When a Child is in Need of Protection

Contributed by JessicaPeake and TamekaBrown and current to 27 July 2018

When is a Child in need of Protection?

The Department is sometimes required to step in and assist families (through support or by removing an unsafe child) if it is determined a child is in need of protection.

As set out in section 28(2) of the Act, a child is in need of protection if:
a) the child has been abandoned by his or her parents and, after reasonable inquiries -
(i) the parents cannot be found; and
(ii) no suitable adult relative or other suitable adult can be found who is willing and able to care for the child; or
b) the child's parents are dead or incapacitated and, after reasonable inquiries, no suitable adult relative or other suitable adult can be found who is willing and able to care for the child; or
c) the child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
(i) physical abuse;
(ii) sexual abuse;
(iii) emotional abuse;
(iv) neglect,
d) and the child's parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
e) the child has suffered, or is likely to suffer, harm as a result of -
(i) the child's parents being unable to provide, or arrange the provision of, adequate care for the child; or
(ii) the child's parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.

'Emotional abuse' includes psychological abuse and being exposed to family violence.

'Harm' is defined as harm to the child's physical, emotional or psychological development and means any detrimental effecot of a significant nature on the child's wellbeing.

'Neglect' includes failures by a child's parents to provide, arrange or allow the provision of adequate care for the child and/or effective medical, therapuetic or remedial treatment for the child.

A child is usually removed by an application for a warrant.

What is a warrant?

The Department can make an application to the Children's Court for a warrant. There are two types of warrant - 'access' or 'provisional care'.

A warrant for 'access' can be applied for when the Department is denied or reasonably believes they will be denied access to a child. This warrant can also allow the Department to gain entry to a place where the child may be.

A warrant for 'provisional protection and care' can be applied for when a child in need of care:
  • cannot be found by the Department;
  • leaving the child where they are poses an unacceptable risk to the child's wellbeing;
  • a child may be at risk if they leave a safe place (such as a hospital); or
  • the Department would be unable to locate the child if the carer became aware of a proposed application for care by the Department.
    After a warrant is executed and the child removed, the Department must make a Protection Order Application as soon as practicable - but not more than two working days after. The Court matter must be listed for a court date within three working days after the Application is made.

Can my child be removed without a warrant?

A child can be removed from you by an authorised person without a warrant in certain circumstances. Removal can happen if the officer suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing.

The officer may enter any place where the child may be, search that place and remove the child. An officer may use reasonable force and assistance.

Once a child is removed, the Department must be notified, along with sufficient reasons for the removal of that child.[3]

If the child is removed and the Department does not want to make a Protection Order, the child must be returned to the parent or carer as soon as is practicable. If an Order is to be made, an Application must be made within two working days of the child being removed. The Court must ensure the matter is listed for a court date within three working days after the Application was made.[4]

Powers and duties of the Department

The Department has a wide variety of powers under the Act. Where the Department has received information that raises concerns for a child, the Department 'can make any inquiries necessary' to safeguard or promote a child's wellbeing and determine a course of action.

If it is determined that action is needed to protect the child's wellbeing, the Department has a number of duties it is required to carry out to protect that child. The Department must do at least one of the following:
  • provide 'social services' to the child or parent - such as training, counselling, advocacy, crisis care, support or family violence services;
  • arrange a meeting between a Department worker and the parent (or whoever is caring for the child);
  • enter into a 'responsible parenting agreement' - this is an agreement around issues such as parenting, school attendance, contact with certain persons;
  • enter into a 'negotiated placement agreement' - this is an agreement for the Department to find somewhere safe for the child to stay;
  • conduct an investigation into any claims around abuse or harm;
  • take interventional action - this may include making an application for a Protection Order, taking the child into provisional care or making an application for a warrant; or
  • any other reasonable action.

Permanency planning

Permanency planning is what the Department does to enable children to have a stable and secure home, and to ensure they continue to have contact with family and important people. This is because "children need safe, continuous and stable care arrangements, lifelong relationships and a sense of belonging".

Sometimes, Permanency Planning will include a process for reunification of the child with the parent. This would occur if the child is protected by a Protection Order (time-limited) and would not occur if the Order is until 18 years. (meaning of reunification)

As soon as a child enters the 'provisional care' of the Department, as assessment is completed to weigh up the likelihood of that child reunifying with the parent, or whether it is in the 'child's best interests' that a Protection Order be made.

Permanency Planning is a Department Policy, and you can view the policy or have a look at this fact sheet for more information.

Click here to view the Policy.

Click here to view a Permanency Planning Factsheet.

Types of orders

Protection orders (time-limited)

Protection orders (until 18)

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