Division 3 of Part V of the Lukautim Pikinini Act 2015 is headed Emergency Protection Powers. It is what applies when there is no time for a warrant.
Section 45 — “officer”
In this Division, “officer” means (a) a police officer; or (b) a Child Protection Officer, authorised by the National Child and Family Services Council to exercise the powers under this Division.
A Child Protection Officer appointed under section 35 does not automatically hold the Division 3 powers. A separate authorisation by the Council is required.
That is a deliberate restriction. The power to enter a home by force and take a child away without any court order is the most drastic in the Act, and the Council controls who may use it.
Section 46(1) and (2) — the power
An officer may, without a court order, take charge of a child, if the officer believes, on reasonable grounds, that the child’s health or safety is in immediate danger.
The officer may, by reasonable force if necessary, enter any premises or vehicle or board any vessel or aircraft, for the purpose of taking charge of a child, where —
(a) the officer believes, on reasonable grounds, that the child’s health or safety is in immediate danger; and
(b) the person who has control and custody of the child denies the officer access, or no one is available to provide access.
| Power | What must be satisfied |
|---|---|
| Take charge of the child — s 46(1) | Reasonable grounds that health or safety is in immediate danger |
| Enter or board, by force if needed — s 46(2) | The same belief, and access denied or no one available to give it |
Subsection (2) requires both paragraphs. It is not enough that the child is in danger; the officer must also have been refused access, or find no one there to give it.
So where a parent opens the door and hands the child over, no force is authorised and none is needed. Forcible entry is reserved for the case where cooperation is refused or impossible.
“Reasonable force” is the limit. Force beyond what the circumstances require is not authorised, and the section 117 indemnity protects only those acting in good faith.
The threshold
The definition of a child in need of protection covers a child who “has been, or is likely to be” harmed. That is enough to trigger investigation and, with a warrant, removal.
Section 46 requires more: the child’s health or safety in immediate danger. A serious risk that is not immediate does not engage the emergency power — the route is then a section 43 warrant.
Note that section 43(1) is expressly “subject to section 46”: where the emergency threshold is met, the absence of a warrant is no obstacle.
Section 46(3) — the 24-hour duty
On taking charge of the child, the officer shall, within 24 hours, report the circumstances to the Office for Child and Family Services; and the officer shall —
(a) take the child to a place of safety designated by the Director; or
(b) with the approval of the Director, return the child to its parents, or take the child to a person designated by the parents.
The 24-hour report brings the Office in immediately. An officer cannot hold a child on their own authority beyond a day without the Office knowing.
Paragraph (b) is the preferred outcome. Where the emergency has passed — a violent adult has left, a parent has returned — the child goes home, or to someone the parents choose. That fits section 5(1)(g) and (h): least intrusive intervention, aimed at return.
The Director approves either way. Both limbs require the Director’s designation or approval, so the decision about where the child ends up is not the taking officer’s alone.
What follows
Notification. Section 50 — where the Office or a police officer removes a child under this Division, they must promptly make all reasonable efforts to notify each parent, in writing with reasons unless impracticable.
Temporary custody. Section 51(1)(b) expressly applies where a child has been removed under section 46: the Office has the care of the child until the child is returned or the Court makes an order. The Director may authorise medical examination and consent to necessary health care under section 51(2).
Court. A lasting order requires a hearing in the Family Court, a finding under section 97, a care plan and orders under section 99.
Division 3 also covers abandoned children (sections 47 and 48) and lost or runaway children (section 49). Obstructing an officer is an offence under section 84, and section 117 indemnifies those acting in good faith.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 35, 43–52, 84, 97–99, 117
- Constitution — ss 38, 44, 49
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.