Information and Instructions

• Responding to a child who is in need of protection
• Warrants
• Taking intervention action
• Application for a warrant (provisional protection and care) - s.35(1)
• Provisional protection and care without a warrant - s.37
• Taking a newborn into provisional protection and care without a warrant
• Protection orders
• Etiquette in Court
• Printing documents for legal purposes

Responding to a child who is in need of protection

Having developed the view that a child is in need of protection, we may take the following actions:

• provision of social services under s.32(1)(a)
• arrange or facilitate a meeting to develop a plan that best meets the needs of the child, between an officer and any one of a number of people including:  
• the parents or other relative of the child,
• a significant other, and/or
• a representative of a service provider or public authority s.32(1)(b)
• any other action in respect of the child that the CEO considers reasonably necessary s.32(1)(f)
• all of the above which depends on voluntary participation by the parents, and/or
• taking intervention action s.32(1)(e) and s.32(2).

A Responsible Parenting Agreement (RPA) or a Negotiated Placement Agreement (NPA) can be useful strategies to support family or to increase safety for a child during a family crisis. Neither options are an appropriate response where a child has been identified as in need of protection. For more information on these agreements, see Chapters 1.2. Parent Support and 3.4 Negotiated placement agreements.

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 action

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 should 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):

The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.

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 parents 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.


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Warrants

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 and decides on the course of action that is in the best interests of the child. The Department, not Western Australia Police Force (WA Police), initiate an application for a warrant.

There are three main types of warrants (other than those relating to offences): warrant (access), warrant (provisional protection and care) and warrant (apprehension).  For detailed information, refer to the related resources:


• Table of Warrants – this sets out types of warrants, relevant sections of the Act, and applicable circumstances, and
• Guidelines for Completing Applications: Grounds for Application – this sets out the legal basis for the different applications.

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 child protection worker or if the child has left or been taken from their placement without approval.

Consultation and approval process

Child protection workers should:

• discuss the need to seek a warrant with their Team Leader.
• consult with Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au, and
• obtain approval from the District Director.

If the child is Aboriginal, and a care arrangement is required upon taking intervention action, consult with the Aboriginal Practice Leader, Aboriginal members of the child's family and other Aboriginal stakeholders where relevant.

Where a child has a culturally and linguistically diverse (CaLD) background, specific language and cultural needs should be considered.  Where possible, this information should be obtained from the child's family and community.  Refer to the Principal Policy and Planning Officer, Cultural Diversity for additional information about cultural and/or religious issues that should be considered.


You should make an initial plan for the child's care arrangement before taking intervention action to bring a child into provisional protection and care.

Forms to 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.

Depending on the type of warrant required, child protection workers are required to complete the following: 

• Form 649 - Children's Court of WA: Warrant (Provisional Protection and Care)
  

• Form 650 - Children's Court of WA: Warrant (Apprehension)

• Form 651 - Children's Court of WA: Warrant (Access)

Prepare an additional copy of the warrant form for the magistrate to sign.

Affidavits

• An application for a warrant (provisional protection and care) requires an affidavit – Form 670 Children's Court of WA Affidavit for Warrant for Provisional Protection and Care.  
• Where possible, an affidavit should be completed for a warrant (access) or warrant (apprehension) - the Form 670 can be adapted for this purpose.

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 Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au.  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 they are completed correctly.  When completed, forward all documentation to Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au.  The duty lawyer settles the documentation when it is received.


Do not file documents before they have been sent to Legal and Business Services and checked.

Applying for the warrant

1.     An application for a warrant is usually made in person before a Magistrate. If a Magistrate is not available within a reasonable time or distance of the applicant (for example in remote communities) refer to the section 'Application for a warrant by remote communication' below.

2.     Child protection workers should contact the Children's Court to determine the availability of a Magistrate and date the application will be heard, and inform the Legal and Business Services lawyer who settled the documents of that date so that the lawyer can attend Court with them.

3.     If the matter is urgent you should file the documents when attending court.  For all other matters, forward Form 670 - affidavit to the legal clerk for filing.  All applications from metropolitan Districts and Peel Office must be filed at the Perth Children's Court.

4.     You must attend Court for an ex parte hearing before the magistrate and if required may provide some oral evidence.  The family are not present during ex parte hearings.

Application for a warrant by remote communication

If an application for a warrant cannot be made in person before a magistrate due to geographic distance or if a magistrate is not available within a reasonable timeframe, an application can be made verbally or via 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.

An application for a warrant and supporting information can be provided orally, where it is required urgently and there are no other options available.  The magistrate will complete a written application and make a record of the information provided, but a follow up affidavit containing that information is required 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 should 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:

1. Make a copy of the warrant to give to the parents or carers of the child when it is executed.

2. Plan and make arrangements for executing the warrant. Plans should include the day and time, whether WA Police need to attend, the roles of each party, responses in the event of violence etc.
   

3. If WA Police are required to attend, contact the appropriate officers in advance to discuss the case, plan for the entry, and for allocation of appropriate policing resources. 

4. Provide the parents or occupant of the premises with a copy of the warrant when they arrive at the premises (or before you leave). This warrant should be signed by you as the executing officer. Provide a letter to the parents or occupier that provides details of the actions taken and who can be contacted for further information.

5. When it is clear that the parents or occupant are not proficient in written or spoken English, or are hearing impaired and use sign language to communicate, you should ensure, as far as is practical, to have legal and other significant written materials translated.  Refer Chapter 4.2 Language services - booking and payment for more information. 

6. Following execution of the warrant complete the 'Execution Details' on the warrant and file the warrant at the Court.  

7. Save the warrant into the child's case file.

Recording

• Record applications for warrants and outcomes in Assist.

• A file note recording the circumstances surrounding the execution or non-execution of the warrant must be placed in the case file. 

Warrants not executed

Warrants should be executed as soon as practicable, as they are based on sworn evidence that the child is at unacceptable risk of harm. If the warrant is not able to be actioned within three months, or the location of the parents or child is still unknown after a week, consult with Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au.




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Taking intervention action

Following a decision to take intervention action, several options are available. These include:

• making a protection application without taking the child into provisional protection and care s.32(2)(c) and s.44
• applying to the Children's Court for a warrant (provisional protection and care), and upon the granting of this warrant, bringing the child into provisional protection and care (s.35). 
• taking a child into protection and care without warrant if considered to be at immediate and substantial risk (s.37).

For current guidance regarding protection applications lodged in a regional Children's Court refer to:

• Practice Direction 6 of 2021 and
• Practice Direction 1 of 2022.

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, the Department must demonstrate that the placement of the child away from their parents is suitable, appropriate, and will better promote the safety and wellbeing of the child.

If you cannot locate a suitable alternative placement, consider alternative casework and service options to safeguard the wellbeing of the child. 


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Application for a warrant (provisional protection and care) - s.35(1)

In general, intervention actions as defined in the Act should only occur after undertaking a:

• a Child Safety Investigation (CSI) or
• as an outcome of a case planning forum. 

Please refer to 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, it is also important to consider whether a placement is required outside of the family home.

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 the Team Leader and any other relevant specialist staff to assist with assessing the child's current situation before making a decision.

Provide all relevant information to the District Director, along with evidence of consideration of the following:

• Is the child able to remain at home while services are provided?

• What are the strengths and protective actions of the family

• What services are needed to enable the family to care for the child safely?

• What are the risks to the child?

• What is the safety plan to ensure the child's safety?

• What are the likely long term effects on the child and family relationships if the child is placed out of home?

• Do out of home care services offer the best alternative?

• Where placement is necessary, what alternatives are available within the extended family or with persons known to the child?

• What supports are necessary for placement?

• Have all family options been thoroughly explored?  If not, what is being done about further investigation into family options?

• If a child is placed in out of home care, what immediate strategies can be put in place to cater for interim contact arrangements, maintaining the child's sense of family and links with family, and/or return to family?

• Has a future plan been considered and discussed with the family?

•  Has placing the child into provisional protection and care been discussed with the child and family?  If so what is their response?

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 should also begin planning for a care arrangement for the child before seeking the warrant (provisional protection and care) if the reason for the warrant being sought is that the officer:

• is unable to find the child

• believes that leaving the child at the place where the child is living poses an unacceptable risk to the child's wellbeing under s.35(1)(b)

• believes that even though the child is temporarily in a safe place, for example, a hospital, when the child leaves that place he or she is likely to be living in circumstances that pose an unacceptable risk to the child's wellbeing under s.35(1)(ca), or

• believes that if a parent of the child or other person becomes aware of a proposed protection application in respect of the child, the child will be moved from the place where the child is living and the officer will be unable to find the child.

Consult with Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au where a decision is made to execute a warrant after three months.  

Where the location of the child and parents is known, and the warrant has not been executed after one month for logistical or practical reasons, consult with Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au.  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 care arrangement for a child under s.79, contact the District Director from another district for approval.

All decisions endorsed and/or discussions held relating to this decision should be recorded in the case file.


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Provisional protection and care without a warrant - s.37

Taking a child into provisional protection and care without a warrant can only occur if an authorised officer 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:

• the child's parents
• a person who was providing day-to-day care of the child, or,
• with the consent of the child's parent, any other person under s.38(2).

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 should be determined with the child's parents.

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 Conducting a Child Protection Investigation.

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 their family. 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, obtain approval from the District Director.

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, as far as practical, ensure legal and other significant written materials are translated.  Refer to Casework Practice Manual Chapter 4.2 Language services - booking and payment for more information. 


If action is likely to be required afterhours by the Statewide Referral and Response Service – Crisis Care Unit (SRRS-CCU), consult with SRRS-CCU and consider submitting an Action Request. For more information, see Chapter 2.2 After-hours Action Request.

When SRRS-CCU enact a s.37 after-hours, they will complete an Intake and progress the Assist screen to intervention action. They will also complete a comprehensive case note advising of what actions have been taken and why. You should complete any required follow-up as a priority and consult with the Team Leader to decide if the district will proceed with an application to the Court for a protection order (s.44). It is the receiving districts responsibility to complete all work related to the CSI.

Section 37(3) of the Act authorises child protection workers 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 you work with police, particularly if there is a worker safety concern. 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, they 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:

• the date, time and location of the action
• names and addresses
• the child's date of birth
• the details of any 'significant others' present
• the contact details of the police officers who were present
• the incident report number, and
• the reasons for taking such action.




Action after taking a child into provisional protection and care (without a warrant) (s.38)

Complete a letter (Form 424) to formally advise the child's parents that their child has been taken into provisional protection and care (without a warrant).

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 should be based on a comprehensive assessment and the child's parents should have an opportunity to respond to the concerns identified and to work collaboratively to develop a plan to increase safety for their child.

If the child requires protection, 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.

You 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, as soon as practicable and within two working days, you must:

• make an application for an interim order (s.133(2)(b)) that the child is to remain in provisional protection and care, or

• return the child to or place the child in the care of a parent of the child, a person who was providing day-to-day care of the child or, with the consent of the parent of the child, any other person (s.38(3)).
  

If the child was in the CEO's care immediately before being taken into provisional protection and care under s.37, make any arrangement for the care of the child that is considered appropriate (s.38(4A)).  Wherever possible, this arrangement should 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 an initial decision to bring a child into the CEO's is overturned by the district responsible for completing the CSI, or new information or circumstances indicate that intervention action is no longer necessary, the child must be returned as soon as possible (within two working days) to: 


• a parent of the child,
• a person who was providing day-to-day care of the child, or
• with the consent of a parent of the child, any other person (s.38(2)).
  

A decision not to proceed with a protection order after intervention action has already occurred, should be based on a comprehensive assessment, consultation with the child's parents and approval from the District Director. Where the child is Aboriginal, additional requirements include consultation with Aboriginal members of the child's family, with an Aboriginal Practice Leader and with external cultural stakeholders, such as a community elder, where it is appropriate, and the family approve. Consultation with the parents should include an opportunity to work with the Department to increase the safety of the child outside of intervention action, wherever possible and appropriate.

It is not intended that s.38 is used to make a determination about which parent is the most appropriate carer for the child. 

You 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, seek legal advice from Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au.  


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 consult with their district director and Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au. 


When seeking parental consent to return a child to a different parent, you should:

• ensure you provide both parents with enough information, in a manner they are able to understand, to enable them to make an informed choice about the situation

• consider the capacity and willingness of the parent being asked for consent to understand the information provided and to form a judgement based on the potential consequences of their decision, and

• determine if the consenting parent's decision is likely to be influenced by external pressure (such as coercion or manipulation) or other issues (such as intoxication or mental illness).

Child protection workers should refer to the guidance above when seeking consent from the parent. 


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Taking a newborn into provisional protection and care without a warrant

Pre-birth planning and Best Beginning Plus are service responses that should be considered prior to any intervention action, wherever it is safe and appropriate to do so. 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, inform the parents and the relevant 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).

Include Legal and Business Services in consultations when making a decision to take a newborn into protection and care.  Request a consultation from Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au.  Consider consulting with SRRS-CCU as actions may be required outside of business hours.

If a decision has been made to remove a child from its parents' care at birth, provide the parents a letter explaining the 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.  Consult with the hospital prior to taking any action and provide them in writing of what action you plan to take.  

Work through the hospital's Social Work Department if you need to make contact with a mother, visit or obtain information about a parent or baby in hospital regarding concerns for the safety and wellbeing of an unborn or newborn child.  Child protection workers can refer to the following documents in related resources for further information: 


• Useful Facts for CPFS staff – Working with KEMH
• Taking a New-Born into Provisional Protection and Care
• Reciprocal Child Protection Procedures between Joondalup Health Campus and the Department
• Bilateral Schedule Interagency Collaborative Processes When An Unborn or Newborn Baby is at Risk of Abuse and/or Neglect.

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Protection orders

The Court may refer a protection and care matter to an alternative list or conference option. These include: Pre-hearing conference Pilot therapeutic list (pilot list) Case management list Mediation conference For more information about alternative pathways and other information about the Children's Court, refer to Practice Direction 6 of 2021.

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).

A protection order (supervision) may include a condition requiring the child to live with a specified parent of the child (provided that parent has parental responsibility for the child). For example, the order may include a condition that the child is to live with their mother where there are concerns about the child's safety with their father. However, the order cannot include a condition that the child reside with a third party, for example, a relative, or about anyone else living in the home with the child.

For more information, see Chapter 3.3 Protection Order (Supervision).

2. Protection order (time-limited)

This order gives the Department 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 reunifying the child with the parent/s once the safety goals have been achieved.

3. Protection order (until 18)

This order gives the Department 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 Act.

The Department is the only party that can apply for a protection order. Carers in some circumstances 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).

For more information, see Chapter 3.3 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 enters provisional protection and care without a warrant, a decision to proceed with a protection application must be made within two working days.

The decision to make a protection application should be informed by a comprehensive and evidence based assessment. See Chapter 2.2 Signs of Safety - Child protection practice framework for further information on conducting an assessment.

If a protection order is sought, a Legal Officer will be assigned to the case and will usually follow it through to conclusion. It is important to keep them up to date with all case developments and provide them with copies of all significant documentation, including medical reports, child interviews and birth certificates.


When applying for a protection order, planning for the care and other arrangements for the child must begin as soon as possible to promote long-term stability for the child and should, as soon as possible, include consideration of whether it is appropriate to work towards returning the child to the child's parents. Refer to the chapters 3.4 Stability and Connection Planning and Care Planning.

If the Police Child Protection Squad is involved, consult with them to ensure that the child's immediate safety is prioritised over all other matters. Joint planning may be required to ensure evidentiary material or other matters are considered while the child's safety is managed.

Follow these steps when making a protection application:

1.  Complete the relevant forms from the Children's Court website

2.  Forward the draft application and affidavit to Legal and Business Services by emailing LegalQueryDuty@communities.wa.gov.au for settling by the duty lawyer.


3. Sign the application form.

4.  File the application in person or online and make note of the legal officer who settled the document.    

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.

Wherever possible, meet with the child's parents to advise them an application for a protection order is being made. Advising parents in advance of the application may help decrease the risk of a child experiencing trauma if parents are able to tell the child what is happening and why. Child protection workers should explain:

• the reasons for the application
• the Court processes, and
• strongly encourage the parents to seek legal representation.

When meeting with parents, start discussing and planning contact arrangements and explain the stability and connection planning - refer to Chapter 3.4 Stability and Connection Planning. 


Subject to the child's age and level of understanding, you must provide the child with adequate information, in a manner and language that they can understand, information about:

• decisions that have been made, including an explanation of why this decision was made

• decision-making processes likely to have a significant impact on the child's life, and

• any relevant complaint or review procedures.
  

Ensure the child is able to understand what is happening, according to their age and ability, when you provide explanations and obtain the child's views and wishes regarding contact and care arrangements.

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.

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 child, where age appropriate
  
• the child's parents
• the proposed carer, as relevant, and
• any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.  

Record the application for the protection order in Assist and in the case file.

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 contact the Child Documents Team by email:  BSC-ChildDocs@cpfs.wa.gov.au  


Appearance in Court

Within three working days of the lodging of an application by the department, the matter will be listed for a hearing before the Court. At this hearing the Court will:

(a)   give those standard directions which are appropriate


(b)   consider any urgent application for an interim order of which notice has been given, and

(c)  if necessary list the application for an interim order hearing.

The appearance is usually brief, and the proceedings are usually 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:

• Community Legal Centres – advice and referrals
• Legal Aid WA
• Aboriginal Legal Service of Western Australia

Legal Aid WA (LAWA) has produced resources to assist lawyers, child protection workers 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:

• short video by LAWA that provides background information - LAWA Introduction of the Response Form, when it can be filed, and its purpose
• LAWA example of an CPFS initial affidavit, and
• LAWA example of a Response to a CPFS initial affidavit.

If the application is not "settled" by agreement, the matter is listed for a final hearing where witnesses give evidence.  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, Legal and Business Services will convene trial planning meetings (including legal support officers, case workers and the responsible lawyer) to develop a trial plan that will:


• Inform the content of the Trial Listing Callover Certificate.
  

• Consider the issues in dispute, documentary evidence needed to prove the CEO's case, the witnesses needed to annex documentary evidence and related matters.
  

• Consider which witnesses need to be summonsed.
  

• Set out the timetable and division of labour for the drafting, settling, swearing, lodging and serving of affidavits and lodging and serving documentary evidence.
  

• Set out the timetable and division of labour for the drafting and settling of the case outline, any chronology and the trial bundle.
  

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.  A Department lawyer will request you 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:

• Appearing in Court and Giving Evidence, and 
• Attendance at Children's Court Mentions and other Court events.

Proposal to the Court (Written Report) s.143

Protection orders (special guardianship) must include a condition that the child’s name is not to be changed without permission from the Court, except in exceptional circumstances.




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.


Child protection workers develop s.143 Reports to the Court based on their work with the child and family.  If required CPWs may consult with district Legal Support Officers and their team leader to develop the s.143 Report to the Court.  When the draft is completed, it is forwarded to the team leader for endorsement, then to the Responsible Lawyer, Legal and Business Services for review/feedback. 

After final amendments and approval the CPW finalises the s.143 Report to the Court and completed the Court Instruction Sheet. 

Note:  Court Instruction Sheets must be sent to the Responsible Lawyer two days before each Court date.


If the application is for a protection order (special guardianship) the Court will consider Form 641 Proposal to the Court which includes an outline of 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 as required under s.61(3). For more information, see Chapter 3.4 Protection Order (Special Guardianship)


An SGO may also include conditions to develop and support contact with that child’s family, community and Country, through contact and for Aboriginal and CaLD children, cultural support. For more information, see Chapter 3.3 Cultural Support Planning.

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 of the Act. 


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 are parties 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 wishes to do so or is granted leave of the Court. The Court may determine that the child requires separate legal representation and a lawyer may be appointed to represent the child.

Adjournment

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.

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.


The terms of any interim order, including contact, are legally binding and must be followed, unless the lawyer acting for the CEO has obtained a stay of the orders. Failure to comply with the terms of the order may result in the Department being held in contempt. You must advise the lawyer acting for the CEO if the terms of the order are not capable of being complied with.




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:

• Guidelines for Completing Applications: Grounds for Application and Orders Sought, and 
• Form 645.
  

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 should be completed with reference to the following resource documents:

Guidelines for Completing Applications: Grounds for Application and Orders Sought

• Form 652 Children's Court of Western Australia - Affidavit for Extension, Revocation, Replacement and Variation form, and, 
• depending on the circumstances, a Form 641 Written Proposal to the Court, or a
• Form 448 Written s.61(3) Report Regarding Application for Protection Order - Special Guardianship.

A plan to make an application should be included in the child's case plan where a 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. Refer to Chapter 3.4 Stability and Connection.

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.

Court outcomes

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.


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Etiquette in Court

The following points should be noted when attending Court:

• Always bow towards the judge or magistrate when entering or leaving the Court room.

• Stand when speaking to or being addressed by a judge or magistrate on all occasions, unless directed otherwise by the judge or magistrate. Do not sit until they sit.

• Always use "Ma'am", "Sir", or "Your honour" when addressing a magistrate or judge.

• When crossing the Court room, never walk between the Bench and the Bar Table – walk behind the Bar Table.

• Speak clearly to enable everyone in the Court room to hear them and avoid the use of our terminology.

• Dress conservatively and respectfully when in Court (for example - do not wear sunglasses or hats, avoid excessive jewellery).

• Turn off your mobile phone before entering the Court room.

Refer to the resource document Appearing in Court and Giving Evidence for more information.

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Printing documents for legal purposes

If documents are requested or subpoenaed, CPWs or a designated senior officer must complete Form 040 Printing Documents for Legal Purposes Checklist and forward to Legal and Business Services by email: LegalQueryDuty@communities.wa.gov.au. 

Legal and Business Services print the requested files.

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