Applications by emergency care

emergency care, PA, Protection application, breach, PA by EC,
1202

Follow this procedure when making an application by emergency care to the Children’s Court.

Document ID number 1202, version 7, 23 October 2023.

Introduction

When a Child Protection risk assessment determines the consequence of harm is severe or significant and the probability very likely, then the child or young person is considered in need of care and protection. An application by emergency care to the Children’s Court should be considered in these cases.

Procedure

Case practitioner tasks

  • Consult your supervisor about whether to make an application by emergency care. Clarify:
    • the grounds for the application
    • the grounds for not applying by notice
    • whether a warrant is required.
  • Seek advice from the Child Protection Litigation Office (CPLO) or a divisional legal officer about the application where possible.
  • Update the essential information categories with any new information or evidence that has changed the risk assessment.
  • Complete the risk assessment on CRIS detailing the decision to issue a protection application by emergency care (a separate rationale for protection application case note is not required).
  • Complete ‘Form 10: Protection application’ for a PA in CRIS (or off-line if necessary). See Court - Applications forms.
  • If you are seeking a warrant, additional paperwork will be required. See procedure Warrants for tasks that must be undertaken.
  • Place the child into emergency care.
  • Make ‘reasonable inquiries’ to locate and serve the relevant parties the application by emergency care applications.  At a minimum you should attend their last known address, call telephone numbers recorded on CRIS and make enquiries with family members to attempt to locate and serve a party.

The information privacy principles state that ‘…personal information must be protected from misuse, loss, unauthorised access, modification or disclosure’. Leaving court applications at a person’s home or with another person cannot ensure a person’s privacy is protected and therefore should not occur in any circumstance. 

  • Apply to the Court through the CMS Portal for an order dispensing with service if after reasonable efforts a party cannot be located or there are exceptional circumstances.
  • See procedures Service of documents and Dispensation of service for tasks that must be undertaken.
  • If you are unable to locate and serve all parties prior to the hearing, you must serve them on the day of and prior to the hearing (if they attend court) and then complete the affidavit of service.
  • Provide young people and parents with appropriate information sheets:
  • Once all paperwork is finalised, log on to the CMS Portal to file the application with the court and schedule a hearing time. Scan and upload the original application,, form b and copies of redacted CRIS notes (see below) to the CMS Portal prior to 1pm (2pm at Melbourne Children’s Court for a secure care related placement) and be ready to proceed for a submission hearing by 3pm.
  • Affidavit/s of service will be uploaded after the application has been lodged in the CMS portal through the ‘file a document tab’ in the client court file. 
  • Any requirements for interpreters, security notices and prison video links are completed when creating the application within the CMS Portal and will be coordinated by the Court. 
  • Submitting the application via the CSM portal will trigger and automatic referral and notification to Victoria Legal Aid (VLA) for the family.
  • If the CMS Portal does not allow you to select the required location, date and time, contact the court registrar as soon as possible to ascertain the capacity of the Court to hear the application (this is most likely to occur in court locations that do not sit every day of the week). If the Court has the capacity, you will be advised of the time the application must be filed and other relevant documents. You must be prepared, as soon as practicable after filing the application, for any submissions contests that arise as a result of the application (including with pre-prepared redacted file notes).
     

If the Court does not have the capacity to hear the application that day, the registrar will refer the matter to the closest rural Children’s Court for the application to be filed.

  • Arrange an Application by emergency care before a Bail Justice if the application cannot be brought before the Children’s Court within 24 hours. The Bail Justice hearing will occur outside of the CMS Portal. If an order is granted after the Bail Justice hearing, the CPP must upload the order and schedule a hearing for the next business day through the CMS Portal and record these details and copies of orders in CRIS refer to Guide for managing applications by emergency care before a Bail Justice for additional information.
  • If possible, establish with the child aged 10 years or over as early as possible whether they wish to give instructions at court (in-person) or away from the court (via phone or video link), and ensure the child can be supported to attend court if this is their preference.
  • Ensure that information is provided as early as possible to Victoria Legal Aid on the representation needs of any child aged 10 years or older to allow these to be appropriately prioritised. This includes whether the child is to give instructions face-to-face or remotely, and contact details for the child, where required.
  • Complete a ‘Statement of grounds’ form and ‘Summary Information’ form in CRIS or off-line if necessary (see Court - Applications forms) and: in metropolitan areas provide to CPLO prior to 9.30 am on the day the matter is to be heard or as soon as possible if PA is issued that day prior to 1 pm; or in rural areas, provide to the divisional solicitor as early as possible.
  • CPLO DO NOT receive notifications via the CMS Portal. An email to the local CPLO should include:
    • The court reference number (if available) 
    • Client name 
    • Application type
    • Hearing location, date, and time
    • Withheld addresses and safety concerns.
    • The Form B (as an attachment)
  • Consult CPLO or divisional solicitor prior to the hearing.
  • Complete an affidavit of service file the documents with the Court through the CMS Portal. See Court - Affidavits forms. These must be lodged prior to the hearing date.
  • Redact CRIS notes that are relevant to the rationale and circumstances for the emergency care application. You must redact or mask the name of any person who made a report and any information that is likely to lead to the identification of any person who made a report.
  • When redacting also keep in mind privacy considerations and remove any references to legal consultation or advice. If you have any questions about the redaction or the scope of the relevant notes, consult with CPLO or your legal representative on the day. See Information security and Information sharing in child protection practice.
  • Child Protection is required to provide redacted CRIS notes as part of some applications and hearings as per the current policy outlined in the Child Protection Manual. Staff must, however, be aware that within the CMS Portal, there are two options for uploading CRIS notes:
    • CRIS Notes (Redacted) – If 'CRIS Notes (Redacted)' is selected, the notes will be automatically available in the CMS Portal for all portal users with case access without having to be released by the Magistrate. This is a new function that has been built into the court process. In most cases, CPPs should be uploading their redacted case notes to this section.
    • CRIS Notes – once a case is created, in the 'upload documents' section of the case, if 'CRIS Notes' is selected and submitted, these will remain hidden from other portal users but will be submitted to the Magistrate. CPPs should speak with CPLO when uploading their CRIS notes to this section. 

Child protection practitioners are also required to keep a copy of the court applications and the affidavit of service on the paper file.

  • If placing the child in hospital or parent and baby unit paperwork ‘Form 13 – Statement of placement availability’ (see Court - Events forms) must be signed by or on behalf of the chief executive officer declaring that a placement is available at the hospital or unit.
  • Give consideration to whether an undisclosed placement is required, and if so, make an application to the court.
  • Complete CRIS requirements including court screen and record of activity, decisions and rationales.

Supervisor tasks

  • Provide ongoing supervision and consultation.

Team manager tasks

  • Endorse the application for an application by emergency care and recommended outcomes and order conditions.
  • Endorse the risk assessment.

Deputy area operations manager tasks

  • Endorse the application for a temporary assessment order.