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Diminishing powers

Diminishing powers

By Fleur Ward

Child Welfare Courts Parents 


The Children’s Court of Victoria is an important socio-legal institution and the legislative framework underpinning it must empower the Court to determine independently and fully the best interests of each individual child. The Family Division of the Children’s Court of Victoria, governed by the Children, Youth & Families Act 2005 (Vic) (CYF Act), deals principally with protection and other ancillary applications brought by the Department of Health and Human Services (DHHS) in exercising its statutory power to intervene and/or remove a child from parental care upon receiving and investigating reports that a child has been the subject of, or is at risk of physical abuse, sexual abuse, emotional abuse, neglect or abandonment, or if a parent is dead or incapacitated.1 The power to remove a child from the parental care is a power comparable only to the power to incarcerate. In removing a child from his or her family the deprivation of liberties and interference with life is so severe that the exercise of such power by state bodies necessitates robust independent judicial scrutiny and oversight. Further, s10(1) of the CYF Act sets the best interests of each child as the paramount decision-making principle for the Children’s Court. In his review of the Victorian child welfare system in 1993, Justice Fogarty encapsulates the importance of the independent position of and serious task undertaken by the Children’s Court:

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