Bail justice hearing guide - advice

This advice provides additional information regarding bail justice hearings.

Introduction

See procedure Bail justice hearings for tasks that must be undertaken.

This guide provides information for child protection practitioners and managers about when it is necessary to bring an emergency care application before a bail justice.

Emergency care applications are brought before the Children’s Court as soon as practicable within 24 hours after a child has been taken into emergency care without the necessity of bringing the application before a bail justice, unless statutory or exceptional circumstances apply.

Bail justices may only hear emergency care applications. A bail justice hearing is an alternative to a court hearing, held when the Court is not sitting.

Legislation

Section 242 of the CYFA requires emergency care applications to be brought before the Court ‘…as soon as practicable, and in any event within one working day of the child being taken into emergency care...’  

The phrase ‘as soon as practicable’ takes into account the practical considerations involved in bringing a matter before the Court. These practical considerations include attending to the immediate needs of the child, ensuring that all relevant documentation and other evidence is available to be put before the Court, and briefing legal representatives.  

The phrase ‘within one working day’ means the child is to be brought before the Court within one day after being taken into emergency care when that day is a day on which the Court is sitting.

Taken together, the phrases ‘as soon as practicable’ and ‘within one working day’ require that as soon as child protection has done all that is practicably required to meet the child’s needs, prepare the application for court, and brief legal representatives, child protection must bring the child before the Court. The child must be brought before the Court no later than one day after the child is taken into emergency care when that day is a court sitting day. In addition, the period between child protection taking the child into emergency care and bringing the child before the Court must be no greater than 24 hours.

When a child cannot be brought before the Court within 24 hours after being taken into emergency care, a hearing before a bail justice must be arranged as soon as possible.  

There are certain placements where a hearing before a bail justice is necessary notwithstanding that a child can be brought before the Court within 24 hours of being taken into emergency care. When Victoria Police execute a warrant under sections 241, 269(6), 291(5) and 315 of the CYFA, the emergency care application must be heard by the Court or a bail justice before the child may be released from the custody of Victoria Police.  Placements that do not require attendance on a bail justice are outlined below.

Following a bail justice hearing, child protection must bring the emergency care application to court on the next day on which the Court is sitting.

Children’s Court practice notes

All emergency care applications must be filed by 1pm, or by 2pm for secure welfare services. All emergency care applications may therefore be brought before the Court between 9.30am and 2pm during sitting days.

The times of call over at Melbourne Children’s Court are 11am, 12.30pm and 2pm. There are no formal call over times for Moorabbin Children’s Court, Broadmeadows Children’s Court or rural courts. The call over times at Melbourne are designed to manage the progress and determination of all emergency care applications by the close of court business at 4pm. It follows that the sooner a child protection practitioner attends the Court, the sooner instructions can be communicated in readiness for the first call over at 11am. It is expected that child protection practitioners attend Court by 10am unless exceptional circumstances arise.

Application of the legislation and Court practice notes

Example 1: Where a child is taken into emergency care at 6am on a Wednesday, the application must be brought before the Court as soon as practicable that same day. The application cannot be brought before the Court on the following day, as the Court does not commence sitting until 10am, more than 24 hours after the child has been taken into emergency care.  

Example 2: Where a child is taken into emergency care at 1pm on a Wednesday, the application must be brought before the Court as soon as practicable on the following day, Thursday, and by no later than 1pm, or 24 hours after the child has been taken into emergency care.  

As a general rule, if a child is taken into emergency care before 11am on a weekday morning, the application should be brought before the Court as soon as practicable that same day. If a child is taken into emergency care after 11am on a weekday morning, the application should be brought before the Court as soon as practicable on the following day and no more 24 hours after the child was taken into emergency care.

In practice, most children are taken into emergency care during the afternoon and overnight. Utilising the general rule, applications for children taken into emergency care during the afternoon should be brought before the Court on the following morning and applications for children taken into emergency care overnight should be brought before the Court on the same morning. Whenever possible, emergency care applications should be brought before the Court by 10am. When this is not possible, and exceptional circumstances exist, child protection practitioners are required to know the latest time by which an emergency care application may be brought before the Court.

This guide contains a ‘time ready reckoner’ to assist child protection practitioners in determining the latest time by which an emergency care application may be brought before the Court.

When is a bail justice hearing appropriate notwithstanding the absence of a legal requirement to hold one?

A bail justice hearing may be sought by child protection in exceptional circumstances when a child is taken into emergency care outside court sitting hours and child protection considers it to be in the child’s best interests to seek an interim accommodation order before the emergency care application is heard in court.

Child protection should consider a bail justice hearing in circumstances in which the child would be at risk of harm if a bail justice hearing were not to occur. A bail justice hearing may be sought if a specific condition is necessary to ensure the child’s safety prior to the emergency care application being brought before the Court. For example, an interim accommodation order with a condition that no contact occur between the parents and child prior to the application being brought before the Court, or requiring that any such contact be supervised, may be necessary to protect the child from harm prior to the application being heard in court. This consideration may arise when the child is being placed with a suitable person and the address of that person is known by the parents.

Specific legislative provisions for bail justice hearings

Bail justices are only able to hear emergency care applications.  

The following applications may be issued by emergency care if they meet the legislative criteria:   

  • protection application
  • breach of an interim accommodation order
  • application for a new interim accommodation order
  • breach of a family preservation order

The legislative criteria for the initiation of an emergency care application are the requirements that a child is in need of protection, and that it is inappropriate to provide the child’s parents and the child, if they are of or above the age of 12 years, with notice of the application.

The provisions of the CYFA that relate to bail justice hearings are located in s.242. Specifically, these are:

(3) Unless the Court hears an application for an interim accommodation order within 24 hours after the child was placed in emergency care, a bail justice must hear an application for an interim accommodation order in respect of the child as soon as possible within that period of 24 hours.

In essence, subsection (3) stipulates that if it is not possible to bring a child before the Court within 24 hours of taking the child into emergency care, child protection must take the matter before a bail justice for hearing.

(5) Until an application for an interim accommodation order is made to the Court or a bail justice, the child placed in emergency care under section 241 may only be placed—

(a) in an out-of-home care service; or

(b) if there is a substantial and immediate risk of harm to the child, in a secure welfare service; or

(c) in other accommodation approved by the Secretary in accordance with the prescribed criteria (if any). (This means placement with a person child protection has approved as suitable.)

Subsection 5 specifies where a child can be placed prior to the application to the Court or bail justice. This section allows a child protection practitioner to place the child in accommodation assessed to be appropriate, including with a suitable person, in a residential unit, in foster care, in kinship care, in secure welfare, or in a hospital.

Placements that do not require a bail justice hearing

Child protection practitioners are not required to attend a bail justice hearing prior to placing a child in any of the following placements:

Placement in Secure Welfare Services: In accordance with s.242(5) of the CYFA, child protection practitioners do not need to arrange a bail justice hearing when seeking to place a child taken into emergency care in secure welfare. Section 242(5) provides that if there is a substantial and immediate risk of harm to the child, the child may be placed in secure welfare before an application for an interim accommodation order is made to the Court or bail justice.

Undisclosed placement: If child protection assesses that it would not be in the best interests of a child taken into emergency care to inform the child’s parents of the address of the child’s emergency care placement, child protection may place the child in an undisclosed placement until the emergency care application is brought before the Court or bail justice. For example, if child protection has clear evidence to suggest that a parent informed of the address of the child’s emergency care placement would attempt to make contact with the child and, in doing so, place the child at further risk of harm, contrary to the child’s best interests, child protection may withhold the address of the emergency care placement from the parent prior to bringing the emergency care application before the Court.

Placement in hospital/medical treatment: Pursuant to sections 597(1) and 597(4) of the CYFA, it is not necessary to seek an interim accommodation order to obtain a medical examination or treatment for a child who has been taken into emergency care. However, it is good practice to ensure that whenever a child requires a medical examination, treatment, surgery or an admission to hospital, parents are informed, consulted and involved, as appropriate.

It is important to note that a young person with sufficient maturity, and understanding of his or her medical condition and any proposed treatment, is legally able to consent to or refuse treatment without the consent of his or her parents or guardians. The powers of the Secretary under section 597 do not displace the ability of a competent young person to consent to or refuse medical treatment. Determining when a young person is competent to consent to or refuse medical treatment is a complex issue, and legal and medical advice should be sought when such decisions are being made.

Time ready reckoner

In all emergency care applications, whether done during the afternoon or overnight child protection practitioners should endeavour to arrive at the Children’s Court by 10:00 am. The Court call over times of 11am, 12.30am and 2pm are designed to manage the progress and determination of all emergency care applications by the close of court business at 4pm.

In exceptional circumstances where it is not possible to bring an apprehension made during the week to court by 10am, the following guide outlines the latest time a practitioner can arrive at court and file an application for emergency care. This is based on the time elapsed from the time of apprehension to the time the Court will accept applications by emergency care.

In the case of weekend apprehensions the guide indicates the latest time a protection worker can arrive at court and file an application for emergency care when the Court resumes sitting on Monday.

The guide indicates when child protection practitioners are required to attend a bail justice during the weekend.

Monday to Thursday:

If the apprehension takes place between 12:00 midnight and 7:00am:

  • File PA at court on the same day by no later than12:00 noon.

If apprehension takes place between 7:00am and 11:00am:

  • File PA at court on the same day by no later than 2:00pm

If apprehension takes place between 11:00am and 12:00 noon:

  • File PA at court on the next day by no later than 11:00am

If apprehension takes place between 12:00 noon and 12:00 midnight:

  • File PA at court on the next day by no later than 12:00 noon.

Friday

If apprehension takes place between 12:00 midnight and 7:00am:

  • File PA at court on Friday by no later than 12:00 noon.

If apprehension takes place between 7:00am and 11:00am:

  • File PA at court on Friday by no later than 2:00 pm

If apprehension takes place between 11:00 am and 12:00 midnight (Saturday):

  • Obtain an IAO from a bail justice within 24 hours of apprehension and bring the matter to court on the following Monday by no later than 10:00am.

Saturday and Sunday

If apprehension takes place between 12:00 midnight (Saturday) and 10:00am Sunday

  • Obtain an IAO from a bail justice within 24 hours of apprehension and bring the matter to court on the following Monday by no later than 12:00 noon.

If apprehension takes place between 10:00am (Sunday) and 11:00am (Sunday)

  • File PA at court on the following Monday by no later than 10:00 am

If apprehension takes place between 11:00am (Sunday) and 12:00 noon (Sunday)

  • File PA at court on the following Monday by no later than 11:00 am

If apprehension takes place between 12:00 noon (Sunday) and 11:00pm (Sunday)

  • File PA at court on the following Monday by no later than 12:00 noon.

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