See procedure Applications by emergency care before a Bail justice for tasks that must be undertaken.
This guide provides information for child protection practitioners and managers, and Aboriginal Children in Aboriginal Care (ACAC) providers about when it is necessary to bring an application by emergency care before a bail justice.
Applications by emergency care are brought before the Children’s Court as soon as practicable within 24 hours after a child has been placed into emergency care without the necessity of bringing the application before a bail justice.
Bail justices are only required to hear applications by emergency care where the matter cannot be bought before the Children’s Court within 24 hours.
Section 242 of the CYFA requires applications where a child has been placed in emergency care to be brought before the Court ‘…as soon as practicable, and in any event within one working day of the child being placed into emergency care...’
The phrase ‘as soon as practicable’ takes into account the practical considerations involved in bringing a matter before the Children's 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 placed 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/ACAC has done all that is practicably required to meet the child’s needs, prepare the application for court, and brief legal representatives, Child Protection/ACAC must bring the child before the Court.
The child must be brought before the Court no later than one day after the child is placed into emergency care when that day is a court sitting day. In addition, the period between Child Protection/ACAC placing 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 placed into emergency care, an application before a bail justice must be arranged as soon as possible within the 24 hours.
Following an application before a bail justice, child protection/ ACAC must lodge the application by emergency care in the CMS Portal before or on the next working day on which the Court is sitting.
All applications by emergency care must be lodged in the CMS Portal by 1pm, or by 2pm for secure care matters.
All applications by emergency care may therefore be brought before the Court priot to 1pm 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 applications by the close of court business at 4pm. It follows that the sooner a child protection practitioner/ACAC attends Court, the sooner instructions can be communicated in readiness for the first call over at 11am. It is expected that child protection practitioners/ACAC attend Court by 10am unless exceptional circumstances arise.
Example 1: Where a child is placed into emergency care at 6am on a Wednesday, the application must lodged in the CMS Portal 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 place into emergency care.
Example 2: Where a child is placed into emergency care at 1pm on a Wednesday, the application must be lodged in the CMS Portal as soon as practicable on the following day, Thursday, and by no later than 1pm, or 24 hours after the child has been placed into emergency care.
As a general rule, if a child is placed into emergency care before 11am on a weekday morning, the application should be lodged in the CMS Portal as soon as practicable that same day.
If a child is placed into emergency care after 11am on a weekday morning, the application should be lodged in the CMS Portal as soon as practicable on the following day and no more 24 hours after the child was placed into emergency care.
In practice, most children are placed into emergency care during the afternoon and overnight. Utilising the general rule, applications for children placed into emergency care during the afternoon should be lodged in the CMS Portal on the following morning and applications for children placed into emergency care overnight should lodged in the CMS Portal on the same morning. Whenever possible, applications by emergency care should be lodged in the CMS Portal by 10am.
This guide contains a ‘time ready reckoner’ to assist child protection/ACAC in determining the latest time by which an application by emergency care may be lodged in the CMS portal.
Bail justices are only able to hear application for an IAO where a child has been placed into emergency care and can only make an order until the next sitting of the Children’s Court.
The following applications may result in a child being placed into 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 application to place a child into emergency care 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 applications before a bail justice 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 placing the child into emergency care, Child Protection/ACAC must take the matter before a bail justice.
(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/ACAC to place the child in a placement assessed to be appropriate, including with a suitable person, residential unit, foster care, kinship care, secure care, or hospital.
Child protection practitioners/ACAC are not required to seek an application before a bail justice prior to placing a child in any of the following placements unless the application cannot be brought before the court within 24 hours:
Placement in Secure Care Services: In accordance with s. 242(5) of the CYFA, which provides that if there is a substantial and immediate risk of harm to the child, the child may be placed in secure care before an application for an interim accommodation order is made to the Court or bail justice.
Undisclosed placement: If Child Protection/ACAC assesses that it would not be in the best interests of a child placed into emergency care to inform the child’s parents of the address of the child’s emergency care placement, Child Protection/ACAC may place the child in an undisclosed placement until the application by emergency care is brought before the Court or bail justice. For example, if Child Protection/ACAC 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/ACAC may withhold the address of the emergency care placement from the parent/s prior to bringing the application by emergency care 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 placed 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 their medical condition and any proposed treatment, is legally able to consent to or refuse treatment without the consent of their 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.
In all applications where a child has been placed in emergency care, whether done during the afternoon or overnight child protection practitioners should endeavour to arrive at the Children’s Court by 10:00 am. The Melbourne Children’s Court call over times of 11am, 12.30am and 2pm are designed to manage the progress and determination of all applications by emergency care by the close of court business at 4pm.
Where it is not possible to bring an application by emergency care 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 when the child has been placed into emergency care. This is based on the time elapsed from the time the child was placed into emergency care to the time the Court will accept applications by emergency care.
In the case of weekend applications by emergency care, the guide indicates the latest time child protection/ ACAC can arrive at court and file an application when the child has been placed into emergency care and when the Court resumes sitting on Monday.
The guide indicates when child protection practitioners/ ACAC are required to attend a bail justice during the weekend.
Monday to Thursday:
If the child is placed into emergency care between 12:00 midnight and 7:00am:
- File application in the CMS Portal on the same day by no later than 12:00 noon.
If the child is placed into emergency care between 7:00am and 11:00am:
- File application in the CMS Portalon the same day by no later than 1:00pm
If the child is placed into emergency care between 11:00am and 12:00 noon:
- File application in the CMS Portalas soon as possible and by no later than 11:00am the following day.
If the child is placed into emergency care between 12:00 noon and 12:00 midnight:
- File application in the CMS Portal as soon as possible and no later than 12:00 noon the next day.
Friday
If the child is placed into emergency care between 12:00 midnight and 7:00am:
- File application in the CMS Portalon Friday by no later than 1:00pm
If the child is placed into emergency care between 7:00am and 11:00am:
- File application in the CMS Portalon Friday by no later than 1:00 pm
If the child is placed into emergency care between 11:00 am and 12:00 midnight (Saturday) and it is unreasonable to file an application in the CMS Portal prior to 1:00pm:
- Obtain an IAO from a bail justice within 24 hours of the child being placed into emergency care and file an application in the CMS Portal to bring the matter to court on the following Monday by no later than 10:00am.
Saturday and Sunday
If the child is placed into emergency care between 12:00 midnight (Saturday) and 10:00am Sunday
- Obtain an IAO from a bail justice within 24 hours of the child being placed into emergency care and file an application in the CMS Portal to bring the matter to court on the following Monday by no later than 12:00 noon.
If the child is placed into emergency care between 10:00am (Sunday) and 11:00am (Sunday)
- File application in the CMS Portal on the following Monday by no later than 10:00 am
If the child is placed into emergency care between 11:00am (Sunday) and 12:00 noon (Sunday)
- File application in the CMS Portal to bring the matter to court on following Monday by no later than 11:00 am
If the child is placed into emergency care between 12:00 noon (Sunday) and 11:00pm (Sunday)
- File application in the CMS Portal to bring the matter to court on following Monday by no later than 12:00 noon.