To guide child protection workers in relation to undertaking intervention actions, and applying for warrants and other applications in the Children’s Court of Western Australia.
Refer to the:
Having developed the view that a child is in need of protection, we may take the following actions:
Where the child is considered to be in need of protection the following must not be used:
Child protection workers should develop a case plan aimed at increasing the parent’s capacity to provide safe care as soon as practicable after intervention actions are taken.
Decisions not to proceed with intervention actions
After having developed the view that a child is in need of protection, a decision not to proceed with intervention actions and seek Court orders must be carefully considered and endorsed by a team leader and approved by the district director.
If proceeding with intervention actions and seeking orders from the Children’s Court would not improve the child’s circumstances, the decision not to proceed is consistent with the no order principle (s.46):
For example, it may be appropriate not to seek an order where an independent young person is engaging in high risk behaviours and his or her parent/s are unlikely or unable to influence or protect the young person. In this situation, seeking or making an order may not enable us to provide a better response to protect the young person than is already available through such approaches as harm minimisation strategies.
Types of warrants
A warrant is a document issued by a magistrate authorising a certain action be taken in relation to a child. The Children’s Court considers the information presented by us and decides on the course of action that is in the best interests of the child. The Department, not Western Australia Police Service (WA Police), initiate an application for a warrant.
There are three main types of warrants: warrant (access), warrant (provisional protection and care) and warrant (apprehension). For detailed information, refer to the related resources:
A warrant (apprehension) only applies to children who are in the CEO’s care. It enables a child to be apprehended when a child’s carer refuses to hand the child to a CPW or if the child has left or been taken from their placement without approval.
Consultation and approval process
Child protection workers must:
When applying for a warrant (provisional protection and care) or warrant (apprehension), initial planning for a placement for the child must also take place. Refer to Chapter 3.3: Legal and Court Processes.
Where a child has an Aboriginal background, staff must consult with the Aboriginal practice leader or other relevant Aboriginal officers in the district. All consultations must be recorded.
Where a child has a culturally and linguistically diverse (CaLD) background, specific language and cultural needs must be considered. Where possible, this information should be obtained from the child’s family and community. More information is available through the CaLD SharePoint Resource Library (link in related resources).
Forms that must be completed for an application
Child protection workers should refer to the Children’s Court Applications in related resources for comprehensive information on completing applications.
Child protection workers must complete Form 643 Children’s Court of WA Application for Protection and Care of Children. To complete this form, CPWs should note:
Depending on the type of warrant required, child protection workers must complete the following:
Child protection workers must also prepare a copy of the warrant form for the magistrate to sign.
If there is more than one child, only one affidavit is required to cover all of the children. The Court may accept oral sworn evidence, in lieu of an affidavit; however, child protection workers must discuss this with Child Protection Legal Services. For comprehensive information about completing an affidavit refer to Children’s Court Applications in related resources.
Child protection workers should seek assistance from the legal support officer and/or team leader when drafting the documents, and to check that the documents are completed correctly. When completed, forward all the documentation to Child Protection Legal Services via email to ‘Legal Query Duty’. The duty lawyer settles the documentation when it is received.
Do not file documents before they have been sent to Child Protection Legal Services and checked.
Applying for the warrant
Application for a warrant by remote communication
For a warrant to be granted, the applicant must demonstrate that the warrant is needed urgently and a magistrate is not available within a reasonable distance of the applicant – refer to s.120 of the Act.
The application can be a sworn written application provided to a magistrate by fax, email or telephone typewriter. In exceptional circumstances, where it is not practical or possible to send a written application, an application can be made by telephone or radio.
After receiving an application for a warrant and supporting information (this can be provided orally), the magistrate will complete a written application and make a record of the information provided. The applicant must send the magistrate an affidavit containing that information as soon as practical after the warrant is issued.
The magistrate may, if reasonable, send a copy of the warrant to the applicant by remote communication. If not, the applicant must complete a form of the warrant with the information given by the magistrate and provide the magistrate with a copy as soon as practical. The magistrate will attach the copy to the original warrant issued, and the affidavit if received, and make them available for collection by the applicant.
Executing the warrant
When a warrant is granted by the Court, child protection workers must
Warrants not executed
Warrants continue to be valid indefinitely beyond the date of issue, however our policy requires that if a warrant is not used within a three month timeframe it must be renewed.
Following a decision to take intervention action, consideration should be given to:
The decision to take a child into provisional protection and care does not automatically mean that the child must be removed from the parent’s care, for example, where a protection order (supervision) is being sought.
Placement of the child is a separate decision that also requires approval by the district director. Where a decision is made that a child needs to be in out of home care, we must demonstrate that the placement of the child away from her or his parent/s is suitable, appropriate, and will better promote the safety and wellbeing of the child.
If CPWs cannot locate a suitable alternative placement, they must consider alternative casework and service options to safeguard the wellbeing of the child.
In general, intervention actions as defined in the Act should only occur after undertaking a:
Please refer to the Assessment and Investigation Process Flowchart and the section 'Provisional protection and care without a warrant s.37' below for guidance on responding when a child protection worker suspects on reasonable grounds that there is immediate and substantial risk to the child.
In case management, the decision to take a child into provisional protection and care is a significant decision. If provisional protection and care is being considered, then whether the child requires placement outside of the family home must also be considered.
District directors are responsible for approving decisions on making an application for a warrant (provisional protection and care) under s.35(1), and for determining whether the child requires placement outside of the family home.
Child protection workers should consult their team leader and any other relevant specialist staff to assist with assessing the child's current situation before making a decision. Specialist staff with whom it may be appropriate to consult include Aboriginal practice leaders, Child Protection Legal Services and/or the senior child protection worker placement services.
Child protection workers must provide all relevant information to the district director. Case details must be presented, along with evidence of consideration of the following:
Child protection workers must consider the provisions under s.35(1)(a)(b)(ca)(c) when deciding to seek a warrant (provisional protection and care). Child protection workers must also begin planning for a placement arrangement for the child before seeking the warrant (provisional protection and care) if the reason for the warrant being sought is that the officer:
In all instances child protection workers must consult with the Child Protection Legal Unit where a decision is made to execute a warrant after three months.
Where the location of the child/parents is known, and the warrant has not been executed after one month for logistical/practical reasons, CPWs must consult with the Child Protection Legal Unit. Generally, Warrants should be executed as soon as practicable given that we have provided sworn evidence in support that the child is living at unacceptable risk.
If the local district director is not available to approve taking intervention action and making a placement arrangement for a child under s.79, child protection workers must contact a district director from another district for approval.
All decisions endorsed and/or discussions held relating to this decision must be recorded in the case file.
Taking a child into provisional protection and care without a warrant can only occur if a CPW or a WA Police officer suspects on reasonable grounds that there is an immediate and substantial risk to the child’s wellbeing under s.37.
If we take a child into the care of the CEO under s.37(2) and subsequently decide not to proceed with an application for a protection order under s.44, then, as soon as possible, the child must be returned to, or placed in the care of:
Under s.38(3) of the Act, if the child was in the CEO’s care immediately before being taken into provisional protection and care, we may make any arrangement for the care of the child that is considered appropriate. Wherever possible, this arrangement must be determined with the child’s parens.
Child protection workers, in consultation with their team leader or district director, must determine if there is an immediate and substantial risk to the child’s wellbeing. In assessing the child's need for ongoing protection, it is essential to address the steps described in the Chapter 2.2: Assessment and investigation processes.
Determining when a child is at immediate and substantial risk is a professional judgement made after consideration of all the known factors relating to the child and his or her family. Child protection workers must consider the information at hand, any previous involvement with us, the age of the child and functioning of the parties involved.
If a decision is made to pursue provisional protection and care without a warrant, CPWs must obtain approval from the district director.
Child protection workers must complete
Form 424 Letter to Parents to provide contact details and outline the action that has been taken. If it is clear that the parents or occupier are not proficient in written or spoken English, or are hearing impaired and use sign language to communicate, CPWs must have legal and other significant written materials translated. Refer to Casework Practice Manual Chapter 4.2: Language services - booking and payment for more information.
If the action to be taken is likely to proceed after hours, CPWs must consult with the Crisis Care Unit (CCU). Where CCU responds, a copy of the CCU report and a priority action alert must be forwarded to the local office as soon as possible on the following working day.
Section 37(3) of the Act authorises CPWs and police officers to enter and search any place that they suspect the child to be for the purpose of finding the child at any time. Child protection workers do not need a warrant to exercise these powers.
When exercising this power it is recommended that police assistance be sought, particularly if there is a concern about the child protection worker’s safety. When necessary, police officers may use reasonable force.
Where a police officer suspects on reasonable grounds that there is an immediate and substantial risk to a child’s wellbeing, he or she can take the child into provisional protection and care without our input under s.37.
The police officer must notify the local Department of Communities' district office immediately during office hours or the CCU after hours and provide a written report recording:
For more information refer to
Reciprocal Child Protection Procedures Between the WA Police and the Department - Exchange of Information in related resources.
Action after taking a child into provisional protection and care (without a warrant) (s.38)
The CPWs must complete a letter (Form 424) to formally advise the child's parent(s) that their child has been taken into provisional protection and care (without a warrant).
The CPW must assess as soon as practicable the ongoing safety needs of the child and whether protection proceedings are required. The decision that the child is not in need of protection must be based on a comprehensive assessment and the CPW must provide the child's parents with the opportunity to respond to the concerns identified and to work collaboratively to develop a plan to increase safety for their child.
If the child continues to be in need of protection, the CPW must apply for a protection order within two working days after the child enters the care of the CEO (s.38(4)). Unless this occurs, the Court is likely to find that the child is not lawfully in provisional protection and care and may order that the child be returned to their parents.
The CPW must also develop a provisional care plan for the child within seven working days.
If the child was not in provisional protection and care but already the subject of protection proceedings when taken into provisional protection and care under s.37, the CPW must, as soon as practicable and within two working days:
If the child was in the CEO's care immediately before being taken into provisional protection and care under s.37, the CPW may make any arrangement for the care of the child that is considered appropriate (s.38(4A)). Wherever possible, this arrangement must be determined with the child's parents.The return of a child taken into provisional protection and care without a warrant who is not in need of protection - s.38(2) and (3)(b)If it is decided that a child is no longer in need of protection and a protection application is no longer required, the CPW must, as soon as practicable, but not more than two working days after having taken the child into provisional protection and care, return the child to or place the child in the care of:
It is not intended that s.38 is used to make a determination about which parent is the most appropriate carer for the child.
When considering who the child should be returned to under these circumstances, CPWs must consider parents' existing care arrangements wherever possible, including establishing:
Child protection workers should seek the consent of the parent from whom the child was removed if it is proposed the child be placed with the other parent. If a parent refuses to give consent, the child should not be placed with the other parent in the absence of protection proceedings.
If Family Court proceedings are underway, CPWs should seek legal advice from the Child Protection Legal Unit.
There may be rare circumstances in which the parent is unable to provide consent for the child to be placed with the other parent; for example they cannot be located after reasonable efforts or are seriously incapacitated. In these instances the CPW should consult with their district director and the Child Protection Legal Unit.
When CPWs are seeking consent from the parent they should consider:
Child protection workers must refer to the guidance above when seeking consent from the parent.
In most cases, where it is necessary to take a newborn baby into care to prevent the parents removing the child from hospital, s.35 of the Act is used. Refer to the earlier guidance on applying and executing a warrant for further information.
Before the birth of the baby, we must inform both the parents and the birth hospital at the earliest opportunity in writing of its intent to take a baby into provisional protection and care (in a small number of cases it is acknowledged this may not be appropriate or may increase the risk to the child).
Child Protection Legal Services must be included in consultations when making a decision to take a newborn into protection and care.
If a child protection worker, other Department officer, or a WA Police officer suspects on reasonable grounds that the new born is at immediate and substantial risk, the district director may approve taking the baby into provisional protection and care pursuant to s.37 of the Act. Section 37 of the Act can be invoked through notification (preferably in writing) to the parent/s that the newborn is now in provisional protection and care under that section.
If a decision has been made to remove a child from its parents' care at birth, CPWs give the parents a letter that records our concerns. This letter should be given to parents in the hospital, just before the baby is discharged, or before that time if there are reasonable grounds to believe that the baby is at imminent risk of being removed from the hospital. Child protection workers must also inform the birth hospital in writing of this action.
Child protection workers must work through the hospital’s Social Work Department if they need to make contact with a mother, visit or obtain information about a mother or baby in hospital regarding their concerns for the safety and wellbeing of an unborn or newborn child. Child protection workers can refer to the following documents for further information:
There are four types of protection orders:
1. Protection order (supervision)
This order provides for the Department to supervise the wellbeing of a child without removing the child from the care of his or her family. The child does not come into the CEO’s care, however, while this order is in place, we are responsible for making sure that the child and the parents are provided with any social services that are considered appropriate (s.53).
2. Protection order (time-limited)
This order gives us parental responsibility, to the exclusion of any other person, for the child for a period of two years (if the child turns 18 within the prescribed timeframe, the order will cease on the child’s 18th birthday). This allows us to work intensively with the child and family with the aim of returning the child to the parents once our concerns have been resolved.
3. Protection order (until 18)
This order gives us parental responsibility to the exclusion of any other person, for the child until he or she reaches 18 years.
4. Protection order (special guardianship)
This order provides for long term stability of care for a child by giving parental responsibility to a third person or two persons jointly until the child reaches 18 years. The child is not in the CEO’s care, however, we may provide financial assistance to the carer as a condition of the order, and/or appropriate social services while the order is in force. Please refer to s.65 and s.66 of the Children and Community Services Act 2004.
We are the only party that can apply for a protection order. Carers (as well as the Department) are able to apply for an existing protection order (time-limited) or protection order (until 18) to be replaced with a protection order (special guardianship).
Protection order applications
The Court can only grant a protection order if it is satisfied that making the order would be better for the child than making no order at all. This is known as the 'No order principle' (please refer to s.46 Children and Community Services Act 2004).
A protection application can be made while a child remains at home, and without a child entering provisional protection and care. Alternatively, where a child is taken into provisional protection and care with a warrant, a protection application must be filed in Court within two working days. Where a child is taken into provisional protection and care without a warrant, the CEO must decide whether or not to proceed with a protection application within two working days.
The decision on whether a protection order should be sought must be informed by comprehensive evidence based assessment, for example, by using the Signs of Safety Assessment and Planning Framework (refer to Chapter 2.2: Signs of Safety - child protection practice framework).
Child protection workers must consult with their team leader and Child Protection Legal Services, and seek approval from their district director to pursue a protection order. This decision must be recorded on the case file.
A legal officer will be assigned to the case and will follow it through to its conclusion. The legal officer must be kept up to date with all case developments and given copies of all significant documentation, for example medical reports, child interviews, birth certificates, and so on.
Where appropriate, CPWs should consult with the Aboriginal practice leader in the district, a Director Case Practice, Professional Practice Unit and the Chief Psychologist.
When applying for a protection order, initial planning for the placement arrangements for the child must begin as early as possible. Refer to Chapter 3.3: Legal and Court Processes.
If the Police Child Protection Squad is involved,CPWs must consult with them to ensure that any actions they take do not interfere with a police matter, and if their action does, negotiate how to minimise the impact.
2. Forward the draft application and affidavit to Child Protection Legal Services via email to "Legal Query Duty" for settling by the duty lawyer.
3. Sign the application form and swear to the affidavit (usually in front of a Justice of the Peace).
4. When the affidavit is sworn, fax the documents to the “Legal Clerk” on 9325 3830 for filing. The fax must record which legal officer settled the documents. For more information on filing documents in the Perth metropolitan area refer to the related resource Procedure for Forwarding Documents for Filing at PCC and Children's Court Practice Direction No. 1 of 2008. In country areas CPWs file the documents at the Court.
Child protection workers must take all reasonable actions to locate and serve each of the respondents with the filed documents at the earliest opportunity, and complete and place Form 671 Children’s Court of WA – Endorsement of Service form on the case file.
Child protection workers should meet with the child's parents to advise that an application for a protection order is being made. Advising parents in advance of the application is important for a variety of reasons, including the potential for decreasing trauma to the child if parents are able to tell the child what is happening and why themselves. Child protection workers should explain:
At this meeting, CPWs must also negotiate the contact arrangements.
Child protection workers should also meet with the child to make sure he or she understands what is happening, explain the Court process, and obtain the child's wishes regarding contact and placement (where age appropriate).
Once a protection application has been lodged, the Court will affix its seal to the copies. The Court endorses the application form and each of the sealed copies with the day, time and place of the first listing and returns the sealed copies to the Applicant.
Child protection workers must give a copy of the application and notice of the first listing date as soon as practical, but before the first listing date, which is within three working days to:
The application for the protection order must be recorded in Assist and in the case file.
Child protection workers must obtain a copy of the child's birth certificate, as the Court will need a copy before making an order. If the current birth certificate cannot be obtained, CPWs will need to apply for a new copy of the child's birth certificate. Refer to Chapter 3.4: Obtaining a birth certificate.
Appearance in Court
The first Court appearance (First Mention) occurs within three days of the lodgement of the application. The child’s parents are required to attend. The appearance is usually brief, and the proceedings are usually be adjourned to allow the Respondents to seek and obtain legal advice.
Family Law and Child Protection Legal Assistance in WA
Respondents may access the following to obtain legal advice:
Legal Aid WA (LAWA) has produced resources to assist lawyers, CPWs and parents who do not have legal representation understand the process of preparing and filing a Response Form for child protection hearings. Response Forms are used to tell the magistrate and other parties what they think is best for the children, your side of the story, and what you want to say about the application and affidavit. Refer to the following resources:
If the application is not “settled” by agreement, the matter is listed for a final hearing, where witnesses give evidence and the magistrate decides whether or not the child is in need of protection, and whether or not the child should be the subject of a protection order.
In preparation for a hearing, the Applicant is required to:
In some cases the child’s parents may not participate in the legal proceedings and the matter may be listed for an ex parte hearing. Our lawyer will request the CPW to complete Form 655 - Children’s Court of Western Australia: Ex Parte Affidavit.
This may be required where parents have not attended any court mentions or contact visits (or only attended intermittently) and attempts to contact the parents have failed.
For more information refer to the following related resources:
Proposal to the Court (Written Report)
Before making or extending a protection order, the Court will consider Form 641 Proposal to the Court which proposes the arrangements for the supervision of a child if applying for a protection order (supervision); or the wellbeing of the child if applying for a protection order (until 18) or protection order (time-limited). In considering Form 641, the Court must have regard to the likelihood of those plans being achieved.
If the application is for a protection order (special guardianship) the Court will consider Form 641 Proposal to the Court which outlines the proposed carer’s suitability to provide long term care, their willingness and ability to provide such care, and the proposed arrangements for the wellbeing of the child.
Report to the Court
The Court’s decision is not limited to direct evidence only, but can take into consideration other sources of information, such as professional judgement. The Court can inform itself on any matter in any manner it considers appropriate. This includes requesting a Report to the Court. A request for a Report to the Court may specify any particular issues to be addressed by the Report.
The Report must be in writing and is admissible as evidence in the protection proceedings. A copy of the Report must be given to each of the parties as soon as practical. Where necessary, the Court may specify parts of the Report that are not to be given to a party or parties. The person who prepared the Report is protected from liability under s.142 Children and Community Services Act 2004.
Party to proceedings
In protection proceedings the child, each parent of the child, the CEO (or authorised officer) the proposed special guardian where the application is for a protection order (special guardianship), and any other person considered by the Court to have a direct and significant interest in the child's wellbeing can be party to the proceedings. The child may be present in Court if he or she wishes. The child is not required to give evidence or be cross examined unless he or she is granted leave of the Court. The Court may determine that the child requires separate legal representation and appoint a lawyer to represent the child.
During the course of proceedings the Court may, at any time, adjourn the proceedings for any period that the Court considers appropriate, make an interim order, or order a pre-hearing conference.
A pre-hearing conference provides an opportunity for the parties to the proceedings to discuss and reach an agreement on any matter relevant to the application.
The Court will set a day, time and place for the pre-hearing conference. The conference occurs in the conference room of the Court and includes the Applicant, the Child Protection Legal Services' lawyer, all Respondents (for example, both parents), their lawyers and/or support people, the child’s lawyer and a magistrate. Child protection workers should refer to and complete Form 656 Schedule 4 Form Conference Outline in preparation for the pre-hearing conference. Either a magistrate or Court appointed convenor will preside over the pre-hearing conference and, at the conclusion of the conference, will report the outcome to the Court (unless the convenor is the magistrate).
It is essential that the Applicant is clear on our assessment and plan, as the conference is an opportunity to discuss and negotiate proposals that may prevent the need for the matter going to hearing. Please note there is a requirement for Aboriginal clients to be informed of the process with the use of the Pre-Hearing Conference - Getting Ready Aboriginal Support Manual (in related resources) before the conference.
Discussion should take place with our lawyer in relation to these matters before the conference. An Agreement for Adjournment or a “Minute of Consent” may need to be prepared for the conference. Someone with authority to approve any changes to a plan, for example a team leader, should also attend. A hearing date will be listed if the parties are unable to reach agreement.
Child protection workers must be careful about the use of client information, however, there are certain situations where they should share information that impacts on the wellbeing and safety of the child appropriately and in a professional manner.
The proceedings of a pre-hearing conference are confidential. Anything that is said or done or any admission made at a pre-hearing conference is only admissible in proceedings (including protection proceedings) before a Court if the Court grants leave, or if all the people who attended the pre-hearing conference consent. Child protection workers should refer to s.137(4) of the Act for exemptions.
An interim order
At any time in the course of protection proceedings the Court may make an interim order on its own initiative or upon receiving an application from a party to the proceedings. Refer to s.133 for more information.
Where the need arises for an interim order during the course of ongoing legal proceedings, a fresh application and supporting affidavit will be required. Child protection workers should consult with the lawyer who is dealing with the matter. Refer to the related resources:
Where the child has remained at home and the Court makes an interim order that the child is to be taken into provisional protection and care, the Court may issue a warrant (provisional protection and care).
If a child is not in provisional protection and care whilst an interim order is in place, an authorised officer may have access to the child at any reasonable time. This includes seeing and talking with the child without his or her parent or any other person being present – please refer to s.135 of the Act.
Application for an extension, variation, revocation or revocation and replacement of a protection order
Anyone who is a party to the proceedings may apply to the Court for the variation or revocation of an interim order. The Court can only vary, revoke or revoke and replace an interim order if it is satisfied that new facts or circumstances have arisen since the interim order was made or last varied, or each party consents to the action.
A protection order (supervision) can only be extended once and the application must be lodged with the Court before the expiry of the order. In circumstances where the Court is satisfied that all parties to the initial proceedings agree to the extension of the order, the Court can extend the order without all parties being present.
An application for an extension, variation, revocation or revocation and replacement of a protection order requires the completion of Form 643 Children's Court of Western Australia - Application for Protection and Care of Children. This should be completed with reference to the following resource documents:
Applications must be a planned process set out in the case plan where the protection order (time-limited) or protection order (until 18) are in place. Applications for an extension of a protection order (time-limited) require a care plan review and approval from the Director General before an application is made to the Court. Child protection workers should refer to Chapter 3.4: Permanency planning for more information, and the related resource Permission to seek extension of a protection order (time-limited).
When completed, follow the procedures set out in the section 'Protection order applications' (above) for filing the documents and providing parties to the proceedings with a copy of the application detailing the day, time and place fixed for the hearing.
If the Court finds that the child is in need of protection the Court may grant the order being sought, make another protection order if it considers it to be more suitable or, if the Court is not satisfied that making an order for the child would be better for the child than making no order at all, the Court will not make an order at all.
The following points should be noted when attending Court:
Refer to the resource document Appearing in Court and Giving Evidence for more information.
If documents are requested or subpoenaed, CPWs or a designated senior officer must complete Form 040 Printing Documents for Legal Purposes Checklist and fax it to Child Protection Legal Services (fax: 9325 3830). Child Protection Legal Services print the requested files.