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3.3.3 Legal rights of children and caseworker responsibilities

Last Modified: 15-Jun-2022 Review Date: 01-Apr-2017

 ‭(Hidden)‬ Legislation

Overview

It is the Department's responsibility to provide a child in the CEO's care with appropriate legal advice and support where required. This can include after the young person has left care and until they reach 25 years. Legal support can be as simple as supporting a child to receive legal advice, or it could require complex planning to ensure they receive compensation or another form of financial payment as per their entitlements.

A child may be entitled to a claim while they are in, or upon entering, the CEO's care. It is the Department's responsibility to identify and manage claims.  Where you believe a child may have a claim, consult with, and refer the claim to Legal and Business Services  for assessment in a timely manner.

Note: CEO refers to the Chief Executive Officer of the Department of Communities (The Department). Use of the term "child" is intended to represent children and young people. The term "young person" is used when solely referring to an adolescent or young adult.

The term "placement arrangement" is used in the Children and Communities Services Act (2004) to refer to care arrangement made under s. 79(2) for the placement of a child. These terms mean the same thing and are interchangeable.

Rules
  • Where a young person is entitled to post-care support and makes a request for legal support, you must support that young person to obtain legal advice.

  • You must ensure the child has an opportunity to express their views and wishes throughout the legal decision-making process, according to their age and level of understanding. Consult with Legal and Business Services or the external lawyer to plan how best to do this. 

Process Maps

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.

Information and Instructions

  • Legal advice
  • Leaving Care
  • Children under a protection order (Special Guardianship)
  • Criminal Injuries Compensation Claim
  • Other potential legal claims
  • Procedure for initiating a legal claim
  • Management of children’s finances
  • Financial gifts or donations for children in care
  • Legal advice

    If a child has difficulty understanding or communicating in English or has a disability, you must provide an interpreter or support person to help them understand the legal advice provided. For more information, see
    Chapter 4.2 Language Services – Booking and Payment.

    There are situations where a child may require direct legal advice, in addition to any advice you have received from Legal and Business Services for case management purposes. Legal advice must be provided by a qualified lawyer from the Department or an external provider approved by the Department. 

    You should organise for a child to gain direct advice from an external lawyer or legal service where they:

    • have witnessed a crime and the police have asked for their assistance with the case.

    • have been arrested and/or have been asked to engage in a police interview, and/or

    • have been charged with a criminal offence. 

    If a child is arrested and the police conduct a police interview, only the child can consent to participate in an interview. For more information about receiving legal advice for a child after-hours, see Chapter  3.2 Consent for Police Interviews for Children in the CEO's care.

    If a child has been the victim of a crime, your primary consideration must be the best interests of the child. This includes securing the child's immediate safety and providing subsequent support to the child. 

    If a child has been the victim of a crime within their care arrangement, consult with the Team Leader and with Duty of Care Unit (DoCU) to determine how to proceed. 


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    Leaving Care

    As part of Leaving Care Planning, you must provide a young person with information on the supports they are entitled to once they leave the CEO's care. If a young person requests support for legal advice, you must assist them with this request if they are eligible for leaving care support.

    The young person does not need to have legal support included in their Leaving Care Plan to receive assistance, but their Leaving Care Plan should be modified prior to leaving the CEO's care to include any outstanding legal matters and details of the support likely to be required.

    For more information on post care support and eligibility criteria, see Chapter 3.4 – Leaving Care and Transitioning to Adulthood.


    A child should receive clear information about any claims they are entitled to in their Care Plan or Leaving Care Plan. This information should be included in dimension of care 9, Legal and Financial, in a manner that respects the child's privacy and safety. Wherever possible, these claims should be initiated prior to leaving the CEO's care. The Care Plan or Leaving Care Plan should also detail any current contact with the criminal justice system and demonstrate how the child is being supported by the Department.

    For young people with an impairment or disability who may require a Guardianship or Administration Order after leaving care, contact the State Solicitor's Office as soon as possible when the child is 15 years. For more information, see Chapter 3.4 Care Planning and Leaving Care and Transitioning to Adulthood

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    Children under a protection order (Special Guardianship)

    Legal and Business Services will generally not pursue claims on behalf of a child on a Protection Order Special Guardianship (SGO), unless the child transitioned to the SGO after they turned 15 years and are eligible for leaving care assistance. Legal and Business Services will undertake an assessment of any potential legal claim for the child so this information can be passed on to the special guardian. Plans for managing the child's legal claim/s should be discussed at a care planning meeting and documented in the child's Care Plan prior to transitioning to an SGO. It is important that the special guardian is aware of their legal responsibilities and has a plan in place for how they will manage any current or future legal claims for the child. In some cases, such as a motor vehicle accident, the Department can continue to provide legal assistance if the matter has been initiated, and if the special guardian agrees.

    The proposed special guardian should be made aware of their legal obligation to progress a claim on behalf of the child at an appropriate time. If the child is eligible for leaving care support under s.96 of the Children and Community Services Act 2004 (you should pre-approve funding and detail any support needs in the child's Leaving Care Plan. Where a child on an SGO is not eligible for leaving care support, the Department may agree to cover some of the costs associated with pursuing a legal claim, such as hiring a private lawyer or obtaining relevant psychological reports. This funding is provided via case support costs on the basis that some, or all of, the funds are to be reimbursed when an award of compensation is made. For more information, see Chapter 3.3 Protection order (special guardianship)

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    Criminal Injuries Compensation Claim

    The child may have a claim resulting from an offence that occurred prior to, or during their time in care. When you become aware that a child has been the victim of an offence, you should consult with Legal and Business Services to explore if the child has a reasonable claim for compensation.

    To seek legal advice, use the Sharepoint Legal Request Form


    The Department has a responsibility to make sure all potential claims for Criminal Injuries Compensation (CIC) are assessed and that the child receives appropriate legal advice.

    A child in the CEO's care may be eligible for CIC if they have been a victim of a criminal offence and were injured, and/or experienced financial loss due to an injury. They may also be eligible if they are a close relative of a person killed in Western Australia as a result of an offence, and they have suffered injury and/or financial loss. Applications for CIC can be made for both proved offences (where an offender is convicted) and alleged offences (in limited situations).

    Injury can be physical or psychological in nature. Common potential CIC claims arising for a child in the CEO's care can include (but are not limited to) the following: .

    • Neglect (such as medical neglect; abandonment; school non-attendance; failure to provide food, water, and clothing).
    • Physical abuse.
    • Sexual abuse.
    • Breaches of violence restraining orders, police orders or warrants.
    • Dog attacks.
    • Deprivation of liberty.
    • Pregnancy resulting from an offence.
    • Witnessing family and domestic violence (secondary victim claim).
    • Murder of a parent (secondary victim claim).

    Time limitations apply for CIC claims, however, the Criminal Injuries Compensation Act 2003 (CIC Act) allows an application to be made outside of time limitations. If required, Legal and Business Services will seek an extension when lodging claims for young people in the CEO's care and young people who are eligible for leaving care support. 

    You should contact Legal and Business Services to undertake an assessment for a potential CIC claim, so an application for the claim can be submitted in a timely manner. This should occur once the child reaches 15 years and leaving care planning commences. The outcome of the assessment should be entered into the child's Leaving Care Plan unless there are safety or privacy concerns and in-line with any advice from Legal and Business Services.

    Legal and Business Services will either prepare and submit the child's application once they have all required information and supporting documentation or they may refer and brief a private lawyer to do so. Lodgement dates are determined on a case by case basis.

    It usually takes between 12-18 months from the date of lodgement for a CIC award to be made. Advise Legal and Business Services immediately if the child's legal status changes (for example, they are no longer on a protection order) as this may affect the legal authority to lodge an application and where the compensation award is to be paid.

    The application process can be lengthy and may re-traumatise a child or young person. They may feel guilt or distress at being awarded a lump sum of money directly related to a traumatic event or experience an increase in trauma symptoms where they are required to recall the details of traumatic events.

    Be aware that the child or young person is likely to require additional support at key points, such as when they turn 18 years and receive payment, or on being notified if the offender has been contacted.

    The Office of CIC may notify a convicted offender of a claim to recover some, or all, of the compensation award. Legal and Business Services will discuss this with you and the child and may suggest that an order is sought to prevent an offender being notified.

    You must give the child an opportunity to express their views and wishes about the claim and the process for completing the claim, according to the child's age and ability. This should occur outside of the care planning meeting. The child has a right to privacy and may not wish to share this information with their Care Team. A parent or other person within the Care Team may be the perpetrator and it would be inappropriate to allow them to be included in these discussions. Legal matters should not be discussed with third parties if a young person is over 18 years or under 18 years but considered to be Gillick competent, without their express consent.

    All decisions about pursuing a claim should be made in consultation with the child, according that child's age and ability, and Legal and Business Services.

    For more information about CIC claims, contact Legal and Business Services or refer to the Office of Criminal Injuries Compensation

    When cessation or significant reduction of AOD use is part of a safety plan, be aware of related mental health risks.

    Where a person is suffering from trauma-related symptoms, treating the addiction alone will not help the person recover.


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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. Time limitations apply for civil claims. You should notify Legal and Business Services as soon as they become aware that a child may have a potential civil claim. 


    Claims should be initiated prior to the child leaving care and should be considered and pursued even where a time limit has exceeded. You should contact Legal and Business Services to clarify time limits for different claim types.

    See below for a list of other civil claims a child may be entitled to:

    Inheritance claims and Superannuation claims:

    Following the death of a parent, grandparent, other close relative or a person who has left a child an interest under a Will, the child may have a claim to a fairer division of the estate or a claim to dispute the validity of the Will or capacity of the testator.  In circumstances where the deceased has left no Will, the child may still have a claim to the estate.

    The child may also be entitled as beneficiaries to a deceased person's superannuation fund and death benefit.

    Motor vehicle accidents (Insurance Commission of WA) claims:

    A claim may exist if a child has been injured in a motor vehicle accident.

    Fatal Accidents Act:

    The death of a parent may give rise to a claim.

    The death by murder of a parent - property claims:

    Distribution of the estate is affected because a murderer cannot benefit through their crime. 

    A claim against an executor or trustee: 

    A claim may exist where a person's estate or trust fund is mismanaged.

    Medical negligence: 

    A claim may exist if a child is injured during a medical procedure.

    Other claims can include, but are not limited to, product liability, sporting accidents or dog attacks. Worker's compensation may be considered where a young person has been injured at their place of work. Contact Legal and Business Services if you require any clarification on circumstances which may lead to a child's entitlement to a civil claim. 

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    Procedure for initiating a legal claim

    Criminal Injury Compensation claims for children under a protection order (until 18) who are over the age of 16 years are prioritised. Any other legal claims where there are strict time limits to commence legal proceedings are also prioritised. 

    Consider if a child has a potential legal claim when developing their Provisional Care Plan or Care Plan, using the Potential Legal Claims Checklist as a guide (in related resources). When reviewing Care Plans, you should consider any new legal claims and review progress on existing legal claims.

    Where you believe a child has a potential claim, you should:

    1. advise the Team Leader the child has a potential legal claim
    2. refer all potential claims to Legal and Business Services via the Sharepoint Legal Request Form
    3. respond to any requests from Legal and Business Services for additional information or supporting documentation as a matter of priority
    4. be available to liaise with the Legal and Business Services staff member allocated to the claim. Provide them with any relevant updates for the child, including any new incidents, investigations, change of legal status that may impact on the claim, and
    5. continue to monitor the progress of legal claims and actions. When a matter is settled, and there are no safety or privacy concerns for the child, record the outcome in the child's Care Plan.  Be aware that civil settlement amounts are confidential and outcomes should only be recorded as 'settled'.

    The matter will not be allocated until Legal and Business Services has all of the information and documentation they require to process the claim. The information required may include:

    • Background information from the child's Objective files, including information about why the child came into the CEO's care.
    • Current and previous care arrangement details.
    • Relevant information and reports from the child's school in relation to their education, presentation, and behaviour.
    • Relevant information and reports from a psychologist, health practitioner or allied health professional in relation to their biopsychosocial health and wellbeing.

    Key reports or documents such as an initiating affidavit, recent Care Plan, Care Arrangement Referral or Cultural Support Plan

    This needs to be qualified – it may not be appropriate for detail regarding the status of any claim to be included if a perpetrator is entitled to a copy of the Care Plan.

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    Management of children’s finances

    It is a function of the CEO to control and manage the property of children on a protection order (time limited or until 18) in the child's best interest. If you are aware of a child receiving a lump sum payment, consult with Legal and Business Services. 


    Children may enter care with money that is held on trust, for example, as a result of the terms of a Will, a superannuation death benefit, a previous compensation payment (CIC or common law) or a gift.

    If a child has been awarded a lump sum and will transition to an Administration Order upon leaving care, this information should be provided to the State Solicitor's Office. For more information, see Chapter 3.4 Leaving Care and Transitioning to Adulthood.

    The Department has a Special Purpose Account with the Commonwealth Bank of Australia which is used to manage lump sum payments of up to $100,000 on behalf of children in the CEO's care. Lump sums greater than $100,000 will generally be directed to the Public Trustee for management.

    For smaller amounts, consider utilising a personal savings account in the name of the child or placing the money in the Department's private cash account.

    The child will become responsible for their money upon reaching 18 years and can nominate an account to transfer the money into. If you are worried the child does not have the capacity to manage their money due to disability or other vulnerability, such as concerns the perpetrator (such as a parent or partner) or others may gain financially from the payment, consult with Legal and Business Services. 

    If you become aware that a child in the CEO's care is being charged rent or board by their carer, or that the carer is attempting to charge them rent or board, seek advice from Legal and Business Services.

    The provision of financial assistance to a carer to meet a child in the CEO's care needs must be funded by the Department and not the child.

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    Financial gifts or donations for children in care

    Offers of financial donations should be considered on a case-by-case basis, depending on the situation and if it is for an individual child, group of children or to benefit all children in the CEO's care.

    If you become aware of a media or social-media fundraising activities regarding a child in care, advise Corporate Communications. The site or group may be asked to cease their activities, as they may not be in the child's best interests. Furthermore, these situations may be experienced or perceived as damaging, shaming or exploitative. Consult with Legal and Business Services where there is malicious or prolonged social media activity about a child in care.

    The Department will not accept financial donations where:

    • the donor is the perpetrator of abuse or another offence against the child, or a person or organisation associated with the perpetrator
    • it may cause the child to feel distress, guilt, shame or undue stress
    • there is an expectation of reciprocation or obligation, such as being able to contact the child, to learn identifying details of the child (a donor may provide a letter for the child, which may be given at an appropriate time, if this is in the child's best interest) or to publicise the donation
    • the donation is not believed to have been made in good faith, or
    • it is not believed to be in the best interests of the child.

    If you are considering accepting a financial donation on behalf of the child, you should:

    • consult first with Legal and Business Services
    • consult with the district psychologist and other relevant senior staff, including Aboriginal Practice Leader where you are working with an Aboriginal child
    • consult with the Specialist Child Protection Unit (SCPU)
    • seek approval from the District Director
    • document the details of the donation in the child's case file, and
    • plan when and how you will advise the child about this donation, ensuring you do so in a manner that is in the child's best interests. 
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