A report under section 38 of the Lukautim Pikinini Act 2015 goes to the Office for Child and Family Services. Section 42 says what happens next.
(1) On receipt of information under section 38, the Office may conduct such investigation as it considers necessary.
(2) The investigation shall include a Child Protection Safety Assessment and a Safety Placement Decision.
(3) The Office may notify the child’s parent of such investigation or report.
Subsection (1) — “as it considers necessary”
Subsection (1) is discretionary in scope. The Office decides what investigation a particular report needs.
But subsection (2) sets a floor: whatever is done shall include a Safety Assessment and a Safety Placement Decision. Those two steps are mandatory once an investigation is undertaken.
The discretion is exercised against the section 5(1) principles — particularly (g) the least intrusive intervention consistent with protecting the child, and (n) that decisions be made expeditiously, having regard to the child’s sense of time.
The Safety Assessment and the Placement Decision
| Step | The question it answers |
|---|---|
| Child Protection Safety Assessment | Is this child safe? Does the child fall within any paragraph of the definition of a child in need of protection, and what is the level of risk? |
| Safety Placement Decision | Where should the child be? Can the child safely remain at home with support, or must the child be placed elsewhere? |
Section 5(1) makes the ordering clear:
- (d) the preferred environment is the child’s own family;
- (f) provide assistance or support to the family wherever practicable so that the child may remain;
- (g) the least intrusive intervention consistent with protecting the child from harm;
- (j) where removal is necessary, prefer alternative care within the child’s own family or community, preserving name, identity, language and cultural and religious ties.
And section 7 states the entitlement directly: a child is entitled to live with his parents unless it is determined that separation is in his best interests.
Subsection (3) — “may notify”
Section 42(3) does not require the parent to be told an investigation is under way. That is deliberate.
Where the parent is the suspected source of harm — paragraph (d) of the definition — advance notice may allow evidence to be concealed, the child to be coached, or the family to move.
Where the parent is not implicated — paragraph (c), harm by someone other than a parent — notifying the parent is usually the first step towards protecting the child.
Section 50 requires the Office or the police, on removing a child under Division 3, to promptly make all reasonable efforts to notify each parent — and, unless impracticable, to do so in writing with a statement of the reasons.
The discretion in section 42(3) covers the investigation stage. Once the child is taken, notification is a duty.
Section 41 and the reporter
The identity of the person who notifies the Office shall not be disclosed to any other person without the person’s consent or leave of the Court.
So a parent notified under section 42(3) learns of the investigation but not, ordinarily, who reported. See protection for reporters.
Where the investigation leads
1. No further action. The Safety Assessment finds the child is not in need of protection.
2. Support at home. The child remains with the family, with assistance under section 5(1)(f) — the outcome the Act prefers.
3. Removal. Through a search warrant under section 43 and removal under section 44, or the emergency powers in section 46. The Office then has temporary custody under section 51.
4. Court proceedings. A child protection hearing in the Family Court, leading to a finding under section 97, a care plan under section 98, and orders under section 99.
A child found to be in need of protection is entered on the register the Office must keep under section 15(1)(a). Investigations are carried out by Child Protection Officers gazetted under section 35, whose powers under section 36 are to prevent and respond to violence, abuse, neglect, exploitation and discrimination against all children.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 7, 15, 35, 36, 38–52, 93–100
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.