The 2004 Mullighan Inquiry into Children in State Care recommended specific measures to protect runaway children, including wards of the state. These children often end up in exploitative relationships with adults who are not their guardians but who provide food, money, accommodation or drugs in exchange for sexual or other services from the child (including selling drugs for the adult).
Child Protection Restraining Orders
Under s 99AAC of the Criminal Procedure Act 1921 (SA), police can apply to the Youth Court for an order restraining a non-guardian adult who has been living with a child from living with or having any contact with the child. Before granting such an order the Court must be satisfied that the child’s contact or residence with the adult puts him or her at risk of sexual, physical, psychological or emotional abuse or neglect. If a child is at risk of offending against part 5 of the Controlled Substances Act 1984 (SA) (i.e. offences relating to controlled drugs) risk will also be made out. In addition to a restraining order the Court may also make other orders providing for the temporary placement of the child.
The police, a child themselves, or an adult on behalf of a child, can alternatively apply to the Magistrates Court for an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) if a child is at risk of being abused by someone. See Intervention Orders.
Temporary guardianship instruments and restraining notices
Where a child is residing with a parent who has been found guilty of a qualifying offence the Department for Child Protection must issue an instrument of guardianship or a restraining notice in respect of the child [s 44B].
A qualifying offence is defined under section 44A and includes the following offences where the victim was a child and the offender was a parent or guardian of the child:
- criminal neglect;
- causing serious harm;
- acts endangering life or creating risk of serious harm.
A restraining order may prohibit the offender from residing at the same premises as the child or coming within a certain distance of the premises. It may also limit any contact with the child other than that occurring in the presence of a specified person or class of person or may prohibit any contact at all [s 44B(4)].
It is an offence not to comply with a restraining notice and the maximum penalty is imprisonment for two years [s 44B(8)].
Special provisions exist for newborn children who have yet to be discharged from hospital but who will be taken to be residing with a person guilty of a qualifying offence [s 44B(10)].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.