Part 5Additional functions of Minister

Part 5—Additional functions of Minister 14—Additional functions of Minister (1) In addition to any other functions the Minister may have under this Act, the Minister must, in order to promote the wellbeing of children and young people and early intervention where they may be at risk of harm— (a) promote a partnership approach between the Government, local government, non-government agencies and families; and (b) promote and assist in the development of co-ordinated strategies for early intervention in cases where children and young people may be at risk of harm; and (c) promote, support and adequately resource evidence-based programs delivering preventative and support services directed towards strengthening and supporting families, reducing the incidence of child abuse and neglect and maximising the wellbeing of children and young people; and (d) promote, encourage or undertake research into matters affecting children and young people; and (e) generally do such other things as the Minister believes will promote the wellbeing of children and young people, and promote and support early intervention where they may be at risk of harm. (2) Without limiting a provision of any other Act or law, the Minister must, in relation to the operation of this Act— (a) collaborate with and assist Aboriginal and Torres Strait Islander communities to develop and implement strategies to ensure that Aboriginal and Torres Strait Islander children and young people are, so far as is reasonably practicable, protected from harm; and (b) ensure that education relating to the operation of section 31 is made available to persons who are required under that section to report a suspicion that a child or young person is, or may be, at risk; and (c) promote and support the provision of courses of instruction relating to the prevention of child abuse and neglect by tertiary institutions in this State; and (d) collect and publish statistical data in relation to the protection of children and young people in this State. (3) Without limiting a preceding subsection, the Minister must also ensure that— (a) assistance is provided to evidence‑based programs delivering services directed towards strengthening and supporting families and maximising the wellbeing of children and young people; and (b) those services are offered to children and young people and their families; and (c) genuine efforts are made to encourage children and young people and their families to avail themselves of the services. 15—Additional annual reporting obligations (1) The Minister must, not later than 30 September in each year, prepare a report— (a) detailing the role of the Minister, and the extent to which the Minister has performed the Minister's functions, in respect of the operation of this Act for the financial year ending on the preceding 30 June; and (b) setting out the following information relating to the provision of family support services and intensive family support services to children and young people who are at risk and their families: (i) the extent to which such services were provided by, or on behalf of, the State (including statistical data relating to the number of times such services were provided) during the financial year ending on the preceding 30 June; (ii) the amount of resources allocated for the provision of such services by or on behalf of the State— (A) during the financial year ending on the preceding 30 June; and (B) during the current financial year; (iii) the extent to which the allocated resources were, in fact, spent on the provision of such services during the financial year ending on the preceding 30 June; (iv) bench‑marking the resources referred to in subparagraph (ii) and (iii) against those allocated and spent by other States and Territories in the provision of such services during the financial year ending on the preceding 30 June; and (c) providing any other information required by the regulations for the purposes of this paragraph. (2) The Minister must, as soon as is reasonably practicable after preparing a report under this section, cause a copy of the report to be published on a website determined by the Minister. (3) The Minister must, within 6 sitting days after preparing a report under this section, cause a copy of the report to be laid before each House of Parliament. (4) The requirements of this section are in addition to any other reporting obligation of the Minister. Chapter 3—Interpretation 16—Interpretation (1) In this Act, unless the contrary intention appears— Aboriginal child or young person means a child or young person who— (a) is a descendant of the indigenous inhabitants of Australia; and (b) regards themself as Aboriginal or, if they are a young child, is regarded as Aboriginal by at least 1 of their parents; approved carer means a person who is the subject of an approval under section 72 that is in force; case plan, in respect of a child or young person—see section 28; Chief Executive means the Chief Executive of the Department; Child and Young Person's Visitor means the Child and Young Person's Visitor established under Chapter 9; child or young person means a person who is under 18 years of age; child protection officer—see section 147; contact arrangements, in respect of a child or young person, means contact arrangements determined by the Chief Executive under section 93 in respect of the child or young person, as in force from time to time; Court means the Youth Court of South Australia; dentist means a person who is registered as a dental practitioner under the Health Practitioner Regulation National Law (South Australia); Department means the administrative unit of the Public Service specified by the Minister by notice in the Gazette for the purposes of this definition; family, in relation to a child or young person, includes— (a) the child or young person's extended family; and (b) members of the child or young person's family who are not biologically related to the child or young person; and (c) in relation to an Aboriginal or Torres Strait Islander child or young person—any person related to the child or young person in accordance with Aboriginal or Torres Strait Islander traditional practice or custom (as the case requires); family group conference means a family group conference convened in accordance with section 22; guardian, of a child or young person, means the guardian or guardians of the child or young person pursuant to an order of the Court under this Act; instrument of guardianship means an instrument of guardianship issued under section 45; legal practitioner has the same meaning as in the Legal Practitioners Act 1981; legal profession rules has the same meaning as in the Legal Practitioners Act 1981; licensed children's residential facility means a children's residential facility in respect of which a licence is in force under Chapter 7 Part 7; licensed foster care agency means a foster care agency carried on pursuant to a licence under Chapter 7 Part 6 that is in force; medical practitioner means a person who is registered as a medical practitioner under the Health Practitioner Regulation National Law (South Australia); out of home care—see section 69; parent, of a child or young person, includes— (a) a step-parent of the child or young person; and (b) a person who stands in loco parentis to the child or young person; pharmacist means a person who is registered as a pharmacist under the Health Practitioner Regulation National Law (South Australia); placement principles—see section 11; principles of intervention—see section 10; psychologist means a person who is registered as a psychologist under the Health Practitioner Regulation National Law (South Australia); registered or enrolled nurse means a person who is registered or enrolled as a nurse under the Health Practitioner Regulation National Law (South Australia); restraining notice means a restraining notice issued under section 46; reunification, in relation to a child or young person, means a reunification of the child or young person and a person or persons from whom the child is removed under this Act; State authority means— (a) a person who holds an office established by an Act; or (b) a public sector agency; or (c) South Australia Police; or (d) a local council constituted under the Local Government Act 1999; or (e) any incorporated or unincorporated body— (i) established for a public purpose by an Act; or (ii) established for a public purpose under an Act (other than an Act providing for the incorporation of companies or associations, co‑operatives, societies or other voluntary organisations); or (iii) established, or subject to control or direction, by the Governor, a Minister of the Crown or any instrumentality or agency of the Crown or a local council (whether or not established by or under an Act or an enactment); or (f) any other person or body declared by the regulations to be a State authority, but does not include a person or body declared by the regulations to be excluded from the ambit of this definition; Torres Strait Islander child or young person means a child or young person who— (a) is a descendant of the indigenous inhabitants of the Torres Strait Islands; and (b) regards themself as Torres Strait Islander or, if they are a young child, is regarded as Torres Strait Islander by at least 1 of their parents; working with children check means a working with children check under the Child Safety (Prohibited Persons) Act 2016. (2) For the purposes of this Act, a reference to a person being found guilty of an offence will be taken to include a reference to— (a) a finding of a court under Part 8A of the Criminal Law Consolidation Act 1935 that the objective elements of an offence are established (whether or not the person was found not criminally responsible due to mental incompetence, or was found to be mentally unfit to stand trial, pursuant to Division 2 or 3 of that Part); or (b) any finding of a court of another jurisdiction that corresponds to a finding referred to in paragraph (a). (3) For the purposes of this Act, a reference to care being residential in nature, or being provided on a residential basis, will be taken to include a reference to such care provided to a child or young person for a limited period only. (4) For the purposes of this Act, a reference to the Chief Executive in their capacity as guardian of a child or young person will be taken to be a reference to the person for the time being holding or acting in the office of Chief Executive. 17—Meaning of harm (1) For the purposes of this Act, a reference to harm will be taken to be a reference to physical harm or psychological harm (whether caused by an act or omission) and, without limiting the generality of this subsection, includes such harm caused by sexual, physical, mental or emotional abuse or neglect. psychological harm does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life. 18—Meaning of at risk (1) For the purposes of this Act, a child or young person will be taken to be at risk if— (a) the child or young person has suffered harm (being harm of a kind against which a child or young person is ordinarily protected); or (b) there is a likelihood that the child or young person will suffer harm (being harm of a kind against which a child or young person is ordinarily protected); or (c) there is a likelihood that the child or young person will be removed from the State (whether by their parent or guardian or by some other person) for the purpose of— (i) being subjected to a medical or other procedure that would be unlawful if performed in this State (including, to avoid doubt, female genital mutilation); or (ii) taking part in a marriage ceremony (however described) that would be a void marriage, or would otherwise be an invalid marriage, under the Marriage Act 1961 of the Commonwealth; or (iii) enabling the child or young person to take part in an activity, or an action to be taken in respect of the child or young person, that would, if it occurred in this State, constitute an offence against the Criminal Law Consolidation Act 1935 or the Criminal Code of the Commonwealth; or (d) the parents or guardians of the child or young person— (i) are unable or unwilling to care for the child or young person; or (ii) have abandoned the child or young person, or cannot, after reasonable inquiry, be found; or (iii) are dead; or (e) the child or young person is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or (f) the child or young person is of no fixed address; or (g) any other circumstances of a kind prescribed by the regulations exist in relation to the child or young person. (2) It is immaterial for the purposes of this Act that any conduct referred to in subsection (1) took place wholly or partly outside this State. (3) In assessing whether there is a likelihood that a child or young person will suffer harm, regard must be had to not only the current circumstances of their care but also the history of their care and the likely cumulative effect on the child or young person of that history. female genital mutilation means— (a) clitoridectomy; or (b) excision of any other part of the female genital organs; or (c) a procedure to narrow or close the vaginal opening; or (d) any other mutilation of the female genital organs, but does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose; sexual reassignment procedure means a surgical procedure to give a female, or a person whose sex is ambivalent, genital characteristics, or ostensible genital characteristics, of a male. (5) A medical procedure has a genuine therapeutic purpose only if directed at curing or alleviating a physiological disability or physical abnormality. 19—Minister may publish policies (1) The Minister may, by notice in the Gazette, publish policies for the purposes of this Act. (2) The Minister may, by subsequent notice in the Gazette, vary, substitute or revoke a policy published under subsection (1). (3) A policy published under subsection (1) must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified by the Minister. (4) Each person or body engaged in the administration, operation or enforcement of this Act must, to the extent that it is consistent with section 7 to do so in a particular case, comply with any relevant policy published under subsection (1). Chapter 4—Managing risks without removing child or young person from their home Part 1—Child and Family Assessment and Referral Networks 20—Minister may establish Child and Family Assessment and Referral Networks (1) The Minister may, in the Minister's absolute discretion, establish such Child and Family Assessment and Referral Networks as the Minister thinks fit. (2) A Child and Family Assessment and Referral Network consists of such persons or bodies (whether State authorities or otherwise) as may be specified by the Minister. (3) A Child and Family Assessment and Referral Network has the functions assigned to it under this Act or by the Minister. (4) The members of a Child and Family Assessment and Referral Network may, despite any other Act or law, collaborate with each other without restriction in the course of performing its functions. (5) The regulations may make further provision relating to Child and Family Assessment and Referral Networks. Part 2—Family group conferences 21—Purpose of family group conferences (1) The purpose of a family group conference is to provide an opportunity for a child or young person and their family, in accordance with this Part— (a) to make informed decisions as to the arrangements for the care of the child or young person; and (b) to make voluntary arrangements for the care of the child or young person that are consistent with sections 7 and 8, as well as this Act generally; and (c) to review those arrangements from time to time. (2) To avoid doubt, a failure to hold a family group conference does not, of itself, invalidate an application for an order of the Court under this Act, nor any such order. 22—Chief Executive or Court may convene family group conference (1) If the Chief Executive or the Court suspects that— (a) a child or young person is at risk and that arrangements should be made in relation to their care; and (b) it would be appropriate in all of the circumstances to make those arrangements by means of a family group conference, then the Chief Executive or the Court (as the case requires) may convene a family group conference in respect of the child or young person. (2) A family group conference is to be conducted by a family group conference co-ordinator (the co‑ordinator) nominated by— (a) if the conference is convened by the Chief Executive—the Chief Executive; or (b) if the conference is convened by the Court—the Judge of the Court. 23—Who may attend a family group conference (1) Subject to this Part, the following people are entitled to attend a family group conference convened in respect of a child or young person: (a) the child or young person; (b) the parents and guardians of the child or young person; (c) members of the child or young person's family; (d) persons who have a close association with the child or young person and who should, in the opinion of the co-ordinator, attend the conference; (e) a person who, in accordance with subsection (4)(c), is arranged to act as advocate for the child or young person at the conference; (f) a person authorised by the Chief Executive for the purposes of this section; (g) if an investigation into the child or young person's circumstances has been carried out under this Act—a person nominated by the co-ordinator who has examined, assessed, counselled or treated the child or young person in the course of the investigation; (h) if the child or young person is an Aboriginal or Torres Strait Islander child or young person—a person nominated by an Aboriginal organisation or Torres Strait Islander organisation (as the case requires) of a kind that is, in the opinion of the co-ordinator, relevant to the subject of the conference; (i) if persistent absenteeism from school is involved— (i) if the child or young person is enrolled at a Government school—an employee of the administrative unit of the Public Service assisting a Minister with the administration of the Education Act 1972 nominated by the Chief Executive of that administrative unit; or (ii) if the child or young person is enrolled at a non-Government school—a person nominated by the head teacher of the school; (j) any other person (not being a legal practitioner) who the child or young person, or their parents or guardians, wish to support them at the conference and who, in the opinion of the co-ordinator, would be of assistance in that role; (k) any other person, or person of a class, prescribed by the regulations for the purposes of this paragraph. (2) However, the co-ordinator of a family group conference may exclude a person referred to in subsection (1) (including, to avoid doubt, the child or young person to whom the conference relates) from attending a family group conference if the co-ordinator is satisfied that to do so would be in the best interests of the child or young person. (3) The co-ordinator of a family group conference must, as far as is reasonably practicable, consult with the child or young person and their parents and guardians as to the attendees at, or persons to be excluded from attending, the conference. (4) The co-ordinator of a family group conference must, as far as is reasonably practicable, ensure that— (a) the conference is held at a time and place that is suitable to the child or young person and their parents and guardians; and (b) a person who is entitled to be at the conference is given notice in accordance with the regulations of the time and place at which the conference is to be held; and (c) a suitable person (who, to avoid doubt, need not be a legal practitioner) is arranged to act as advocate for the child or young person at the conference. (5) However, the co-ordinator of a family group conference need not comply with subsection (4)(c) if they are satisfied that the child or young person has made an informed and independent decision to waive their right to be so represented. 24—Procedures at family group conference (1) The co-ordinator of a family group conference must ensure that information as to the child or young person's circumstances, and any grounds for suspecting the child or young person may be at risk, is presented to the conference. (2) The co-ordinator of a family group conference must allow the child or young person's parents, guardians and family members present at the conference, and the child or young person if the co-ordinator thinks it appropriate to do so, an opportunity to hold discussions in private for the purpose of formulating recommendations as to the arrangements for the care of the child or young person. (3) If a person referred to in section 23(1) is excluded from, or is unable to attend, a family group conference, the co-ordinator of the conference must take reasonable steps to ascertain the views of the person and present those views to the conference. (4) The following provisions relate to the making of decisions in respect of a family group conference: (a) decisions should, if possible, be made by consensus of the persons present at the conference (and, in particular, by that of the child or young person and their parents, guardians and family members); (b) a written record must be prepared of the decisions made at the conference; (c) a decision will only be valid for the purposes of this Act if the child or young person, their parents and guardians and the Chief Executive each accept the decision in accordance with any requirements set out in the regulations; (d) the making of decisions must comply with any other requirements set out in the regulations. (5) The co-ordinator of the family group conference— (a) must cause a copy of the written record of the decisions to be provided to each person present at the conference (and may provide a copy of the written record to any other person the co-ordinator thinks fit); and (b) must cause a copy of the written record of the decisions to be included as part of the case plan for the child or young person to whom the conference relates. (6) Subject to this Act, the co-ordinator of a family group conference may determine the procedures of the conference. 25—Review of arrangements A family group conference co-ordinator (whether or not they were the co-ordinator of the original family group conference) must convene a family group conference for the purpose of reviewing the arrangements made for the care of a child or young person at a previous conference if— (a) they are required to do so pursuant to a valid decision made at the previous conference; or (b) 2 or more members of the child or young person's family who attended the previous conference request such a conference, and may convene such a conference at any other time the co-ordinator thinks necessary or desirable. 26—Chief Executive etc to give effect to decisions of family group conference (1) Subject to this Act, the Chief Executive and State authorities should, to the extent that it is consistent with section 7 to do so, exercise their powers and perform their functions so as to give effect to valid decisions made at a family group conference. (2) However, if valid decisions are made at a family group conference but not implemented or complied with, the Chief Executive may apply for such orders of the Court under section 53 in relation to the care of the child or young person as the Chief Executive considers appropriate. (3) Nothing in this section— (a) requires or authorises the Chief Executive or any other person to do something that is unlawful; or (b) requires or authorises the Chief Executive or any other person to not do something that is required to be done under another Act or law; or (c) creates legally enforceable rights or obligations on the part of the Crown, the Chief Executive, the child or young person or any other person. 27—Statements made at family group conference not admissible (1) Subject to subsection (2), evidence of any statement made at a family group conference is not admissible in any proceedings. (2) The written record of the decisions made at a family group conference is admissible in any proceedings for the purpose of establishing that those decisions were made. Part 3—Case planning 28—Chief Executive to prepare case plan in respect of certain children and young people (1) The Chief Executive must cause a plan (a case plan) to be prepared and maintained in respect of each prescribed child or young person. (2) Without limiting the matters that may be included in a case plan, each case plan must include such of the following parts as may be relevant to the prescribed child or young person's circumstances: (a) a part setting out decisions made at a family group conference; (b) a part setting out a cultural maintenance plan; (c) a part setting out a reunification plan; (d) a part setting out contact arrangements in respect of the child or young person; (e) a part setting out how disputes as to the matters included in the child or young person's case plan are to be resolved; (f) any other part required by any other provision of this Act or the regulations. (3) The Chief Executive may from time to time vary, substitute or revoke a case plan. (4) The regulations may make further provision in relation to the preparation of case plans (including, to avoid doubt, provisions requiring the Chief Executive to take certain steps in the course of preparing a case plan). prescribed child or young person—each of the following is a prescribed child or young person: (a) a child or young person who is under the guardianship of the Chief Executive pursuant to this Act; (b) a child or young person who is under the guardianship of a person other than the Chief Executive pursuant to this Act (other than a child or young person in relation to whom an order contemplated by section 91 placing the child or young person into the long-term guardianship of a person has been made); (c) a child or young person who is in the custody of the Chief Executive or another person pursuant to this Act; (d) a child or young person who is in the care of an approved carer pursuant to this Act; (e) any other child or young person prescribed by the regulations for the purposes of this definition. 29—Chief Executive etc to give effect to case plan (1) Each person or body engaged in the administration, operation or enforcement of this Act must, to the extent that it is consistent with section 7 to do so, exercise their powers and perform their functions so as to give effect to a prescribed child or young person's case plan. (2) However, a case plan does not create legally enforceable rights or obligations on the part of the Crown, the Chief Executive, a child or young person or any other person. Chapter 5—Children and young people at risk Part 1—Reporting of suspicion that child or young person may be at risk 30—Application of Part (1) The requirements under this Part are in addition to the duty of every person to safeguard and promote the outcomes set out in section 4(2), and in particular the outcome that children and young people be kept safe from harm. (2) To avoid doubt, compliance with the requirements of this Part does not necessarily exhaust a duty of care that may be owed to a child or young person by a person to whom this Part applies. (3) This Part applies to the following persons: (a) prescribed health practitioners; (b) police officers; (c) community corrections officers under the Correctional Services Act 1982; (d) social workers; (e) ministers of religion; (f) employees of, or volunteers in, an organisation formed for religious or spiritual purposes; (g) teachers employed as such in a school (within the meaning of the Education and Early Childhood Services (Registration and Standards) Act 2011) or a pre-school or kindergarten; (h) employees of, or volunteers in, an organisation that provides health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children and young people, being a person who— (i) provides such services directly to children and young people; or (ii) holds a management position in the organisation the duties of which include direct responsibility for, or direct supervision of, the provision of those services to children and young people; (i) any other person of a class prescribed by the regulations for the purposes of this subsection. (4) For the purposes of this Part, a reference to a person being employed will be taken to include a reference to a person who— (e) carries out work as a volunteer, and a reference to something occurring in the course of the person's employment is to be construed accordingly. prescribed health practitioners means— (a) medical practitioners; and (b) pharmacists; and (c) registered or enrolled nurses; and (d) dentists; and (e) psychologists; and (f) any other person prescribed by the regulations for the purposes of this definition. 31—Reporting of suspicion that child or young person may be at risk (1) A person to whom this Part applies must, if— (a) the person suspects on reasonable grounds that a child or young person is, or may be, at risk; and (b) that suspicion was formed in the course of the person's employment, report that suspicion, in accordance with subsection (4), as soon as is reasonably practicable after forming the suspicion. (2) However, a person need not report a suspicion under subsection (1)— (a) if the person believes on reasonable grounds that another person has reported the matter in accordance with that subsection; or (b) if the person's suspicion was due solely to having been informed of the circumstances that gave rise to the suspicion by a police officer or child protection officer acting in the course of their official duties; or (c) in any other circumstances prescribed by the regulations for the purposes of this subsection. (3) A person to whom this Part applies may (but need not), if— (a) the person suspects on reasonable grounds that the physical or psychological development of an unborn child is at risk (whether due to an act or omission of the mother or otherwise); and (b) that suspicion was formed in the course of the person's employment, report that suspicion in accordance with subsection (4). (4) A person reports a suspicion under this section by doing 1 or more of the following: (a) making a telephone notification to a telephone number determined by the Minister for the purposes of this subsection; Note— This telephone line is currently known as the Child Abuse Report Line or CARL. (b) making an electronic notification on an electronic reporting system determined by the Minister for the purposes of this subsection; (c) by reporting their suspicion to a person of a class, or occupying a position of a class, specified by the Minister by notice in the Gazette; (d) reporting their suspicion in any other manner set out in the regulations for the purposes of this paragraph, and, in each case, providing— (e) — (i) in the case of an unborn child—the name and address (if known) of the mother of the unborn child; or (ii) in any other case—the name and address (if known) of the child or young person; and (f) information setting out the grounds for the person's suspicion; and (g) such other information as the person may wish to provide in relation to their suspicion. (5) Nothing in this section prevents a person from also reporting or referring a matter to any other appropriate person or body under any other Act. (6) This section does not limit or derogate from any other provision of this or any other Act. Part 2—Responding to reports etc that child or young person may be at risk 32—Chief Executive must assess each report indicating child or young person may be at risk (1) The Chief Executive must cause— (a) each report under section 31; and (b) any other report or notification made to the Department that a child or young person may be at risk (however described and whether or not received under this Act), to be assessed in accordance with any requirements set out in the regulations. (2) The Chief Executive may, in the course of an assessment under this section, make use of or rely on such systems of information gathering, collating or reporting as the Chief Executive thinks fit (whether or not the system is operated or provided by a State authority). (3) Without limiting any other action that may be taken by the Chief Executive, the Chief Executive must, on completion of an assessment under this section, cause at least 1 of the following actions to be taken: (a) an investigation into the circumstances of the child must be carried out under section 34; (b) if the Chief Executive is satisfied that an investigation under section 34 is unnecessary, having regard to such of the circumstances of the child as may already be known to the Chief Executive, an alternative response that, in the opinion of the Chief Executive, more appropriately addresses the risk to the child or young person must be implemented; (c) the matter must be referred to an appropriate State authority under section 33; (d) if the Chief Executive is satisfied that— (i) the matter has previously been dealt with under this or any other Act and there is no reason to reexamine the matter; or (ii) the matter is trivial, vexatious or frivolous; or (iii) there is good reason why no action should be taken in respect of the matter, the Chief Executive may decline to take further action. (4) The Chief Executive must, in accordance with any requirements set out in the regulations— (a) cause a record of each action taken under this section, and the reasons for the action, to be kept in relation to each report or notification made to the Department; and (b) include statistical information relating to action taken under this section to be included in the annual report of the Chief Executive under the Public Sector Act 2009. (5) The regulations may make further provision in relation to an assessment under this section (including provisions relating to a system referred to in subsection (2) and the disclosure and confidentiality of information gathered, collated or provided under the system). 33—Chief Executive may refer matter (1) If, following an assessment of a matter under section 32, the Chief Executive determines that it is more appropriate that a State authority other than the Department deal with the matter, or with a particular aspect of the matter, the Chief Executive must refer the matter to that State authority. (2) To avoid doubt— (a) a matter may be referred to more than 1 State authority; and (b) a matter may be dealt with under this section even if it is referred to a State authority under another Act. (3) The Chief Executive may, if the Chief Executive considers it appropriate, give directions or guidance in relation to a matter to a State authority to which the matter is referred. (4) Without limiting this section or any other Act or law, a State authority to which a matter is referred must deal with the matter in a timely manner, having regard to the need to ensure that children and young people are protected from harm. 34—Chief Executive may investigate circumstances of a child or young person (1) Subject to this Act, the Chief Executive may cause an investigation into the circumstances of a child or young person to be carried out— (a) if a report is made under section 31 and the Chief Executive suspects on reasonable grounds that the child or young person may be at risk; or (b) in any other circumstances that the Chief Executive thinks appropriate. (2) The Chief Executive must cause an investigation into the circumstances of a child or young person to be carried out if the Chief Executive issues an instrument of guardianship or a restraining notice in relation to a child or young person. (3) The regulations may make further provisions in relation to an investigation under this section. 35—Chief Executive may direct that child or young person be examined and assessed (1) This section applies to a child or young person— (a) who is, having been removed under section 41, in the custody of the Chief Executive; or (b) in relation to whom an order of the Court under section 53 authorising examination or assessment is in force; or (c) in relation to whom an instrument of guardianship or a restraining notice is in force; or (d) in any other circumstances prescribed by the regulations. (2) If the Chief Executive is of the opinion that it is necessary or desirable that a child or young person to whom this section applies be professionally examined or assessed, the Chief Executive may, by notice in writing, direct the child or young person to undergo such examination or assessment as may be specified in the notice. (3) If the Chief Executive gives a direction under subsection (2), an employee of the Department may take the child or young person to such persons or places (including admitting the child or young person to hospital) as may be specified in the notice for the purpose of having the child or young person professionally examined, assessed or treated. (4) Without otherwise limiting any Act or law regulating a particular health profession, a person to whom a child or young person is taken under this section may give such treatment to the child or young person as the person thinks necessary for alleviating any immediate injury or suffering of the child or young person. (5) Without otherwise limiting the Consent to Medical Treatment and Palliative Care Act 1995, a person who is to examine, assess or treat a child or young person in accordance with this section may do so despite the absence or refusal of the consent of the child or young person's parents or guardians. (6) A person who examines, assesses or treats a child or young person in accordance with this section must, as soon as practicable after doing so, provide to the Chief Executive a written report on the examination, assessment or treatment. 36—Chief Executive may direct person to undergo certain assessments (1) If the Chief Executive reasonably suspects that a child or young person is at risk as a result of the abuse of a drug or alcohol (or both) by a parent, guardian or other person, the Chief Executive may, by notice in writing, direct the parent, guardian or other person to undergo an approved drug and alcohol assessment. (2) If the Chief Executive reasonably suspects that a child or young person is at risk as a result of a lack of parenting capacity on the part of a parent, guardian or other person who has, or is responsible for, the care of the child or young person, the Chief Executive may, by notice in writing, direct the parent, guardian or other person to undergo an approved parenting capacity assessment. (3) A person must not refuse or fail to comply with a direction under this section. (4) A notice under this section must set out the information required by the regulations for the purposes of this subsection. (5) The regulations may make further provision in relation to assessments under this section (including, to avoid doubt, provisions requiring the results of an assessment to be provided to the Chief Executive or some other specified person or body). (6) For the purposes of this section, a reference to an approved drug and alcohol assessment will be taken to be a reference to a drug and alcohol assessment of a kind approved by the Chief Executive by notice in the Gazette. (7) For the purposes of this section, a reference to an approved parenting capacity assessment will be taken to be a reference to a parenting capacity assessment of a kind approved by the Chief Executive by notice in the Gazette. 37—Random drug and alcohol testing (1) This section applies to— (a) a person who has, in the preceding 5 years, been directed by the Chief Executive to undergo an approved drug and alcohol assessment under section 36(1); or (b) a person who was, in the preceding 5 years, the subject of an application for an order under section 20(2) of the Children's Protection Act 1993 (whether or not the application was granted); or (c) any other person of a class declared by the regulations to be included in the ambit of this subsection. (2) A person to whom this section applies must, in accordance with the scheme set out in the regulations, take part in random drug and alcohol testing. (3) Without limiting any other regulations that may be made in relation to the scheme for random drug and alcohol testing, the regulations must include provisions— (a) authorising the taking of forensic material consisting of hair or blood for the purposes of this Act; and (b) requiring such forensic material to be tested to identify any drug or alcohol that may be present in the material; and (c) requiring or authorising the results of such testing to be provided to the Chief Executive or other specified person or body. (4) The Chief Executive may, in relation to random drug and alcohol testing under this section, by notice in writing, require a person to whom this section applies to take the action, and within the period, specified in the notice. (5) A person to whom this section applies must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. (6) A person is not entitled to refuse or fail to comply with a requirement under this section on the ground that the person would, or might, by complying with that requirement, provide evidence that could be used against the person. (7) To avoid doubt, for the purposes of the Criminal Law (Forensic Procedures) Act 2007, the taking of forensic material in the course of a random drug and alcohol test is authorised under this Act. 38—Chief Executive may direct certain persons to undertake rehabilitation program (1) The Chief Executive may, by notice in writing, direct a person to whom section 37 applies to undertake an approved drug and alcohol rehabilitation program of a kind specified in the notice. (2) A person must not, without reasonable excuse, refuse or fail to comply with a direction under subsection (1). (3) A notice under subsection (1) must set out the information required by the regulations for the purposes of this subsection. (4) For the purposes of this section, a reference to an approved drug and alcohol rehabilitation program will be taken to be a reference to a drug and alcohol rehabilitation program of a kind approved by the Chief Executive by notice in the Gazette. 39—Forensic materials not to be used for other purposes and test results inadmissible in other proceedings (1) Forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program must not be used for a purpose other than a purpose contemplated by this Act. (2) The results of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program— (a) will not be admissible in evidence against the person to whom the results relate, other than in proceedings for an order of the Court under this Act; and (b) may not be relied on as grounds for the exercise of any search power or the obtaining of any search warrant. 40—Destruction of forensic material The Chief Executive must ensure that any forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program is destroyed in accordance with any requirements set out in the regulations. Part 3—Removal of child or young person 41—Removal of child or young person (1) Subject to this section, if a child protection officer believes on reasonable grounds that— (a) a child or young person has suffered, or there is a significant possibility that a child or young person will suffer, serious harm; and (b) it is necessary to remove the child or young person from that situation in order to protect them from suffering serious harm or further serious harm; and (c) there is no reasonably practicable alternative to removing the child or young person in the circumstances, the child protection officer may remove the child or young person from any premises, place, vehicle or vessel using such force (including breaking into the premises, place, vehicle or vessel) as is reasonably necessary for the purpose. (2) Without limiting the generality of subsection (1), the regulations may set out circumstances in which 1 or more of the requirements under that subsection will be taken to have been satisfied. (3) A child protection officer who is a police officer below the rank of inspector may only remove a child or young person under this section with the prior approval of a police officer of or above the rank of inspector. (4) A child protection officer who is an employee of the Department may only remove a child or young person from the custody of a parent or guardian of the child or young person with the Chief Executive's prior approval. (5) Subsections (3) and (4) do not apply if the child protection officer believes on reasonable grounds that the delay involved in seeking prior approval would significantly increase the risk of serious harm, or further serious harm, being caused to the child or young person. 42—Action following removal of child or young person A child protection officer who removes a child or young person under section 41 must return them to the custody of a parent or guardian unless— (a) the child or young person is already under the guardianship, or in the custody, of the Chief Executive; or (b) the child protection officer reasonably suspects that, if they were returned to the custody of a parent or guardian, the child or young person would be at risk, in which case the child protection officer must deliver the child or young person into the care of a person or persons determined by the Chief Executive. 43—Custody of removed child or young person (1) If the Chief Executive does not already have custody of a child or young person who is removed under section 41, the Chief Executive, by force of this section, has custody of the child or young person until— (a) the child or young person is returned to the custody of a parent or guardian, or delivered into the care of a person determined by the Chief Executive, under section 42; or (b) the end of the fifth business day following the day on which the child or young person was removed, (whichever is the earlier). (2) However, subject to the regulations, the Chief Executive may exercise a power under this Act in respect of a child or young person delivered into the care of a person determined by the Chief Executive under section 42 as if the child or young person were in the custody of the Chief Executive. Part 4—Chief Executive to assume guardianship of child or young person where parent found guilty of certain offences 44—Interpretation In this Part— guardianship period means the period commencing at the time an instrument of guardianship— (a) is served on the offender in accordance with section 45(4)(a); or (b) is lodged with the Court in accordance with section 45(4)(b), whichever occurs first, and ending 60 days later (or such longer period as may be allowed by the Court on an application under section 47); instrument of guardianship—see section 45(1); parent, of a child or young person, does not include a step-parent of the child or young person; qualifying offence means any of the following offences (whether committed before or after the commencement of this Part) where the victim was a child or young person and the offender was a parent or guardian of the child or young person: (a) murder; (b) manslaughter; (c) an offence against section 14 of the Criminal Law Consolidation Act 1935 (criminal neglect); (d) an offence against section 23 of the Criminal Law Consolidation Act 1935 (causing serious harm); (e) an offence against section 29(1) or (2) of the Criminal Law Consolidation Act 1935 (acts endangering life or creating risk of serious harm); (f) an offence constituted of an attempt to commit an offence referred to in a preceding paragraph; (g) an offence prescribed by the regulations for the purposes of this paragraph; (h) an offence under the law of another jurisdiction that corresponds to an offence referred to in a preceding paragraph; restraining notice—see section 46(1); restraining notice period means the period commencing at the time at which the restraining notice is served on the offender in accordance with section 46(4)(a) and ending 60 days later (or such longer period as may be allowed by the Court on an application under section 47). 45—Temporary instruments of guardianship (1) The Chief Executive must, if the Chief Executive becomes aware that a child or young person born after the commencement of this subsection is residing with a parent of the child or young person who has been found guilty of a qualifying offence (the offender), issue an instrument under this section (an instrument of guardianship) in respect of the child or young person. (2) If the Chief Executive issues an instrument of guardianship, the child or young person specified in the instrument will, for all purposes, be under the guardianship of the Chief Executive during the guardianship period. (3) Subsection (2) applies subject to an order of the Court under this Act to the contrary. (4) An instrument of guardianship issued in relation to an offender— (a) must be served on the offender as soon as practicable after it has been issued; and (b) must be lodged with the Court in accordance with the rules of the Court (and may be so lodged whether or not it has been served in accordance with paragraph (a)). (5) Subject to subsection (6), this Act applies to an instrument of guardianship, while it remains in force, as if it were an order of the Court under section 53 and as if the parties to that order were— (a) the parents of the child or young person to whom the instrument relates; and (b) the child or young person to whom the instrument relates; and (c) a person who would, but for the instrument, have had custody or guardianship of the child or young person to whom the instrument relates; and (d) the Chief Executive. (6) Until the application required under section 50(1) in relation to an instrument of guardianship is made to the Court, any application to the Court under section 55 in relation to the instrument may only seek to vary arrangements for the care of the child or young person. (7) For the purposes of this section, a newborn child who has not yet been discharged from hospital will be taken to be residing with a person if the child is likely to reside with the person on being discharged. 46—Restraining notices (1) The Chief Executive must, if the Chief Executive becomes aware that a child or young person is residing, or is about to reside, with a person (not being a parent of the child or young person) who has been found guilty of a qualifying offence (the offender), issue a notice under this section (a restraining notice) to the offender, unless the Chief Executive is of the opinion that it is inappropriate to do so in the circumstances. (2) A restraining notice may prohibit the offender from doing 1 or more of the following: (a) residing in the same premises as the child or young person; (b) coming within a specified distance of the residence of the child or young person; (c) having any contact with the child or young person (except in the presence of a specified person or class of person); (d) having any contact at all with the child or young person, during the restraining notice period. (3) Subsection (2) applies subject to an order of the Court under this Act to the contrary. (4) A restraining notice issued in relation to an offender— (a) must be served on the offender as soon as practicable after it has been issued; and (b) must be lodged with the Court in accordance with the rules of the Court (and may be so lodged whether or not it has been served in accordance with paragraph (a)). (5) A person who contravenes or fails to comply with a restraining notice is guilty of an offence. Maximum penalty: Imprisonment for 2 years. (6) A person does not commit an offence against subsection (5) in respect of an act or omission unless the person knew that the act or omission constituted a contravention of, or failure to comply with, the notice or was reckless as to that fact. (7) For the purposes of this section, a newborn child who has not yet been discharged from hospital will be taken to be residing with a person if the child is likely to reside with the person on being discharged. 47—Court may extend period The Court may, on application by the Chief Executive, extend the guardianship period or the restraining notice period if satisfied that it is appropriate to do so. 48—Certain information to be provided to Chief Executive A court that finds a person guilty of a qualifying offence must ensure that the prescribed information relating to the finding of guilt is provided to the Chief Executive as soon as practicable after the person is found guilty.