Everything in Part V and much of Part XII of the Lukautim Pikinini Act 2015 turns on this definition.
Section 2 — “child in need of protection”
(a) whose one or both parents are dead or incapacitated and adequate provision has not been made for the child’s care;
(b) who has been abandoned by his parents and adequate provision has not been made for the child’s care;
(c) who has been, or is likely to be, physically harmed, sexually or emotionally abused or sexually exploited by some person other than the child’s parent, and the parent is unwilling or unable to protect the child;
(d) who has been, or is likely to be, physically harmed because of violence or neglect by the child’s parents or guardian, or who is sexually or emotionally abused by the child’s parents or guardian;
(e) whose development is likely to be seriously impaired by a treatable condition and the child’s parents refuse to provide or consent to treatment;
(f) who is living in a household where there have been incidents of domestic violence and, as a consequence, is at risk of serious physical or psychological harm;
(g) who has been consistently subjected to exposure or exhibition that is harmful to his physical or psychological well-being;
(h) who is consistently engaged in child labour by some person other than the child’s parent, and the parent is unwilling or unable to protect the child;
(i) who is consistently engaged in child labour by the child’s parent; or who is or has been absent from home in circumstances that endanger his safety or well-being;
(j) who has serious differences with his parents to such an extent that his physical or psychological well-being is being seriously impaired or threatened, or his care and control is likely to be seriously disrupted;
(k) who is involved in child trafficking.
Four things the list tells you
Paragraphs (c) and (d) both read “has been, or is likely to be”. The Act is preventive: a child at risk is a child in need of protection, and no one need wait for the injury.
Paragraph (c) deals with harm from someone other than the parent, and turns on the parent being unwilling or unable to protect. Paragraph (d) deals with harm from the parent or guardian directly.
Paragraphs (h) and (i) draw the same distinction for child labour.
So a parent who is not the abuser can still bring the child within the definition — by failing to act.
A child living in a household where there have been incidents of domestic violence, and consequently at risk of serious physical or psychological harm, is a child in need of protection — whether or not the child has been touched.
Note the interaction with section 119: where the child is subject to violence and the matter is covered by the Family Protection Act 2013, that Act applies. Paragraph (f) addresses the child who is exposed to violence between others in the home.
(e) covers a child whose development will be seriously impaired by a treatable condition the parents refuse to treat or consent to. That is a direct override of parental authority over medical decisions, and connects to section 51(2), under which the Director may authorise examination and consent to necessary health care.
(j) covers serious differences between child and parents. It is the provision for the older child in an unworkable home, and it links to section 49(5) and (6), under which a child who refuses to return is placed and offered mediation before proceedings are begun.
What follows from the definition
| Step | Provision |
|---|---|
| Reporting — anyone may notify; listed professionals must | s 38 |
| Investigation — Safety Assessment and Safety Placement Decision | s 42 |
| Search warrant | s 43 |
| Removal to a place of safety | s 44 |
| Emergency powers — take charge without a court order | ss 45–46 |
| Temporary custody by the Office | s 51 |
| Entry on the register of children in need of protection | s 15(1)(a) |
| Family Court hearing | s 93 |
| Finding by the Court | s 97 |
| Care plan and protection orders | ss 98–100 |
Meeting the definition triggers the power to act. It does not decide what should be done.
That is governed by section 5(1): support the family so the child may remain (para (f)); take the least intrusive intervention consistent with protecting the child (para (g)); aim at returning the child unless that is contrary to his best interests (para (h)); and on removal, prefer care within the family or community (para (j)).
Section 2 separately defines a “child with special needs” — one unlikely to achieve a reasonable standard of health, education or normal development without services, or who is vulnerable or subjected to violence, abuse, neglect or exploitation.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 15, 38–52, 93–100, 119
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.