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Respond if a parent will not consent to actions required - court assessment order

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This page was updated on 31 August 2020. To view changes, please see page updates

Under the Child Protection Act 1999, sections 37–51, a CAO may be sought at any stage during an investigation and assessment if:

  • a parent will not consent to actions considered essential for the completion of the investigation and assessment after reasonable attempts have been made to gain consent
    or 
  • it is not practicable to obtain the parent’s consent
    and
  • it has been decided that more than 3 business days are needed to complete the investigation and assessment.

This includes where initial contact with the child has occurred, but the parents do not consent to subsequent required actions.

If a CAO is considered necessary:

  • consult with the senior team leader and the OCFOS lawyer
  • seek their advice and agreement
  • decide the roles and responsibilities.

If the OCFOS lawyer disagrees about the need for the CAO:

  • attempt to resolve the disagreement
  • escalate the matter to the CSSC manager and the OCFOS senior legal officer.

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 the application.  Consider escalating the disagreement to the manager, regional director and official solicitor, if necessary.

Time sensitive

If the child is subject to a TAO with a custody provision, and custody needs to continue, apply for the CAO before the TAO expires. (Refer to Assess safety before returning a child home−temporary assessment order.)

Tip

The definition of ‘parent’ for the use of a CAO includes long-term and permanent guardians. They have the same rights and obligations as a parent and are listed as other respondent in the application.

Apply for a court assessment order

To apply for a CAO:

  • complete the draft Form 5—Application for a court assessment 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 to the actions required
    • the rationale for seeking the specified provisions―for example, a medical examination or custody
    • action to occur while the order is in place
    • arrangements for a 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
  • complete the Independent person form in ICMS for an Aboriginal or Torres Strait Islander child.

The senior team leader will:

  • check the details of the draft application
  • email the draft application to the OCFOS lawyer
  • review the application received back from the OCFOS lawyer
  • 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
  • make sure documentation is served on both the child’s parents. If unable to serve the parents, advise OCFOS and record attempts made in a case note in ICMS
  • make sure the CSO provides an affidavit of service to OCFOS. (Refer to Procedure 3 Serve the application and affidavit.)

Practice prompt

If the child is at immediate risk of harm before the CAO application is decided, take action to ensure the child’s immediate safety. If necessary, consult the senior team leader and OCFOS lawyer about an urgent TAO application. (Refer to Apply for a temporary assessment order.)

Tell parents about their right to have a lawyer represent them at the hearing and give them contact details for Legal Aid Queensland.

Note

The OCFOS lawyer will complete in ICMS the Form 5—Application for a court assessment order.

When deciding on the CAO application, the magistrate must consider the views of Child Safety regarding family contact arrangements.

If the child has a long-term or permanent guardian, make reasonable attempts to serve:

  • the guardian
    and
  • each of the parents
    and
  • their lawyers, if they are represented.

Practice prompt

If the CAO was preceded by a TAO, make sure the link between the original order and the subsequent court application and outcome is clearly recorded in ICMS. (Refer to the tool ICMS—Child Protection—Linking court orders. )

If the CAO is granted by the magistrate:

  • Obtain a copy of the CAO (Form 7) 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 the CAO. Also give them a copy of the brochure Assessment orders―information for parents.
  • Inform the parents or guardian about the right of appeal and how to appeal.
  • Make sure that a child who has been placed in the custody of the chief executive understands the reasons why they have been removed from their parents’ care and placed in care. Refer to the tool The Immediate Story.

Note

The OCFOS lawyer will:

  • complete in ICMS the Form 5—COF final order and the Closure of CAO form
  • send a letter to the parents advising them of the court outcome and how to appeal the decision, and provide a copy of the order.

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 a CAO.

Duration of a court assessment order

Attention

A CAO cannot remain in effect for more than 28 days, from midnight on the date the application for the CAO was first brought before the Childrens Court. The provisions of a CAO cannot be exercised once the order has ended.

When applying for the CAO:

  • consider the timeframe needed
  • record the proposed timeframe in the draft order to be provided to the magistrate.

If the investigation and assessment cannot be completed in the 28-day period, the CAO can be extended:

  • once only, to allow the investigation and assessment to be completed
  • if the court is satisfied that it is in the child’s best interests
  • for no more than 28 days.

Before a decision is made to apply for an extension of a CAO:

  • consult with the senior team leader and OCFOS lawyer and seek their agreement
  • depending on the child’s age and level of understanding, consult the child to obtain their views about arrangements for their care for the duration of the extension.

To apply for an extension of a CAO:

  • consult the senior team leader and the OCFOS lawyer and seek their agreement
  • seek the views and wishes of the child.

The senior team leader will:

  • email OCFOS 5 business days before the CAO expires to provide a case work update and rationale for the extension
  • make sure the parents are served with the application and advised of the court date
  • make sure an affidavit of service is completed and provided to the OCFOS lawyer.

Time sensitive

The OCFOS lawyer will:

  • complete in ICMS the Form 6—Application to extend/vary/revoke a CAO in the same ICMS event as the initial application, the Form 6—COF final order extend/vary/revoke and the Closure of CAO form
  • file the application at court at least 3 business days before the CAO expires.

If a child is subject to a CAO and the DCPL applies for a child protection order granting custody or guardianship:

  • the application must be lodged before the CAO expires
  • custody under the CAO will continue in force until the child protection order application is decided or the Childrens Court orders an earlier end to the order.

Note

An application should only be filed after consultation with and agreement from the senior team leader and the OCFOS lawyer. In most circumstances, the CSO will be the applicant.

Assess safety before returning a child home−court assessment order

Before returning a child to the care of their parents (after they are subject to a CAO granting custody to the chief executive):

  • consider all available information
  • complete a safety assessment with the family.

If the child is assessed to be unsafe:

Practice prompt

Ensure sufficient time before the CAO expires for:

  • the OCFOS lawyer to review the affidavit and refer the matter to the DCPL
  • the DCPL to decide about an application for a child protection order and take any action required.

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