Introduction
See procedure Temporary assessment orders (without notice) for tasks that must be undertaken.
A temporary assessment order (TAO) provides the legal authority under s. 232 of the CYFA, for child protection to conduct an investigation of the reported concerns for the safety and development of a child in situations where the investigation would be otherwise unable to proceed. An example would be where parents, whether directly or indirectly, obstruct an investigation into reported concerns. A temporary assessment order can be considered at any time in the course of an investigation, or following substantiation until the point where a protection application is issued, if required to enable completion of an assessment of protective concerns.
Provisions of a temporary assessment order
Section 232 of the CYFA sets out what a TAO may provide for including:
- authorising the Secretary to enter premises where the child is living
- requiring the parent or any person with whom the child is living to permit the Secretary to enter the premises where the child is living
- requiring the parent of the child or any person with whom the child is living to permit the Secretary to interview the child and to take the child to a place determined by the Secretary for that interview
- authorising the medical examination of the child by a registered medical practitioner or registered psychologist
- directing the parent or any person with whom the child is living to permit the Secretary to take the child for that examination
- authorising the results of the medical examination to be given to the Secretary requiring the parent of the child or any person with whom the child is living to attend an interview with the Secretary and answer questions put to them (subject to protection of privileges - s. 234)
- giving any other directions or imposing any other conditions that the court considers to be in the best interests of the child such as requiring that a parent provide drug screen samples.
Application for a TAO
A TAO should be sought where:
- there is a reasonable suspicion that the child is or is likely to be in need of protection and
- further investigation and assessment is warranted and
- the investigation and assessment cannot properly proceed without a TAO being granted, as there is insufficient evidence to support a protection application by warrant, but sufficient concerns that the reported concerns cannot be left uninvestigated.
Child protection practitioners should carefully plan an investigation and make every effort to investigate and assess reported protective concerns before consideration is given to applying for a TAO. Careful consideration should be given to any information that suggests a child could be placed at further risk if notice of an application for a TAO was to be given or to any information that suggests a family could flee.
An application for a TAO can only be made to the Children's Court; a bail justice cannot make a TAO. An application is made by notice under s. 228 or without notice under s. 229 of the CYFA. An application for a TAO without notice can be made if the judge or magistrate is satisfied that giving notice is inappropriate. For example, when there is evidence that the family or child may abscond if notice were given or where there is information that if the child is not immediately assessed evidence may be lost, or where seeking evidence related to parental drug use.
Child protection practitioners should consider whether an application for a TAO may be appropriate where a parent refuses a drug screen and this is required for the assessment, and discuss options with the Child Protection Litigation Office (CPLO).
Application for a warrant to execute a TAO
An application can be made to the Children's Court for a search warrant under s. 237, CYFA, to authorise a member of Victorian Police to
- enter any premises where a child is believed to be located
- search for and apprehend the child to enable child protection practitioners to exercise powers under the TAO.
Police have no legal obligation to assist child protection practitioners to exercise powers under the TAO once the warrant is executed.
The Children's Court will require evidence by oath or by affidavit from the child protection practitioner as to why a warrant is necessary. The Children's Court may grant a s. 237 warrant if satisfied that entry to a property will be denied and authorises Victorian Police to use 'reasonable force' in execution of the warrant.
It must be noted that a s. 237 warrant is different to a s. 241 warrant in that the s. 237 warrant does not:
- require that the matter returns to the court once issued
- have the capacity for police to take a child into emergency care
- require Police executing the warrant to assist in the return of the child to their placement.
TAO by notice
Detailed planning and preparation of an application for a TAO is essential. Careful consideration needs to be given prior to making an application to the Children's Court about what conditions are being sought including the number of days required to complete the investigation or assessment and the number of occasions required to interview a child and the parents.
In the situation these specialist assessments are required to assess risk to a child, child protection practitioners should be clear prior to making an application to the Children's Court that the required assessment can be conducted within the timelines that the order will provide for.
Advice from the divisional solicitor or court officer and the CPLO will be important to inform the preparation of the application and the child protection practitioner's evidence as to why the order is needed and the number of days being sought.
Where an application for a TAO is made by notice, the child protection practitioner must serve notice on the child's parents and the child (if the child is 10 years of age or above).
Executing a TAO
Where a warrant has not been obtained, the child protection practitioner must take all steps necessary in order to attempt to execute the order, for example attending and attempting to enter the premises where the child is residing, attempting to interview the child or any other provision made in the order.
When there is information available indicating possible worker safety issues the worker safety guidelines should be followed including seeking the assistance of police. See Worker safety checklist.
Protection of privileges
Provision is made under section 234(1) of the CYFA to allow a person to refuse to answer a question on the grounds that it may incriminate them or because the information is privileged on the grounds of legal professional privilege or client legal privilege.
Section 234(2), of the CYFA requires that child protection practitioners advise people of their right to refuse to answer a question under s. 234(1).
Provision of relevant information sheets
The family should be given the required written information about child protection roles and responsibilities and informed of how to make contact with child protection and those conducting the visit.
Consent to a medical examination
Despite a TAO with the condition that a registered medical practitioner or registered psychologist examines the child, a medical practitioner or psychologist must not do so if they are of the opinion that the child has sufficient understanding to give or refuse consent to the examination and the child refuses to consent (s.233).
Application for variation or revocation of a TAO made in the absence of the child
A TAO arising from an application by notice remains in force for a period not exceeding 21 days. Orders arising from an application without notice remain in force for a period not exceeding 10 days.
Generally a TAO cannot be extended even if the actions or outcomes have not been achieved in the timelines of the order.
If a TAO has been made without notice, a child or their parent may apply to the Children's Court for the variation or revocation of the order.
If such an application is made to the Court, it may, if it considers exceptional circumstances exist, extend the period of the operation of the order to a total period not exceeding 21 days.
Appeal against a TAO
If the Children's Court makes a TAO or dismisses an application for an order, the child, their parent or the Secretary may appeal to the Supreme Court against the order or the dismissal.
Provision of a report
A TAO will specify a date by which the practitioner must provide a written report to the Children's Court. The report must specify in detail:
- the actions taken under the order
- the results of the investigation and assessment
- any other information considered that ought to be provided to the Court
- any other information the Court directs to be included in the report.
Child protection practitioners must provide a written report to the Court by the date specified in the temporary assessment order, and, unless otherwise directed by the Court, a copy to the child and their legal representative, the child’s parent and the parent’s legal representative, and anyone else specified by the Court.
Considerations for good practice
Irrespective of whether an application is made by notice or has been made without notice, a central consideration for practitioners will be to continue to focus on engaging the family in the assessment process and thereby establishing a relationship with the family in which any further casework can be undertaken.
To facilitate this, practitioners should consider the following:
- Take time to carefully explain to the family that despite the order they still have the opportunity to cooperate with the investigation and assessment process.
- Where appropriate and possible, involve the family in the assessment and investigation process, for example provide information about what assessments need to occur, who will be conducting the assessments, how long they may take.
- Provide clear feedback to the family on the outcome of the investigation and assessment, for example if it is assessed that the reported concerns have not been substantiated the family should be advised that this information will be provided to the Court.