Historical development of child protection law
4.56 The Supreme Court of each state and territory has a very wide power to make orders to protect the welfare of children, known as the parens patriae (‘parent of the country’) jurisdiction, the underlying premise of which is that the children in question have no other, or no other suitable, guardian. When the jurisdiction of the English Court of Chancery became vested in the Supreme Courts of the states and territories, the parens patriae jurisdiction was included as part of the inherent jurisdiction of the court.
4.57 In addition to this inherent jurisdiction of the courts, from the mid-19th century, all state and territory governments legislated to secure the welfare of children by defining the circumstances in which children needed to be protected from neglect or abuse, and the ways in which young people might be treated as criminals. By the end of the 19th century an ‘increasingly pervasive protective attitude to children’ was evident.
4.58 The ‘child rescue movement’ initially took the form of charitable and philanthropic endeavours, leading to the introduction of child protection legislation and the establishment of children’s courts, representing a large shift in the approach to children.
These developments were often motivated by revelations of severe cases of abuse or neglect, which spurred child welfare activists in the late 1800s and early 1900s to form rights and advocacy bodies including societies for the prevention of cruelty to children.
4.59 Children’s courts had two principal functions: child care and protection; and exclusive jurisdiction with respect to child offenders. By the 1970s all states and territories had introduced legislation to protect children.
The family and the state
4.60 The state, as parens patriae, and the family intersect in the arena of child protection. Child protection ‘intervention’ may place a parent in opposition to the state, expressed in terms of a parent ‘losing’ his or her children. As the state, through child protection agencies, is a principal ‘actor’, child protection law can be characterised as ‘public’ law, in contrast to the ‘private’ law of family law, considered above.
4.61 In the report, Seen and Heard: Priority for Children in the Legal Process, the ALRC and the Human Rights and Equal Opportunity Commission (now the Australian Human Rights Commission) considered the various theories about how the family and the state ought to relate with respect to children.
4.62 The perspectives of intervention range from minimalist to interventionist, and include ideas about the role of the biological family. The minimalist position is reflective of the period of ‘father-right’, and ideas of the ‘private sphere’ of the family. Historically, children were considered essentially as the property of their father, a construction which lingers in the use of the pronoun ‘it’ often used to refer to a child. For example, in the late 19th century case, Re Agar-Ellis,Bowen LJ remarked that:
To neglect the natural jurisdiction of the father over the child until the age of twenty-one would be really to set aside the whole course and order of nature, and it seems to me it would disturb the very foundation of family life.
4.63 The interventionist approach seeks to ensure that ‘all children are provided with a right to caring adults who meet their needs’. It reflects a stronger notion of children’s rights:
In this model, the state makes the decisions as to whom those adults should be. While the focus of this model is the child rather than the adults in the family, this model of intervention may overlook the strength of bonds between parent and child, even when the parent may be considered unsatisfactory. It also places too much faith in the value of state intervention, assuming that the agents of the state, such as social workers and judges, are capable of making sound and appropriate judgments that provide better outcomes for children.
4.64 The importance of maintaining the biological family wherever possible is a third perspective:
State intervention is reserved for responding to problems within families, attempting to redress these so that the child can remain at home or at least in close contact with the family. Critics argue that this view may place too much emphasis on biological ties and that it does not differentiate between the interests, feelings and welfare of children and those of parents.
4.65 Each of these perspectives is evident in different ways in the multiple facets of interaction between families and the state—articulated expressly or impliedly as ‘father-right’, ‘parents’ rights’, or ‘children’s rights’, which may be in conflict with each other:
There are basic personal interests at stake here, which may sometimes conflict, such as the interest of parents to have guardianship and custody of their children, and the interests of children to be safe and protected from certain types of harm. These conflicts raise difficult questions for child protection professionals, legislators, policymakers and courts. Within the broader questions are finer ones such as the unequal and possibly unfair application of certain provisions and outcomes to specific population groups, such as single parents, and parents with an intellectual disability or mental illness. As well, compounding these contentious problems are practical problems such as one of the most daunting issues facing all jurisdictions: the adequate supply and funding of service providers.
4.66 The competing dynamics of child protection involve not only the question of parental responsibility as between parents, but also the question of when it is appropriate for the state to intervene into the historically ‘private’ space of the family—when children need to be rescued even from their own parents through the intervention of the state.
Types of child protection orders
4.67 The kinds of orders in the child protection system are described by the Australian Institute of Health and Welfare, which undertakes a comprehensive annual review of state and territory child protection and support services:
Guardianship orders are sought through the court. They involve the transfer of legal guardianship to an authorised department or to an individual. By their nature, these orders involve considerable intervention in the child’s life and that of the child’s family, and are sought only as a last resort. Guardianship orders convey to the guardian responsibility for the welfare for the child (for example, regarding the child’s education, health, religion, accommodation and financial matters).
Custody orders generally refer to care and protection orders that place children in the custody of a third party. These orders usually involve child protection staff (or the person who has been granted custody) being responsible for the day-to-day requirements of the child while the parent retains guardianship.
4.68 Guardianship or custody orders in the context of child protection are different from the range of orders under the Family Law Act, which now uses the language of ‘parental responsibility’ and ‘the time a child is to spend with another person’.
Purpose of child protection orders
4.69 The central dynamic in both child protection under state and territory law, and parenting orders under the Family Law Act is that the best interests of the child are paramount. However state and territory child protection legislation also provides that, subject to this principle, the legislation is to be administered so that where intervention is ordered it must be the least intrusive possible, including keeping the child with his or her family whenever possible. The overall purpose of child protection intervention is therefore, through the action of the state, to provide measures to assist and support children and young people who are in need of protection.
4.70 A central and recurring theme is when it is appropriate for the state to intervene, and, further, what is the role of child protection services:
Child protection was originally set up to provide a crisis response to cases of severe abuse in which the state needed to intervene to protect the child. However, the crisis response is not appropriate for the majority of families who are referred to child protection departments as they are typically in need rather than in crisis. There will always be a role for a ‘forensic’ tertiary response in cases where there are serious protective concerns. However, the challenge facing the sector is to devise service responses that are better suited to addressing family support needs. Recognition of this fact is slowly bringing about change to the delivery of child protection and child and family welfare services both nationally and internationally.
4.71 A child protection intervention is authorised where a court believes, on the balance of probabilities, that a child or young person is in ‘need of care,’ ‘in need of protection,’ ‘in need of care and protection,’ ‘at risk,’ or ‘at risk of harm’ as variously described in the legislation of the states and territories. Assistance and support for these children and young people may be offered on an informal basis, by way of agreement with families, or by means of care proceedings initiated by the relevant child protection agency in children’s courts. The legislative grounds for a child protection response are prescribed in the child protection statutes of each of the states and territories. They are broadly similar across all the jurisdictions, and include circumstances where the child or young person has been or is at risk of being abused or neglected.
4.72 A child or young person who is exposed to family violence may be considered to be ‘at risk’ or in ‘need of care and protection’ justifying an intervention by the child protection agency. New South Wales and Tasmania prescribe ‘domestic violence’ as an express ground for intervention. In other jurisdictions, intervention on the basis of family or domestic violence is permitted where the child or young person is at risk of being, psychologically or emotionally abused as a result of his or her exposure to the violence.
 A Dickey, Family Law (5th ed, 2007), 287. For a fuller discussion of the historical background, see A Dickey, Family Law (4th ed, 2002), 389.
 G Monahan and L Young (eds), Children and the Law in Australia (2008), [1.11] trace the ten principal Acts passed in Victoria over 90 years, from 1864 to 1933.
 H Radi, ‘Whose Child’ in J Mackinolty and H Radi (eds), In Pursuit of Justice: Australian Women and the Law 1788–1979 (1979) 119, 125. The difficulties a woman experienced in relation to custody cases with respect to her children are illustrated in, eg, Ex parte Richardson (1874) 12 SCR Eq 99.
 The interest in rescuing children followed concerns for the prevention of cruelty to children: L Bromfield and P Holzer, A National Approach for Child Protection: Project Report (2008), prepared for the National Child Protection Clearinghouse, 12.
 Seymour details the legislation establishing the first Children’s Courts: J Seymour, Dealing with Young Offenders (1988), 76–87.
 B Mathews, ‘Protecting Children from Abuse and Neglect’ in G Monahan and L Young (eds), Children and the Law in Australia (2008) 204, [10.5].
 The current legislation is: Children and Young Persons (Care and Protection) Act 1998 (NSW); Children, Youth and Families Act 2005 (Vic); Child Protection Act 1999 (Qld); Children’s Protection Act 1993 (SA); Children, Young Persons and Their Families Act 1997 (Tas); Children and Young People Act 2008 (ACT); Care and Protection of Children Act 2007 (NT).
 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997).
 Historically the father was the master of his household and, by the common law, had an ‘absolute right’ to his children: H Radi, ‘Whose Child’ in J Mackinolty and H Radi (eds), In Pursuit of Justice: Australian Women and the Law 1788–1979 (1979) 119, 119. He had custody and guardianship and all other rights in relation to children and even on his death he could determine questions of guardianship in relation to the children of his marriage: Eyre v Shaftesbury (1722) 2 P Wms 103, 107. See further: A Powell and S Murray, ‘Children and Domestic Violence: Constructing a Policy Problem in Australia and New Zealand’ (2008) 17(4) Social Legal Studies 453.
 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), [3.6]. See Ch 2 in relation to international conventions concerning the family.
 This renders the child even without gender. See, eg, the following discussion of the position of the child in Roman Law: J Tobin, ‘The Development of Children’s Rights’ in G Monahan and L Young (eds), Children and the Law in Australia (2008) 23, [2.2].
Re Agar-Ellis  24 Ch D, 336.
 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), [3.7].
 Ibid, [3.8].
 B Mathews, ‘Protecting Children from Abuse and Neglect’ in G Monahan and L Young (eds), Children and the Law in Australia (2008) 204, [10.32].
 Australian Institute of Health and Welfare, Child Protection Australia 2008–09, 24.
Family Law Act 1975 (Cth) pt VII div 2 and div 5 respectively. See Ch 15.
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(a); Children, Youth and Families Act 2005 (Vic) s 10(1); Child Protection Act 1999 (Qld) s 5(1); Children and Community Services Act 2004 (WA) s 7; Children’s Protection Act 1993 (SA) s 4(1)–3; Tas s 8(2)(a); Children and Young People Act 2008 (ACT) s 11; Care and Protection of Children Act 2007 (NT) s 9.
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(d); Children, Youth and Families Act 2005 (Vic) s 10(3)(a); Child Protection Act 1999 (Qld) s 5(2)(e); Children and Community Services Act 2004 (WA) s 9(f); Children’s Protection Act 1993 (SA) s 4(4); Children, Young Persons and Their Families Act 1997 (Tas) s 8(2)(b); Children and Young People Act 2008 (ACT) s 12(1)(d); Care and Protection of Children Act 2007 (NT) s 8(3).
 L Bromfield and P Holzer, A National Approach for Child Protection: Project Report (2008), prepared for the National Child Protection Clearinghouse, 15.
 Some child protection laws distinguish between a child and a young person. For example, in the Children and Young Persons (Care and Protection) Act 1998 (NSW) s 3, a child is a person under 16 years and a young person is one between 16 and 18 years. In the ACT, a child is a person under 12 years and a young person is a person between 12 and 18 years: Children and Young People Act 2008 (ACT) ss 11–12.
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 23(1)(c); Children, Youth and Families Act 2005 (Vic) s 162(1)(c)–(f); Child Protection Act 1999 (Qld) ss 9–10; Children and Community Services Act 2004 (WA) s 28(2)(c); Children’s Protection Act 1993 (SA) s 6(2); Children, Young Persons and Their Families Act 1997 (Tas) s 4; Care and Protection of Children Act 2007 (NT) ss 14–16, 20; Children and Young People Act 2008 (ACT) ss 151, 156.
Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 23(1)(d), 71(1)(e); Children, Young Persons and Their Families Act 1997 (Tas) s 4(ba).
 See, eg, Care and Protection of Children Act 2007 (NT) s 4(3)(b).