4. Enacting a warrant

The Child Protection Act 1999, section 171, allows for the recovery of children who have been unlawfully removed from Queensland. The Interstate Child Protection Warrants Protocol (21 March 2002) (Warrants Protocol) has been signed by all Australian states and territories. It supports the Queensland legislation and provides some guidelines for the recovery from interstate of children subject to Queensland orders. Interstate jurisdictions are guided by their own legislation as to their implementation of the Warrants Protocol to recover children from Queensland. Warrants are enacted interstate under the Commonwealth Service and Execution of Process Act 1992 (SEPA).

4.1 Enacting a warrant from another state or territory in Queensland

When another jurisdiction advises that they have a valid warrant for the return of a child subject to a child protection order, and the child has been located in Queensland, the child may be recovered from Queensland utilising the Warrants Protocol.

The order made by the Magistrate in relation to recovery of a child using the Warrants Protocol/SEPA is not an order made under the Child Protection Act 1999, and there is no provision for any Queensland child protection orders to be enacted in this process. For example, a TAO cannot be made to return the child to the original jurisdiction.

Recovering the child

When seeking to recover a child subject to a child protection order in another state or territory from Queensland, the Queensland ILO will:

  • refer to the Warrants Protocol for the recovery of a child
  • follow the procedures for the recovery of a child outlined in the warrant process below, in consultation with the other jurisdiction's ILO
  • advise the CSSC of any action required to assist the interstate office to assume custody of the child in Queensland.

Warrant process - another jurisdiction enacting its warrant in Queensland

The warrant process is outlined below:

  • the child protection worker in the other jurisdiction, or the other jurisdiction’s ILO will contact the Queensland ILO to advise of the warrant being issued in their jurisdiction to recover a child from Queensland
  • once the child has been located, the worker will provide the police in their jurisdiction with the warrant
  • the police officer will contact the QPS (preferably the Child Protection and Investigation Unit) in the local area where the child has been located, and notify them of the warrant and request that they execute the warrant under the Service and Execution of Process Act 1992
  • the interstate worker will contact the relevant Queensland police officer to make arrangements for the QPS to execute the warrant and remove the child
  • the interstate worker will make arrangements to be in Queensland at the time the warrant is being executed to assist the QPS and to attend the Childrens Court
  • the interstate worker/ILO will notify the Queensland ILO of the arrangements made and who they have contacted at the QPS
  • the Queensland ILO will liaise with the QPS to ensure that they are aware of the correct process
  • at the earliest opportunity, the QPS are to present the warrant and the child at the local Childrens Court or Magistrate’s Court for a Magistrate to make an order (see Example of order to be made - Returning child to another jurisdiction) to return the child to the custody of the worker from the other jurisdiction
  • the worker from the other jurisdiction should be present at the court so that the Magistrate can make the order returning the child to their custody immediately. They must have a copy of the warrant and a copy of the child protection order for the child at court.

Note: If there has been a delay in the other jurisdiction's worker arriving in Queensland for the court appearance, the other jurisdiction may request that a Queensland worker attend court on their behalf. In this instance it is possible for the Magistrate to make an order giving temporary custody of the child to a Queensland CSO or other departmental officer, with the child to be returned to the other jurisdiction's care as soon as possible. In this circumstance, the child may be placed with approved foster carers in Queensland, and the department may request payment for the care of the child.

The Queensland ILO must be involved in all interstate warrant matters, especially if an interstate jurisdiction contacts a CSSC directly to recover a child from Queensland.

Placement of child in Queensland

At times, the department may be asked to assist with placing the child with departmental carers while waiting for the other jurisdiction's worker to arrive in Queensland to take custody of the child.

4.2 Enacting a Queensland warrant in another state or territory

When a child subject to a child protection order in Queensland has been unlawfully removed or withheld from a person's custody or guardianship in Queensland, and is currently in another state or territory, the child may be recovered from the other state or territory using the Warrants Protocol.

Recovering the child

When seeking to recover a child subject to a child protection order in Queensland from another state or territory, the CSO will:

  • follow the procedure outlined below, in consultation with the Queensland ILO
  • apply for a warrant under the Child Protection Act 1999, section 171
  • refer to the Child Protection Act 1999, section 172, for an explanation of the matters the court must be satisfied with before a warrant can be issued
  • ensure that a departmental staff member is available to travel interstate at the time of the child's apprehension.

Warrant process - Queensland enacting its warrant in another jurisdiction

A warrant for the recovery of a child from another jurisdiction can only be made when the child has been unlawfully removed or withheld from a person's custody or guardianship under the Child Protection Act 1999, section 171(1). A warrant for recovery cannot be obtained if the child has moved interstate of their own volition, for example, a 15 year old leaves out-of-home care without permission and moves interstate to live with her boyfriend.

The child must be located interstate before the warrant recovery process can be initiated. If the child's whereabouts are not known, the child must be listed as a missing person with the QPS, who will then notify their interstate colleagues.

Once the child has been located interstate, and a decision has been made by the CSSC that the child is to be returned to Queensland, it is best to try to negotiate with all parties to see if the child can be returned without the instigation of the warrant process. If this is not successful and a decision is made to return the child to Queensland using the warrant process, the Queensland CSO should contact the Queensland ILO to discuss the process and seek guidance regarding the procedures to be followed. The Queensland ILO will not make decisions for the CSSC, but will provide informed advice to guide and assist with the decision making and recovery process.

The process of enacting a warrant is about returning the child to the jurisdiction which holds the child protection order, and any argument in the interstate court should not centre on whether the child needs to be subject to a child protection order, or where various family members are currently residing.

If it is agreed that the child should be recovered via the warrant process, the process outlined below will occur:

  • the CSO will complete a Form 27 - Application for warrant for apprehension of child and make an application to the Childrens Court for a warrant to be issued for the apprehension of the child from another jurisdiction
  • the CSO will provide the QPS in their local area with the warrant
  • the Queensland police officer will contact the local police station in the interstate jurisdiction where the child has been located, notifying them of the warrant and requesting that they execute the warrant under the Service and Execution of Process Act 1992 on Queensland's behalf. The Queensland police officer will then fax the warrant to the interstate police station and arrange for the original to be sent by express post to the interstate police officer
  • the CSO will contact the relevant police officer in the other jurisdiction to make arrangements for the warrant to be executed and the child removed. Only the interstate police can execute the warrant, and they must bring the child before the nearest Magistrate as soon as possible after the child is apprehended
  • the CSO will make arrangements to be in the other jurisdiction at the time the warrant is being executed to assist the police, and to attend the Childrens Court. It is important that the appropriate departmental approvals for interstate travel of staff are sought and flights and rental cars booked in advance, prior to the interstate police uplifting the child and appearing at court
  • the CSO will notify the Queensland ILO of the arrangements made and who they have contacted from the other jurisdiction's police force. At all times the CSO or CSSC manager remains the contact point for the police
  • the Queensland ILO will contact the other jurisdiction's ILO to advise them of the situation and to ensure that they are aware of the correct process, as well as assisting with any requests the department may have of staff of the interstate child protection department in the local area
  • upon agreement between the CSSC and the interstate police, the police will remove the child from the placement, and at the earliest opportunity, present the warrant and the child at the local Childrens Court for a Magistrate to make an order (see Example of order to be made - Returning child to Queensland) to return the child to the custody of the Queensland CSO. This order is only about returning the child to Queensland and placing the child in the custody of the Queensland CSO for this to happen - it is not to be a new child protection order
  • the Queensland CSO is to be present at the court so that the Magistrate can make the order returning the child to their custody immediately. The CSO must have a copy of the warrant and a copy of the child's child protection order at court. It is also advisable to have a copy of the Child Protection Act 1999.

Note: If there has been a delay in the CSO travelling to the other jurisdiction for the court appearance, the department may request that a worker from the other jurisdiction attends court on behalf of the department. In this instance it is possible for the Magistrate to make an order giving temporary custody of the child to a child protection worker in the other jurisdiction, with the child to be returned to the Queensland CSO as soon as possible.

Placement of a child in another jurisdiction

At times, the department may request that the other jurisdiction places the child with carers, until the Queensland worker arrives to take custody of the child. The department may be asked to pay for this placement.

The recovery of children from Victoria

There have been issues in the past with the recovery of children from Victoria, where the Magistrate has sometimes treated the request for recovery as a child protection matter. In these cases the Magistrate will place the child on a Victorian Interim Accommodation Order (IAO) and will adjourn the matter while the child is appointed a child representative and argument may then centre on whether the child needs to be subject to a Queensland order. This delays enforcement of the order to return the child to Queensland.

If the child's family members are in Victoria, the child representative will more than likely argue that the child should remain in Victoria where the family is and the Queensland CSO may be required to fly back and forth between Victoria and Queensland while the court process takes place. The Victorian police and the Queensland CSO should draw the Victorian Magistrate's attention to the 'Warrants Protocol', and all that is required is for an order to be made to return the child to Queensland. The Victorian child protection workers can be called on to provide support if there is an IAO made, custody in this circumstance is given to the Victorian department not the Queensland department.

The recovery of children from New South Wales

Under the Children and Young Persons (Care and Protection) Act 1998 (New South Wales), section 231Z(1)(c), the department may request that a child on a Queensland child protection order be returned to Queensland. A letter from the Queensland regional director to the New South Wales regional director is required. This option can be used when a child has self-placed in New South Wales and a warrant for the child’s return can not be sought under the Child Protection Act 1999. Liaise with Queensland ILO for further discussion when considering using this process.

At all times it is imperative that the Queensland ILO is involved in all interstate warrant matters from the outset.