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3.3.11 Young offenders - including children in the CEO’s care

Last Modified: 03-Aug-2018 Review Date: 31-May-2010

Purpose

To inform child protection workers of their responsibilities when a child in the care of the Chief Executive Officer of the Department of Communities, or a child who may be involved with us but not in care, appears before the Children’s Court. This may be in relation to criminal matters, where we have provided a Responsible Person Undertaking (Bail) or the child is in detention.

Practice Requirements

  • The Department of Communities (the Department) and the Department of Corrective Services (DCS) must work collaboratively to provide services and ongoing support to the child and their family.
  • The department with the primary reason for intervention should be the agency that assumes case management.
  • We retain case management and care planning responsibility when a child in the CEO's care is incarcerated (on remand or in detention). 
  • Where a child in the CEO's care is required to appear before Court, child protection workers must attend Court to provide appropriate support to the child and direction to the Court proceedings.  If a child in the CEO's care is being sentenced, protection workers must provide a pre-sentence report. If the child is not in care, but the case is open to the Department, child protection workers should provide our court officer in Perth Children's Court with information to assist the Court in making decisions about the child. 
  • When a child from the country is appearing before the Court in Perth, child protection workers must brief our court officer about any decisions to be made for the child. 
  • When the Court directs bail of a child to us, where possible, child protection workers should sign the bail undertaking to allow the child to be released from detention. However, the conditions that the child must comply with should be fully explained before the bail undertaking is signed. 
  • Child protection workers must consult with their district director if the child’s behaviour is of such concern that he/she may not comply with the bail conditions. The rationale for the decision not to bail the child must be documented and placed on file.
  • We must demonstrate "good reason" in order to access information from the Court's record without the child’s consent. The Young Offenders Act 1994 and the Children’s Court Of Western Australia Act 1988 govern release of information. However, on 1 May 2009, His Honour, Judge Reynolds, granted permission for the Department to access information through the Perth Children's Court Officers, where urgent information is required for legal purposes.
  • The DCS is always responsible for the supervision of all Court orders.
Process Maps

Staff can refer to the following flowcharts, available in related resources:

  • Child in the CEO’s care appearing before the Children’s Court
  • Child not in the CEO’s care appearing before the Children’s Court.

Procedures

  • Reciprocal policies and procedures between Communities and the Department of Corrective Services (DCS)
  • Department of Corrective Services responsibilities
  • Information sharing
  • Case management
  • Referrals from DCS to Communities
  • Court attendance requirements
  • Court etiquette
  • Changes to hearing dates
  • Reports to the Court
  • Timelines for reports to the Court
  • Financial assistance
  • Accommodation
  • Responsible person undertaking bail of a child in the CEO’s care
  • Education - case management
  • Contacting the Court
  • Reciprocal policies and procedures between Communities and the Department of Corrective Services (DCS)

    Many young people appearing before the Children’s Court with established patterns of offending behaviour often present with complex issues and family backgrounds, and are therefore likely to require services from Communities and DCS. 

    Staff should refer to the Reciprocal Policies and Procedures between the Department and the Department of Corrective Services in related resources.  This outlines the case management responsibilities and the referral/contact procedures of each agency.  The protocol also provides instruction on how to resolve disagreements between workers and/or the departments regarding proposed intervention.

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    Department of Corrective Services responsibilities

    The DCS has responsibility for:

    • the prevention of re-offending 
    • supervision of orders from the Children's Court
    • support to young offenders and their families during the period of an order and for an agreed period following completion of a detention order (as per the Supervised Release Plan).
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    Information sharing

    On 1 May 2009, the President of the Children's Court of WA provided consent for the Court staff to provide basic information to Department child protection workers and to assist with planning and placement arrangements.

    However, we must establish "good reason" to access information from the Children’s Court records without the child’s consent.  "Good reason" may include, but is not limited to:

    • our legal responsibility for the child (the child is in the CEO's care)
    • the need to know a child’s offending history where there may be a risk to the safety of other children and people in a proposed care arrangment if the child was to enter the care of the CEO
    • where risk factors may affect our duty of care for a child, and/or affect case management and service provision
    • where Court imposed sanctions will affect case management and service delivery.

    Exchange of information between the Department and DCS

    Section 15A of the Young Offenders Act 1994 and s.23 of the Children and Community Services Act 2004, allow for the exchange of information relating to children involved in the justice system between both departments. Information about children should be exchanged in a collaborative manner subject to the provisions outlined in the Reciprocal Policies and Procedures between the Department and the Department of Corrective Services.

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    Case management

    The department with the primary reason for intervention should be the agency that assumes case management.

    We provide case management and/or services where:

    • a child is in the care of the CEO, including those who are the subject of a care and protection application in the Children’s Court 
    • a child has been referred to us by DCS because there are reported concerns for their wellbeing, with particular regard to their age, maturity or circumstances, and an assessment is required.

    The DCS provide case management and/or services where:

    • a child is subject to a community and youth justice service supervision under the Young Offenders Act 1994
    • a child is identified as being at risk of continual offending
    • there is a requirement for support, following completion of a court order
    • DCS requests assistance from us for short-term emergency accommodation; in this instance DCS retain case management responsibilities.

    On request, DCS officers will participate in case planning procedures conducted by the Department.

    In some situations, a child in the CEO's care may have a Community Based Order that requires the involvement of both departments. One department will have sole case management, with the other department providing services as required. However, depending on the child and family's involvement with DCS, a jointly developed and managed case plan may be required. On such occasions, officers from both departments must liaise with each other to develop a case plan that meets the child’s needs, as appropriate.

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    Referrals from DCS to Communities

    The DCS make referrals to us for further assessment when:

    • there is an allegation by a child that he or she has been harmed or is at risk of harm, and the parents or carers have not protected, or are unlikely to protect the child
    • there is a belief or knowledge that a child has suffered significant harm, or there is a risk of harm and the parents or carers have not protected, or are unlikely to protect the child
    • there are concerns for a child’s wellbeing that are related to the adequacy of his or her home environment or standard of parenting received.

    The Department must advise DCS of the assessment outcome verbally and in writing.

    The DCS or the Court will refer to the Department for the placement of a child who is:

    • already notified for protection purposes 
    • in the CEO's care 
    • considered vulnerable by age, maturity and/or circumstances.
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    Court attendance requirements

    Child protection workers appearing before the Court must be properly informed of the child's circumstances and be able to provide appropriate direction to the Court proceedings.

    Where a child is in the CEO's care, child protection workers must attend Court:

    • for all first appearances
    • when a bail application will or may be made
    • for mentions, where the child is on remand in custody, and 
    • for sentencing. 

    Once notified of a required Court attendance, the child protection worker should notify the child and their responsible adult of the Court date.

    Where a child in the CEO's care is being transported from the country to Perth to have their matter dealt with, the child protection worker must inform the Department's court officer at the Perth Children’s Court about the child’s circumstances. This should include:

    • any plans for the child
    • approval to bail the child to the Department.  If bail is to be refused, permission must be sought from the district director. The decision to refuse to bail the child and the reasons for that decision must be recorded.  Refer to the procedure ‘Responsible person undertaking bail of a child in the CEO’s care’) 
    • accommodation options, and 
    • any other relevant information that the Court may wish to know.   

    Where child protection workers are located in a rural or remote areas, the Department's court officer will attend the criminal matters with the child in the CEO’s care (and other shared clients) on their behalf. All decision-making about the child remains the responsibility of the district.

    Any plan to bail a child to the Department should also include information on the intended placement for that child, and how this will be actioned. If the conditions are considered appropriate,  child protection workers must inform the child’s lawyer or the Department's court officer of this request before Court commences.

    Criminal listings in the metropolitan area generally commence in the Perth Children's Court at 10am.  If a child protection worker is required to attend Court outside the metropolitan area, they should check commencement times for children's criminal matters with their local Court, as starting times vary. 

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    Court etiquette

    When attending any Court matter in the Perth Children's Court, the child protection worker who is responsible for a child in care is required to sit at the Bar Table.  Where the child is an open case only, the child protection worker is not required to sit at the Bar. In all other Courts, the child protection worker should ascertain where they are required to sit from Court Administration staff.

    On all occasions, when addressing a judge or magistrate, child protection workers must stand when speaking or when being addressed, unless directed otherwise.  When addressing a magistrate or judge, the proper term to be used is "Ma'am/Sir" or "Your Honour". Where Courts use the services of Justices of the Peace, child protection workers should address them in the same manner.

    All children attending the metropolitan Children's Courts for criminal matters are provided with legal representation, either through Legal Aid, Aboriginal Legal Service or private lawyers. Legal Aid generally provides legal representation for children in country Courts on certain days. It is recommended that child protection workers in country regions contact Legal Aid directly when required.

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    Changes to hearing dates

    If a child protection worker or a child is unable to attend Court on a particular date, it is possible to change the date of the hearing to an earlier date.  The child protection worker must contact the lawyer as soon as possible to discuss the matter.  If the lawyer is a regular Duty Lawyer, the Communities' court officer for the Perth Children's Court may request a change of the hearing date on behalf of the child protection worker. 

    If a child is too ill, or there is another acceptable reason for the child not to attend Court, the Court should be advised early in the day and another date may be set for the matter to be heard.  The family, carers or child protection worker may complete this task to prevent a Bench Warrant being issued against the child. To support a claim of illness, it is preferable for the child to have a doctor's certificate, and for the certificate to be provided to the Court on the next hearing date.

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    Reports to the Court

    Where the Children’s Court has adjourned a matter for sentencing a child in the CEO’s care, both DCS and Communities must prepare a pre-sentence report. Refer to the Judge's Practice Direction 2004 in related resources.

    The child protection worker should use Form 612 Report to the President/Magistrate of Perth Children's Court template.  The report should be prepared in collaboration with the child’s Youth Justice Officer (YJO). It should include information on management issues and contain consistent information.  Child protection workers should refer to the resource document Report for the President or Magistrate of the Children's Court - example document (in related resources), which sets out the type of information that needs to be included. 

    Where we are unable to keep a child safe or prevent the child from posing a significant risk to others in the community, this should be included in the report. These reports must be succinct, and generally should only be two pages in length.

    If a child protection worker is not aware of the Youth Justice Officer's name, they should contact our Department court officer who will attempt to identify them. The court officer can also be contacted for information about the submission process – telephone 9218 0136 or 9221 1916.

    Child protection workers should not direct the Court on sentencing decisions.

    Metropolitan Courts

    Where a child protection worker or the Department's court officer is not present in Court and the magistrate or President requests a Court Report for a client, a YJO must inform the our court officer of the request in writing. The YJO must provide details of the child’s name, date of appearance and remand date.  The court officer then informs the child protection worker of the request.

    Country Courts

    Where a child protection worker or the Department's court officer is not present in Court and the magistrate or President requests a Court Report for a client, a Regional Youth Justice Services (RYJS) Officer must inform the local district office of the request in writing. The RYJS Officer will provide the due date for the report and the child’s remand date.

    Should any miscommunication occur regionally, the child protection worker should notify the Department's court officer at the Perth Children’s Court in writing.

    Where a child in care is placed in the Kath French Secure Care Centre (Secure Care Centre)

    If a child in care is in the Secure Care Centre, a YJO must contact the child protection worker in the first instance to inquire about the best time for an interview to occur at the facility. The child protection worker must liaise with the Secure Care Centre and inform the YJO of the appointment time.

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    Timelines for reports to the Court

    Court reports must be submitted to the Department's court officer by 3.30pm the day before a child appears before a magistrate at the Perth Children’s Court, and by 3.30pm two working days before to a child appears before the judge (President of the Children’s Court) for quality assurance and lodgement with the Court.  Where this is not possible, child protection workers must advise the court officer when the reports are expected to be received.

    Reports to the Perth Children's Court should be sent to:

    Communities Court Officer
    Perth Children’s Court
    160 Pier Street
    PERTH  WA  6000
    Fax: 9325 6711

    For all other Courts, including country Courts, Form 612 Report to the President/Magistrate of Perth Children's Court template should be used and faxed to the particular Court by 3pm the day before the child’s court appearance.

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    Financial assistance

    The Department's court officer does not have the ability to provide financial assistance in any circumstances, except in the provision of taxi vouchers when it is determined there are no other means of transport available to the child. 

    For those children who are ‘joint’ cases, responsibility for costs should be negotiated – for full details, refer to the Reciprocal Policies and Procedures between the Department and the Department of Corrective Services.

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    Accommodation

    We arrange care and accommodation for children who are:

    • in the CEO's care
    • under the age of 16 years, unable to live at home, and for whom both departments have determined that no alternative family accommodation is available.

    Child protection workers should refer to the Reciprocal Policies and Procedures between the Department and the Department of Corrective Services for full details (in related resources).

    The accommodation requirements of children in care should be in place before attending Court. If it is unclear whether a placement will be necessary, it is essential that contingency plans be considered before attending Court to prevent a crisis in accommodation requirements after the matter is heard.

    Where a child is not in the CEO’s care, but is an open case to us, the Courts may request assistance with accommodation from us.  In these situations, the DCS should have been in contact with the child protection worker, and family placement options and alternatives should have been explored. 

    However, children considered to pose a significant danger to the welfare or property of another person may be excluded from admission to a Department facility. 

    Children 16 years of age and above who are not in the CEO’s Care

    Where a family placement is not possible for a child 16 years of age or older, the Court may request that we assist with a placement service. On these occasions, in the metropolitan area, the Department's court officer will contact the appropriate district office for assistance. 

    In some instances, the child’s YJO may contact the appropriate district office directly for assistance with accommodation for a child.  On these occasions, it is recommended that the YJO be referred to the duty officer. The duty officer should initially refer the YJO to access information from the Homeless Advisory Service on Free call 1800 065 892.

    In regional offices, assistance may take the form of assisting the YJO to identify other family, extended family or community options.

    Before Youth Justice Services makes a referral to the Department for a short-term accommodation placement for a child, all efforts should have been made to locate the parents, carers, suitable extended family members or other appropriate placement options.

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    Responsible person undertaking bail of a child in the CEO’s care

    Bail

    Bail is a written promise that a person makes to attend Court on a certain day and at a particular time. The person also agrees to comply with the conditions that may be imposed by the Court. When signed, it is called a bail undertaking. This means that the child does not have to be held in detention while they wait to go to court.

    For a child aged 10 - 16 years to get bail, a responsible adult must sign the bail undertaking to ensure the child complies with the requirements of the Bail Act 1982 (Schedule 1 Part C Clause 2).  If the child is in the care of the CEO, the child protection worker, as a responsible adult, can sign the bail undertaking.  This is called 'Responsible Person Undertaking – CPFS Only' (Bail) of a child in the CEO's care.

    If the child is 17 years of age or older, the Court may release the young person on his or her own undertaking, provided the Court is satisfied of the young person’s maturity to live independently without the guidance or control of a guardian.

    A child in the CEO's care can also be bailed by DCS under the Supervised Bail Program, but responsibility for placement remains with the child protection worker.

    Where the Children's Court of WA directs bail of a child to the Department, the child protection worker must locate a placement and sign all documents relating to the Bailed release of the child.  On occasion, the Department's court officer may be requested to sign these documents on behalf of the child protection worker, and forward copies to the child protection worker.

    On the next appearance, the child protection worker should ask the court officer for the original documents and place them on the child's file.  In all cases where the Department's court officer represents a country child protection worker, the original document must be forwarded to the district office by mail (or scanned and emailed to the child protection worker) for filing as appropriate.

    Refusing a bail undertaking

    If the child’s behaviour is of such concern to the Department that he or she may not comply with the bail conditions, then, with the approval of the district director, the bail undertaking should be refused. This may occur if we do not have the capacity, despite strenuous efforts, to ensure the safety of the child and/or the community in the following circumstances:

    • When the child may pose a significant risk to the safety of others.
    • Where there is a risk that the child may endanger him or herself or self-harm.
    • Where the Court has imposed conditions such as a curfew or 24-hour supervision, and this cannot be provided in the placement arrangement.
    • Where the child has a history of extreme violence or sexual assault. 

    The child protection worker must consult with the district director, and the rationale for the decision not to bail the child must be documented and placed on the child's file.

    If required, the district director may consult directly with a Director in Professional Practice Unit or with the Department's court officer.

    Withdrawal of Responsible Person Undertaking (Bail)

    The decision to withdraw the Responsible Person Undertaking – DCP Only (Bail) should only be considered after all other options have been tried and found unsuccessful. Bail should only be withdrawn in serious cases before a management plan has been implemented and attempted. The decision to withdraw bail must be made in consultation with the team leader and district director.

    In the metropolitan area, where a decision has been made to withdraw a Responsible Person Undertaking - DCP Only (Bail), the Department's court officer should be notified, and they will forward the appropriate documentation/template to the child protection worker to complete. Once completed, it can be lodged directly with Court Administration, or returned to the court officer, who will lodge the document on behalf of the child protection worker.

    In country areas, the child protection worker can apply directly to the local Court for the Responsible Person Undertaking – DCP Only (Bail) to be withdrawn, or they can contact their local Police station for assistance.

    The Department's residential group homes all apply the same principles for the management of seriously disruptive behaviour for children on bail as they do for other children placed in residential care. However, should the behaviour persist and the situation become unsafe for other children and/or staff, a decision to withdraw bail for the child must be made after discussion with senior management of that facility.  The child protection worker must be informed of the decision as soon as practical on the next working day. 

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    Education - case management

    The service provided by the Department and DCS recognises the right of all children to access a meaningful education.

    The DCS Education Officer assumes case management for all detainee students. 

    In the metropolitan area, the Department's education officers are encouraged to attend Discharge Meetings for children in care. Upon the release of a child in the CEO’s care, the Department's education officer will assume case management with support from DCS for the duration of the Order. The DCS Education Officer provides information from custodial education to our district education officer where required. 

    In country areas, communication about, and participation in the Discharge Meeting is encouraged to provide continuity in all areas of need for children, including Education and Psychological services.

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    Contacting the Court

    Queries relating to criminal matters can be directed to the Department's court officers at the Perth Children's Court - Telephone 9218 0136 or 9221 1916, or Fax to 9325 6711. 

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