Immediate removal of a child - advice
This advice provides additional information regarding a decision to remove a child from the care of their parents.
Document ID number 2034, version 5, 4 May 2022.
See procedures under Investigation for tasks that must be undertaken.
The decision that a child requires immediate removal from their parents’ care and placement with alternate caregivers should occur 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 have not protected or are unlikely to protect them.
This decision is made only when the risks are assessed as too high to be managed by the available supports in conjunction with child protection.
Such a decision must be based on a sound assessment of the available information, consultation with a supervisor and endorsement by a team manager.
Where there is information in a protective intervention report that a child may have sustained harm from physical abuse, sexual abuse or serious neglect, child protection must contact the Victoria Police prior to contact with the child/parents in order to jointly plan the investigation. See Police protocol.
Where contact with the child by a child protection practitioner reveals previously unknown evidence of physical or sexual abuse or serious neglect, practitioners should inform their supervisor and contact Victoria Police as soon as possible.
Where there is evidence that a parent may have a history of assault, family violence or related offences, a criminal records check should be undertaken for the purposes of worker safety. Contact with the local uniformed police should also be made regarding their knowledge of the family, any recent contact with the family, and the feasibility of them accompanying workers on the visit, if there are identified safety issues.
Examples of circumstances requiring immediate removal of a child
The following is a representative sample of situations where immediate removal of a child is required as a result of an unacceptable risk of harm to the child’s safety and development:
- The child has sustained a serious physical injury; the child’s parents or caregivers fail to provide a satisfactory explanation of the cause of the injuries and are assessed as unable or unwilling to protect the child from further injury.
- The child has suffered sexual abuse, or there is a high likelihood that the child will suffer sexual abuse and the child’s parents or caregivers are assessed as unable or unwilling to protect the child from further sexual abuse.
- It is assessed a child is at immediate risk of significant harm.
- Parents are affected by substances, such as drugs or alcohol, which impact on their functioning and ability to care for their child.
- Through their actions, a young person places themselves at immediate risk of significant harm and their parents have not protected them or are unlikely to protect them.
- Conflict between a young person and their parents is extreme, has potential to escalate and the young person is at immediate risk of significant harm.
- The home environment is such that it exposes the child to unreasonable risk of harm, and the parents have not protected them or are unlikely to provide a safe environment for the child.
Assessing the need for immediate removal of a child
Immediate removal of a child from their parents and family has the potential to cause significant trauma and disruption for the child, their parents and family.
Decisions about the most appropriate application (for example temporary assessment order, immediate removal by emergency care or a protection application by notice) should be made based on all the facts and circumstances. Remember that seeking early legal advice is encouraged to support decision making.
A decision to remove a child immediately is based on professional judgement, a thorough risk assessment and an analysis of the following, in line with the SAFER children framework:
- Vulnerability of the child (individual child characteristics and needs, opportunity for harm, child within the context of family and community and parental capacity to meet needs and address harm); and
- Severity of harm (Types of harm (Section 162), pattern and history, and cumulative, individual child experience and impact of harm); and
- Likelihood of harm (factors that increase the likelihood that harm has occurred or is likely to occur again. Prior patterns and behavior towards the child, attitudes and beliefs of the parents, contributing factors.
- Safety (the factors that decrease the likelihood that harm has occurred or is likely to occur again. Current and future focused, considers child, parental and community strengths); and
- Consequences of harm (the vulnerability of child and severity of harm come together to make a judgement about impact on the child (severe, significant, concerning or insufficient evidence of harm); and
- Probability of harm (likelihood of harm and safety come together to make a judgement about probability occurring – very likely, likely or unlikely)
Only where the:
- consequence of harm judgement is rated as either severe or significant, and the probability very likely
- the child or young person is considered in need of care and protection and statutory intervention is being considered
- the child’s safety needs cannot be met by available resources and supports
should there be a need to remove the child immediately and locate a safe placement,
Parents refusal to cooperate or obstruction of access to the child
Where the parent refuses to cooperate with the investigation or to provide permission for a medical examination or obstructs access to the child for the purposes of assessment, contact should be made with the supervisor or team manager.
Where there is sufficient information to indicate the need for further assessment of the child in their parents' care, consideration should be given to an application for a TAO to enable further assessment. See advice Temporary Assessment Orders.
Where information or observations indicate the need to remove the child, consideration should be given to the appropriateness of a warrant and a protection application (PA). See procedure Warrants for tasks that must be undertaken.
Factors to consider regarding a decision of immediate removal
Consultation with a supervisor and endorsement of a decision to remove a child by a team manager must occur.
- What risks have been identified in your risk assessment?
- What is the precipitating incident or what has heightened the concern?
- What is the immediate and unacceptable risk of harm to the child?
- Are there any serious family violence risk factors? Are there any MARAM assessments from partner agencies where there is a risk rating of ‘serious and requires immediate protection’?
- Can sufficient measures be put in place to effectively reduce the level of risk and safely maintain the child at home, for example, an intervention order?
- Where time permits, what other consultation is required? For example, Aboriginal Child Specialist Advice and Support Service (ACSASS).
- How are the 'best interests' of the child served by the decision for immediate removal? Consider, what are the risks associated with removing the child from parental care? Is the baby being breast-fed? What is the impact of placement on the child?
- What are the appropriate grounds for a protection application?
- What evidence is there to support a protection application by emergency care?
Factors to consider regarding placement
- Whether the parents offer any options for the child to be placed in safety, for example, with a friend or relative subject to a child care agreement (s. 135, Children, Youth and Families Act 2005 (CYFA)) (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 option – see notes below).
- The need to explore safe placement of the child in their known extended family or social network (kinship care) before other care options.
- Whether the placement should be undisclosed due to safety issues for the child or carer.
Where there is no current order or the child is subject to an IAO or a family preservation order
- Has the team manager approved the need for immediate removal?
- It is necessary to make an application to the Children's Court in order to remove a child. Identify what evidence there is to support such an application. For example, medical evidence, child's disclosure, corroborating evidence from a third party.
- Consultation with the divisional solicitor or CPLO should occur at the earliest possible time to clarify the evidence currently available, and any further evidence required (this may occur after the protection application has been issued).
- Review the process for issuing and serving the protection application. Does a bail hearing need to be held?
Where the child is subject to a family reunification order, a care by Secretary order or a long-term care order
- The need for immediate removal may arise during contact. An application to the Children's Court is not required. If the child is absent from their placement and the parents or the child refuses to cooperate, a s.598 warrant may be considered.
When a decision has been made that immediate removal of the child is necessary, the following options should be considered.
Protection application by emergency care
Generally, where immediate removal of a child from their parents' care is considered necessary (where the child is not already subject to a protection order), the most appropriate option is a protection application by emergency care issued on one or more of the grounds listed in s.162 of the CYFA.
In accordance with the provisions of the CYFA, where a child is placed in emergency care without warrant, the child must be brought before the Children’s Court, and the practitioner must file with the Court a notice setting out the grounds for placing the child in emergency care, within 24 hours of the child being placed in emergency care. If this timeline cannot be met, an application by emergency care before a Bail Justice will be required to seek an interim accommodation order (IAO) in respect of the child.
An application by emergency care should only be issued where it is assessed that a protection application by notice (serving a protection application on the parent to produce the child before the Children's Court at a date in the near future) is not appropriate. See procedure Applications by emergency care for tasks that must be undertaken.
Negotiation with the parents for a voluntary placement for the child
Voluntary placements are generally inappropriate where children require immediate removal from home. A voluntary placement is an agreement by the child's parents (and sometimes young people) with a placement provider and sometimes facilitated by child protection. Voluntary placements are not made by the court and can be ended at any time by the parent (and in some circumstances the young person). Such placements do not offer sufficient protection where a child is at risk in a parent's care.
Voluntary placements are appropriate only when the child protection practitioner assesses that the risks to the child are such that a short-term placement will enable the parents and the child to utilise services, which would be sufficient to overcome a crisis.
The child's parents must acknowledge the risks to the child and be prepared to be involved fully in planning to address these. (For example, where there is substantial conflict between a parent and their adolescent child but no previous history of abuse, and it is assessed that an emergency placement and engagement of a youth mediation service will alleviate the immediate risk and subsequently enable the child to return home in the short term.)
A voluntary placement is unlikely to offer sufficient protection and safety where children are assessed during an investigation as requiring an immediate placement to secure their safety. Where the consequences of harm are assessed as severe and the probability of harm is very likely to warrant immediate removal from parents’ care, it is generally more appropriate that a protection application by emergency care be issued.
Where a child is placed with an out-of-home care (OOHC) service pursuant to a voluntary agreement by parents, a short-term child care agreement is necessary. See procedure Voluntary placements for tasks that must be undertaken.
Consideration should be given to the appropriate contact arrangements where children are placed voluntarily. Agreement by all parties will be essential if a voluntary placement is to provide sufficient protection. If it is preferable that contact between the parent and the child be supervised, it is likely a protection application by emergency care is more suitable than a voluntary agreement.
Interim accommodation orders
Where a child is removed from the parents' care by emergency care, that is a protection application or an application to breach an interim accommodation or family preservation order by emergency care is issued (with or without a warrant), the child protection practitioner is required to attend the Court within 24 hours. If this timeline cannot be met, an application by emergency care before a Bail Justice will be required to seek an interim accommodation order in respect of the child.
The Court may make an interim accommodation order in relation to a child in the following circumstances:
- the child has been placed in emergency care by the child protection practitioner by means of issuing a protection application or an application to breach an existing order;
- the child has been placed in emergency care by the child protection practitioner following the execution of a warrant;
- there has been an application for a new interim accommodation order. This is usually following a breach by emergency care of an existing IAO or family preservation order;
- an existing IAO or any condition attached to an IAO has not been complied with;
- there has been an application for an extension of the period of an existing IAO;
- an appeal has been initiated to the Supreme Court or the County Court against an order made by the Children's Court.
An application for an interim accommodation order can be made by the child protection practitioner, the child or the parent.
Conditions of an interim accommodation order
An interim accommodation order may:
- release the child pending the hearing, or the resumption of the hearing
- release the child into the care of the parent, pending the hearing or the resumption of the hearing;
- place the child with a suitable person, pending the hearing or the resumption of the hearing. The child protection practitioner must provide a report, either orally or in writing, to the Court on the person’s suitability;
- place the child in an out-of-home care service, pending that hearing or resumption;
- place the child in a secure welfare service, pending that hearing or resumption (see Secure welfare service placement for policy and procedures on placing a child in a secure welfare service);
- place the child in a declared hospital, on the provision to the court or bail justice of a statement in the prescribed form by or on behalf of the chief executive of the hospital that a bed is available for the child at the hospital;
- place the child in a declared parent and baby unit, on the provision to the Court or bail justice of a statement in the prescribed form by or on behalf of the chief executive of the agency managing the parent and baby unit that a place is available for the child at the parent and baby unit;
- place the child with a disability service provider if the child is a disability services client; and
- include any conditions that the Court or bail justice considers to be in the best interests of the child. This may include conditions that relate to the contact by a parent or other person with the child.
Parents' entitlement to know the child's whereabouts
Under an IAO, a parent is entitled to be provided with details regarding the child's placement and whereabouts unless the Court or bail justice directs that these details be withheld from the parent. In this situation, the child's placement is considered to be undisclosed. This must be accurately recorded on CRIS using the alert function and by marking the carer’s address as withheld and phone number as silent. The Court or bail justice may only direct that a child's placement be withheld from the parent if this is in the best interests of the child.
Power of Secretary to transfer child who is subject to an IAO
A child subject to an interim accommodation order who is placed in an out-of-home care service or secure welfare service, may be transferred from one out-of-home care service to another out-of-home care service or from one secure welfare service to another secure welfare service, if this is in the best interests of the child.
In accordance with the provisions of the CYFA, if a child who is subject to an IAO is placed in an out-of-home care service or secure welfare service and the child's placement is changed by child protection, the practitioner must provide written advice of this change to the parents (unless the placement is undisclosed) and to the Court. Home based carers are to be advised that parents will be informed of the address of the placement unless the placement is undisclosed.
Breach, extension and variation of an IAO
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. See procedure Kinship care for tasks that must be undertaken.
Where a placement within the child's kinship network is being considered, an assessment including a criminal history check of the proposed carers and other adults in the household must be undertaken.
Where children are Aboriginal, practitioners must consult with ACSASS and the placement must reflect the process outlined in the Aboriginal Child Placement Principles must be applied when deciding on the placement that will be in the child’s best interests. See advice Assessing kinship care for Aboriginal children.
Removing the child - planning
Sometimes practitioners will be aware before visiting the family, that it is likely the child may require removal, for example, from information in the protective intervention report (intake), via third parties (for example, police), or where the child has been interviewed at school. See procedure Investigation plan for tasks that must be undertaken.
Where this is the case it is important that planning in consultation with the practitioner's supervisor occur as early as possible. Consideration should also be given to involvement of the police and early consultation with senior practitioners, practice leaders or the principal practitioner, divisional solicitors or CPLO, and ACSASS.
Key planning issues include:
- the likely need to have the child medically examined or admitted to hospital;
- the availability of a suitable placement – contact the divisional placement coordination unit to determine placement availability in the event there is no suitable kinship care option;
- consideration of worker safety issues – visits to place a child in emergency care are generally undertaken by two practitioners. Consider the need for police assistance, criminal history checks of occupants in the household, known parental history of violent behaviour, practitioner experience, after hours contact numbers for supervisor, bail justice, placement, police;
- timing – availability of Court or bail justice. Contact the Court and divisional solicitor/CPLO or court officer to alert them if you are unable to get to Court by 1pm and therefore bringing the matter before the Court within 24 hours will not be possible. If this is the case, contact police to arrange for the on call bail justice to be contacted;
- likely grounds and rationale for a protection application or breach application;
- What is the proposed sequence of events?
- where the police will assist in the removal of the child, this may require negotiation;
- How will the action be explained to the parents and the child?
- What are the proposed contact arrangements?
- What will the need be for consultation during the visit and debriefing following?
- Is there a need to seek an undisclosed placement?
The need for a medical examination or admission to hospital
Where serious physical injuries are identified during a visual examination by the practitioner, or there is evidence which suggests that the child should be examined by a doctor (for example, infant is floppy or unresponsive), or there are indicators of recent sexual assault, the practitioner should request the parent and child accompany them to the nearest hospital (via ambulance if required) with forensic paediatric medical facilities (see Related links) for examination.
Serious neglect includes situations where a parent has consistently failed to meet the child's basic needs for food, shelter, hygiene or adequate supervision and the consequences for the child are serious.
- The child's home environment is hazardous in the extreme and poses a threat to the child's immediate safety or health, such as the presence of animal or human faeces/urine, decomposing food, syringes or other drug paraphernalia, squalor or filth.
- The child is provided with consistently insufficient or inadequate food or nourishment for the child's healthy development.
- A child has a serious medical condition for which the parent has consistently failed to obtain treatment or dispense prescribed medication.
- A parent consistently leaves a child unattended, exposed to or in the care of strangers who may harm the child.
Following the outcome of the examination of the child by the medical officer/paediatrician, the practitioner should consult their supervisor to determine if there is a need for immediate removal of the child. Evidence of physical or sexual abuse or severe neglect will be reported to Victoria Police.
Child protection planning and actions with respect to medical examinations should be consistent with practice advice and existing protocols with local hospitals and the Royal Children's Hospital which undertake paediatric forensic medical examinations. See procedure Medical and forensic examinations for tasks that must be undertaken.
When making an interim accommodation order (IAO), the court can direct that details of the child's whereabouts be withheld from parents if:
- special circumstances exist which justify withholding those details, for example where a practitioner believes the temporary caregivers may be at risk of violence from the parents; or
- the safety or wellbeing of the child may be in jeopardy if the details are not withheld, for example where a practitioner believes the parents would try and remove the child from the placement.
In considering whether to recommend that the placement address be withheld, the practitioner should consult the CSO caseworker to ascertain their view. Where the CSO caseworker is of the view that the placement address should be withheld, the Court must be informed the CSO caseworker’s view, in addition to the practitioner’s view. This information must be recorded in CRIS.
However, if the decision is made the placement will not be undisclosed, carers are to be informed that parents will be advised of where the child is residing.
Protection application by emergency care – practice tasks
See procedure Applications by emergency care for tasks that must be undertaken.
Where a protection application by emergency care has been issued, practitioners are legally required to provide written information containing prescribed information regarding placing a child in emergency care to the parents and the child (if over 12 years of age) (s.242 of the CYFA).
Information should also be provided in relation to:
- the Court process that will follow;
- the time and place of the hearing (and a map to assist parents to locate the Court);
- their rights as parents or as young people, including their right to contest the making of an interim accommodation order; and
- how they can seek legal representation.
Parents in such circumstances are generally under a high degree of stress and may be unable to think clearly or later recall the detail of the conversation. Practitioners should take care to convey information respectfully, clearly and succinctly. They should provide an opportunity for parents to ask any questions or clarify issues and information.