A warrant obtained under s. 598, CYFA, specifically applies to a child or young person who is absent from placement or where there is a failure to comply with a lawful direction of the placement of a child or young person.
Under section 598 a magistrate may issue a warrant to have a young person placed in emergency care if they are satisfied that:
- an undertaking to appear following an adjournment entered into under s. 530(2), CYFA has not been complied with;
- under s.598(1)(a) the child or young person is absent without lawful authority or excuse from a place in which the child had been placed under an interim accommodation order (IAO) or by the Secretary under s. 173, CYFA or from the lawful custody of a member of the police force or other person; or
- a child or a child's parent or the person who has the care of a child is refusing to comply with a lawful direction of the Secretary under s. 173, CYFA as to the placement of the young person.
If the warrant is issued under s. 598(1)(a), CYFA, the child must be brought before the Court as soon as practicable and in any event within one working day after the child has been placed in emergency care. In any other circumstance following the execution of the warrant, the police member executing the warrant is required to take the young person to the place specified in the warrant, or if no place is specified, to a place determined by the Secretary or in the absence of any such determination to any place referred to in s. 173, CYFA.
Seeking a warrant under s. 598, CYFA may be considered in situations where a young person, on the above-indicated orders, is absent from placement or refusing a direction for placement and where police will be required to actively intervene to ensure the security of the young person.
A search warrant is only to be used when it seems that the young person is at risk of significant harm and apprehension by police is the only viable option. It implies a level of concern high enough to override the use of less coercive approaches and assumes that police intervention will offer the young person a 'better' option than their current situation. It is appropriately used when it is likely that a young person is in a situation of significant harm and departmental intervention alone has not been or would not be effective in resolving this situation.
Less coercive approaches must always be attempted first where this would not exacerbate risk to the child. Prior to applying for a warrant to place a child in a secure welfare service consideration must be given to Victoria's Charter of Human Rights and Responsibilities (the Charter).
For example, practitioners may consider seeking assistance from the secure welfare transport service (transport service). The transport service can provide assistance to metropolitan areas transferring a young person on a family reunification order, a care by Secretary order or a long-term care order to the secure welfare service where resources are available. Another possible option is that the young person may be willing to be placed in a secure welfare service following discussion and negotiation.
A young person subject to one of the above named orders may be administratively placed in a secure welfare service via a s. 598 warrant if the following criteria are met:
- young person is absent from placement without lawful authority or excuse
- refusing to comply with a lawful direction of placement pursuant to s. 173, CYFA
- young person has been assessed to be at substantial and immediate risk of harm
- placement in a secure welfare service cannot be achieved by any other means. For example, the young person is exhibiting extreme aggressive behaviours.
A young person subject to an interim accommodation order (IAO), cannot be placed administratively in secure welfare under any circumstances.
If a s. 598 warrant is executed in respect of a young person who is subject to an IAO, the young person must be taken before the Children's Court (or a bail justice if out of hours) and an IAO to secure welfare services may be sought.
If it is assessed that the young person in these circumstances requires a placement in secure welfare, then the IAO breached and a new IAO to a secure welfare service may be sought, depending on the circumstances.
Consult ACSASS prior to seeking authority to place an Aboriginal young person in a secure welfare service.
For young people on a family reunification order, a care by Secretary order or a long-term care order child protection practitioners should inform parents of a secure welfare service admissions as appropriate. For all children in other legal circumstances, parents are required to be served with the court application before the matter proceeds to court unless they cannot be located after reasonable attempts have been made.
Team manager endorsement is required for a s. 598 warrant.
If the young person is to be placed in a secure welfare service after execution of the warrant, endorsement of the area operations manager/director, child protection on the appropriate form created in CRIS is required. A copy of the form ‘Authority to place in an out-of-home care service or a secure welfare service’ can be found in Forms and secure documents - consents.
Area operations manager/director, child protection endorsement is required when a young person is subject to a family reunification order, a care by Secretary order or a longer-term care order, or a recommendation is to be made to the Children's Court for the young person to be placed in a secure welfare service subject to an IAO.