6.6 Applying for a long-term guardianship order
Introduction
This procedure outlines the decision-making process regarding an application for a child protection order granting long-term guardianship.
Authority
- Child Protection Act 1999, section 5, 6, 12, 13, 54, 59, 61(f)
- Child Protection Regulation 2000, section 9
- Policy No. 369-1: Participation in Decision-making - Children and Young People in Alternative Care
- Policy No. 365-1: Fostering Allowance payments
- Policy No. 296-2: High Support Needs Allowance
- Policy No. 323-1: Expenses - Child Related Costs: Medical
- Policy No. 320-2: Expenses - Child Related Costs: Outfitting
- Policy No. 321-1: Expenses - Child Related Costs: Personal Assistance
- Policy No. 322-2: Expenses - Child Related Costs: Travel
- Policy No. 295-2: Complaints System
- Policy No. 395-1: Administrative access to child safety records
Long-term guardianship orders
Child protection orders granting long-term guardianship are made by the Childrens Court to:
- a suitable family member, other than a parent of the child; or
- another suitable person nominated by the department (for example, a foster carer); or
- the chief executive.
The Childrens Court can only grant a long-term guardianship order to a suitable person, who is not a member of the child's family, if:
- a short-term custody or guardianship order already exists in relation to the child; and
- the proposed guardian is nominated by the chief executive.
A decision about seeking a long-term guardianship order can only occur after a period of case planning and active intervention with the family, to resolve the child's protection and care needs. The outcome of the family reunification assessment will guide the CSO in deciding when it is appropriate to cease working towards reunification and pursue alternative long term out-of-home care for the child.
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When to apply for an order granting long-term guardianship section 61(f)
The CSO will apply to the Childrens Court for a child protection order granting long-term guardianship when it can be demonstrated that:
- efforts have been made to locate both parents; and
- intervention has occurred to assist the family towards resuming the care of the child in a timely way (an exception to this is where there is no parent available or the parent demonstrates an inability to meet the child's protection and care needs, for example, due to a significant intellectual disability); and
- the family reunification assessment recommends that a long-term out-of-home care placement be pursued; and
- the child's need for emotional security and stability will be best met in the long-term by the order. It is critical that the CSO takes into account the outcome of the family reunification assessment.
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Assessment prior to an application to the court
When considering an application to the Childrens Court for a child protection order granting long-term guardianship, the CSO (or other departmental officer nominated by the CSSC manager or zonal director) will undertake an assessment, and prepare a report, which addresses child, family and carer factors.
The CSO is to make an assessment based on all relevant information from departmental records and interviews with relevant stakeholders. The assessment is to be documented and recorded in a report, and must include information about the following factors:
- the child's views about their care. Consideration should be given to their age, developmental stage, ability to understand, their attitude towards daily care and decision-making by their carer and the proposed change in guardianship;
- information from the child's strengths and needs assessment/s, including any special needs, such as the need for treatment or therapeutic intervention in relation to the harm which the child has experienced;
- the outcome of previous family reunification assessments;
- the quality of the relationship and attachment the child has with the carer/s;
- the quality of the relationship and attachment between the child and the parents, siblings, extended family members and other persons of importance to the child;
- ongoing contact arrangements with family members and other persons of significance to the child, including the likely future maintenance of such relationships; and
- cultural considerations and how the decision to grant long-term guardianship may impact on the child's identity and/or future links to their community of origin.
When the application is in relation to an Aboriginal or Torres Strait Islander child the recognised entity must be given an opportunity to participate in the decision-making process with regard to a possible application and the factors outlined above.
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The CSO is to take into account, and document in the assessment report, the following family factors:
- the efforts made to work with the family to resolve the child's protection and care needs in a timely way;
- opportunities for parents and significant family members to participate in decision-making;
- the parent/s views about the proposed change in guardianship;
- the views of the child's siblings, in relation to the quality of their relationship with the proposed long-term carer;
- the views of other family or community members of significance to the child;
- ongoing family contact arrangements, including contact with siblings and extended family or community members, and the likely future maintenance of such arrangements;
- any safety issues associated with family contact;
- the quality of the parent/s, family members or other significant person's relationship with the child's carer;
- case planning decisions in relation to siblings, who may also be subject to child protection orders; and
- cultural considerations of importance to parents, extended family members and other persons of significance to the child.
The CSO is to take into account, and document in the assessment report, the following carer factors:
- the ability of the carer/s to meet the care needs of the child with a reduced level of intervention, including:
- the carer/s ability to provide care in accordance with the legislated statement of standards as outlined in the Child Protection Act 1999, section 122;
- details regarding matters of concern relating to the carer and their care of the child subject to the application for long-term guardianship, and/or other children currently or previously placed with the carer;
- all child protection history relating to the carer and the carer/s own children, including previous or current matters of concern; and
- the frequency and level of departmental support (including financial support), currently provided to the placement;
- the willingness and capacity of the child's carer to take on the responsibilities of guardianship, including:
- potential guardianship decisions to be made by the carer, having regard to ongoing participation and information provision principles and requirements of the Child Protection Act 1999;
- ongoing financial responsibilities specific to the level or nature of the child's needs;
- the quality of the carer/s relationship with the child's siblings, parents, extended family or community and other persons of significance to the child, including conflict or difficulties considered likely to jeopardise the stability of the placement;
- the capacity of the carer to facilitate positive ongoing contact and relationships between the child and their family and community;
- the ability and commitment of the carer to maintain a sense of personal history, identity and culture for the child, including connections with culturally appropriate persons or activities;
- the quality of the relationship and level of attachment the carer displays for the child; and
- the ongoing stability of the placement and the likelihood that the carer will maintain their commitment and guardianship responsibilities until the child attains independence.
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Additional financial considerations
During the assessment process the CSO will negotiate, and reach agreement with the proposed carer, about current ongoing child related costs and allowances, to be met by the department, should the application proceed and be granted by the Childrens Court.
Carers who are granted long-term guardianship will continue to receive fostering allowance payments for the child, and where eligible, high support needs allowances and child related costs, approved by the delegated officer (CSSC manager or zonal director). The level of financial support for a child may change over time and will require periodic review and renegotiation with the carer.
Special considerations regarding respite
When a person is granted long-term guardianship of a child, the department no longer has the legal authority to place the child for the purpose of respite. In circumstances where it is agreed that a respite placement is critical to the likely future stability of the long-term placement, the department may provide financial support on an invoice basis, through child related costs.
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Recommendation
The assessment report will provide information relating to the carer/s suitability as a proposed guardian, incorporating the following:
- an assessment in relation to the carer/s ability and willingness to meet the legislative requirements under the Child Protection Act 1999, section 79 and 80;
- an assessment of the carer/s ability to meet the long-term protection and care needs of the children in the context of the identified child, family and carer factors
- details of any concerns identified in the assessment process;
- whether the application is supported by the recognised entity for an Aboriginal and Torres Strait Islander child; and
- a recommendation about whether to proceed with an application and summary of reasons.
Approval process
A draft memorandum requesting approval for an authorised officer to apply for a child protection order granting long-term guardianship is to be provided to the senior practitioner for consultation and feedback prior to being finalised.
Following consultation with the senior practitioner and prior to submitting the memorandum, assessment report and recommendations to the zonal director, the CSO is to:
- advise all key stakeholders in writing of the assessment outcome, recommendation/s and rationale for decisions, in consultation with their team leader or manager;
- invite stakeholders to provide the CSSC manager with a written response to the department's assessment outcome and recommendations (a minimum period of two weeks is to be allowed for the response); and
- meet with the child (having regard to age and developmental ability) to:
- discuss the child's understanding of the assessment outcome and recommendation/s; and
- determine and respond to the child's support needs, in relation to their ability/capacity as a stakeholder to provide a written response to the departmental decision/recommendation/s.
Upon receipt of all responses provided by stakeholders, the CSSC manager is to ensure that the memorandum, assessment report and stakeholder submissions are forwarded to the zonal director.
The zonal director is to consider all the information provided with regard to the application for long-term guardianship and complete the 'Decision-making when applying for child protection orders and granting long-term guardianship' form, for the purpose of deciding whether the application is to proceed to the Childrens Court.
The zonal director may consider and seek a review of the CSSC recommendation.
Information provision requirements
Following the decision about whether the department intends to proceed with an application for long-term guardianship, the CSO is to:
- discuss the decision and reasons with all relevant stakeholders, including the child;
- where applicable, ensure that all stakeholders are informed of available mechanisms, should they wish to have the decision reviewed, including advice about:
- the departmental complaints system (where requested, provide the department's brochure 'Do you have a complaint about the Department of Child Safety?'); and
- the Commission for Children and Young People and Child Guardian's complaints unit (where requested, direct stakeholders to the Commission for Children and Young People and Child Guardian's website for 'information brochures');
- provide written advice of the decision and rationale to stakeholders who disagree with the decision (including a brief summary of how to access the above-mentioned review mechanisms); and
- where applicable, consider and implement necessary supports for the child, their family and the carer/s, to minimise any negative impact of the decision to proceed or not proceed with an application for long-term guardianship.
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- Last updated
- 22 September 2008
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