Introduction
A Family Division Children’s Court search warrant authorises a named member of the police force or generally all members of Victoria Police to:
- enter and search any place where the child named or described in the warrant is suspected to be; and
- place the child in emergency care, and either:
- bring the child before a bail justice or the court as soon as practicable, or
- release the child on an interim accommodation order (IAO) in accordance with the endorsement on the warrant, or
- take the child to the place specified in the warrant or nominated by child protection (s. 598), or
- bring the child to the Secretary to enable the Secretary to exercise his or her powers under the temporary assessment order (s. 237).
For further information see Children's Court search warrants - advice.
Types of warrants
The CYFA makes provisions for several types of warrants. These are:
Primary warrants
- Protection application by emergency care - s. 241(1)(b).
- Application for new IAO by emergency care – living in unsatisfactory living conditions - s. 270(6)(b).
- Temporary assessment order - s. 237.
Breach warrants
- Breach IAO by emergency care - s. 269(4).
- Breach family preservation order by emergency care - s. 314(2).
Bench warrant (fail to appear)
A magistrate may issue a warrant in circumstances where a child fails to appear before the Court after being issued with a notice to appear as follows:
- protection application by notice – s. 243(3)
- therapeutic treatment application by notice – s. 247(1)
- irreconcilable differences application - s. 261(1)
- vary interim accommodation order - s. 268(5)(b)
- breach IAO by notice - s. 269(3)(b)
- application for new IAO by notice - s. 270(5)(b)
- breach of family preservation order by notice – s. 313(b).
Return to placement and undertaking
- A child or parent failed to comply with an undertaking pursuant to s. 530(2) to appear before the Court – s. 598(1)(a).
- A child is absent without lawful authority or excuse from the place in which the child had been placed under an interim accommodation order or by the Secretary pursuant to s. 173(2)(a) where the Secretary has parental responsibility for the child (under a family reunification order, care by Secretary order, long-term care order or therapeutic treatment (placement) order) – s. 598(1)(b).
- A child or their parent or carer is refusing to comply with a lawful direction of the Secretary pursuant to s. 173(2)(a) as to the placement of the child where the Secretary has parental responsibility for the child (under a family reunification order, care by Secretary order, long-term care order or therapeutic treatment (placement) order) – s. 598(1)(c).
The assessment of risk can be made on the basis of a single incident or an accumulated risk.
Procedure
Case practitioner tasks
- Prior to applying for a warrant, seek approval from a supervisor and record this in CRIS.
- Where there is uncertainty about how to proceed or where the warrant is connected with initiating court action, seek legal advice from the Child Protection Litigation Office or a divisional legal officer.
- Contact Records Services Division (RSD) Victoria Police on 8335 6203 to confirm there is no current outstanding warrant for the child or young person.
- Inform local uniform police or SOCIT about the warrant application, including the urgency of executing a particular warrant and any information regarding immediate action required such as seeking medical treatment for the child. This allows police to plan the execution of the warrant.
- Complete the affidavit in support of an application to issue a Children’s Court search warrant in CRIS. The template is available in Court -Affidavits forms.
- For a primary or breach warrant, include a succinct description of the protective concerns, action taken by child protection and the reasons the warrant is necessary to ensure the safety of the child or young person.
- Ensure an application has not previously been lodged on the same grounds. It is not appropriate to apply again in the same facts and circumstances where a warrant has previously been refused.
- Check that all the information is accurate.
- For a temporary assessment order (TAO) warrant, include:
- the information that gives rise to a reasonable suspicion the child is, or is likely to be, in need of protection
- the need to assess whether the child is need of protection; and
- the reason why you cannot carry out the investigation and assessment without a TAO warrant.
- For an absent without lawful authority warrant:
- provide evidence the child is absent without lawful authority or excuse from their placement;
- determine whether to specify a place to which the child is to be taken when located; and
- if applying for a warrant that specifies the child is be taken to a secure welfare service, ensure that approval has been given by the required delegate and record this in CRIS. See procedure Secure welfare service placement for tasks that must be undertaken.
Where the Secretary has parental responsibility (under a family reunification order, care by Secretary order, long-term care order or therapeutic treatment (placement) order), the appropriate delegate has the administrative authority to place a child or young person in a secure welfare service.
- Sign each page of the affidavit.
- Swear or affirm the affidavit before an authorised affidavit taker. See procedure Affidavits and statutory declarations. Child protection practitioners CPP 4 or above are authorised affidavit takers.
- Inform the Court registrar of the impending application (before 4 pm in metropolitan areas; check local court in rural areas).
- Fax or deliver the affidavit to the Children’s Court, or if you are already at Court the Magistrate may accept oral evidence instead of a written affidavit
- After a warrant has been granted, the Court faxes the warrant to the Victoria Police Records Services Division (RSD) and a confirmation to the child protection applicant. Contact RSD (phone 8335 6203) to confirm the warrant has been received from the Court and arrange for execution of the warrant by police.
- In urgent circumstances, to obtain an after hours warrant after 4 pm or on weekends:
- Contact the on-call duty Court Registrar on 9628 7899.
- Provide contact details.
- Explain the need for an after-hours warrant. The Duty Registrar provides a number for the paperwork and affidavit to be faxed.
- If the Duty Registrar has not responded in 20 minutes contact D24 on 9247 3222 and speak with the online supervisor.
- Complete the affidavit in support of an application to issue a Children’s Court search warrant in CRIS. The template is available in Court -Affidavits forms. Sign each page of the affidavit.
- Swear or affirm the affidavit before an authorised affidavit taker. See procedure Affidavits and statutory declarations. Child protection practitioners CPP 4 or above are authorised affidavit takers.
- Complete the child details and applicant details on the relevant Form 39 Children’s Court search warrant. See Court - Search warrants forms.
- Fax the affidavit and warrant to the Duty Registrar.
- If the warrant is refused or a correction is needed, the after-hours Registrar will contact you.
- If the warrant is issued, the Magistrate will fax it directly to the RSD. After 20–30 minutes you will need to contact RSD on 8335 6203 to confirm receipt the warrant.
- Complete a missing persons report if the child’s whereabouts are unknown.
After obtaining a warrant for a protection application or breach
- Inform your local SOCIT or uniform police of the granting of the warrant and arrange for its execution as soon as possible.
- Provide police with details of safety issues (including any medical or disability related concerns and needs) and possible whereabouts of the child and family.
- Complete paperwork relevant to the application.
- Ordinarily, you will serve the child and parents with the necessary Court forms (that is, protection application by emergency care, breach paperwork). If for some reason, you will not be present to do so, ask the police to serve paperwork and complete the affidavit of service. Ensure the police have the paperwork which includes:
- necessary Court forms completed by you (protection application by emergency care, breach of an IAO)
- child protection brochures providing information to children and parents when taking a child into emergency care.
- Upon execution of the warrant, the police will hand the child over to you.
After obtaining a warrant for a missing child or young person
- Coordinate with family, carers, police and professionals to locate the child until the child is found and risk issues addressed.
- Ensure police execute the warrant and return child or young person to placement (or other place identified in the warrant). Police will return the executed warrant to the issuing Court and inform RSD.
- Complete an after hours possible contact and consider a transfer to the AHCPES depending on time and urgency.
- You can request transfer to AHCPES for execution of the warrant after hours. This should occur in consultation with your supervisor. Completing an after hours possible contact is not sufficient – a formal transfer must occur. A crisis plan and possible contact guiding an after-hours response should be recorded on CRIS.
- When the child is located, if a place to which the child is to be taken has not been specified on the warrant, assess the current circumstances of the child and determine where the child is to be taken, having obtained appropriate approvals, and advise police.
- Complete CRIS requirements including Court screens and record of activity, decisions and rationales.
Supervisor tasks
- Provide ongoing supervision and consultation.
- Oversee the warrant process until the warrant is executed or withdrawn.
- Negotiate an after hours transfer to AHCPES if required.
Team manager tasks
- Provide ongoing consultation and endorse the decision to apply for a warrant.
- Seek endorsement from the required delegate if the warrant is to specify that the child or young person be placed in secure welfare, or if following apprehension of the child, the child is assessed as requiring placement in secure welfare.
- Participate in decision making if the decision to apply for a warrant is part of a case planning decision (such as taking child into emergency care or changing their placement) or about a high-risk case.