The police, a child or young person themselves, or an adult on their behalf, can apply to the Magistrates Court for an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) if a child or young person is at risk of being abused by someone. See Intervention Orders.
Child protection restraining orders – against non-guardian adults
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 2004 Mullighan Inquiry into Children in State Care recommended this specific measure 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).
Restraining notices – against non- guardian adults
Where a child or young person is residing with someone who has been found guilty of a qualifying offence the Department for Child Protection must issue a restraining notice in respect of the child or young person [ss 45-46].
A qualifying offence is defined under section 44 and includes the following offences where the victim was a child or young person and the offender was their parent or guardian:
- criminal neglect;
- causing serious harm;
- acts endangering life or creating risk of serious harm.
A restraining notice may prohibit the offender from residing at the same premises as the child or young person, coming within a certain distance of the premises or contacting the child or young person for 60 days period (or longer as may be set by the Youth Court) [s 46(2)].
It is an offence not to comply with a restraining notice and the maximum penalty is imprisonment for two years [s 46(5)].
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 46(7)].
Restraining notices are similar to restraining orders for the offender in effect, but they are issued by the Department rather than the court, and only when the person with whom the child or young person is residing has been found guilty of a qualifying offence, not for reasons broader than that. There is also no provision for review or appeal. For the child or young person, the effect of the restraining notice is that the Department must make an application for a care and protection order as soon as possible [s 50(1) and (2)]. See When is a Care and Protection order made?
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.