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Respond to urgent circumstances—temporary custody order

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This page was updated on 09 December 2022. To view changes, please see page updates

A TCO is applied for when a child is assessed as being in need of protection and is at unacceptabe risk of immediate harm (Child Protection Act 1999, sections 51AB–51AM) .

Time sensitive

Apply for a TCO for a child who has been taken into custody under the Child Protection Act 1999, section 18, no later than 8 hours after taking the child into custody.

If a TCO is considered necessary:

  • consult and seek the agreement of the senior team leader
  • seek legal advice from the OCFOS lawyer, including for matters that have been referred to the DCPL, but an application for a child protection order is yet to be decided and filed. 

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 that does not recommend a TCO, 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.

If the OCFOS lawyer provides legal advise recommending a TCO, in line with instructions from the senior team leader to seek a TCO, the senior team leader will:

  • provide instructions to the OCFOS lawyer to proceed with an application for a TCO
  • advise the OCFOS lawyer as to who will be the applicant.

Respond when there are current child protection proceedings

If a TCO is considered necessary for a child who is subject to child protection proceedings, the senior team leader will:

  • advise the OCFOS lawyer the child has been assessed as being at immediate risk of harm and a consult will be arranged with the DCPL
  • organise an urgent case consult with the DCPL to discuss whether the matter can be urgently listed for mention, for the court to consider the new information
  • seek a legal consult with the OCFOS lawyer to discuss applying for a TCO, if the DCPL advise it is not possible or practicable to list the matter for urgent mention.

Note

Child Safety continue to have powers under the Child Protection Act 1999, section 18, regardless of whether the child is subject to child protection proceedings.

Support an OCFOS lawyer to prepare an application

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

  • complete a draft Form 39—Application for a temporary custody 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 (preferably both) to the actions required
    • the rationale for seeking the specified provisions (such as 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 TCO application from the OCFOS lawyer the senior team leader and the 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 TCO:

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

Support an OCFOS lawyer to apply for a temporary custody order

After an application for a TCO 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 a copy of the TCO 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 TCO.

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

Practice prompt

For a TCO, 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 TCO 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 the TCO is granted by the magistrate the OCFOS lawyer will: 

  • obtain a copy of the TCO (Form 40) from the magistrate and provide this to the senior team leader and the CSO
  • upload a copy of the TCO to iDOCS

  • complete the court outcome letter for the parents

  • ensure the relevant forms are completed in the court event in ICMS and close the event.

After receiving the TCO (Form 40) from the OCFOS lawyer:

  • provide 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 out the TCO. Also give them a copy of the brochure Temporary custody orders–information for parents.
  • inform the parents or guardian about the right of appeal. Let them know that because of the duration of the order, if they want to lodge an appeal, they must take immediate action to do so.

Practice prompt

If the child is already subject to an order granting custody or guardianship to the chief executive or another suitable person, that order ceases to have effect while the child is in the custody of the chief executive under the TCO.

Seek a temporary custody order after hours

If a CSSC is aware that a TCO application may or will be required after hours, the senior team leader will advise the OCFOS lawyer before 5pm if possible. 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 TCO application or assist the CSO to draft the TCO application
  • contact the on-call OCFOS lawyer for legal advice, if required
  • call the on-call magistrate for the application to be heard.

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

  • obtain a copy of the TCO (Form 40) from the magistrate
  • upload a copy of the TCO to iDocs
  • complete the court outcome letter for the parents.

Note

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.

Duration of a temporary custody order

Time sensitive

A TCO cannot remain in effect for longer than 3 business days after the day the order is made. For example, if a TCO is granted on Thursday, it will end at 11:59pm on the following Tuesday.

The magistrate can extend a TCO, only once to the next business day:

  • if the magistrate is satisfied the order has not ended
    or
  • if the DCPL intends to apply for a child protection order during the period of extension. Written confirmation from the DCPL will be required.

This allows the DCPL to lodge the application for a child protection order with the court during business hours. The application for another order must be lodged before the court closes on the day the TCO expires. Under the Child Protection Act 1999, section 99, a TCO will continue until the application for a child protection order is decided.

Assess safety before returning a child home

Before returning a child to the care of their parents and while the child is still subject to a TCO granting custody to the chief executive:

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 child protection order is required
  • if a child protection order is required, the senior team leader will instruct the OCFOS lawyer to make a referral to the DCPL for a child protection order.

During the TCO period, the senior team leader will provide the approved draft of the initiating affidavit to the OCFOS lawyer no later than 48 hours before the order expires. (Refer to Prepare an affidavit.)

Where applicable, the OCFOS lawyer will:

  • complete a Form A referral to the DCPL for a child protection order application 24 hours before the TCO expires
  • provide the DCPL with a draft initial affidavit recommending the type of child protection order.

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