17.7 Enacting a Queensland warrant in another state or territory
Purpose
This procedure outlines the process for Queensland to enact a warrant to recover a child, who is currently in another state or territory (jurisdiction).
Authority
- Child Protection Act 1999, section 171 and 172
- Service and Execution of Process Act 1992
- Interstate Child Protection Warrants Protocol (21 March 2002)
Introduction
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 'Interstate child protection warrants protocol' (Warrants Protocol).
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 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; and
- ensure that a departmental staff member is available to travel interstate at the time of the child's apprehension.
Warrant process - Queensland enacting our warrant in another jurisdiction
The process for recovering a child subject to a child protection order in Queensland from another jurisdiction, using the warrant process, is outlined below:
- 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 can not be obtained if the child has voluntarily moved interstate, for example, a 15 year old voluntarily moving 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 for guidance regarding the procedures to be followed. The ILO will not make decisions for the CSSC, but will guide and assist with the decision making and recovery process.
- If it is agreed that the child should be recovered via the warrant process, 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 Queensland 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 from
their placement. - 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 the interstate child welfare department's staff 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 warrant order to return 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 in order 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. They 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: This process 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.
Additional notes
- Sometimes assistance is requested from the other jurisdiction's child protection department with attending court. This would normally only occur when the Queensland CSO travelling to the other jurisdiction is delayed.
- 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 handed to the Queensland CSO as soon as possible.
- Sometimes Queensland may request the other jurisdiction assist, by placing the child with departmental carers while waiting for the Queensland worker to arrive to take custody of the child.
There have been issues in the past with the recovery of children from Victoria, where the magistrates sometimes treat the request for recovery as a child protection matter. In these cases the magistrate will place the child on a Victoria 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 sidetracks the issue away from an 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 Victoria police and the Queensland CSO needs to remind the Victorian Magistrate that in accordance with the 'Warrants Protocol', all that is required is for an order to be made to return the child to Queensland. The Victoria child protection workers can be called on to provide support if there is an IAO made, as custody in this circumstance is given to their department not ours.
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- Last updated
- 30 June 2007
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