Does the Department for Child Protection need the parents’ consent before they can intervene on behalf of a child?
Intervention can occur in situations of immediate or serious risk with or without parental consent. In less serious cases, the Department for Child Protection will try and work with the parents or guardians but, in more serious cases this will not be possible or even appropriate and the Department for Child Protection have the power to intervene without the consent of the parents or guardians. This is particularly the case where there are concerns that the child will be at risk of serious harm without intervention.
What happens when the Department for Child Protection intervenes with parental consent?
Where the Department for Child Protection want to work with a family without taking court action, but ensuring the child or young person is placed out of the home for the duration of the investigation, they can initiate a 'Care Agreement' (also known as a Voluntary Custody Agreement) with the family [see Children and Young People (Safety) Act 2017 (SA) s 96]. The Care Agreement is a short term agreement between the parents and the Department for Child Protection giving the Department the right to make all day to day decisions about the child, including where the child is to live.
The agreement must be in writing and state how long it is for, where the child is to live, the contact arrangements with parents and other family members and the type of decisions the parents must be consulted about.
Under the agreement the Department for Child Protection may organise support services for the family and make arrangements for a child to be placed in care for a short time.
The agreement can be terminated at any time by the parents or guardians of the child or, if the child is 16 years or older, by the child him or herself. Care agreements are usually for a period of three months with an option to extend up to a maximum of six months.
Does a parent have to cooperate with a Department for Child Protection investigation?
Parents or guardians are under no legal obligation to answer any questions from the Department for Child Protection. Before being interviewed they must be warned that any answers will be recorded and may be used as evidence in any subsequent hearing. However, if they refuse to talk to the Department for Child Protection or refuse to answer questions before getting legal advice, this can also be recorded to be used as evidence. Refusing to discuss the problem, although not illegal, may not help the parents’ case as it is usually not regarded favourably by the court.
What happens if parents will not cooperate with an investigation?
Where the Department for Child Protection are unable to continue an investigation voluntarily with parents or guardians, they can apply to the Youth Court for Investigation and Assessment Orders [see Children's Protection Act 1993 (SA) s 20]. They must show the Court that they require an order for further investigation and also that they are unable to proceed using the powers already provided under the Act.
Investigation and Assessment Orders are usually made in emergencies following the removal of a child at risk and are often used to carry out medical examinations or other interviews and assessments.
An application for Investigation and Assessment Orders can be adjourned for 7 days, once only [see s 23].
Where a child is at risk as a result of drug abuse by a parent or guardian the Department for Child Protection must make an application for an order requiring a drug assessment of the parent or guardian [s 20(2)].
A variety of orders can be made under section 21, including orders for:
- the examination and assessment of the child (without the parent or guardian's consent)
- specified people to answer questions and/or make reports
- custody of the child to the Minister
- access visits – usually at the discretion of the Minister
- the exclusion of specified people from the child’s home or from having contact with the child
Orders only last for a maximum of six weeks but the Department for Child Protection can apply for one extension of four weeks [see s 21(2)].
Can an appeal be made against Investigation and Assessment Orders?
No, under section 25 of the Act there is no provision to appeal against an Investigation and Assessment Order.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.