New South Wales Consolidated Acts

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CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 - SECT 45

Application to Children's Court for care order

45 Application to Children's Court for care order

(1) If a child or young person is removed from premises or a place under a power of removal conferred by or under this Act or the care responsibility of a child or young person is assumed by an order under section 44, the Secretary must make a care application in the Children's Court for one or more of the following care orders in respect of the child or young person:
(a) an emergency care and protection order,
(b) an assessment order (within the meaning of Division 6 of this Part),
(c) any other care order.
(1A) The care application must be made within 3 working days after the day (the
"relevant day" ) on which the removal or assumption of care responsibility occurs. If this would permit the care application to be made more than 5 days after the relevant day, the application must instead be made no later than on the fifth day after the relevant day or (if the fifth day is not a working day) no later than the first working day after that fifth day. A
"working day" is any day that is not a Saturday, Sunday or public holiday.
(2) On the hearing of the application, the Secretary must explain to the Children's Court why the removal of the child or young person without a warrant was considered to be necessary.
(3) Despite subsection (1), the Secretary is not required to apply for any order of the Children's Court if the Secretary considers that no order is necessary, but the Secretary must explain to the Children's Court at the first available opportunity why no care application was made.
(4) Sections 61, 64, 67, 68, 70 and 90A apply to an application for an emergency care and protection order. The other provisions of Part 2 do not apply to such an order.
Note : This section holds the Secretary accountable for the serious decision to remove a child or young person from his or her family suddenly.
If the Children's Court considers that the removal of the child or young person was not warranted in terms of the Act, or was conducted in an inappropriate manner, adverse comment could be made in court or other steps taken to draw the matter to the attention of the Minister. However, the making of an order should not be refused, or the child or young person discharged from the care responsibility of the Secretary, only because of the inappropriate manner of the removal. The paramount issue for the Children's Court is the safety of the child or young person and not the procedural failures of those with the statutory responsibility for the protection of children and young persons.
In the case of removal pursuant to a warrant issued by an authorised officer under section 233, the authorised officer who issues the warrant should first consider whether the child or young person could be adequately protected if an apprehended violence order were sought which might provide for the removal of the alleged perpetrator. The matter should be brought before the Children's Court at the first available opportunity and an emergency care and protection order sought if further protection is necessary.



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