When and how will the Department conduct an investigation?
The Department for Child Protection may begin an investigation, with or without parental consent, if they suspect that a child or young person may be at risk or it is otherwise appropriate [Children and Young People (Safety) Act 2017 (SA) s 34].
The Chief Executive may direct that a child or young person be examined or assessed if [s 35]:
- the child or young person has been removed from their parents pursuant to section 41 (see What if a child or young person is at risk of serious harm?) or
- an instrument of guardianship or a restraining notice is in force (See What if a parent is found guilty of a qualifying offence?), or
- the Youth Court orders the examination and assessment of the child or young person (See What orders can the Youth Court make?), or
- the Chief Executive considers it necessary or appropriate [Children and Young People (Safety) Regulations 2017 (SA) reg 12].
An employee of the Department will take the child or young person to their appointment with the relevant health professional [s 35(3)].
If the Chief Executive reasonably suspects that a child or young person is at risk as a result of drug or alcohol abuse by a parent, guardian or other person or a lack of parenting capacity by anyone responsible for the care of the child or young person, the Chief Executive may direct the person to undergo relevant assessments [s 36].
The child or young person could still be in the parent’s care when they are directed to undergo an assessment. As such, it is important for the parent to get legal advice at this time as the outcome of the assessment will be critical to any further action by the Department. It is important parents understand that it is an offence to refuse to comply with the direction to undergo an assessment [s 36(3)]. The maximum penalty is six months imprisonment.
Those directed to undergo assessments must receive a notice setting out:
- the nature of the assessment
- the place at which the person must attend for the assessment
- the date and time of the assessment
- contact details of the person or body with whom the person can communicate about the assessment
- information setting out the consequences of refusing or failing to comply with the direction for the assessment
- the contact details of the Legal Services Commission
See Children and Young People (Safety) Regulations 2017 (SA) reg 13.
Anyone who has undergone a drug and alcohol assessment or been the subject of an application for an investigation and assessment order under the Children’s Protection Act 1993 (SA) in the last 5 years must take part in random drug and alcohol testing and may be directed to undertake a drug and alcohol rehabilitation program [ss 37 and 38]. It is an offence to refuse, without reasonable excuse, to comply with a requirement for testing or rehabilitation [ss 37 (5) and 38(2)]. The maximum penalty is six months imprisonment.
Does the Department need parental consent before it intervenes?
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 has the power to intervene without the consent of the parents or guardians. This is particularly the case where there are concerns that the child or young person will be at risk of serious harm without intervention, see What if a child or young person is at risk of serious harm?
What happens when the Department intervenes with parental consent?
Where the Department for Child Protection wants to work with a family without taking court action, but while still ensuring the child or young person is placed out of the home for a period, they can:
- convene a Family Group Conference to make arrangements [see Children and Young People (Safety) Act 2017 (SA) s 22] and/or
- initiate a Voluntary Custody Agreement (also known as a 'Care Agreement') with the family [ s 96].
A Voluntary Custody Agreement is a short term agreement between the parents and the Department giving the Department custody of the child and 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, and the type of decisions the parents must be consulted about.
Under the agreement the Department may organise support services for the family and make arrangements for short term care.
The agreement can be terminated at any time by the parents or a young person who is aged 16 years or older. Agreements are usually for a period of three months with an option to extend up to a maximum of six months.
Legal advice should be sought before entering into or terminating an agreement. If an agreement is terminated the Department may make an application to the Youth Court for a care and protection order. See When is a Care and Protection order made?
What is a family group conference?
A family group conference (previously known as a 'Family Care Meeting') is an opportunity for the child or young person and his or her family to make voluntary arrangements for the care and protection of the child or young person and to review those arrangements from time to time [s 21]. The Chief Executive or the Youth Court may convene a family group conference if they suspect that the child or young person is at risk and it would be appropriate to make arrangements for the care of the child or young person by way of family group conference [s 22]. There is no longer any legislative requirement that a family group conference be held before the Chief Executive makes an application for a care and protection order, but the Youth Court may adjourn an application for the purposes of convening a family group conference [s 67].
How is a family group conference conducted?
A conference coordinator is nominated by the Chief Executive or the Youth Court, whichever convened the conference. The conference coordinator conducts the meeting [s 22(2)].
Attendance at a conference is voluntary, but if parents refuse to attend a conference, the Department may make an application to the Youth Court for care and protection orders [s 21(2)]. People entitled to attend the meeting include [s 23]:
- the child or young person him or herself
- the parents or guardians
- approved support persons (not being legal practitioners) for the child or young person and their parents/guardians
- other family members
- anyone who has a close association with the child or young person
- a person who has examined, assessed, counselled or treated the child or young person in the course of investigation,
- a representative from the child or young person's school (if persistent absenteeism is involved) a
- a representative from a relevant Aboriginal or Torres Strait Islander organisation (if the child or young person identifies as Aboriginal or Torres Strait Islander), and
- a Department for Child Protection worker.
The coordinator must ensure the conference is held at a time suitable to the child or young person and their parents or guardians, notify them of the time and place at which it will be held and arrange for a suitable person to act as an advocate for the child or young person (unless satisfied that the child or young person has made an informed and independent decision to waive their right to an advocate) [s 23(4)].
After consultation with the child or young person and their parents and guardians, the coordinator may exclude a person from attending the conference [s 23(2) and (3)]. If this is done, the Coordinator must still take reasonable steps to ascertain their views and present them to the conference [s 24(3)]. The same applies if someone is unable to attend for any reason.
The coordinator must ensure that information about the child or young person’s circumstances and any grounds for suspecting the child or young person may be at risk is presented to the conference [s 24(1). Once the information is given, the parents, guardians and family members (including the child or young person if appropriate) must be given the opportunity to privately discuss and decide their own recommendations for the child or young person’s care and protection [s 24(2)].
If possible, decisions should be made by consensus [s 24(4)(a)]. Decisions will only be valid if the child or young person, their parents or guardians and the Department each accept them in writing [s 24(4)(c) and Children and Young People (Safety) Regulations 2017 (SA) reg 7(1)(a)]. However, the regulations provide that decisions need not be accepted by a child or young person, if having regard to the child or young person’s age or and development, it is not necessary or appropriate [reg 7(3)].
If a decision cannot be reached or a conference cannot be held (such as where the parents refuse to attend the conference), the Chief Executive may apply to the Youth Court for a Care and Protection Order [s 21(2)].
A written record of the decisions must be prepared and provided to each person present at the conference and included as part of the case plan for the child or young person [s 24 (5)]. A decision may be made to review the arrangements at a subsequent conference [s 25]. The Department may wish to secure the arrangements by way of court order [s 50(3)(b)]. Either way, if a decision is made at the conference but not implemented or complied with, the Chief Executive may also apply to the Youth Court for a Care and Protection Order [s 26(2)]. See also When is a Care and Protection order made?
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.