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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 24–36, 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’ 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 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.

Seek legal advice from an OCFOS lawyer

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

If the senior team leader agrees that a TAO 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 TAO 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 TAO 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 provides legal advice recommending an application for a TAO be made, the senior team leader will:

If the OCFOS lawyer provides legal advice that does not recommend a TAO, 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 TAO, the OCFOS lawyer will :

  • 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 arrangement and family contact, if relevant

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

After receiving the draft TAO 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 TAO:

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

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

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

Attention

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

Apply for a temporary assessment order

After the application for a TAO has been finalised, the OCFOS lawyer will make a time to appear before the magistrate on behalf of Child Safety.

Before the OCFOS lawyer appears before the magistrate:

  • advise the OCFOS lawyer if either parent has a legal representative and the details of the legal representative, if known
  • consider serving the parents with a copy of the TAO application, unless it contains sensitive information.

Note

The OCFOS lawyer will advise the parent’s legal representative that Child Safety are making an application for a TAO

If the TAO is granted by the magistrate the OCFOS lawyer will:

  • obtain a copy of the TAO (Form 3) from the magistrate and provide this to the senior team leader and the CSO
  • upload a copy of the TAO to iDOCS
  • complete the court outcome letter for the parents
  • ensure the relevant forms are completed in the court event and close the event.

After receiving the TAO (Form 3) from the OCFOS lawyer:

  • 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.

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).

Apply for a temporary assessment order after hours

If a CSSC is aware that a TAO application may 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:

  • draft the TAO application or assist the CSO to draft the TAO application
  • contact the on-call OCFOS lawyer for advice
  • call the on-call magistrate for the application to be heard.

If the TAO is granted, the senior team leader will:

  • obtain a copy of the TAO (Form 3) from the magistrate
  • upload a copy of the TAO to iDOCS
  • complete the court outcome letter for the parents.

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.

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 the TAO. If the TAO contains any specific provisions that are inconsistent with the existing custody or guardianship order, then the provisions on the TAO must be complied with.

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
  • the OCFOS lawyer will 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. 

If an extension of a TAO is required, the senior team leader will consult the OCFOS lawyer  to apply for an extension and will advise the OCFOS lawyer who the applicant is.  The OCFOS lawyer will draft the TAO extension.

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, the TAO 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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