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

Under the Child Protection Act 1999, sections 38–51, 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.

Seek legal advice from an OCFOS lawyer

If a CAO is considered necessary, consult with the senior team leader to seek their agreement to consult with the OCFOS lawyer about applying for a CAO.

If the senior team leader agrees that a CAO may be necessary , meet with the OCFOS lawyer to outline the current child protection concerns, the steps taken to date in the investigation and assessment process and the reasons a CAO is considered necessary.

The OCFOS lawyer will review the evidence and provide written legal advice about whether there is enough information to satisfy the legal requirements for seeking a CAO and each of the requested provisions.

If the OCFOS lawyer recommends an application for a CAO be made, the senior team leader will:

• provide instructions to the OCFOS lawyer to proceed with an application for a CAO (Refer to Support an OCFOS lawyer to prepare an application.)
• advise the OCFOS lawyer who will be the applicant.

If the OCFOS lawyer provides legal advice that does not recommend a CAO, the senior team leader will attempt to resolve the matter by discussing the issues with the OCFOS lawyer. If the matter cannot be resolved, the senior team leader will escalate the matter to the CSSC manager.

If the senior team leader escalates a matter to the CSSC manager, the CSSC manager and OCFOS senior legal officer will either:

• discuss and resolve the issues
  or
• discuss next steps, if they cannot resolve the matter.

Support an OCFOS lawyer to prepare an application

To prepare an application for a CAO, the OCFOS lawyer will:

• 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 the active efforts made to apply the Aboriginal and Torres Strait Islander Child Placement Principle, particularly how the child’s connection to family and community will be maintained.

After receiving a draft CAO application from the OCFOS lawyer, the senior team leader and CSO (if they are the applicant) will:

• review the draft application to check for accuracy and  to ensure the most up to date relevant information is included
• email the OCFOS lawyer with any feedback or recommended changes.

To finalise the application for a CAO:

• the OCFOS lawyer will review and consider feedback from the senior team leader and CSO

• the OCFOS lawyer will email the final application to the applicant

• the applicant (either the CSO or senior team leader) will swear or affirm the application and return it to the OCFOS lawyer by email.

File and serve the application

After the application for a CAO has been finalised, the OCFOS lawyer will file the application with the court.

Once the application has been filed, make reasonable attempts to serve a copy of the application on the child’s parents. If the child has a long-term or permanent guardian, make reasonable attempts to serve the guardian, each of the parents and their lawyers, if they are legally represented.

After a parent has been served with a copy of the application, provide an affidavit of service to the OCFOS lawyer. (Refer to Procedure 3 Serve the application and affidavit.)

If a copy of the application has not been able to be served on a parent, advise the OCFOS lawyer of the attempts made and record the attempts in a case note in ICMS.

Take action when a court assessment order is granted

If the CAO is granted by the court the OCFOS lawyer will:

• obtain a copy of the CAO (Form 7) from the court and provide this to the senior team leader and CSO

• upload a copy of the CAO to iDOCS

• complete the Form 5 – COF final order and Closure of CAO form in ICMS

• prepare a court outcome letter to the parents advising them of the court outcome, how to appeal the decision, and include a copy of the order.

After receiving the CAO from the OCFOS lawyer:

• Provide the child with information about the order, including the reasons for, and the effect of, the CAO, having regard t othe chld's age and ability to understand. 
• Give the court outcome letter and a copy of the order to at least one of the child’s parents   and explain to them 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.)

Effect on existing custody or guardianship orders

If the child is already subject to an order granting custody or guardianship, that order remains in effect while the child is in the custody of the chief executive under a CAO. If the CAO contains specific provisions that are inconsistent with the existing custody or guardianship order, then the provisions on the CAO must be complied with.

Duration of a court assessment order

When applying for the CAO:

• consider the timeframe needed
• the OCFOS lawyer will 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
• if the CAO has not ended
• for no more than 28 days.

Consider an extension of a court assessment order

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

• consult with the senior team leader and seek their agreement 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.

If the senior team leader agrees that an extension of a CAO may be required:

• consult with the OCFOS lawyer, at least 5 business days before the CAO expires providing a case work update and rationale for the extension
• seek the OCFOS lawyers’ advice on seeking to extent the CAO.
• seek the views and wishes of the child.

If the OCFOS lawyer provides legal advice recommending the extension in line with the senior team leader’s instructions, the OCFOS lawyer will draft the application to extend the CAO.  Once the application is finalised the OCFOS lawyer will file the application at court at least 3 business days before the CAO expires. 

If the OCFOS lawyer provides legal advice that does not recommend an extension of the CAO, the senior team leader will attempt to resolve the matter by discussing the issues with the OCFOS lawyer. If the matter cannot be resolved the senior team leader will escalate the matter to the CSSC manager.

If the senior team leader escalates a matter to the CSSC manager, the CSSC manager and OCFOS senior legal officer will either:

• discuss and resolve the issues
  or

• discuss next steps, if they cannot resolve the matter.

After the application to extend a CAO has been filed with the court:

• serve the parents with the application and advise them of the court date
• complete an affidavit of service and provide it to the OCFOS lawyer.

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 chld and family.

If the child is assessed to be unsafe:

• Consult with the senior team leader to decide which ongoing intervention is likely to ensure the child’s safety.
• Consult the OCFOS lawyer as soon as possible and at least 2 weeks before the CAO expires, if possible. This may require a referral to the DCPL. (Refer to Procedure 3 Refer to Director of Child Protection Litigation to apply, extend, vary or revoke a child protection order.)
• Provide OCFOS with the draft affidavit no later than 5 days before the CAO expires, if a referral to the DCPL is needed.