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

A TAO is an assessment order that authorises one or more of the following actions during investigation an assessment:

  • to have contact with the child
  • to take the child into, or keep the child in, the custody of the chief executive while the order is in force
  • to authorise medical examination or treatment
  • to direct a parent about contact with the child
  • to enter a residence or premises and search for a child, and remain there as long as necessary
  • to authorise the use of help and force considered reasonable in the circumstances.

Under the Child Protection Act 1999, sections 23–36, a TAO can be applied for at any stage during an investigation and assessment, if:

  • a parent will not consent to actions considered essential for the completion of an investigation and assessment
    and
  • reasonable attempts have been made to obtain parental consent
    and
  • the actions that the TAO will authorise can be carried out within 3 days.

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

Practice prompt

For a TAO, the definition of ‘parent’ includes long-term or permanent guardians. Therefore, when considering a TAO 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 court proceeding for the child and it is assessed that the child is at immediate risk of harm, consult the senior team leader and the OCFOS lawyer about:

  • organising an urgent case consultation with the DCPL and ask if the matter can be urgently listed for the court to consider new information
    or
  • whether an application for a temporary custody order should be made, after consultation with the DCPL.

If a TAO is considered necessary:

  • consult with the senior team leader and the OCFOS lawyer to:
    • seek their advice and agreement
    • decide the roles and responsibilities, including who will be the applicant.

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

  • 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.

Apply for a temporary assessment order

To apply for a TAO:

  • complete a draft Form 1—Application for a temporary 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
    • actions taken in relation to the child during any period of custody under the Child Protection Act 1999, section 18
    • the care arrangements and family contact, if relevant.

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. In urgent circumstances, the application may be made before there is opportunity to have the written application sworn or affirmed.

Note

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

If a CSSC is aware that a TAO application will be required after hours, the senior team leader will advise the OCFOS lawyer before 5pm. 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 advice
  • call the on-call magistrate for the application to be heard.

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 TAO is granted by the magistrate:

  • Obtain a copy of the ‘TAO (Form 3)’ 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. (Refer to the tool The immediate story.)
  • Explain to the child and the parents the reasons for, and the effect of, the TAO.
  • Inform the parents or guardian about the right of appeal. Also tell them that if they wish to appeal, they must take immediate action to lodge the appeal (because of the short duration of the order).
  • 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.

Note

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

  • the Form 1—Application for a temporary assessment order
  • the Form 1—Temporary assessment order outcome form
  • the Closure of TAO form.

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

  • tell at least one of the parents about the reasons for and the effect of the TAO and about the right of appeal
  • serve them with a copy of the order.

If unable to advise the parents, record all attempts made in the investigation and assessment event in ICMS (Child Protection Act, 1999, section 32).

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 TAO.

Duration of a temporary assessment order

Attention

A TAO cannot remain in effect for longer than 3 business days, excluding public holidays, from the day the order was made. For example, a TAO made on a Thursday will end at 11:59pm on the following Tuesday. The provisions of a TAO cannot be exercised once the order has ended.

When applying for the TAO:

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

A TAO that is granted for a period of either one or two days can be extended for a maximum of either two or one days respectively (Child Protection Act 1999, section 34 (5)) if a CAO or a child protection order is not being sought.

The magistrate can extend a TAO that is granted for a period of 3 business days—only once—to the end of the next business day, if satisfied that:

  • Child Safety intends to apply for a CAO
    or
  • the DCPL intends to apply for a child protection order.

This allows the application for another order to be lodged with the court during business hours. The application for another order must be lodged before the court closes on the day the TAO expires. 

Note

The OCFOS lawyer will complete (in the same ICMS event as the initial application):

  • a Form 2—Application to extend/vary a TAO
  • a Form 2—TAO outcome form
  • a Closure of TAO form.

Time sensitive

If assessed that a child protection order is needed, the OCFOS lawyer will complete a Form A referral to the DCPL at least 24 hours before the TAO expires. The CSO will provide the OCFOS lawyer with a draft affidavit. Refer to Procedure 3 Prepare an affidavit.

If an application for a CAO or a child protection order is filed before the TAO expires, a custody provision will continue in force until the subsequent application is decided or the Childrens Court orders an earlier end to the order (Child Protection Act 1999, section 99).

Assess safety before returning a child home−temporary assessment order

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

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

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 CAO or child protection order is required. Where applicable, the OCFOS lawyer will:
    • lodge the CSO’s application for a CAO before the TAO expires, or
    • refer the matter to the DCPL for an application for a child protection order to be made before the TAO expires.

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