Section 51 of the Lukautim Pikinini Act 2015 fills the gap between a removal and a court order.
Where — (a) a child has been determined to be a child to whom Division 3 applies; or (b) a child has been removed under section 46 —
the Office for Child and Family Services has the care of the child until — (c) the child is returned; or (d) a Court makes an order in relation to the child under this Act.
Why the section is necessary
A child taken under section 46 is out of the parents’ hands but has no court order about them. Without section 51, no one would have lawful authority to make decisions — where the child sleeps, whether the child goes to school, whether the child sees a doctor.
Section 51 vests that authority in the Office from the moment of removal, and keeps it there until one of two things happens.
| Begins | Ends |
|---|---|
| A determination that the child is one to whom Division 3 applies | The child is returned — s 51(1)(c) |
| Removal under section 46 — immediate danger | A Court makes an order under the Act — s 51(1)(d) |
The heading is not decoration. Section 51 confers custody only until return or a court order — it is not a route to long-term care.
That fits section 5(1)(h), which requires interventions to be aimed at remedying the harmful situation and providing a plan to return the child, and (n), that decisions be made and implemented as expeditiously as possible, having regard to the child’s sense of time.
Long-term arrangements require a hearing, a finding under section 97, a care plan and orders under section 99.
Section 51(2) and (3) — medical decisions
Subject to subsection (1), the Director may —
(a) authorise a health care provider to examine the child; and
(b) if in the opinion of a health care provider the health care of the child must be provided without delay, consent to necessary health care of the child.
The Office may notify the parent of the examination conducted under subsection (2).
Examination — (a). The Director may authorise it without any further condition. A child removed from a household where harm is suspected may need to be examined at once, both for the child’s sake and to establish what has happened.
Consent to treatment — (b). This is narrower. It requires the opinion of a health care provider that the care must be provided without delay. The Director cannot consent to elective treatment; the power is confined to what cannot wait.
The distinction preserves the parents’ role in non-urgent medical decisions while ensuring an urgently ill or injured child is not left untreated because a parent is absent, unwilling, or the source of the harm.
A child in need of protection includes one whose development is likely to be seriously impaired by a treatable condition and whose parents refuse to provide or consent to treatment.
Section 51(2)(b) is the operative response to that paragraph in the emergency phase. For anything beyond urgent care, the route is a court order.
Section 51(3) is permissive on notifying the parent of an examination. That should be read with section 50, which makes notification of the removal itself mandatory — promptly, in writing, with reasons.
Section 52 — how the Office provides care
(a) by placing the child, or permitting the child to remain, in the care of a member of the child’s family;
(b) by placing the child in the care of an approved foster parent or any other suitable person;
(c) by placing the child in any other child-friendly place approved by the Director;
(d) by making arrangements for the education of the child;
(e) by making arrangements for medical examination and treatment in accordance with section 51(2);
(f) by making such other provision as the circumstances require.
Paragraph (a) comes first for a reason: section 5(1)(j) requires alternative care to be found within the child’s own family or community wherever possible, preserving the child’s name, identity, language and cultural and religious ties. See the Director’s responsibilities for a child in care for section 52 in full.
A child in the Office’s care is a “child in care” as defined in section 2 — a child in the care and custody of the Director or a person authorised by the Director — and is therefore protected by section 78, which creates offences against children in care. The child is also entered on the register kept under section 15(1)(a).
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 15, 45–52, 78, 97–99
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.