim for offence
A potential CIC claim may exist for offence/s committed prior or subsequent to a child coming into care. Offences often relate to sexual and physical abuse, domestic violence, extreme neglect and dog bites. Children may be victims themselves or secondary victims, i.e. witnesses to violence. Generally, claims may still be made where the offender is not convicted. A claim may also be made in very limited circumstances where the offender is acquitted. There is a 3 year limitation period in which applications may be lodged. Refer to above procedure 2. Criminal Injuries Compensation Applications.
Where the death of a parent, grandparent or other relative or person who has left the child an interest under a will or, if there is no will, the child may have a claim under administration or a claim to a fairer division of the estate or a claim to dispute validity of will or capacity of the testator. There is a 6 month limitation period in relation to inheritance claims.
Motor vehicle accidents (Injury Compensation WA) claims
A claim may exist where a child has been injured in a motor vehicle accident, generally as a passenger or pedestrian. There is a 12 month limitation period from the date of the accident.
Fatal Accidents Act
The death of a parent may give rise to a claim.
The death of an insured parent may give rise to a claim. There is a 3 year limitation period from the date of the incident.
The death of a fund member parent may give rise to a claim.
The death by murder of a parent – property claim
Distribution of the estate effected, as a murderer cannot benefit by crime. There is a 6 month limitation period from the date of death.
Lottery or other prize
The death of a parent after winning may give rise to a claim.
A gift from a friend or relative may give rise to a claim.
A claim against an executor or trustee
A claim may exist where a parent's estate or trust fund is mismanaged.
A claim may exist if a child is injured during a medical procedure.
Product liability, sporting accidents, dog attacks
Where a child in care has a job and is injured at work.
Pension or allowance
Should be payable by government to the child.
Child Protection Workers who wish to view this information as a checklist should refer to the related resource document Potential Legal Claims Checklist.
In developing each provisional care plan/care plan review, Child protection workers should check this list to see if any potential claims apply to the child. If so, the CLU should be consulted and will manage the claims process.
All steps should be taken to ensure that outstanding or ongoing issues are progressed and completed where possible before the child leaves care.
The CLU should be advised in writing of any potential claims. The Child protection worker must alert their Team Leader and the CLU of the potential legal claim of the child.
The CLU will advise the child protection worker of the relevant information and documents that must be forwarded to the CLU for the process to begin.
If a legal claim has been commenced on behalf of a child, the child protection worker must inform CLU of any significant incident or investigation regarding the child.
Legal issues are particularly important for children leaving care and must be included in the modified Care Plan for leaving care. The plan should specify how the child can access or pursue any outstanding claims they may have.
Child Protection Workers should refer to Chapter 10: Leaving the CEO's Care, for further information on leaving care.
5. Managing a child's financial interests
All queries in this regard should be directed to the CLU, including any questions involving the role of the State Administrative Tribunal (SAT) or the Public Trustee in money management on behalf of a child.
It is important for child protection workers to consider that where a child suffers a disability, has a legal claim and is leaving care, that, if appropriate:
- an application has been made to the SAT within sufficient time for the appointment of an administrator
- the CLU is advised prior to the application being made.
All queries should be directed to the CLU via email at email@example.com.