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2.1.3 Persons refusing access to or failing to hand over a child in a care arrangement

Last Modified: 22-Mar-2022 Review Date: 31-Oct-2009

Overview

To provide guidance to child protection workers in situations where a child’s carer, parent or another person who has the care or control of a child who is the subject of a care arrangement, refuses access to the child or fails to hand over the child to a child protection worker if required to do so.

Note: The Department refers to the Department of Communities (the Department).


Rules

  • Child protection workers must be able to sight a child in his or her care arrangement. Child protection workers also need to be able to collect the child from the carer (or a parent or another person who has the care and control of the child) to facilitate contact visits, attend appointments and for a range of other case management responsibilities.

  • If a carer (or a parent or another person who has the care or control of a child) refuses to allow access to a child in a care arrangement, or refuses to hand over a child if required to under s.84 of the Children and Community Services Act 2004 (the Act), the appropriateness of the care arrangement must be reviewed immediately. 

  • Discussions should also occur with Legal and Business Services regarding other possible legal action.​  Submit a request for Legal and Business Services through the SharePoint Request Form page (also in Related Resources).  Complete the request form, attach required documents using the 'Add Attachment' link, and select the 'Duty Lawyer' button.  Then use the drop down menu and select 'Yes' to 'Submit to Legal & Business Services' at the end of the form and save it to lodge the request.  


Process Maps

Not applicable

Information and Instructions

  • Overview
  • When a person who has the care and control of a child in a care arrangement refuses to hand over the child
  • Assessment of a carer or parent’s capacity to work collaboratively with Communities
  • Safety concerns
  • Overview

    Section 84 of the Act enables an authorised officer to require that a child subject of a care arrangement under s.79(2) of the Act, to be handed over from a carer, a parent or any other person who has the care or control of the child.

    Non-compliance with such a requirement carries a penalty of $12,000 or imprisonment for one year.

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    When a person who has the care and control of a child in a care arrangement refuses to hand over the child

    Child protection workers need to determine the reasons behind a carer, parent, or another person who has the care or control of a child, refusing to hand over the child.

    Where possible, child protection workers should engage with the carer, parent or other person to resolve the issue. For example, it might be appropriate to engage in discussion with the carer if they are refusing to allow a child to attend a therapy appointment because the carer believes this is distressing for the child. 

    In cases involving culturally and linguistically diverse (CaLD) families, if the child protection worker believes specific cultural factors are contributing to the situation they should:   

    • discuss these issues with the child's carer, parent or other person
    • discuss these issues with the child's broader family and/or community to identify solutions, and/or
    • refer to the Principal Policy and Planning Officer, Cultural Diversity (head office) for additional information about cultural and/or religious issues that should be considered in case or care planning.  
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    Assessment of a carer or parent’s capacity to work collaboratively with Communities

    The issue of care arrangment stability and carer continuity needs to be assessed against the carer and parent’s capacity to work collaboratively and cooperatively with the Department to support the child. 

    Wherever possible, it is preferable to assist the carer or parent to work with the Department than to seek a warrant (apprehension) from the Court to remove and place the child elsewhere (s.122 of the Act).

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    Safety concerns

    An application under s.85 of the Act should be made immediately where there are safety concerns resulting from the carer, parent or other person’s refusal to hand over the child or allow access to the child in the care arrangement. 

    Any decision to make an application under s.85 of the Act must be made through consultation with the team leader, district director and Legal and Business Services.  Request a consultation through the SharePoint Request Form page (link also in related resources). Complete the request form, attach required document using the 'Add Attachment' link, then select 'Duty Lawyer' button.  Then use the drop down menu and select 'Yes' to 'Submit to Legal & Business Services' at the end of the form and save it to lodge the request.  

    There may be circumstances where a carer, parent or other person is assessed as not posing a risk to the child but they consistently refuse access to the child.  You must discuss this pattern of refusing access with your team leader and develop a response.

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