skip to content
Law Handbook banner image

Protection of children and young people

In South Australia the main law concerning the protection of children is set out in the Children's Protection Act 1993 (SA) (the Act) and the Children and Young People (Safety) Act 2017 (SA) (the CYPS Act).

Certain sections of the CYPS Act commenced on 26 February 2018. The remaining sections are due to commence in October 2018. Only the sections of the CYPS Act that have commenced are set out below. To the extent that the provisions of CYPS Act which have commenced deal with the same subject matter as the Act, those provisions are repealed. When the whole of the CYPS Act commences, the Act will be completely repealed.

The CYPS Act sets out the priorities in the operation of the CYPS Act. Protection of children and young people from harm is the paramount principle in the administration, operation and enforcement of child protection legislation [s 7].

Other considerations in relation to children and young people are [s 8]:

  • the need to be heard and have their views considered

  • the need for love and attachment

  • the need for self esteam

  • the need to achieve their full potential.

Where children and young people are at risk, early intervention is a priority [s 9].

Children and young people at risk

What does the legislation relating to the protection of children and young people do?

The Children's Protection Act 1993 (SA) gives authority to the relevant Department (the Department for Child Protection) to intervene when a child is at risk. This intervention can take several forms, ranging from referring families to appropriate support and services to seeking an order to remove a child from their parents’ care. It is a principal in the Children and Young People (Safety) Act 2017 (SA) (the CYPS Act) that children who have been removed should be placed in a safe, nurturing, stable and secure environment. It is preferable for placement to be with a person with whom the child has an existing relationship and that approved carers should be involved in decision making relating to children and young people in their care.

If an Aboriginal or Torres Strait Islander child or young person is taken into care, then it is a principle of the CYPS Act that the child or young person be placed in care, in order of priority, with

  • a member of their family
  • a member of their community who has a relationship of responsibility
  • a member of their community
  • a person of the child or young person’s cultural background.

When is a child defined as being ‘at risk’?

The Act recognises three types of abuse and/or neglect:

  • Sexual
  • Physical
  • Emotional

A child is considered to be at risk if there is a significant chance they will suffer serious harm to their physical, psychological or emotional well-being and they do not have proper protection [see s 6(2)]. This risk may be as a result of abuse, neglect or the inability of a parent or guardian to care for and protect a child or to exercise supervision and control over the child. In making an assessment about whether a child is at significant risk or has been abused or neglected attention must be had not only to the current circumstances of the child’s care but also to the history of the child’s care and the likely cumulative effect on the child of that history [s 6(4)].

If a parent is unable (or unwilling) to provide this then the child can be considered to be at risk. A child under the age of 15 with no fixed address will also meet this criterion, as will a child of compulsory school age who has been persistently absent from school without satisfactory explanation.

Notification

Under section 11 of the Children's Protection Act 1993 (SA) certain people (mandated notifiers) must notify the Department for Child Protection if they suspect on reasonable grounds that a child has been, or is being, abused or neglected and the suspicion is formed in the course of the person's work (whether paid or voluntary) or in carrying out official duties.

Mandated notifiers are:

  • medical practitioners
  • pharmacists
  • registered or enrolled nurses
  • dentists
  • police officers
  • psychologists
  • social workers
  • community corrections officers whose duties include the supervision of young or adult offenders in the community
  • teachers
  • family day care providers
  • a minister of religion (A priest or other minister of religion is not required to divulge information communicated in the course of a confession made in accordance with the rules of the relevant religion)
  • a person who is an employee of, or a volunteer in, an organisation formed for religious or spiritual purposes
  • any employee or volunteer in an agency (government and non-government) engaged in or responsible for the delivery of health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children
  • any other person who is an employee of, or volunteer in, a government department, agency or instrumentality, or a local government or non-government organisation that provides health, welfare, education, sporting or recreational, child-care or residential services wholly or partly for children provided they are engaged in the actual delivery of the services or hold a management position which includes direct supervision of provision of those services to children

The law does not require proof of harm, but a notification must be accompanied by a statement of the observations, information and opinions upon which the suspicion is based. This statement can be made verbally to a Department for Child Protection social worker via the Child Abuse Report Line (13 14 78).

For further information on making a report and what information to provide see Reporting child abuse at the Department for Child Protection website.

Trained mandated notifiers may also report some cases online using the eCARL system. However, serious concerns must still be reported verbally via the Child Abuse Report Line.

In making a report, mandated notifiers are assured of confidentiality (subject to certain exceptions), are immune from civil liability and do not breach professional ethics for reporting their suspicions in good faith. Reports can lead the Department for Child Protection to investigate further, see Investigation and intervention.

If these persons listed above fail to notify the Department for Child Protection when they suspect on reasonable grounds that a child has been or is being abused or neglected, they can be charged with an offence. However, it is a defence if the person can prove that his or her suspicion was due solely to having been informed of the suspected abuse or neglect by a police officer acting in the course of their official duties, or another person who is also a mandated notifier, and whom he or she believed on reasonable grounds had notified the Department for Child Protection [see Children's Protection Act 1993 (SA) ss 11(2a) and 11(2b)].

The defence does not apply in situations where a mandated notifier possesses additional knowledge of the child’s circumstances beyond that reported to them by a previous notifier or police officer. In these circumstances the mandated notifier must make their own report to the Department for Child Protection.

Who makes the assessment that a child is at risk?

Ultimately the decision about whether a child is at risk and in need of protection rests with the Department for Child Protection. However, under the Children’s Protection Act 1993 (SA) police officers have the power to remove a child from its home if they believe the child is in a situation of serious danger. The practice is usually for them to contact the Department for Child Protection to assist in this process or vice versa.

Under section 16 of the Act, if a child is removed by a police officer or by an officer from the Department for Child Protection from a situation of serious danger, the matter must be brought before the court on the next working day.

How do I report a case of suspected abuse or neglect?

If you suspect a child is being abused or neglected you can contact the Child Abuse Report Line on 131 478. This is a 24 hour service staffed by social workers from the Department for Child Protection.

Trained mandated notifiers may also report some matters online using the eCARL system.

What does the Department for Child Protection do when they receive a report that a child is being abused or neglected?

When the Department for Child Protection receive a notification the worker will take down information relevant to making an assessment of the level of risk of harm to the child or young person. Following the assessment they can make a decision about response recommendations and then forward the report to the District Centre closest to the child or young person's residence. Once allocated to a social worker they may begin the process of case work.

In emergency situations (such as a child being abandoned or where there is an imminent danger to the child) a rapid response is required and out of office action is initiated by the Child Abuse Report Line before being forwarded to the District Centre.

Response Classifications

Some notifications are assessed as being Notifier Only Concern and, while these are placed on the database, they do not fulfil the definition of abuse or neglect and therefore do not receive any further response.

Similarly, other notifications may be made by Department for Child Protection staff themselves as a matter of General Practice. While these are placed on the database, they do not fulfil the definition of abuse or neglect and therefore do not receive any further immediate response. Such a notification may be made, for example, in the weeks before a child is due to be born and then acted upon after the child is born.

Even where the definition of abuse or neglect is satisfied, the notifications may be classified as Extra Familial or having No Ground for Intervention. The first is where the source of abuse or neglect came from outside of the family and the family is protective. In this case the matter would simply be referred by the Department for Child Protection to police for any further action against the third party/parties. The second is where there are other appropriate arrangements already in place to ensure the care and protection of the child. This may be the case where, for example, one parent or guardian is the source of the abuse or neglect and the parents or guardians separate or the child stops spending time with that parent or guardian under the care and protection of the other parent or guardian.

If it is determined that there is no risk to the child then no further action will be taken. In most cases where some risk is determined the Department for Child Protection will work with the family to provide support in those areas or behaviours of concern and can refer the family to services such as family counselling, home help, budget advice and family day care. The intervention is to improve the family situation so proper care can be provided for the child.

What if there are Family Law Courts parenting orders in place?

If there are parenting orders in place in favour of the person who is the suspected source of abuse or neglect towards the child, a notification should still be made to the Department for Child Protection.

The parenting orders will, however, remain in place unless and until they are suspended, varied or discharged by either the Family Law Courts or the Youth Court. Only the Department for Child Protection can make an application to the Youth Court.

If you find yourself in a situation where you are required to comply with parenting orders which may put your child at further risk of suspected abuse or neglect, you should seek legal advice without delay. You may need to make an urgent application to the Family Law Courts to suspend, vary or discharge the orders while the Department for Child Protection investigate the allegations.

Investigation and intervention

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.

Care and Protection Orders

When is a Care and Protection order made?

Where the Minister believes a child is at risk and an order must be made to ensure his/her safety, a Care and Protection Order can be applied for in the Youth Court [see Children's Protection Act 1993 (SA) s 37]. Except in urgent cases an application for an order can be made only after a Family Care Meeting has been held or attempted and the family has not been able to come up with a satisfactory solution to the child’s safety needs [see s 27].

If the Youth Court is satisfied with the basis of the Department’s application it can make wide ranging orders under section 38 including:

  • custody orders for up to 12 months
  • guardianship orders for up to 12 months or until the child turns 18 years of age
  • undertakings from parents and placing the child under ministerial supervision for up to 12 months

The Court must consider the importance of settled and stable living arrangements for the child, and as a general rule, a long term guardianship order (i.e. a guardianship order until the child turns 18 years of age) is to be preferred to a series of temporary arrangements for the custody or guardianship of the child [see s 38(2a)]. The Full Court of the Supreme Court has held that this general rule applies even if a "settled and stable" long term placement has not yet been found for the child, but the making of the long-term order is otherwise inevitable [see Minister for Families and Communities v R, A and Ors[2008] SASC 128].

If a child is placed under the guardianship of the Minister until the child turns 18 years of age, then the child's circumstances should be reviewed at least once each year. This is to determine whether the arrangements for the child continue to be in the child's best interests. The Minister must provide a copy of the conclusions reached at the review to the child, the child's parents and those in whose care the child is placed (unless the Minister is of the opinion that it would not be in the best interests of the child) [see s 52].

What is a Family Care Meeting?

The purpose of a Family Care Meeting is to provide an opportunity for the child’s family to make informed decisions about the care and protection of the child and to review those arrangements from time to time [s 28]. Generally an application for a Care and Protection Order cannot be made without a Family Care Meeting having first been convened [s 27(2)].

In certain circumstances, such as urgency, a meeting is not required. A Family Care meeting is also not required where a temporary guardianship instrument or restraining notice is issued for a child whose parent or guardian is found guilty of a qualifying offence [s 27(2a)]. A qualifying offence is defined under section 44A and includes the offences such as murder, manslaughter, criminal neglect, causing serious harm, committed by the parent or guardian against a child victim when they were parent or guardian to the child victim.

People who can be invited to the meeting are the child him or herself; the parents or guardians; family members; approved support persons for the parents/guardians; a Department for Child Protection worker and anyone who has had a close association with the child (such as a teacher) [See ss 30-31 in relation to those people who may be invited and those who are expected to attend].

The Care and Protection Coordinator convenes the meeting [s 29]. The coordinator must gather the views of all interested parties and convey them to everyone at the meeting and ensure that enough information is given about the risk to the child [s 32]. The approach is to be firm and direct, to leave the parties in no doubt as to the nature and extent of the Department’s concerns. Once the information is given, the parents, guardians and family members can privately discuss and decide their own arrangements for the child’s care and protection. After an agreement has been reached (preferably by consensus) it is conveyed to the meeting.

The final plan is only valid if the coordinator agrees. If a final plan is not reached or the plan is not implemented or breaks down, the Minister will apply to the Court for a Care and Protection Order [s 35].

How is a Care and Protection application different from other court proceedings?

Standard of proof

The standard of proof required at the hearing of a Care and Protection Order application is on the balance of probabilities and not, as in the case of a criminal charge, beyond a reasonable doubt [s 45 of the Act].

Burden of proof

Before a child has been removed, that is; in a first application by the Department for Child Protection, the Department must prove why a child or young person must be removed from the care of their parents.

After a child has been removed, that is; when orders are already in place, if the parents do not agree with further orders, they have to prove why the order should not be made.

A child or young person can object to the making of a further order without having to prove why they should be returned to their parents, provided the court is satisfied that they are not being unduly influenced. In this case, the Department once again has the burden of proof.

Rules of evidence

The normal rules of evidence do not apply to child protection proceedings. This allows the court to listen to matters that would not normally be admissible because of the rule against hearsay evidence. To protect children from the trauma of having to give evidence in open court, hearsay evidence from professionals who have interviewed the children (such as teachers, school counsellors, doctors, psychologists and social workers) may be accepted. However, first hand knowledge (e.g. eye witness accounts or actual evidence such as photographs) is still preferable to hearsay evidence.

Timeframes

The hearing of an application for a Care and Protection Order must commence within 10 weeks of the lodgement of the application [s 39(2) of the Act]. Such limited time periods do not generally apply in relation to other types of matters before other courts. In addition all proceedings are required to be dealt with as quickly as possible giving regard to the urgency of each case [s 39(1) of the Act].

Representation of children

Children must be represented by a lawyer unless the court is satisfied that they have made an informed and independent decision not to be represented or that the application should be heard as a matter of urgency [see Children and Young People (Safety) Act 2017 (SA) s 64]. In the latter case, any orders made will only apply until the child or young person is represented (if they wish) and the matter is back before the court. The child’s views must be sought and seriously considered and every child must be given an opportunity of speaking personally to the Court. Normally the child’s legal representative will ask them whether they want to talk to the court.

What is the role of the child’s legal representative?

The role of the child’s representative is to clearly state the child’s views and wishes. If the child is not capable of properly instructing the legal representative, then that legal representative must act, and make representations to the court, according to her or his own view of the best interests of the child [Children and Young People (Safety) Act 2017 (SA) s 63].

Can a Care and Protection Order be appealed or changed?

Section 22 of the Youth Court Act 1993 (SA) provides for an appeal from a Care and Protection Order to the Supreme Court. Legal advice should be sought as to whether there are grounds to appeal the order, and the likelihood of success.

Section 40 of the Children's Protection Act 1993 (SA) provides that a party to the proceedings may apply for an existing Care and Protection Order to be varied or revoked. This application is most often made by the Department for Child Protection, for example, to transfer guardianship to the appointed guardians under a long-term order. For the Court to vary or revoke the order in favour of the parents/guardians who previously had care, it must be satisfied that there has been a significant and sustained change on their part.

Child Protection Restraining Orders and other measures

The 2004 Mullighan Inquiry into Children in State Care recommended specific measures to protect runaway children, including wards of the state. These children often end up in exploitative relationships with adults who are not their guardians but who provide food, money, accommodation or drugs in exchange for sexual or other services from the child (including selling drugs for the adult).

Child Protection Restraining Orders

Under s 99AAC of the Criminal Procedure Act 1921 (SA), police can apply to the Youth Court for an order restraining a non-guardian adult who has been living with a child from living with or having any contact with the child. Before granting such an order the Court must be satisfied that the child’s contact or residence with the adult puts him or her at risk of sexual, physical, psychological or emotional abuse or neglect. If a child is at risk of offending against part 5 of the Controlled Substances Act 1984 (SA) (i.e. offences relating to controlled drugs) risk will also be made out. In addition to a restraining order the Court may also make other orders providing for the temporary placement of the child.

Intervention Orders

The police, a child themselves, or an adult on behalf of a child, can alternatively apply to the Magistrates Court for an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) if a child is at risk of being abused by someone. See Intervention Orders.

Temporary guardianship instruments and restraining notices

Where a child is residing with a parent who has been found guilty of a qualifying offence the Department for Child Protection must issue an instrument of guardianship or a restraining notice in respect of the child [s 44B].

A qualifying offence is defined under section 44A and includes the following offences where the victim was a child and the offender was a parent or guardian of the child:

  • murder;
  • manslaughter;
  • criminal neglect;
  • causing serious harm;
  • acts endangering life or creating risk of serious harm.

A restraining order may prohibit the offender from residing at the same premises as the child or coming within a certain distance of the premises. It may also limit any contact with the child other than that occurring in the presence of a specified person or class of person or may prohibit any contact at all [s 44B(4)].

It is an offence not to comply with a restraining notice and the maximum penalty is imprisonment for two years [s 44B(8)].

Special provisions exist for newborn children who have yet to be discharged from hospital but who will be taken to be residing with a person guilty of a qualifying offence [s 44B(10)].

Parental rights and duties

In the absence of court orders to the contrary, each of the parents of a child under the age of 18 years is a guardian of the child, and the parents have joint responsibility for the child [Family Law Act 1975 (Cth) ss 61B and 61C].

Parents (and guardians) have the right to:

  • determine the child's upbringing and education
  • to discipline the child (including reasonable corporal punishment)
  • consent to the child's adoption
  • take legal proceedings on their behalf.

Parents (and guardians) have the duty:

  • to maintain the child, a primary duty imposed equally on both parents [Family Law Act 1975 (Cth) ss 66B and 66C and Child Support (Assessment) Act 1989 (Cth) ss 3 and 4], see CHILD SUPPORT
  • to send the child to school once he or she reaches 6 years of age, and until he or she reaches 16 years of age (until 17 if they have not completed a qualifications) (unless exempted), [Education Act 1972 (SA) ss 5 and 76]
  • to obtain medical attention for a child who is ill.

Generally, the law does not intervene between a parent and a child unless the parent abuses, neglects, fails to maintain or cannot control the child.

In more serious cases, a parent could face criminal charges relating to criminal neglect in circumstances where a child dies or suffers harm as a result of a specific act, omission or course of conduct. This applies where the parent owes a duty of care to the child, is aware or ought to be aware that harm would be caused to the child by the act, and failed to take reasonable steps to prevent the harm from happening [Criminal Law Consolidation Act 1935 (SA) ss 13B, 14]. A parent can also be charged with a criminal offence for failing to provide necessary food, clothing or accommodation to a child without lawful excuse [s 14A].

Any disputes about the children (for example, where parents separate and then contest where their children will live and when they will spend time with each parent) these issues will be decided according to what the court considers is in the child's best interests [Family Law Act 1975 (Cth) ss 60B]. For more information, see FAMILY RELATIONSHIPS, Arrangements for children.

Parental authority - Case study

This is a British case decided by the House of Lords and as such it creates a precedent for common law decisions on children's rights. These views have not yet been tested in Australian courts and the law here is still unclear.

Mrs. Gillick had four daughters under the age of 16 years. At that time, policy allowed a doctor to protect a girl against the potentially harmful side effects of pregnancy by issuing contraception. Mrs. Gillick asked her local health authority that her children not be given contraceptives or an abortion without her knowledge or consent. While the doctors encouraged children to involve their parents in such decisions they were not prepared to seek Mrs. Gillick's consent as the consultation between doctors and patients was confidential.

Not satisfied, Mrs. Gillick took legal action claiming that she should be consulted in such decisions. The House of Lords held that young people can make decisions about their lives and bodies if they have a mature appreciation of the issues, so Mrs Gillick lost her case. As children get older, the court said, the power of parents over them fades away.

The implications of this case affect areas of physical punishment and independence. Once a child has sufficient capacity, both intellectually and emotionally, any parental rights in that area end. Even where the parent restrains or punishes a child in the child's interests, it would be unlawful if done against the child's will. This case suggests that the traditional concept of strict parental control should be replaced by a partnership model of parent-child relations with diminishing parental power as the child matures.

Gillick v West Norfolk and Wisbech Area Health Authority and Another [1985] 3 All ER 402

Physical discipline

Parents and other adults who exercise parental control, such as school teachers in a private school have the right to administer moderate and reasonable physical punishment to children in their care (although it is not clear if adults who are merely in temporary control of a child, such as baby sitters, are included). However, excessive force may be regarded as assault, which is both a criminal offence and a civil wrong, giving the child the right to compensation for pain and any medical or other expenses incurred as a result.

Public schools are governed by the Education Regulations 2012 (SA) r 43:

  • Having regard to the rights and duties of students, parents and teachers, head teachers may impose such moderate and reasonable controls on the behaviour of students, and sanctions for offences against those controls, as they consider necessary or as are permitted by these regulations.
  • This power can be sub delegated to other school staff.

Teachers in private schools are subject to the rules of the school and the general law on assault.

The relationship between an adult and the child (for example, parent and child or teacher and child) is only one factor in deciding whether punishment is moderate and reasonable. Much depends on the circumstances of the case and the prevailing community standards, although relevant factors are:

  • the age of the child. The child must be old enough to benefit from correction and the punishment must be reasonable for a child of that age. For example, it has been held by a court that a parent is not lawfully entitled to administer to a girl of 19 months any physical punishment except of the very lightest description - a slight slap at most;
  • the size, health and, perhaps, the sex of the child;
  • the seriousness of the child's offence;
  • the instrument of correction. Canes have been held lawful in the past, but in the present day, caning or any use of an instrument may be held unlawful;
  • where the blow is administered. Blows to the face or other vulnerable parts of the body are very probably unlawful.
  • the force and number of the blows; and
  • the severity of the blows. Injuries requiring medical attention will normally suggest illegal behaviour.

It has also been held by the English Court of Appeal that, even where punishment is inflicted by a parent, the standard to be applied is that of the community generally and not that of the particular parents or family, or of any religious, ethnic or other group. For punishment by a teacher, see Education.

For more detailed information on this see: https://aifs.gov.au/cfca/publications/corporal-punishment-key-issues.

Legal age to babysit

There is no law that says how old a child must be to be able to babysit. Parents are expected to make their own decisions and in doing so the only guidance the law provides is that they make make reasonable decisions about their children’s safety.

What is reasonable will depend on:

  • each individual family's circumstances;
  • the age and maturity of the child who will be babysitting;
  • any other factors that might be relevant (e.g. whether the child or children being cared for have special needs, such as requiring monitoring of medication).

What the law does say about parent’s responsibilities towards children

  • Parents are responsible for the care, welfare and development of their children [Family Law Act 1975 (Cth)]
  • it is an offence for a parent to leave their children in a dangerous situation and/or leave a child or children unfed, without clothing or accommodation [ see Criminal Law Consolidation Act 1935 (SA) ss 14 and 30]
  • the Police or the Department for Child Protection have the power to remove children from situations where their safety is in serious danger and there is no guardian present [see Children's Protection Act 1993 (SA) s 16]

Where a child under 18 years of age is left to babysit and something goes wrong who is liable?

Where a child under the age of 18 is left to babysit and the issue of negligence or liability arises it is likely that the parent or parents will be held liable for the carer in addition to the children being cared for. Where a child under the age of 18 is left in charge of younger children they will not be judged by the same standards as an adult.

There are a number of questions parents need to ask themselves before deciding whether to allow older children to babysit younger children and excellent resources are located on the Parenting SA website including a guide called Home Alone.

Leaving home

The courts, whether the Youth Court or the Family Law Courts, will decide matters concerning where children and young people live and in whose care, guided by the best interests of the child or young person and principally the need to protect them from harm. Each case depends on its facts - especially on the attitudes of the parents, the maturity of the child, and such factors as satisfactory accommodation, education or employment and a lifestyle that the authorities regard as reasonable.

If a child or young person leaves home and their parent or guardian does not hear from them or know their whereabouts, they should file a missing persons report with police.

If a parent or guardian is concerned about a child or young person leaving home to live elsewhere, causing them to be at risk of harm, those concerns should be reported to the Department of Child Protection. See Notification.

A child under 15 years who has no fixed address or has been absent from school without satisfactory explanation is considered 'at risk' for the purposes of the Children's Protection Act 1993 (SA) [see s 6(2)(d) and (e)] and the Department for Child Protection has the power to investigate such reports, as well as any other reports suggesting a child or young person is at risk of harm. See Children and young people at risk.

The Department may intervene or take other measures to protect the child or young person. See Child Protection Restraining Orders and other measures.

    Protection of children and young people  :  Last Revised: Fri Feb 23rd 2018
    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.