This entry provides an overview of provisional protection and care and is intended to inform child protection workers of the practice requirements in relation to children in the Chief Executive Officer's (CEO's) provisional protection and care.
Unless otherwise stated, all sections referred to in this entry refer to the Children and Community Services Act 2004 (the Act).
Note: CEO refers to the Chief Executive Officer of the Department for Child Protection and Family Support (the Department), and 'care arrangement' refers to the placement of a child.
Child assessed as being in need of protection
A child may be taken into provisional protection and care following the execution of a warrant (s.35 of the Act), or without a warrant (s.37 of the Act).
A child may also come into provisional protection and care where the Children's Court (the Court) makes an interim order for this purpose (a protection application already being on foot).
Where a child has been identified as at immediate and substantial risk, the district director must approve that the child be taken into provisional protection and care without a warrant.
Where a child is not considered to be at immediate and substantial risk, but is:
- assessed as being in need of protection, and
- is considered to be at unacceptable risk
authorised officers must apply to a magistrate for a warrant to take the child into provisional protection and care. The decision to seek a warrant must be endorsed by the district director.
Court processes and care arrangement processes occur simultaneously when a child is brought into provisional protection and care.
Working with Aboriginal children requires cultural sensitivity. Consultation should occur with the Aboriginal practice leader (or other relevant Aboriginal officer) in the district office to make sure that negotiation with the child and their family take cultural issues into consideration.
All consultations must be recorded in Assist (please refer to the Assist User Guide - Consultations in related resources). In the consultation record the:
- date of the consultation
- name of staff member(s) including the Aboriginal practice leader or Aboriginal staff involved in the consultation
- issues discussed and outcomes, and
- if there is another document relating to this consultation, for example, Form 456 Aboriginal Practice Leader Case Discussion/Consultation, include the Objective reference number.
Once a child is in provisional protection and care, the CEO, subject to any interim order, has responsibility for the day-to-day care, welfare and development of the child to the exclusion of any other person. This includes responsibility for making decisions about any medical or dental examination, treatment or procedure in respect of the child (s.29 of the Act).
A child in provisional protection and care may need to be provided with a care arrangement. Care arrangements include:
- foster care
- family or significant other care
- residential care (department or non-government), and
- intensive specialised care arrangements.
Refer to Chapter 8: Placement Referral - Child Information Form.
The care arrangements of Aboriginal children must always be guided by the Aboriginal and Torres Strait Islander child placement principle (s.12 of the Act) and consultation must occur before making a care arrangement. For details, refer to Chapter 7: Child Placement Principle.
A senior child protection worker, placement services should be involved in the process of identifying and securing appropriate care arrangements. If a family member or significant other person is considered the best care option for a child, that person will need to be assessed as a carer. Refer to Chapter 9: Placement with a Family or Significant Other Carer.
If an urgent care arrangement is required for a child with a family or significant other carer, the care arrangement can be made under s.79(2)(b) of the Act as one that ‘the CEO considers appropriate’ and is based on an initial assessment. The district director must approve the care arrangement. Child protection workers should refer to Chapter 9: Placement with a Family or Significant Other Carer.
Child protection workers should be mindful that entering the CEO's care is often traumatic and has a significant impact on a child. The child and their carer must be provided with all the necessary supports through this process.
When making a new care arrangement for a child, the carer should be given a copy of the child's Child Information Form (CIF) Referral so they are aware of the day-to-day safety issues and known needs of the child.
When a child enters a care arrangement, the subsidy payment is generated through Assist (agencies do not generally receive subsidies but are funded through service agreements). Refer to Chapter 8: Case Management Costs - Basic Subsidy Provisions.
Development of the provisional care plan
A provisional care plan must be developed within seven working days of a child being placed in provisional protection and care.
Due to the short timeframe, a planning meeting is not required. However, the provisional care plan must set out:
- the care arrangements for the child
- the contact arrangements with the child’s parent(s), sibling(s), and family, and any other person who is significant in the child’s life, and
- any other available information (for example, if known, relevant information about a child’s education should be recorded under the appropriate section of the plan).
If a meeting did not occur before the provisional care plan was developed, then a provisional care plan meeting/consultation with all relevant parties should occur within 30 working days of the provisional care plan being approved and published in Assist. The meeting and/or consultation is used to identify the child’s needs while in provisional protection and care, and outline the steps and measures required to address those needs.
Copies of the provisional care plan must be distributed to:
- the child
- the child's parent(s)
- the child's carer(s), and
- any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.
For further information about developing a provisional care plan, child protection workers should refer to Chapter 10: Provisional Care Plans.
When a child ceases to be in provisional protection and care
Under s.29(3) of the Act, a child ceases to be in provisional protection and care if:
- the child is returned to or placed in the care of a person under s.38(2) or (3)(b) of the Act - for example, where the CEO decides not to make a protection application in respect of the child
- the Court makes an interim order under s.133(2)(a) of the Act that the child be returned to or placed with a parent
- the Court makes an interim order under s.133(2)(c) of the Act that the child is to be placed with a person approved by the Court following an oral or written report from the CEO as to the person’s suitability, or
- the Court makes a protection order or refuses to make a protection order.