Court action - advice

This advice provides additional information regarding initiating court action to protect a child from harm.
Document ID number 2037, version 3, 30 June 2022.

See procedure Court for tasks that must be undertaken.

A protection application (PA) may be issued when the practitioner is satisfied on reasonable grounds that a child is in need of protection under one or more of the grounds contained in s. 162 of the Children, Youth and Families Act 2005 (CYFA). Such a decision will be based on a comprehensive SAFER risk assessment of the available information, consideration of all relevant principles in the CYFA in consultation with a supervisor, and endorsed by a team manager.

The Secretary, community services and the Children's Court must have regard to the best interests principles (s. 10 CYFA) when making decisions and taking action, with the best interests of the child being paramount. The Secretary and community services (but not the Children’s Court) are also required to comply with decision-making principles (ss. 11-14 CYFA) when, for example, making case planning, placement and other significant decisions. The decision to issue a protection application is a major case planning decision and as such, the SAFER children framewor, the best interest principles and other relevant decision-making principles must be rigorously applied.

Practitioners must seek, share, sort and store information and evidence in the essential information categories and analyse the information and evidence to assess the risk to a child.  Practitioners must consider the consequence and probability of harm when assessing the risk to a child to inform their decision making when considering legal intervention.

The key elements for consideration of the child’s best interests will be informed by a comprehensive investigation and risk assessment. The key elements of the decision-making process will be informed by the decision-making principles including, for example, taking steps to ensure the people involved are able to participate in the process and decisions are reached by collaboration and consensus where possible provided they are consistent with the child’s best interests. Once a decision has been made to take court action, the practitioner must consider evidentiary issues and the legal process. Practitioners should seek early legal advice when considering any court action.

Additional practical issues to be considered include defining unacceptable risk of harm to the child and evidence to support the application; alternative options to minimise the risk of harm and maintain the child at home or in the current placement.

In circumstances where the department has a reasonable suspicion that a child is in need of protection and that further investigation is indicated but unable to be undertaken either because the family directly or indirectly refuse to cooperate with the assessment, then the practitioner may consider seeking a temporary assessment order (TAO).

When court action may be considered

Initial investigation

Court action may be considered during the investigation phase if the practitioner is satisfied on reasonable grounds that the child is in need of protection. However, once it is decided the child is in need of protection, a risk assessment must completed and endorsed by a team manager and the report should be substantiated and the case moved to protective intervention phase.

Protective intervention

Following the endorsement of a risk assessment, a PA may be issued at the time that a case is moved to protective intervention phase. In other cases, a plan may be developed to protect the child through the provision of services and supports. After a period of time in which a community based protective plan is implemented, a review risk assessment may be completed and endorsed which outlines that the protective plan is not providing sufficient safety and that the child is still, or has again become, in need of protection under s. 162, CYFA. In such circumstances, a PA should be issued where it is the only means of providing adequate protection to the child.

The case will remain in protective intervention phase until the court proceedings are resolved through the making of a protection order, or where the PA is withdrawn or dismissed and the case is closed.

Consideration of an application to breach an IAO in the protective intervention phase will be based on new information being added to the essential information categories and a review risk assessment completed and endorsed. A new IAO may be applied for in this phase due to new facts or circumstances arising, or where the child is living in unsafe circumstances under the terms of the existing IAO.

Making a decision and taking action

A practitioner must consider the decision-making principles (CYFA ss.11-14) before taking any action under the CYFA. To the extent that it is practicable and consistent with the child’s best interests, the decision making process should:

  • be designed to assist the child’s parents, and the child – if old enough – to participate in the decision making process
  • involve consultation with the child’s carer if the child is placed in out-of-home care
  • seek to achieve collaboration and consensus
  • incorporate consideration of cultural issues where the child is Aboriginal or from a CALD background, including the involvement of relevant agencies and members of the child’s cultural community
  • be informed by a risk assessment or review risk assessment
  • result in a written case plan, with a copy of the plan provided to the child and their family.

In forming an opinion about the child's best interests (CYFA s.10) the following three key elements must be considered. The need to:

  • protect the child from harm,
  • protect their rights, and
  • promote their development (taking into account their age and stage of development).

If the case proceeds to court, practitioners will be required to articulate how the child's best interests are served by this course of action over and above any other available options. . The most current risk assessment will be an annexure to the court report.

In addition to the three elements outlined above, practitioners will be required to demonstrate that consideration has been given to each of the principles contained under s. 10(3) as they apply to the action being taken or decision being made.

The key themes under this section are:

  • the effects of cumulative harm on the safety and development of the child
  • the provision of assistance and services to the family to strengthen parenting and improve safety
  • intervention into the relationship between the parent and child should be limited to that which is necessary to secure the safety and wellbeing of the child
  • that removal from the family should only occur where an unacceptable risk exists
  • the need to strengthen, preserve and promote the child's relationship with family, significant persons, and cultural, social and religious affiliations
  • the possible harmful effects of delaying decisions or actions
  • contact arrangements
  • the desirability of stability and continuity in the child's care and other aspects of their life (that is, educational, cultural, health).

The Court may also question whether the decision-making principles (CYFA s.11) have been complied with.

If the child is Aboriginal, this may include whether the relevant principles in the CYFA ss.12-14 have been complied with, for example that:

  • an opportunity should be given, where relevant, to members of the child's community and other respected Aboriginal persons to contribute their views
  • a meeting convened by an approved Aboriginal convenor should be held and where possible attended by the child, the child's parent and members of the child's extended family and other appropriate members of the Aboriginal community
  • for out-of-home care decisions an Aboriginal agency must be consulted and the Aboriginal child placement principle applied.

Practitioners should read and be familiar with these sections of the CYFA and be able to address the principles relevant to the subject child and apply them in practice.

A decision to issue a protection application should always be made in consultation with a supervisor and with endorsement from a team manager or more senior officer.

In exceptional circumstances where a child is in a situation of imminent and significant harm, it may be necessary for a child protection practitioner to remove the child from the situation immediately and issue a protection application by emergency care without the prior authorisation of a team manager. See procedure Application by emergency care for tasks that must be undertaken.

Protection application by emergency care vs. by notice

Following the decision to issue a PA, the decision to proceed by emergency care or by notice will be guided by the risk assessment and will be made in consultation with the supervisor. Child protection is responsible for assessing and recording the risk of harm to the child and makes the decision as to whether a PA is to be issued in respect of the child, and whether to do so by notice or by emergency care. However, when circumstances and time permit, relevant specialist practitioners (including external agencies) and the divisional solicitor should be consulted prior to any action being taken. This is likely to occur when an application by notice is considered appropriate. In situations where a PA by emergency care is issued, such consultation may not be possible. See Early legal advice.

Factors that will influence a decision to issue a protection application by emergency care

The decision that a child requires immediate removal from their parents’ care, and placement with alternate caregivers, should be made only in the most serious of circumstances where a child has suffered significant harm, or is at imminent risk of significant harm and the child's parents are unable or unwilling to protect them. Such a decision must be based on a comprehensive risk assessment of the available information and following consultation with a team manager or more senior officer (except in exceptional circumstances - see above).

When considering proceeding by emergency care, practitioners should specifically consider:

  • What is the immediate and unacceptable risk of harm to the child, and does it justify removing the child from the care of their family?
  • How does this course of action address the child's best interests?
  • Can any measures be put in place to reduce the level of risk and safely maintain the child at home e.g. an intervention order?
  • Can the parents offer any options for the child to be placed in safety, for example, place child with a friend, relative or a voluntary placement (caution must be exercised to not leave a child at risk by agreeing to a voluntary placement where a protection application is the more appropriate action)?
  • What are the risks associated with removing the child from parental care, for example, breast fed baby, impact of placement on children and is the risk of separation outweighed by the need for protection?
  • What are the appropriate grounds to issue the PA in s.162(1) of the CYFA?
  • What evidence is there to support the application? For example, medical evidence, child's disclosure, other corroborating evidence?
  • Is there time to consult with CPAS and the divisional solicitor/court officer/Child Protection Litigation Office (CPLO) to clarify the evidence currently available and that which needs to be obtained (this may not be possible prior to issuing an application by emergency care).
  • What is the correct process for issuing and serving the PA? Does a bail hearing need to be held?
  • Has the team manager endorsed the PA?

Factors that influence a decision to issue a protection application by notice

A PA by notice is appropriate where the child is not at such extreme risk that immediate removal is essential. The child will generally be living at home with a parent, however the child may be with an alternative carer arranged by the family or on a voluntary agreement.

When considering proceeding by notice, practitioners should specifically consider:

  • Is there an immediate and unacceptable risk of harm to the child? If yes, consider proceeding by emergency care.
  • How does a PA by notice address the child's best interests?
  • What is the risk of harm to the child? Practitioners must consider both the future risk and the history of allegations or abuse and the success of past interventions to incorporate the issue of cumulative harm.
  • Are there issues relating to the child's development (physical, social, emotional, intellectual, cultural and spiritual)? What evidence is there and can this evidence be linked to the issues of abuse, neglect, family and parent functioning?
  • What services or supports are currently in place, have been tried or can be incorporated to maintain the child in a parent’s care and address any protective issues?
  • Are there any added risks in proceeding by notice, for example: flight risk, increased stress for the family and associated escalation of risk for the child?
  • Are there significant concerns for the child that require the child be placed on a Children's Court order urgently? (this is unlikely to be possible on a by notice application)
  • Consultation with CPAS and the divisional solicitor/court officer/CPLO should occur at the earliest possible time to clarify the grounds for the application, the evidence currently available and that which needs to be obtained.
  • Any other consultations required? For example, practice leader, ACSASS.
  • What is the correct process for issuing and serving the PA?
  • Has the team manager endorsed the PA?
Process for issuing a PA

See procedures Initial court application - by notice and Application by emergency care for tasks that must be undertaken.

Placement considerations

In all cases where children are removed from the care of their parents, the feasibility of placement within the child's extended family or social network must be considered before other placement options. Consideration must also be given to factors that impact on permanency and the child’s sense of belonging, for example:

  • the desirability of maintaining siblings together in placement
  • continuity of the child’s education or employment
  • maintaining a child's links with their local community including religious and cultural affiliations and relationships with significant others
  • See procedure Kinship care for tasks that must be undertaken.

Where children are Aboriginal, practitioners must consult with ACSASS and the placement decision must be reached by following the process in the Aboriginal Child Placement Principle CYFA S. 13. See advice Placing Aboriginal children in out-of-home care.

Considerations for good practice

A risk assessment considering the probability and consequence of harm will support practitioners to use their professional judgement in decision making and articulating risks to the court.

A legal consultation should occur at the earliest possible time to consider issues regarding evidence and grounds for application.

If the child is subject to an emergency care application and has undergone a medical examination, seek an initial opinion report from the medical practitioner for the purpose of court. Also alert the medical practitioner that a subpoena may be issued for them to appear in court at short notice.