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Respond to urgent circumstances—temporary custody order

In line with the Child Protection Act 1999, sections 51AA–51AM, a TCO is applied for when a child is assessed as being in need of protection and is at unacceptable risk of immediate harm.

Apply for a TCO for a child who has been assessed to be in need of protection and is taken into custody under the Child Protection Act 1999, section 18, no later than 8 hours after taking the child into custody.

The magistrate may decide the application for a TCO without notifying the child’s parents of the application or hearing them on the application.

Practice prompt

For a TCO, the definition of ‘parent’ includes long-term or permanent guardians. Therefore, when considering a TCO for a child subject to a long-term guardianship order to a suitable person or a permanent care order, the guardian has the same rights and obligations as a parent.

If there is a current child protection proceeding in the Childrens Court for a child or a matter has already been referred to the DCPL and it is assessed that the child is at immediate risk of harm, consult the senior team leader about:

  • organising an urgent case consultation with the DCPL
  • asking if the matter can be urgently listed for the court to consider new information.

If a TCO is considered necessary:

  • consult and seek the agreement of the senior team leader
  • seek legal advice from the OCFOS lawyer. 

Attention

If OCFOS does not agree that the matter meets requirements in line with the Child Protection Act 1999, it will not be possible to proceed with an application. Consider escalating the disagreement to the manager, regional director and official solicitor.

Apply for a Temporary Custody Order

To apply for a TCO:

  • Complete a draft Form 39—Application for a temporary custody order.
  • Make sure the application includes details of:
    • the nature of the child protection concerns that warrant immediate action
    • attempts made to gain the consent of at least one parent (preferably both) to the actions required
    • the rationale for seeking the specified provisions (such as a medical examination or custody)
    • action to occur while the order is in place
    • actions taken in relation to the child during any period of custody under the Child Protection Act 1999, section 18
    • the  care arrangement  and family contact, if relevant, including consideration of the five elements of the child placement principle for an Aboriginal or Torres Strait Islander child, particularly how the child’s connection to family and community will be maintained.
  • The senior team leader will:
    • check the details of the draft application
    • email the draft application to the OCFOS lawyer for review
    • email the final version of the application to the OCFOS lawyer
    • make sure the CSO swears or affirms the application before emailing it to the OCFOS lawyer, who will file the application.

Attention

The OCFOS lawyer will make a time to appear before the magistrate on Child Safety’s behalf.

If a CSSC is aware that a TCO application will be required after hours, the senior team leader will advise the OCFOS lawyer before 5pm if possible. The OCFOS lawyer will contact the on-call magistrate for the application to be heard.

If the OCFOS lawyer is not advised before 5pm, the senior team leader will:

  • contact the on-call OCFOS lawyer for legal advice, if required
  • call the on-call magistrate for the application to be heard.

Note

If the CSAHSC is responding to a matter that requires an application to the on-call magistrate, they may consult with the on-call OCFOS lawyer for legal advice.

If the TCO is granted by the magistrate:

  • Obtain a copy of the TCO (Form 40) from the magistrate and give a copy of the order to at least one of the child’s parents.
  • Tell the child about the order.
  • Explain to the child and the parents the reasons for, and the effect of, taking out the TCO. Also give them a copy of the brochure Temporary custody orders – information for parents.
  • Inform the parents or guardian about the right of appeal. Let them know that because of the duration of the order, if they want to lodge an appeal, they must take immediate action to do so.

Note

Unless the application is made by the CSAHSC, the OCFOS lawyer will complete in ICMS the:

- Form 39—Application for a temporary custody order

- Form 39—Temporary custody order outcome form  

- Closure of Temporary Custody Order form.

Effect on existing custody or guardianship orders

If the child is already subject to an order granting custody or guardianship, that order ceases to have effect while the child is in the custody of the chief executive under the TCO.

Duration of a temporary custody order

Note

A TCO cannot remain in effect for longer than 3 business days after the day the order is made. For example, if a TCO is granted on Thursday, it will end at 11:59pm on the following Tuesday.

The magistrate can extend a TCO, only once to the next business day:

  • if the magistrate is satisfied the order has not ended
    or
  • if the DCPL intends to apply for a child protection order during the period of extension. Written confirmation from the DCPL will be required.

This allows the DCPL to lodge the application for a child protection order with the court during business hours. The application for another order must be lodged before the court closes on the day the TCO expires. Under the Child Protection Act 1999, section 99, a TCO will continue until the application for a child protection order is decided.

Note

The OCFOS lawyer will complete, in the same ICMS event as the original TCO application, a:

Form 41—Application to extend/vary a temporary custody order
and
Form 41—Temporary custody order outcome.

Assess safety before returning a child home

Before returning a child to the care of their parents and while the child is still subject to a TCO granting custody to the chief executive:

If the child is assessed to be unsafe:

  • in consultation with the senior team leader, decide the appropriate intervention that will ensure the child’s safety
  • consult the OCFOS lawyer if a child protection order is required.

During the TCO period, the senior team leader will provide the approved draft of the initiating affidavit to the OCFOS lawyer no later than 48 hours before the order expires. (Refer to Prepare an affidavit.)

Where applicable, the OCFOS lawyer will:

  • complete a Form A referral to the DCPL for a child protection order application 24 hours before the TCO expires
  • provide the DCPL with a draft initial affidavit recommending the type of child protection order.

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