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Custody or guardianship of the Chief Executive

What does it mean to be in the custody/guardianship of the Chief Executive?

Children and young people may be in the custody or guardianship of the Chief Executive:

  • after having been removed due to being at risk of serious harm,
  • under an instrument of guardianship, or
  • pursuant to a voluntary custody agreement, or
  • pursuant to a care and protection order.

This means that the Chief Executive of the Department for Child Protection determines in whose care the child or young person is placed and may give directions about their care, including arrangements for their education and professional examination, assessment and treatment [see Children and Young People (Safety) Act 2017 (SA) s 84(1)]. In deciding these things, the Chief Executive must have regard to the principles of intervention and the placement principles, and must keep in mind that leaving a child or young person in the custody or guardianship of the Chief Executive is the least preferred option [s 84(3)]. The child or young person’s views should be given due weight in decision-making, in accordance with their developmental capacity and the circumstances of the case [s 84(4)]. Generally, the Chief Executive will keep the parents informed of where the child or young person is placed, unless it would not be in their best interests to do so [s 84(5)]. While the Act enables the Chief Executive to exercise the above powers, such power and responsibility may also be delegated to other appropriate staff members within the Department for Child Protection, such as managers or case workers [s 146].

Do carers have to be approved?

A person in whose care the child or young person (who is in the custody or guardianship of the Chief Executive) is placed is referred to as a ‘carer’. Generally, carers must apply to and be approved by the Chief Executive to provide care, although there is an exception when an approved carer is not available in situations of urgency [ss 69, 71 and 77]. In determining whether to approve a carer, the Chief Executive must act in accordance with relevant policies, and have regard to the operation of the Child Safety (Prohibited Persons) Act 2016 (SA), and whether the person is willing and able to care for the child or young person in a manner consistent with the Act, among other things [s 72(3)]. However, the Chief Executive may refuse to approve a person as a carer for any reason [s 72(3)]. Conditions may be attached to a carer’s approval and carers may be subject to ongoing review and assessment [ss 72-73]. Carers who are refused approval pursuant to section 72 or whose approval as a carer is cancelled pursuant to section 74 may seek a review of the decision. In the first instance, carers must apply to the Department for an internal review [s 158(2)(b)]. If necessary, they may then apply to the South Australian Civil and Administrative Tribunal for an external review [s 158(3)(a) and (b)]. Time limits apply. See Can the Chief Executive’s decisions be reviewed?

Are approved carers involved in decision-making?

Approved carers are generally entitled participate in making decisions that relate to a child or young person’s health, safety, welfare or wellbeing [s 82(1)]. This will not apply when the decision-maker thinks it would not be in the best interests of the child or young person [s 82(2)].

Custody or guardianship of the Chief Executive  :  Last Revised: Sun Oct 21st 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.