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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.

Note

OCFOS lawyers work on an instructional model. This involves Child Safety providing an OCFOS lawyer with information about a child, their circumstances and the order Child Safety has assessed is required. The OCFOS lawyer will then give legal advice about the proposed application and will act on instructions of a senior team leader or CSSC manager.

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

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.

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

For a CAO, the definition of ‘parent’ means each of the following persons:

  • the child’s mother or father
  • a person in whose favour a parenting order operates
  • a person, other than the chief executive, having custody or guardianship of the child under another Act or a law of another State
  • a long-term guardian of the child
  • a permanent guardian of the child.

When considering a CAO 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.

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 consideration of the Aboriginal or Torres Strait Islander Child Placement Principle, particularly how the child’s connection to family and community will be maintained.

Note

Seek legal advice from the OCFOS lawyer prior to OCFOS lawyer drafting the application, if the application it likely to contain sensitive information and there would be concerns about serving either parent with a copy.

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.

Practice prompt

Advise the parent of their right to have a lawyer represent them at the CAO hearing and given them contact details for Legal Aid Queensland.

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.

Attention

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 Seek legal advice from an OCFOS  lawyer.)

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:

  • Tell the child about the order, including the reasons for, and the effect of, the CAO.
  • 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

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
  • 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. 

Note

If the application to extend the CAO is being filed in a regional court, consult the OCFOS lawyer to determine appropriate timeframes.

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.

Time sensitive

To help ensure a parent’s right to natural justice, make sure they receive the application for an extension of a CAO and are advised of the court date no less than 3 business days prior to the application being mentioned in court.

Tip

If the DCPL apply for a child protection order for a child subject to a CAO, 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.

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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