A SGO is an order that appoints one person or two individuals jointly, to be a child’s ‘special guardian’. The order transfers full parental responsibility for the child to the special guardian, to the exclusion of any other person, until the child reaches 18 years of age unless it is revoked under subdivision 7 of the Children and Community Services Act 2004 (the Act). A SGO cannot give parental responsibility for a child to the CEO, or a parent of the child.
A special guardian has all the duties, powers, responsibilities and authority which by law parents have in relation to their children. The child is no longer in the CEO’s care, meaning the special guardian will assume all parental functions without having to consult the Department.
A SGO is intended to provide a stable, long term living arrangement for a child in care, and is one of the permanency planning options that may be considered where it has been determined by the Department that reunification is not possible and not in the child’s best interests.
Applying for a protection order (special guardianship)
The Department, as well carers, can apply to the Court for a SGO.
The Department may apply for a SGO as part of the initial protection application, or as an application to revoke and replace an existing protection order. There are no time conditions imposed on this occurring.
Carers can make a direct application to the Court for a SGO provided:
- the child is the subject of a protection order (time-limited) or protection order (until 18), and
- they have had the continuous care of the child for at least two years from the time the protection order was granted.
Assessing the suitability of a protection order (special guardianship)
Child protection workers should consider a SGO where:
- the case plan reflects that reunification is not possible within a timeframe that meets the child’s needs or is not in the child’s best interest
- during the course of a protection order (time-limited or until 18) a third person is identified as suitable, willing and able to provide long term care for the child
- it has been assessed that there is sufficient safety for parental responsibility to be transferred to the third person
- it has been assessed that a case management role is no longer required, and
- a SGO would provide the child with a long term stable living arrangement and the opportunity to build a lifelong permanent relationship with the carer and, where relevant, their family.
Decisions about the suitability of a SGO must be informed by comprehensive evidence based assessment using the Signs of Safety Child Protection Practice Framework and analysis of all available information to establish the proposed special guardian’s ability to meet the child’s future needs. The assessment must take into account the carer’s capacity and commitment to preserving the child’s cultural, ethnic and religious identity, and the child’s connection with family of origin.
It is preferable that parents give their consent to an application for a SGO. However, if parental consent is not obtained, it does not prevent an application to the Court for a SGO if it is assessed by the Department as being in the child’s best interests.
When considering a SGO for an Aboriginal child, consultation must occur with an Aboriginal practice leader (or other relevant Aboriginal officer) to identify the child’s cultural needs and develop a cultural plan. All consultations must be recorded via the ‘Actions’ drop down list in the case plan screen in Assist (refer to the Assist User Guide – Case Plan Consultations in related resources).
Where a child has a culturally and linguistically diverse (CaLD) background, specific language and cultural needs must be considered. Where possible, this information should be obtained from the child’s family and community. Additional cultural information is available through the CaLD SharePoint Resource Library (link in related resources).
The assessment must also consider:
- the child’s circumstances, such as current or potential legal claims, registration with the Disability Services Commission (DSC) or other high or special care needs (refer to information outlined below), and
- whether the carer is able to meet the child’s long-term needs in these circumstances.
Relevant professionals and specialists should be consulted during the assessment process to identify any long term needs for the child and determine if a SGO is the best outcome for the child, for example, a district psychologist, education officer, senior legal officer, teacher, health practitioner etc. All specialist referrals must be made prior to an application being made for a SGO.
The senior practice development officer can be consulted in complex and contentious cases and, if required, child protection workers may consult with the Director, Case Practice and Coordination in the Service Delivery Practice Unit.
Criminal injuries compensation or other legal claims
If a SGO is being considered, child protection workers must contact the GLU to seek information regarding legal claims or potential legal claims.
If a child leaves the care of the CEO on a SGO and a legal claim has been identified, the expectation is that the special guardian will assume responsibility for running the claim on behalf of the child at an appropriate time. GLU does not pursue claims on behalf of children who are on SGOs; it only conducts claims for children who are under a protection order (until 18).
To assist the special guardian it is recommended that the responsible district put aside funding for a private lawyer to run the child’s legal claim, namely $5,500 (inclusive of GST) for legal fees and $3,300 (inclusive of GST) for a psychological report as part of the claim. The cost of the psychological report will ordinarily be reimbursed by the Office of Criminal Injuries Compensation on the making of an award of compensation.
Prior to making an application for a SGO, a proposed special guardian must be made aware of his or her obligations to pursue the claim on behalf of the child (with the funding of the Department).
Children with disability or high care needs
A SGO may not be in the child’s best interests where he or she has a disability and requires significant ongoing or increasing levels of support.
The Department has a Memorandum of Understanding (MoU) with DSC, which provides for collaborative planning and funding for a child with disability who is in the CEO’s care. In some circumstances (under the MoU), a child with disability leaving the CEO’s care can receive an automatic allocation of funding from DSC for continued support after turning 18 years old.
Child protection workers, carers and parents must clearly understand the implications of seeking a SGO for a child with disability. Once a SGO is granted, the special guardian will need to seek support from DSC through their Local Area Coordinator, and there is no guarantee that funding support will be available.
Similarly, a SGO may not be in the child’s best interests where the child has significant emotional or physical needs (such as those in high needs placements) due to resourcing implications.
Children leaving care
It is important that child protection workers, carers and parents clearly understand the implications of seeking a SGO for a child in, or nearing, the leaving care process.
For eligible young people who have left the care of the CEO, sections 96 - 100 of the Act provides access to a range of support services, including financial support, to assist in the transition from care to independent living and adult life. Section 96 outlines the eligibility criteria that must be met for receiving assistance after leaving the CEO’s care (for young people 18 to 24 years of age).
Young people who were in care and are the subject of a SGO may be eligible. Further details can be found in chapter 10: Leaving the CEO’s Care.
Discussion with the proposed special guardian, child and birth family
Case planning is the forum used for discussing, assessing and recording decisions regarding whether a SGO is in a child’s best interests. The parent(s), child (where age and capacity permits), carer(s) and people significant to the child (where appropriate) must be involved in the planning and decision-making process. Child protection workers should use the relevant Form 515 - Signs of Safety Assessment and Case Planning Form to document the discussions and decisions.
As part of the case discussion, child protection workers must confirm that all parties understand what a SGO would mean for them. Child protection workers should provide the parties with the relevant information sheet (refer to related resources), which outlines things they will need to consider.
In addition, child protection workers must discuss the following:
- the current support needs provided to the carer(s)
- what supports may be required based on the child’s current and future needs, including the level of financial support for the proposed special guardian
- the requirement for all parties to meet their individual legal costs in respect of any associated legal proceedings the proposed long term plans for contact including the associated cost and any safety arrangements
- whether the proposed special guardian intends to subsequently move interstate or overseas with the child. A move interstate may involve the special guardian needing to register the SGO in the Family Court. A move overseas is more complex and depends on which country the proposed special guardian intends to move. The proposed special guardian should be fully informed that they will need to seek independent legal advice prior to relocating from Western Australia to another jurisdiction, and
- where the proposed special guardian would be the sole carer for the child, the implications if they were to die, such as who they would wish take on parental responsibility for the child. If the Court were to grant the SGO, the special guardian can nominate a guardian for the child. Therefore the proposed special guardian should make it clear to the Department who they recommend to care for the child in the event of their death. However, the proposed special guardian should be fully informed that any recommendation they make in the event of their death is not binding and will be subject to any application to the Children’s Court by the Department or to the Family Court by a relative or person with a significant interest in the care, welfare and development of the child.
A checklist (Special Guardianship Orders - Checklist and Prompts for CPWs) is available under related resources to assist child protection workers in the assessment and discussion with the child (age and capacity permitting), their parents and the foster carer (proposed special guardian) to determine if a SGO would be in the child’s best interests. It may also assist child protection workers in identifying what, if any, supports may be required for the proposed special guardian and child should the decision be to apply to the Court for a SGO.
The child (age and capacity permitting) should be advised to contact their case manager if they need more information or have any concerns.
The Court may impose contact arrangements between the child and another person (such as a parent, sibling, relative or close friend) as a condition of the SGO. The Court cannot impose any other conditions. The special guardian will be responsible for implementing the contact arrangements as specified in the conditions of the order. The child protection worker must be confident that the proposed special guardian will be able to manage the contact arrangements without any ongoing Department involvement.
The case planning process must consider and make recommendations in the report to the Court regarding contact for the child (refer to the procedure ‘Report to the Court’). The proposed special guardian must be aware of the Department’s recommendation to the Court regarding contact.
The contact plans for the child with their family and significant others must be documented in the case plan and include the frequency, duration and nature of the contact.
The report to the Court must clearly set out the steps that have been taken by the Department to engage and consult with the parents about the proposed SGO application, including their attitude to the application and how contact will be managed between the proposed special guardian and the child’s parents.
Children’s contact service
If the proposed special guardian is not able to manage contact between the child and their family, the use of a children’s contact service can be explored. However, the proposed special guardian’s inability to manage contact must be carefully considered to determine if a SGO is in the best interests of the child.
If the decision is to apply for a SGO, child protection workers must complete a referral to a children’s contact service for consideration. If the referral is accepted, this information must be included in the report to the Court as part of the application process. If a SGO is granted, a copy must be sent to the children’s contact service.
If the children’s contact service declines the referral, child protection workers must re-assess the means of maintaining meaningful contact for the child with his/her family and consider whether a SGO is in the child’s best interests.
A list of service providers can be found on the Australian Children's Contact Services Association website.
Special Needs Loading and additional financial support
If the carer is receiving Special Needs Loading (SNL) for the child, the Department may continue to provide this financial support under a SGO. However, it must be reviewed as part of the case planning process in moving towards a SGO and be approved by the Executive Director (Metropolitan or Country Services) before making an application to the Court.
SNL may be continued for the life of the order or for a time-limited period. SNL payments are different from court ordered payments to special guardians, and are at the discretion of the Department.
If SNL to the proposed special guardian is approved and is for a time-limited period (for example, for a 12 month period), the special guardian will need to contact the duty officer at their local district office before the period ends for a review, unless SNL is no longer required. The district office will assign an officer to review the SNL, which includes confirmation that the child remains in the special guardian’s full time care and an assessment of the child’s current care needs to see if they have changed; that is, increased or decreased. If the special guardian does not contact the Department, the SNL payment will cease.
It may be identified during the assessment that the proposed special guardian will require additional financial support for the child should the Court grant the SGO. Financial support may be required where a children’s contact service will be used to manage contact, or where the cost of travel and/or accommodation to facilitate contact will be quite onerous on the proposed special guardian; for example, travel to remote communities or interstate. In this instance, an application must be submitted and approved by the Executive Director (Metropolitan or Country Services) before making an application to the Court.
If the request is not approved, child protection workers must consider how the child’s contact needs will be met under the SGO.
The application process
Child protection workers must complete the Special Guardianship Order: Application for Special Needs Loading/Additional Financial Support (in related resources under forms).
The team leader and district director must endorse the application. Once endorsed, the application is forwarded to the Coordinator CSS with the supporting documentation. The Coordinator will assess the application and forward to the Executive Director (Metropolitan or Country Services) for approval.
Information on the SNL application process can be found in chapter 8: Case Management Costs – Special Needs Loading.
Commonwealth Government assistance
Child protection workers should advise the child and proposed special guardian about the Commonwealth Government entitlements they may be eligible to receive.
Under a SGO, the child is entitled to a Foster Child Health Care Card and Youth Allowance. Youth Allowance may be paid, regardless of the assets or income of the special guardian, so long as the young person meets the standard criteria (such as study or training).
The special guardian may be eligible for an exemption from the Centrelink activity test and work participation requirements. Child protection workers can provide the special guardian with a letter for Centrelink, which specifies that they meet the exemption criteria. The Letter to Centrelink - Exemption From the Activity Test and Work is available in related resources.
The proposed special guardian should be advised to contact the Department of Human Services (DHS) on 136 150 or visit their local DHS Services Centre for information and eligibility criteria. Information is also available on the DHS website: www.humanservices.gov.au. A Grandparent Adviser at DHS is available to assist special guardians who are also grandparents about payments and services (call 1800 245 965).
If it has been assessed that a SGO is in the child’s best interests, child protection workers must have the decisions from the assessment comprehensively documented in the case plan (relevant Form 515), including contact arrangements.
The case plan must be supported by the team leader and endorsed by the district director. It is saved to the case file in Objective and linked to the case plan in Assist.
The child’s care plan must be modified or reviewed in line with the case planning decisions prior to making an application to the Court. Child protection workers must print a copy of the published care plan document and place it on the Child History Folder.
Note, once the SGO is granted, depending on any condition ordered by the Court, the case plan may need to be updated to include the details, and the child’s care plan modified and distributed accordingly.
The Department must provide the Court with a written report when making an application for a SGO. The report must outline the proposed special guardian’s suitability to provide long term care, their willingness and ability to provide such care, and the proposed arrangements for the wellbeing of the child - s.61(3) of the Act.
If a carer makes a direct application to the Court for a SGO, the Department must still provide the Court with a written report. If the Department does not believe a SGO would be in the child’s best interests based on its assessment, child protection workers must provide the rationale in their report. The Court is not able to grant a SGO without giving regard to the report.
Where either the Department or a carer is making a SGO application, child protection workers must use Form 448 - Written Report for Application of a Protection Order - Special Guardianship (in related resources under forms). When the Department is making application, Form 643 and Form 652 must also be completed.
The Child Protection Legal Unit will consider any SGO application made by the Department and assist the district to put together evidence in support of the application.
For detailed procedures on how to apply for a SGO, refer to Chapter 4: Intervention Action.
Variation to the conditions of the order (contact)
Any party to the initial proceedings can apply to the Court for a variation, addition or substitution of the conditions included in the SGO if there are new facts or circumstances, or where each party to the initial proceedings consents to the application.
Sections 42 and 147 of the Act identify who can be considered a party to initial proceedings. The child’s consent to a variation of contact conditions is not required before the Court makes a variation, unless the child has legal representation or the Court is satisfied that the child has sufficient maturity and understanding to give consent.
Payments to the special guardian
An application for a SGO can include an application for SGO payments, although they may be submitted separately.
The special guardian can make a court application for a SGO payment at any time during the life of the order, if it is not applied for when the initial application was made. The payment is similar to the foster care subsidy (the scale of amounts payable is prescribed in r.21 of the Children and Community Services Regulations 2006).
The carer will continue to receive their foster care subsidy throughout the SGO application process. When the SGO is granted with an order regarding payment, the foster care subsidy will be replaced with the SGO payment.
Ongoing Department involvement with the special guardian and the child will be limited to the review of SNL (where it is for a time-limited period and is still required) and, where the Department has deemed necessary, the provision of social or additional financial services while the order is in force.
Court ordered SGO payments to a special guardian will terminate once an SGO ceases to be in force. This occurs when the child reaches 18 years of age, an adoption order is made in respect of the child under the Adoptions Act 1994, or where the Court revokes the SGO. The SGO payments will also cease if the child were to die before he/she attains 18 years of age, or where the child leaves the full time care of the special guardian (if these provisions are specified in the SGO issued by the Court). In instances where this is not stated in the SGO, child protection workers need to make application to the Court to revoke the order.
Once the protection order (special guardianship) is granted
The Court will send a copy of the order to each party once the SGO is granted. The Court will usually forward the Department’s copy to Legal Services.
Once Legal Services receive the order, they will forward an email to the Coordinator CSS and the child protection worker with:
- the child’s name and date of birth
- the SGO recipient’s name, and
- confirmation that the SGO has been granted – either with or without a payment order.
Legal Services will forward the original order, and any court ordered payment, to the child protection worker.
In some instances, the Court may send the order directly to the child protection worker (usually in country districts). If this occurs, the child protection worker must forward a copy of the order to Legal Services for their records and, where a payment has been ordered by the Court, to the Coordinator CSS for payments to be processed.
If the Department was the applicant, the child protection worker must advise the special guardian that the order has been granted, and of any court ordered payment.
The child protection worker must transfer the case to the Coordinator CSS. For the correct process, refer to the Assist User Guides – Manage Family Group Allocations.
Arranging for the SGO payment to be processed
Upon receipt of the SGO and any court ordered payment, the child protection worker must immediately update the order details in Assist, which includes:
- the new type of order and number (this may have been recorded by Legal Services for cases in the metropolitan area)
- ending the child’s period in the CEO’s care, and
- that the case has been transferred to the Coordinator CSS.
Once these details have been recorded, the Subsidies Unit will process the payments. The Subsidies Unit will advise the child protection worker by email that the payment to the special guardian has commenced and the foster care subsidy payment has ceased.
Refer to the Assist User Guide - Protection Order (Special Guardianship Order) for more detail on recording.
Where there is prior approval for SNL or additional financial support payments, the child protection worker must email a copy of the approved case plan to the Coordinator CSS immediately after transferring the case in order for the payments to be made.
Information about the child
Child protection workers must give the special guardian copies of all essential documents, such as health reports and the child’s genogram, should they or the child need to refer to them in the future.
Letter of congratulations to the special guardian(s)
The child protection worker must complete the template letter Congratulations on becoming a special guardian (in related resources), which includes an information sheet for the special guardian. If SNL payments to the special guardian have been approved for a time-limited period, this must be included in the letter with a request that the special guardian contact their local district office before the period ends if SNL is still required.
The completed letter should be signed by the district director and forwarded to the special guardian.
Change in the child’s living arrangements or care needs
Child protection workers must ask the special guardian to notify the Department should the child cease to be in their full time care. This will be outlined in the congratulatory letter and the fortnightly letter and recipient statement that goes out to all special guardians that receive a SGO payment.
The Department may need to undertake further assessment of the child’s circumstances where the child is not in the full time care of the special guardian. In some instances, the child’s living arrangements may be appropriate and/or temporary, and the Department will not need to undertake any further action. However, if there are concerns, the Department may need to take statutory action and will seek a revocation of the SGO and payment order.
An application to revoke the SGO payment order cannot be made without an assessment of the child’s circumstances, their means of support, and how the withdrawal of this payment will affect the child.
Support under a protection order (special guardianship)
The special guardian or child can seek assistance from the Department throughout the life of the order by contacting the district office in which they reside (or if they are also a foster carer for a child in care, by contacting the district that provides case management to that child). The relevant district will be available to assist with advice and, if necessary, upon assessing the needs of the special guardian and child, to consider whether additional social services or SNL are required. The district may apply for SNL to be paid to the special guardian.
In some circumstances, the Department may need to re-open the case. In these instances, the district office must provide support as required to the child and special guardian, and work with them through any challenges they may be experiencing.
Revocation of a protection order (special guardianship)
Any party to the initial proceedings may apply to the Court for the revocation of a SGO. The Department will be notified if another party makes a revocation application to the Court.
If an application for the revocation of a SGO is made, a separate application must be made for the revocation of an order for payment.
Following the application, the Court can decide to keep the original order, revoke the order, or make a different protection order for the child.
In cases where a child's family makes an application to revoke the order, the Department may conduct a review of the child's circumstances and provide a report to the Court. If the Department determines that it is in the child's best interests to remain under the SGO, the Department may assist the child and/or special guardian with legal support.
Only the CEO may apply to the Court for the revocation of a SGO and its replacement with another protection order.