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3.3.3 Legal rights of children and caseworker responsibilities

Last Modified: 03-Jan-2019 Review Date: 01-Apr-2017

Purpose

To provide information for child protection workers on the legal claims that may arise for children in the CEO's care and the related procedures.

Note: CEO refers to the Chief Executive Officer of the Department for Communities (The Department).

Practice Requirements

  • Child protection workers must be aware of the potential legal claims and make appropriate referrals.
  • Child protection workers must refer to the Duty of Care Unit (DoCU) for any claims relating to safety and wellbeing concerns.
  • Child protection workers must refer to the General Law Unit (GLU) for any claims relating to criminal injuries compensation and other potential legal claims.
  • Child protection workers must refer to the GLU for all queries relating to managing a child’s financial interests.
  • If a legal claim has been commenced on behalf of a child, child protection workers must inform the GLU of any significant incidents or investigations involving the child.
  • Proposed special guardians must be made aware of their obligation to pursue any potential claims on behalf of the child before applying for a protection order (special guardianship) so they can make an informed decision about seeking special guardianship.  It must be noted in the child's care plan that provision of funding to conduct the legal claim should be considered by the responsible district in futre to assist the special guardian. 
Process Maps

Child protection workers can refer to the flowchart Managing the Legal Rights of Children in the Care of the CEO and Persons Formerly in the Care of the CEO.

Procedures

  • Safety and wellbeing concerns
  • Criminal Injuries Compensation (CIC) claims
  • Other potential legal claims
  • Care planning
  • Procedure for initiating a legal claim
  • Leaving care
  • Children under a protection order (special guardianship)
  • Managing a child's financial interests
  • Safety and wellbeing concerns

    Child protection workers (CPWs) should refer to the related Casework Practice Manual entries: 

    • Chapter 4.2: Notification of death, serious injury or critical incident 
    • Chapter 2.1: Safety and Wellbeing Assessment - safety and wellbeing concerns regarding children in the care of the CEO, and
    • Chapter 2.1: Responding to safety and wellbeing concerns for children in the care of the CEO against approved carers. 
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    Criminal Injuries Compensation (CIC) claims

    Criminal Injuries Compensation (CIC) claims may be payable for harm or loss suffered as a result of an offence committed against a child which occurred either before or during their period in the CEO's care. Alleged and proven offences often relate to sexual and physical abuse, domestic violence, extreme neglect and dog bites. Children may be victims themselves, or secondary victims; for example, witnesses to violence.

    Maximum compensation awards differ according to when the offence was committed. The current maximum award is $75,000 for a single offence.

    When a child enters the CEO's care, CPWs must consider any potential CIC claims as part of care planning. Where a child is not in the CEO's care, the responsibility for applying for a CIC claim rests with the child's parents or persons with parental responsibility. Child protection workers should check that these people are aware of the child's eligibility to make a claim, and how they may make an application on the child's behalf.

    Child protection workers must follow these steps:

    1. If it appears that a CIC claim exists, refer the case to the GLU via the GeneralLawUnitQuery@cpfs.wa.gov.au as early as possible. Refer to the 'Procedure for initiating a legal claim' section below.
    2. If required, help the GLU with the collation of documents and assist the child to write a statement about how the abuse has affected their life.
    3. If requested by GLU, liaise with the child's psychologist and carer(s).

    When all supporting information has been assessed and collated, the GLU prepares the child's application and will lodge it on their behalf. Lodgement dates are determined on a case by case basis and depend on whether the injuries have reasonably settled.

    It takes 12 to 18 months from the date of lodgement for a CIC award to be made. It is important to notify the GLU of any impending change in the child's legal status (for example, the end of an order) as this may affect our legal authority to lodge the application.

    When making an award for compensation, the CIC Assessor may notify a convicted offender. Child protection workers should be aware that the State may seek to recover part or the entire award from the offender. This may be particularly significant when the offender is the child's parent and reunification is being pursued.  However, this does not obviate the CPW's obligation to pursue a CIC claim on the child's behalf.

    For more information about CIC claims refer to the Department of the Attorney General (Court and Tribunal Services) website: www.courts.dotag.wa.gov.au/C/compensation.aspx.

    Child protection workers can also email GLU at: GeneralLawUnitQuery@cpfs.wa.gov.au.

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    Other potential legal claims

    Children in the CEO's care may be entitled to make civil claims for compensation or monetary entitlement under a variety of other circumstances, including events that occurred before coming into care.

    Child protection workers must be aware of the potential for claims and refer these to the GLU when the child’s circumstances warrant this.  This should be done as soon as possible while the child is still in the CEO’s care, as limitation periods apply. Whilst limitation periods are important when conducting a legal claim, the expiration of a limitation period should not prevent the referral of a legal claim to the GLU. Numerous exceptions to limitation periods exist.

    Aside from CIC claims, some common possible claims to check for include:

    • Inheritance claims
    • Motor vehicle accidents (Insurance Commission of WA) claims
    • A claim under the Fatal Accidents Act 1959 (due to the death of a parent)
    • Insurance claim (death of an insured parent)
    • Superannuation claim (death of a parent who is a member of a superannuation fund)
    • Death of a parent by murder – property claims
    • Lottery or other prize (death of a parent)
    • A gift
      A claim against an Executor or Trustee
    • Medical negligence
    • Product liability, sporting accidents, dog attacks
    • Workers Compensation
    • Pension or allowance. 

    Further information about these claims is available in the Potential Legal Claims Checklist in related resources.

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    Care planning

    When developing provisional care plans and undertaking care plan reviews, CPWs should check the legal claims list to see if any potential claims apply to the child – refer to the Potential Legal Claims Checklist (in related resources). If so, the GLU should be consulted and will manage the claims process.

    All steps should be taken to check that outstanding or ongoing issues are progressed and completed where possible before the child leaves the CEO's care.

    The GLU should be advised in writing of any potential claims. CPWs must alert their team leaders and the GLU of the potential legal claim of the child.

    The GLU will advise the CPW of the relevant information and documents that must be forwarded to the GLU for the process to begin.

    If a legal claim has been commenced on behalf of a child, the CPW must inform GLU of any significant incident or investigation regarding the child.

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    Procedure for initiating a legal claim

    The GLU conducts most claims in-house, though on occasions matters may be briefed out to a private lawyer.

    The GLU will give priority to certain matters: CIC claims for children under a protection order (until 18) who are over the age of 16 years; and other legal claims where there are stringent time limits for the commencement of legal proceedings.

    Child protection workers are required to:

    1. refer all potential claims to the GLU via GeneralLawUnitQuery@cpfs.wa.gov.au as early as possible, and
    2. respond to the GLU’s requests for information and/or supporting documentation in relation to children’s legal claims in a timely manner.

    Queries emailed to the GLU relating to whether or not a child has a CIC claim or other legal claim will not be allocated until the relevant information and documentation (where available) requested by the GLU has been provided so that a satisfactory assessment can be completed.

    The GLU will send a list of required information (via email) to the CPW. This may include, but is not limited to, background information taken from the child’s Objective files relating to the basis upon which he or she came into the CEO's care, and historical and current details of the child’s care arrangements, education, behaviour and psychological presentation.

    There is no expectation for writing a new report. Existing documents such as the initiating affidavit, recent care plan, Care Arrangement Referral and/or details from the Child Information Portal in Assist should contain this information.

    Initial requests for information and documentation are actioned as follows:

    1. At first instance directed to the CPW
    2. If no response is received within two weeks, the request will be copied to the team leader, or  
    3. If no response is received within a further two weeks, the request will be directed to the district director.

    The GLU requires a timely response to the initial request to be able to progress claims and manage workloads. If the CPW is not able to respond within the specified period, he or she should email back to provide a timeframe for their response to the request. This will allow the GLU to manage workflow more productively.

    GLU request for additional information or documentation

    After review of the information provided in response to the initial request, the GLU will generally follow up with the CPW to request any additional information and relevant supporting documentation to be extracted from both the child’s Objective file and any physical files.

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    Leaving care

    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 could access or pursue any outstanding legal claims they may have.

    Child protection workers must consult the State Solicitor’s Office as part of leaving care planning where a child is registered with either the National Disability Insurance Scheme or the Department's Disability Services, or there are concerns about the child’s capacity to make reasoned financial decisions. This consultation should occur early in the leaving care planning process to allow sufficient time for the application and appointment of an administrator (if required) by the State Administrative Tribunal (SAT).

    All queries in this regard should be directed to the State Solicitor’s Office including any questions about the role of the SAT or the Public Trustee for money management on behalf of a child.

    State Solicitor’s Office - phone: 9264 1815 or email: i.petersen@sso.wa.gov.au.

    Refer to Chapter 3.4: Leaving the CEO's care for more information on leaving care.

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    Children under a protection order (special guardianship)

    If a child leaves the CEO's care under a protection order (special guardianship) (SGO) and a CIC claim has been identified, the expectation is that the special guardian will assume responsibility for progressing the claim on behalf of the child at an appropriate time.

    The GLU does not pursue claims on behalf of a child under a SGO; it will only ordinarily conduct claims for children who qualify for leaving care assistance under s.96 of the Children and Community Services Act 2004.

    To assist the special guardian, it is recommended the responsible district provide an appropriate amount of funding for a private lawyer to conduct the child's legal claim. There may be other costs to support the claim, such as a psychological report. Such costs may be funded on the basis that it will be reimbursed when an award of compensation is made.  It must be noted in the child's care plan that provision of funding for the legal claim will be considered by the district in the future. The funding is provided via case support costs.

    Prior to making an application for a SGO, a proposed special guardian must be fully informed of his/her obligation to pursue the potential CIC claim on behalf of the child.

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    Managing a child's financial interests

    All queries should be directed to the GLU by email: GeneralLawUnitQuery@cpfs.wa.gov.au.

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