Child Protection (SA)                 

In South Australia, child protection matters are governed by the Children and Young People (Safety) Act 2007 and investigated by the Department for Child Protection. This page deals with the child protection system in South Australia.

Child protection and family law

It is important to note that child protection is separate from family law.

Family law matters that concern parenting arrangements are dealt with under the Family Law Act 1975 in the Federal Circuit and Family Court of Australia (FCFCA). They involve disputes between family members about who should be responsible for children.

Child protection matters are dealt with under the Children and Young People (Safety) Act 2007 in the Youth Court. They involve applications by a government department in relation to children who the department believes are at risk.

Children at risk

Under section 18, a child or young person is taken to be at risk if:

• they have suffered harm of a type from which a young person is ordinarily protected
• there is a likelihood that they will suffer harm of a type from which a young person is ordinarily protected
• there is a likelihood that they will be removed from the state for a medical procedure, marriage, or activity that would be unlawful in South Australia
• their parents or guardians are unable or unwilling to care for them, have abandoned them or are dead
• the child or young person is of compulsory school age but has been absent from school without explanation
• the child or young person is of no fixed address
• any other circumstance of a kind prescribed by regulations.

Mandatory reporting

The Act contains mandatory reporting provisions that apply to people in certain occupations (including police, social workers and teachers) who form the suspicion that a child or young person is at risk in the course of their employment.

A person in this category who does not report a suspicion that a child or young person is at risk as soon as reasonably practicable is guilty of an offence and may be fined up to $10,000.

Investigating and assessing risk

If the Department suspects or considers that a child is at risk, it may take a number of steps under the Act.

Steps the Department may take include:

• investigating the circumstances of the child or young person
• having the child or young person examined and assessed
• removing the child or young person if there is a significant possibility that they will suffer serious harm and there is no practicable alternative to removing them to protect them from that harm
• applying to the Youth Court for an order
• convening a Family Group Conference to make decisions about arrangements for the child or young person’s care
• preparing and maintaining a case plan setting out decisions made at the Family Group Conference, contact arrangements and other matters needing to be resolved.

Safety of children

Under section 7, the paramount consideration when dealing with child protection matters in South Australia is ensuring that children and young persons are protected from harm.

Court orders in child protection matters

Under section 53 of the Act, the Youth Court has the power to make a range of orders in relation to a child or young person if satisfied that it is appropriate to do so.

The orders the court can make include:

• an order placing the child or young person under the guardianship of the Department for Child Protection for a period of up to 12 months
• an order placing the child or young person under the guardianship of a specified person for a period of up to 12 months
• an order placing the child or young person under the guardianship of the Department for Child Protection until they reach the age of 18
• an order placing the child or young person under the guardianship of a specified person until they reach the age of 18
• an order granting custody of the child or young person to a parent, family member or other appropriate person for a period of up to 12 months
• an order granting custody of the child or young person to the Department of Child Protection

Custody and guardianship

A person who had custody of a child is responsible for the daily care of the child, including things like taking them to school, deciding who they have contact with and what they eat for dinner.

A person who had guardianship of a child is responsible for making long-term decisions about a child such as the type of education they receive, the religion they follow and the major medical interventions they receive.

Responding to an application

When the department applies for an order, the application will be served on the child’s parents or guardians who may respond by consenting to the application or opposing it.

If an application is opposed, it may need to proceed to a contested hearing. In some cases, the matter may resolved after discussions between parties.

At the hearing, the court will hear evidence and submissions from the parties and then make a decision as to whether to make an order. In a child protection hearing, the court is not bound by the rules of evidence as it is when hearing a criminal matter. Rather, it may inform itself as it sees fit.  

Review of child protection system

The South Australian child protection system has recently been reviewed, with amending legislation introduced to the state parliament in 2024. These changes have not yet been passed.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.