Children's Court search warrants - advice

This advice provides additional information regarding Children’s Court Family Division search warrants including Bench warrants.

 

 

Introduction

See procedure Warrants for tasks that must be undertaken.

A Children’s Court Family Division search warrant authorises a named member of the police force or generally all members of Victoria Police to:

  • enter and search any place where the child named or described in the warrant is suspected to be
  • place the child in emergency care, and either:
    • bring the child before a bail justice or the Court as soon as practicable, and
    • release the child on an IAO in accordance with the endorsement on the warrant, or
    • take the child to the place specified in the warrant or nominated by child protection (s. 598), or
    • bring the child to the Secretary (s. 237).

A warrant allows police to search premises on multiple occasions. Where an address to search is specified, this applies only to the specified address. Where no address is specified, a warrant allows police to search multiple premises on multiple occasions, if there is information to suggest the child is in any of those premises. The search warrant is only executed when a member of the police places the child in emergency care.

At each stage, consultation with a supervisor is required and appropriate CRIS screens, including court screens, are to be completed.

There are four distinct elements involved in the warrant process which need to be undertaken in sequence:

  1. Determine the need to apply for a warrant and obtain authorisation.
  2. Apply for the warrant.
  3. Arrange for execution of the warrant.
  4. Follow up after the warrant has been executed, or cancel the warrant if it is not executed and is no longer required.

1. Determining the need to apply for a warrant and obtaining authorisation

When a warrant is appropriate

Child protection practitioners may seek a warrant in the Children's Court with regard to a child subject to a protective intervention report, an interim accommodation order or a protection order.

A warrant is appropriate where:

  • child protection intervention alone has not been, or would not be, effective in addressing the child’s immediate risk situation, and
  • the authorisation for police to enter and search a place or place the named child in emergency care is the only viable option.

Consider whether:

  • the current level of risk to the child is significant
  • there is immediate or imminent risk
  • based on the information available, access to the child is needed as soon as possible to assess their situation
  • other means of gaining access to the child or placing the child in emergency care would be effective or not.

Obtaining authorisation

The decision to apply for a warrant is to be approved by a supervisor and recorded in CRIS. The supervisor is to oversee the warrant process until the warrant is executed or withdrawn (cancelled).

If seeking a warrant is

  • part of a case planning decision (such as placing the child in emergency care, changing their placement), or
  • about a high risk case (HRI, HRY schedule)

the team manager as the case planner must endorse the decision to seek a warrant.

Where there is uncertainty about how to proceed or where the warrant is connected with initiating court action the CPLO or a court officer should be consulted.

2. Applying for a warrant

Liaise with police

Liaise closely with the relevant SOCIT or uniform police about warrants – give as much notice as possible if immediate assistance will be sought to execute the warrant by letting them know in advance that an application is being made.

This allows for effective planning and information exchange, and a timely response by Victoria Police.

During business hours

Search warrants should be sought during business hours unless there is unacceptable risk to the child or young person after hours. The Children’s Court will accept warrant applications until 4pm Monday to Friday. In circumstances where a warrant cannot be sought prior to 4pm, or on weekends or public holidays, an after hours warrant should be considered (see below for after hours warrant applications).

After hours

The after hours warrant service is for urgent applications only. The decision to initiate an after hours warrant should be determined by immediate and unacceptable risk to the child or young person. The after hours warrant process applies for applications that will be lodged after 4pm on weekdays (necessitated by unacceptable and immediate risk to the child or young person), or on weekends or public holidays.

Specifying location and placement details on warrants

Specifying an address to search

A warrant should specify the address of the premises to be searched if the child will definitely be located at that premises; otherwise the warrant should not specify an address to be searched.

A Children's Court search warrant authorises entry to more than one premises and entry to the same premises on more than one occasion for the purpose of searching for the child subject to the police member executing the warrant having a reasonable suspicion that the child is on the premises to be searched. A warrant remains in force until it is executed or cancelled.

Specifying a placement

A warrant should not specify a Secure Welfare Service as the address to which the child is to be taken once taken into emergency care by police. A secure welfare placement should only be considered following an assessment of the child’s needs once the child is located.

If police have executed a s. 598 warrant obtained by child protection they must do the following in respect to placement of the child:

  1. If a place is specified in the warrant, the police must take the child to that place.
  2. If no place is specified in the warrant and the Secretary determines where the child should be taken, the police must take the child to that place.
  3. If no place is specified in the warrant and the Secretary does not determine where the child should be taken, the police must take the child to a place referred to in s. 173 of the Act.

It is expected that an appropriate address will be specified in s. 598 warrants whenever possible to enable Victoria Police to return the young person to that address upon execution of the warrant.

Child protection may choose not to specify a place for the child to be taken on a warrant when there is uncertainty about what the child's needs will be when located, and assessment will therefore be required prior to a placement being determined.

Affidavits

An affidavit is a written document signed by a person who swears on oath or makes an affirmation as to its truthfulness before an authorised person. Once sworn or affirmed, the affidavit becomes an item of written evidence and has the same status as sworn verbal evidence in a court.

Care should be taken in preparing an affidavit for a warrant to ensure the information it contains is relevant, comprehensive, accurate and current and that it substantiates the need for the warrant. The affidavit should include:

  • the name of the protection order to which the child is subject (if any)
  • the name of the applicant for that order
  • the date that order was made and will expire
  • the court in which it was made
  • the protective concerns now
  • action taken and why the warrant is necessary to ensure the safety of the child.

A registrar or magistrate may contact the applicant for a warrant with questions about the affidavit and to seek further information or clarification.

Statutory declarations

A statutory declaration is a document signed before an authorised witness by a person who declares that its content is true and correct in the knowledge that, if the statement is false, the person making the statement is liable to the penalties of perjury. Statutory declarations do not require an oath or affirmation (see below for further details). Statutory declarations are used by individuals who are not parties to court proceedings and cannot be used in place of an affidavit.

Authorised persons

A person may be authorised under the Evidence Act 1958 to witness statutory declarations and take affidavits. The person making the affidavit or statutory declaration must sign the bottom of each page and beside the ‘jurat’ (the certificate at the end of an affidavit).

Prescribed classifications in the public service who are 'authorised persons' for the purposes of the Evidence Act include:

  1. Non-executive employee (VPS-2 and above);
  2. Solicitor, Senior Solicitor, Principal Solicitor and Principal Solicitor (Team Leader);
  3. Executive (level 1,2,3);
  4. Principal scientist or principal scientist level PS-1 and PS-2;
  5. Child Protection Practitioner CPP 2–6 inclusive;
  6. Children Youth and Families CYF 2-6 inclusive;
  7. Health and community services worker HCS2 to HCS5 inclusive;
  8. Housing services officer (HSO);
  9. Senior medical adviser (SMA);
  10. Disability Development and Support Officer DDS04 to DDS09 (inclusive);
  11. Mental retardation nurse (MRN3 to MRN8 inclusive);
  12. Custodial Officers COG4 to COG6 (inclusive).

See procedure Affidavits and statutory declarations.

The Department of Justice and Regulation provides guidelines for authorised witnesses.

As soon as a warrant is granted

After a warrant has been granted, the Court faxes the warrant to Victoria Police Records Services Division (RSD) and a confirmation fax to the child protection applicant.

Child protection needs to confirm with RSD that the warrant has been received from the Court and arrange for execution of the warrant by police.

3. Arranging execution of a warrant

The child has been assessed to be in a situation of immediate significant risk, so arrangements for execution of the warrant need to occur as soon as a warrant has been granted.

To arrange for execution of a warrant, liaise with SOCIT or uniform police, usually those covering the most likely location of the child, and where necessary arrange a transfer between the division and After Hours Child Protection Emergency Service (AHCPES).

Liaison with police

Victoria Police has sole power and responsibility to execute a warrant. Under the CYFA, warrants may only be directed to a named member of the police or to all members of the police for execution.

Child protection can advise police about the concerns, the grounds for obtaining the warrant and how it could be executed, however the police will determine how to execute the warrant.

Before police attend any premises to execute a warrant the child protection practitioner should provide any information they have that may be relevant about:

  • protective concerns and reasons for the warrant
  • location and position of premises, including any security issues
  • firearms or dangerous animals on the property
  • number of occupants, including names and dates of birth
  • attitude of occupants to child protection and police
  • any history of violence.

When ready to execute the warrant, the relevant police member will contact their RSD and arrange to have the warrant sent to them.

Where an attempt to execute a warrant is unsuccessful

If there is information available about the potential location of the child further attempts to execute the warrant at the nominated places should be arranged with police.

If there is no information about the child’s whereabouts

If there is no information that may suggest where the child could be located, immediate efforts to execute the warrant will not be possible.

In this circumstance child protection will:

  • alert local SOCIT or uniform police that a warrant has been obtained
  • update CRIS
  • complete an after hours possible contact.

In addition:

  • a missing persons report should be made
  • other appropriate authorities, agencies and individuals should be alerted that the child is missing (including an interstate alert where appropriate)
  • plan efforts to locate the child
  • continue until the child is located and the risk addressed.

See procedures Possible contacts to AHCPES and Missing persons report for tasks that must be undertaken.

At all critical points practitioners should consult with their supervisor regarding the assessment and decision making. Where a warrant has not yet been executed ongoing case planning and liaison with police is required to consider possible action to locate the child or address the concerns for the child.

4. Follow up after the warrant has been executed, or cancel the warrant if it is not executed and is no longer required.

After a warrant has been executed

Following execution of a warrant, Victoria Police is responsible for returning an executed warrant to the issuing court and informing their RSD.

The child protection practitioner is responsible for any assessment, planning or action required to meet the best interests of the child and for updating CRIS (recording in the court screens that the warrant has been executed).

When a warrant is no longer required

Where a child who is the subject of a current warrant is located and the risk to them is addressed without execution of the warrant, the warrant is no longer required.

Child protection is responsible for immediately requesting, in writing, cancellation of the warrant by Victoria Police. Warrants do not expire and police are obliged to execute a current warrant. Cancelling warrants promptly avoids inappropriate apprehensions. See procedure Cancelling a warrant or missing person’s report for tasks that must be undertaken.

The decision to request that a warrant be cancelled should be endorsed by a supervisor.

The child protection practitioner is responsible for updating CRIS (recording in the court screens that the warrant has been cancelled).

A TAO warrant remains in force for the duration of the TAO, unless executed earlier.

Other considerations

Continuity of service

Transfers between divisions and AHCPES

Where a division has assessed that a warrant is required the child protection practitioner is responsible for obtaining the warrant.

Where police have been asked by the division to execute a warrant but it has not been executed during that day, a transfer to AHCPES should be requested.

The decision to seek a transfer to AHCPES should be made in discussion with a supervisor and should be documented in CRIS.

Where AHCPES has had involvement after hours with a case involving a warrant, case responsibility will be transferred to the division in accordance with the usual transfer procedures.

After hours possible contacts

Completing an after hours possible contact is not sufficient where a warrant has been obtained and there is information about the possible whereabouts of the child.

Where a child or young person is missing a current crisis plan should be recorded in CRIS. If there is no information suggesting their whereabouts, but there is reason to believe that the child may come to the attention of AHCPES, a possible contact for that period should be recorded. See procedure Possible contact to AHCPES for tasks that must be undertaken.

The recorded information should be sufficient to guide the after hours response.

Child protection’s powers of entry

Child protection practitioners do not have the authority to enter a property without the consent of the occupant. The exception to this is if a child protection practitioner believes someone is in significant, imminent danger inside the property (such as may be caused by imminent assault, a serious illness or injury requiring immediate medical assistance).

In such circumstances the law recognises that any person is entitled to take action that is deemed reasonable, even though that action might otherwise be unlawful.

Gaining access to children

In the absence of such circumstances of imminent danger, where entry to a property is needed to achieve safety for a child, a warrant will be required.

In situations where the cooperation of a child or young person is likely to be an issue (such as where a missing child is likely to abscond if they can when located) a warrant may be required to detain them.

How a warrant will assist

A warrant grants powers of entry to police, but not to anyone else. Child protection staff require the consent of the occupant to enter the premises. If the occupant denies the child protection practitioner entry or asks them to leave, the practitioner must do so immediately (retreating to a public space). The decision of the occupant to permit or deny entry must be complied with, irrespective of whether they own the property.

A search warrant under s. 241(1)(b) of the CYFA, authorises, but does not require the police executing the warrant to take the subject child into emergency care. For example, if the reported circumstances are found to be incorrect or not significant to the extent that there is risk to the child necessitating their apprehension, then a protection application does not have to be issued.

Police executing a warrant can place a child in emergency care. Practitioners should provide the police member with the child protection information sheets that provide information to children and parents when placing a child in emergency care, as per s. 242(1) of the CYFA. The child must remain in the care of a police member until brought before the Court or a bail justice for an IAO hearing.

The child protection practitioner can complete a protection application by emergency care, breach of an IAO or family preservation order by emergency care, as the applicant and ask the police to serve the parents with the forms.

In these situations, the police will execute the warrant, serve the parents with the relevant forms and give the child to the child protection practitioner when they have left the premises, as the child is deemed to be in the practitioner's (applicant's) care. It is then the responsibility of the practitioner to bring the child before the Court within 24 hours or a bail justice for an IAO hearing if the next sitting of the Court will be more that 24 hours after the child has been apprehended. It is the responsibility of the police member who served the relevant forms to complete the affidavit of service only.

Execution of warrants interstate

Where a child is located interstate, the warrant may be executed by the interstate police under the Service and Execution of Process Act 1922 on behalf of Victoria.

See procedure Interstate warrants for tasks that must be undertaken.

Missing persons report (MPR)

A missing persons report should be made where a child subject to child protection involvement is missing and concerns are held for their safety and wellbeing. Victoria Police must conduct an investigation into any report of a missing person. See procedure Missing persons report for tasks that must be undertaken.

A concurrent Children's Court search warrant may also be required, if it is assessed police intervention will be required to ensure the wellbeing of the child when they are located.

Temporary assessment order (TAO) warrants

Section 237 of the CYFA allows the Children's Court to issue a warrant, either at the time of making the TAO, or on a subsequent application, to assist in carrying out the TAO.

This is different from other warrants available under the legislation, as it does not require the return of the child to the Court upon execution of the warrant. It is a warrant of entry and search.

The Court would grant such a warrant where it is believed necessary for police to enter premises where a child is located. It enables police to search the premises, apprehend the child and transfer care of the child by reasonable force if necessary to child protection, for the purposes of child protection exercising the powers granted by the TAO.

The warrant remains in force for the duration of the TAO, unless executed or cancelled earlier. This type of warrant is only enforceable in Victoria.

See procedure Return of temporary assessment order for tasks that must be undertaken.

Considerations for good practice

The affidavit constitutes written evidence and is the equivalent to providing sworn verbal evidence in court. Information provided must be as detailed and accurate as is expected when giving verbal evidence.

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