Overview of a protection order (special guardianship)
A SGO transfers full parental responsibility for the child to the special guardian, to the exclusion of any other person. This type of order cannot give parental responsibility for a child to the CEO, or a parent of the child.
Special guardians will have all the duties, powers, responsibilities and authority which, by law, birth parents have in relation to their own children. Importantly, the child is no longer in the CEO’s care, meaning the special guardian will need to be able to carry out all parental functions without having to consult the Department.
SGOs are intended to provide stable, long term placements and remain in force until the child reaches 18 years of age.
Applying for a protection order (special guardianship)
Recent amendments to the Children and Community Services Act 2004 (the Act) mean that carers, as well as the CEO, will be able to 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 an existing protection order and instead make a SGO at any time. There are no time conditions imposed on this occurring.
A carer/s can make a direct application to the Court for the protection order (time-limited or until 18) to be revoked and be replaced with a SGO provided:
- the child is in the CEO’s care via a protection order (time-limited or until 18)
- they have had the continuous care of the child for at least two years from the time the protection order (time-limited or until 18) was granted.
Assessing the suitability of a protection order (special guardianship)
Decisions about the suitability of a SGO must be informed by comprehensive evidence based assessment using the Signs of Safety Assessment and Planning Framework, and analysis of all available information. In keeping with the guiding principles of the Act and the principle of child participation, the parent/s, child, relatives and significant others, where appropriate, should be involved in the planning and decision-making process.
The assessment of a carer’s suitability must take into account the child’s cultural background and ensure preservation and enhancement of the child’s cultural, ethnic and religious identity.
In order to support an application for a SGO, the Department must be confident that a case management role is no longer required to ensure the best interests of the child. This is particularly important where the child has significant emotional and/or physical needs or where highly conflictual relationships exist between carers and birth family.
Where a carer makes a direct application to the Court for a SGO, the Department, as the legal guardian of the child, will be required to submit a report to the Court outlining its position regarding the application and addressing the carer’s suitability to provide long term care for the child.
Where a child has an Aboriginal background, department staff must consult with the Aboriginal practice leader or other relevant Aboriginal officers in the district. All consultations must be recorded.
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).
In complex and contentious cases, consultation should occur with a Director Case Practice and Co-ordination or a senior practice development officer.
Discussion with the proposed special guardian, child and birth family
Child protection workers should refer to s.8 of the Act (determining the best interests of the child) when discussing the option of a SGO with the child (where age appropriate), the birth family and the proposed carer(s).
In addition to providing all relevant parties with a copy of the Fact Sheet - Special Guardianship Orders (in related resources), child protection workers should, as a matter of course, discuss the following issues with proposed special guardians, birth family and the child prior to care plan meetings, to ensure informed decisions are made:
- consideration of permanency/legal issues
- support needs based on the child’s current and future needs – including identity and culture, religion, education, recreation and leisure activities, health, emotional and behavioural issues, family and social relationships
- the level of financial support available under SGOs as prescribed in the regulations
- * any existing criminal injury or other legal claims for the child
- the requirement for all parties to meet their individual legal costs in respect of any associated legal proceedings
- current support needs for the carer(s)
- the child’s understanding (where age appropriate) of their care history
- the proposed long term contact plans
- the views of birth parent(s) or any other significant birth relatives.
* Please note in regard to Legal Claims: In all cases where a SGO is being considered, case managers need to contact the Department’s Legal Services Division to seek information regarding legal claims or potential legal claims. If a claim or potential claims exist, a meeting must be held between the case manager, potential special guardian and a senior legal officer to determine any future legal support by the Department and to document details regarding this.
Care Plan decision to apply for a protection order (special guardianship)
A care plan decision to apply for or support a SGO application should be informed by assessments of suitability and should not be made before discussion has taken place with the proposed special guardian, birth family and the child regarding the process.
The decision to make application for revocation of an order and replacement with a SGO should be documented in the care plan or modified care plan and be endorsed by the team leader.
A modification of the care plan can occur at other times when a major change occurs in the child’s circumstances, placement or contact. It is essential that where a care plan decision is made to make application for a SGO, copies of the care plan are sent to the birth family as a matter of priority and within 14 days.
In making an application for a SGO, the Department must provide the Court with a written report outlining the proposed carer’s suitability to provide long term care; their willingness and ability to provide such care; and outline the proposed arrangements for the wellbeing of the child - s.61(3) of the Act.
The Court can only grant a SGO once it is satisfied that long term out-of-home arrangements should be made for the wellbeing of the child, and that the proposed carer is suitable, willing and able to provide long term care for the child.
Where a carer makes direct application to the Court for a SGO, the Department must still provide the Court with a written report. The Court is not able to grant a SGO without giving regard to this report.
Where a carer makes direct application to the Court and the Department does not believe a SGO is in the child’s best interest, the child protection worker will need to prepare a rationale for the Court using the Signs of Safety Assessment and Planning Framework.
When developing reports for SGOs, (either where the Department or carer is making application) child protection workers should outline details relating to the cultural considerations for the child.
Child protection workers are to use Form 448 Written Report for Application of a Protection Order - Special Guardianship in both instances.
Child protection workers should refer to Chapter 4: Intervention Actions for detailed procedures when applying for a SGO.
A SGO may only include conditions about contact between the child and another person, such as a relative or close friend of the child or the child’s parent/s. The Court cannot impose any other types of conditions on these types of orders.
When a SGO is being considered as the overall care plan goal, the care planning process will consider and make recommendations regarding contact for the child, and will be documented in the Report to Court.
The special guardian will be responsible for implementing contact arrangements with birth parents, siblings and significant others to the child, which will be ordered by the Court and the details specified in the conditions of the order.
Where a special guardian requires support to implement contact arrangements ordered by the Court, the special guardian is encouraged to access a children’s contact service. The Department may, on a case-by-case basis, consider providing financial assistance to facilitate supervised contact between the child and their birth family, however the special guardian will be responsible for making all necessary arrangements with the children’s contact service.
The most successful contact arrangements occur when all parties agree on the plan. There may be times that the Court makes a condition about contact that is not the preference of all parties and this will need to be adhered to by all parties.
Child protection workers should refer to Chapter 10: Permanency Planning when making recommendations for contact in the Report to the Court.
Varying 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 of contact that are included in the SGO if there are new facts or circumstances, or where each party to the initial proceedings consent to the application.
Sections 42 and 147 of the Act identify who can be considered a party to initial proceedings. The child does not have to give consent unless the child has legal representation or the Court is satisfied that the child has sufficient maturity and understanding to give consent.
Payments to special guardians
An application for a SGO can include an application for SGO payments, although they may be submitted separately.
Special guardians can make an application to the Court for SGO payments at any time during the life of a SGO, if not applied for when the initial application was made.
The payments will be similar to the subsidy paid to carers; the scale of amounts payable are prescribed in the regulations.
Carers will continue to receive their existing carer subsidy throughout the SGO application process. Where a SGO is granted with an order regarding payment, the carer subsidy will be replaced with SGO payments
The provision of additional funding to support children with high needs will be considered by the Department on a case-by-case basis where SNL payments are being received at the time of application for a SGO and where it has been assessed that there is no requirement for ongoing case management. Where the continuation of SNL has been assessed by the child protection worker as being necessary for the child and the child’s special guardian, this must be documented in the child’s case plan for approval by the district director.
Special guardians may also be eligible for Family Assistance payments and other support payments and allowances from the Commonwealth Government. They should be advised to contact the Family Assistance Office on 13 61 50 or visit their local Family Assistance Office for information and eligibility criteria.
Where the Department is the applicant, the relevant child protection worker must advise the carer that the protection and/or payment order has been granted.
Original copies of the order will be sent by the Court to all parties, including Legal Services Division.
Legal Services Division will forward the original order to the child protection worker and a copy to Client Support Services.
Where a copy of the order is sent directly to a child protection worker (often in country areas) a copy of the order must be forwarded to the Legal Services Division for their records.
The child protection worker must update Assist immediately to reflect the new order (including the Payment Schedule screen) and that the child is no longer in the CEO’s care.
Where a child’s case plan includes the provision of SNL under the SGO, child protection workers must, upon receiving a copy of the order from the Legal Services Division, immediately email a copy of the case plan to the Client Support Services team to ensure the continuation of SNL payments. The Client Support Services team will process the order in Assist.
Where a payment order has been granted, the Client Support Services team will ensure that the recipient receives the SGO payment rate, as prescribed in the regulations and SNL where it has been approved in the case plan.
Client Support Services will advise the child protection worker by email that the payment to the special guardian has commenced and previous foster carer subsidy payments have ceased.
If there are no outstanding case management issues, the team leader or child protection worker will be required to transfer the case to the Coordinator, Client Support Services.
Review of payments to special guardians
An annual review of financial payments will be undertaken by the Coordinator, Client Support Services to confirm a child still resides with the special guardian, in order for financial payments to continue. It will be the responsibility of the special guardian to notify the Department of any change in circumstances or change of address outside of the review period.
Case planning for protection orders (special guardianship)
The child’s case plan is an essential step in establishing the nature of the Department’s relationship with the special guardian and the child, should the SGO be granted by the Court. The child’s case plan should be prepared prior to the making of an application for a SGO and may need to be updated after the making of the order, depending upon the condition/s ordered by the Court.
The child’s case plan under a SGO must clearly specify:
- financial arrangements (SGO payments) ordered by the Court as a condition of the SGO
- whether supervised contact is considered to be in the child’s best interest and the carer’s plans to seek assistance from a children’s contact service
- the nature of existing criminal injury or other legal claims for the child and details regarding any future support by the Department
- any social services or other supports that are required
- the level of SNL payments, where it has been approved by the Department
- funding implications of both of the above.
Comprehensive case plans are required under SGOs in the event that the special guardian or child seeks the assistance of the Department during the life of the order.
Ongoing department involvement with the special guardian and the child is limited to the review of financial arrangements as a result of Court ordered payments and, where the Department has deemed necessary, the provision of social or additional financial services, while the order is in force.
Funding in support of the case plan must not be paid out of case support costs by the district under SGOs. Where additional financial assistance is approved to facilitate supervised contact, payments will be provided to special guardians by Client Support Services.
The case plan is saved in Objective on the child’s case file.
Special guardians or the child are able to seek assistance from the Department’s permanency support team throughout the life of the order. This support team 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 are required.
The Department may, under s.66 of the Act, provide the child and special guardian with any social services that are considered appropriate. Child protection workers should refer to Chapter 1: Case Allocations, Management, Transfer, Requests for Co-Working Services, and Case Closure for further details.
The aim of these supports will be to prevent the child coming back into care.
Revocation of a protection order (special guardianship)
Any party to the initial proceedings may apply to the Court for the revocation of a SGO. Following this application, the Court can decide to keep the original order, end the order, or make a different protection order for the child.
Only the CEO may apply to the Court for the revocation of a SGO and the replacement with another protection order.
Replacing a protection order (special guardianship)