Australian Capital Territory Consolidated Acts

CHILDREN AND YOUNG PEOPLE ACT 2008 - SECT 549

The Childrens Court may, on the application of the director-general, make a therapeutic protection order for a child or young person only if satisfied that—

        (a)     if the order is not made—

              (i)     there will be a significant risk of significant harm to—

    (A)     the child or young person; or

    (B)     someone else; and

              (ii)     the risk of harm arises from the child's or young person's conduct; and

              (iii)     the risk of harm will be imminent; and

        (b)     the director-general has—

              (i)     tried less restrictive ways to prevent the child or young person from engaging in harmful conduct but the less restrictive ways have not been successful; or

              (ii)     considered less restrictive ways to prevent the child or young person from engaging in harmful conduct but the less restrictive ways were not appropriate; and

        (c)     there are no less restrictive ways for the director-general to prevent the child or young person from engaging in harmful conduct; and

        (d)     the child or young person is at least 10 years old; or

        (e)     the child or young person—

              (i)     is not suffering from a mental illness or mental dysfunction; or

              (ii)     in addition to any other behaviours or dysfunction giving rise to the risk of harm is suffering from a mental illness or mental dysfunction but the Childrens Court is satisfied that making a therapeutic protection order for the child or young person is the best way to support the child or young person; and

Note     The Childrens Court must make an interim therapeutic protection order for a child or young person if an application for a therapeutic protection order for the child or young person has been made but not finally decided and the court suspects on reasonable grounds that the child or young person is suffering from a mental illness or mental dysfunction. The order must direct the child or young person to submit to the jurisdiction of the ACAT (see  s 545).

        (f)     no-one who has parental responsibility for the child or young person (other than the director-general) is willing and able to prevent the child or young person from engaging in harmful conduct; and

Note     Parental responsibility is dealt with in div 1.3.2.

        (g)     confinement of the child or young person is necessary to prevent the child or young person from engaging in harmful conduct; and

        (h)     the director-general has developed a therapeutic protection plan for the child or young person; and

              (i)     the therapeutic protection plan is more likely than not to reduce the likelihood of the child or young person engaging in harmful conduct in the future; and

        (j)     making the order is in the best interests of the child or young person.

Examples—other ways to prevent child or young person from engaging in harmful conduct—par (b) and (c)

1     The director-general provided Alex's family with intensive family support services.

2     The director-general sought a care and protection order including a parental responsibility provision for Bonny. Under the order, Bonny was placed with a foster carer and provided with intensive support services.

3     The director-general provided Colin with the same services that are provided under a therapeutic protection plan but Colin was not confined at a therapeutic protection place.

Note 1     In a proceeding for a therapeutic protection order, a fact is proved if it is proved on the balance of probabilities (see  s 711).

Note 2     The Childrens Court may make an order imposing an obligation on a person only if the person agrees to it, has been given an opportunity to be heard about it or cannot be found (see  s 718).

Note 3     An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).