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3.3.4 Protection order (special guardianship)

Last Modified: 03-Jan-2019 Review Date: 04-Jan-2021

Purpose

To guide child protection workers (CPWs) in the process of making an application, or supporting a carers application for a protection order (special guardianship) – referred to as a special guardianship order (SGO) – and to outline our legal obligations and responsibilities regarding these orders.

Practice Requirements
  • Child protection workers must use the case planning forum for discussing, assessing and recording decisions on whether a SGO is in the child's best interests. Use the relevant Form 515 – Signs of Safety Assessment and Case Planning Form.
  • The case plan must be supported by the team leader and endorsed by the district director.
  • The child's views (where age and capacity permits) must be considered in the decision to proceed with a SGO application, and the care plan must be modified or reviewed in line with the case planning decisions before making the application to the Children's Court (the Court).
  • The best interests of the child must be the paramount consideration when making decisions about the suitability of a SGO.
  • Where the child is Aboriginal, CPWs must consult with an Aboriginal practice leader, other relevant Aboriginal officer, a member of the Aboriginal community or an Aboriginal community controlled organisation in accordance with s.81 of the Children and Community Services Act 2004 (the Act) for assistance in developing an effective plan that takes cultural issues into consideration.
  • Child protection workers must discuss the decision to apply for or support a carer's application with all parties.
  • If a SGO is being considered, CPWs must contact the General Law Unit (GLU) before proceeding with the application to determine if any potential legal claims exist.
  • If a legal claim or potential legal claim is identified for the child, CPWs must make sure that the proposed special guardian is fully informed of the importance of pursuing the claim or potential claim on behalf of the child (with funding provided by the relevant district). Refer to 'Assessing the suitability of a protection order (special guardianship)' section below and Chapter 3.3: Legal rights of children and caseworker responsibilities for further information.
  • Child protection workers must consider whether the provision of social services, SGO payments, Special Needs Loading (SNL), or additional financial support is required for the child and the proposed special guardian.
  • Where the case plan includes the provision of SNL under the SGO, CPWs must email a copy of the case plan to the Coordinator Client Support Services immediately when a copy of the order is received from Legal Services to guarantee the continuation of SNL payments.
  • Child protection workers must apply for a passport for a child in the Chief Executive Officer's (CEO's) care where consideration is being given to applying for, or supporting, an application for a SGO. The passport application must be finalised before applying to the Court for the SGO.

 
Process Maps

Not applicable.

Procedures

  • Overview
  • Applying for a protection order (special guardianship)
  • Assessing the suitability of a protection order (special guardianship)
  • Discussion with the proposed special guardian, child and birth family
  • Contact
  • Special Needs Loading and additional financial support
  • Recording and approval
  • Variation to the conditions of the order (contact)
  • Payments to the special guardian
  • Once the protection order (special guardianship) is granted
  • Change in the child’s living arrangements or care needs
  • Support under a protection order (special guardianship)
  • Revocation of a protection order (special guardianship)
  • Overview

    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 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 that by law parents have for 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 with us. 

    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 that reunification is not possible and not in the child’s best interests.

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    Applying for a protection order (special guardianship)

    The Department of Communities (the Department) and carers can apply to the Court for a SGO.  We 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.

    We will only support a carer's application for a SGO if it is assessed as being in the child's best interests, refer to s.8 of the Act - Determining best interests of child. For an Aboriginal child, maintaining his or her connection to family and culture must also be considered and in accordance with the order of priority for placement as set out in s.12 of the Act - Aboriginal and Torres Strait Islander child placement principle.

    If we do not support a carer's application for a SGO, a letter, signed by the district director, should be sent to the carer to outline the reasons.  Refer to the Template Letter – Decision not to endorse a SGO application (in related resources).

    For detailed procedures on how to apply for a SGO, refer to Chapter 3.3: Intervention action.

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    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 interests
    • 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 current and future needs.

    The Needs Assessment Tool (NAT) will assist CPWs to identify and assess the child's needs across the dimensions of care. This includes identifying any current services and supports required for the child and their carer. The NAT may need to be reviewed and updated accordingly – refer to Chapter 3.4: Needs Assessment Tool.

    The assessment must also take into account the carer's capacity and commitment to preserving the child's cultural and religious values and traditions, and how they can maintain contact with the child's parents, siblings, other relatives, and any other people who are significant in the child's life (s.9 of the Act). For an Aboriginal child, the history and intention of the Aboriginal and Torres Strait Islander child placement principle (s.12 of the Act) must be considered in its fullness to support the child's connections to family, community, culture and country.  Refer to the Aboriginal and Torres Strait Islander Child Placement Principle: Aims and Core Elements in related resources for further information.

    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 us as being in the child's best interests (as per s.8 of the Act).

    When considering a SGO for an Aboriginal child, consultation must occur with an Aboriginal practice leader, other relevant Aboriginal officer, a member of the Aboriginal community or an Aboriginal community controlled organisation (s.81 of the Act) to identify the child's cultural needs and develop a cultural plan. All consultations must be recorded in Assist via the 'Actions' drop down list in the case plan screen (refer to the Assist User Guide – Case Plan Consultations in related resources for details).

    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 Resource Library (link in related resources).

    The assessment must also consider:

    • the child's circumstances, such as current or potential legal claims, registration with either the National Disability Insurance Scheme (NDIS) or the Department’s Disability Services 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 before an application is made for a SGO.

    In complex and contentious cases CPWs can consult with a senior practice development officer and, if required, the General Manager, Professional Practice Unit, who will allocate to the relevant Director. If the child is Aboriginal, consult with the district Aboriginal practice leader, and/or the Senior Consultant Aboriginal Practice in the Professional Practice Unit.  

    Criminal injuries compensation (CIC) or other legal claims

    If a SGO is being considered, CPWs must contact the GLU to seek information regarding any legal claims or potential legal claims for the child.

    If a child leaves the CEO's care under a SGO and a CIC claim has been identified, the expectation is that the special guardian will assume responsibility for progressing the claim on behalf of the child at an appropriate time.  The GLU does not pursue such claims on behalf of a child under a SGO; it will only ordinarily conduct claims for children who qualify for leaving care assistance under s.96 of the Act.

    To assist the special guardian it is recommended that the responsible district provide an appropriate amount of funding for a private lawyer to conduct the child's legal claim. There may be other costs to support the claim such as a psychological report. Such costs may be funded on the basis that it will be reimbursed when an award of compensation is made. It must be noted in the child's care plan that provision of funding for the legal claim will be considered by the district in the future. Any future funding is to be provided via case support costs.

    Before an application for a SGO is made, the proposed special guardian must be made aware of his or her obligations to pursue the claim on behalf of the child. Refer to chapter 3.3: Legal rights of children and caseworker responsibilities for further information.

    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.

    In some circumstances, a child with disability leaving the CEO's care can receive an automatic allocation of funding through the NDIS or the Department's Disability Services 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 the NDIS or our Disability Services division, 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 care arrangements) due to resourcing implications. 

    Children leaving care

    It is important that CPWs, 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 CEO's care, 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 of the Act 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 3.4: Leaving the CEO's care.

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    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 parents, child (where age and capacity permits), carers 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, CPWs must confirm that all parties understand what a SGO would mean for them. Child protection workers should provide the parties with the SGO - Prospective Special Guardians Information Sheet (in related resources).  This provides information about the things they will need to consider.

    In addition, CPWs must discuss the following:

    • the current support needs provided to the child's carer
    • 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
    • if the proposed special guardian intends to subsequently move interstate or overseas with the child, he or she should be fully informed that they will need to seek independent legal advice before relocating from Western Australia to another jurisdiction: 
      • 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.
    • if the proposed special guardian will be the sole carer for the child, he or she needs to consider the implications if they were to die, such as who they would wish take on parental responsibility for the child. If the Court grants the SGO, the special guardian can nominate a guardian for the child. The proposed special guardian should inform us who they recommend to care for the child in the event of their death. We must inform the proposed special guardian 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 us, or to the Family Court by a relative or person with a significant interest in the care, welfare and development of the child, and
    • where the child is Aboriginal, the importance of the Aboriginal and Torres Strait Islander child placement principle, including what it means for Aboriginal children and what safeguards would be required to put it into practice to support the child's connections to their family, community, culture and country.

     A checklist (Special Guardianship Orders - Checklist and Prompts for CPWs) is available under related resources to assist CPWs in the assessment and discussion with the child (age and capacity permitting), their parents and the carer (proposed special guardian) to determine if a SGO would be in the child's best interests.  It may also assist CPWs to identify what, if any, supports may be required for the proposed special guardian and child if the decision is made to apply to the Court for a SGO.

    The child (age and capacity permitting) should be advised to contact their CPW if they need more information or have any concerns.   

    Family Law and Child Protection Legal Assistance in WA

    Where appropriate, CPWs should advise parent's, carers, or the child (age and maturity permitting) on the need to be fully informed and may seek independent legal advice via:

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    Contact

    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. Child protection workers must be confident that the proposed special guardian will be able to manage the contact arrangements without our ongoing involvement.

    The CPW should discuss the different ways in which the proposed special guardian can support a child's continued connection with their family. These can include:

    • phone calls, Skype or Facetime, email, letters, exchange of photos etc.
    • involving the child's family in celebrating birthdays and other significant events
    • visits with parents and extended family members, and
    • an overnight stay with a family member (such as the child's grandparents).

    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' in chapter 3.3: Intervention action for further details). The proposed special guardian must be aware of our recommendation to the Court regarding contact.

    The contact plans for the child with their family and significant others must be recorded 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 we have taken 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.  If the child is Aboriginal, an Aboriginal practice leader can assist the proposed special guardian and parents to plan how contact will be managed.      

    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, CPWs 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, CPWs 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.

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    Special Needs Loading and additional financial support

    If the carer is receiving Special Needs Loading (SNL) for the child, we 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 relevant Executive Director 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 our discretion. 

    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 us 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 relevant Executive Director before making an application to the Court.

    If the request is not approved, CPWs must consider how the child’s contact needs will be met under the SGO.

    The application process

    The application and approval process for SNL can be found in chapter 3.5: Case management costs – special needs loading.

    Australian Government assistance

    Child protection workers should advise the child and proposed special guardian about the Australian 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 can also help a special guardian understand the payments and services they might be eligible to receive (call 1800 245 965). 

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    Recording and approval

    If it has been assessed that a SGO is in the child’s best interests, CPWs 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 Aboriginal practice leader if the child is Aboriginal and 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.

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    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.

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    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.

    Our ongoing 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 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 Adoption Act 1994, or where the Court revokes the SGO. The SGO payments will also cease if the child were to die before reaching 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, CPWs need to make application to the Court to revoke the order.

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    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 our copy to Legal Services.

    Once Legal Services receive the order, they will forward an email to the Coordinator CSS and the CPW 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 CPW. 

    In some instances, the Court may send the order directly to the CPW (usually in country districts). If this occurs, the CPW 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 we made the application, the CPW must advise the special guardian that the order has been granted, and of any court ordered payment.

    The CPW must transfer the case to the Coordinator CSS. For the correct process, refer to the Assist User Guides – Manage Family Group Allocations in related resources.

    Arranging for the SGO payment to be processed

    Upon receipt of the SGO and any court ordered payment, the CPW 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 theCPW 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) in related resources for more detail on recording.

    Where there is prior approval for SNL or additional financial support payments, the CPW 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 acknowledgement to the special guardians

    The CPW must complete the template letter Acknowledgement to the 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.

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    Change in the child’s living arrangements or care needs

    Child protection workers must ask the special guardian to notify us if the child ceases to be in their full time care. This is outlined in the acknowledgement letter and fortnightly letter and recipient statement that are sent to all special guardians who receive a SGO payment. 

    We 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 further action will not be necessary. However, if there are concerns, we 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. 

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    Support under a protection order (special guardianship)

    Special guardians or the child can seek assistance from us throughout the life of the order by contacting the local district office (or if they are also a carer for a child in care, by contacting the district that provides case management to that child). The district  office will assist with advice and, if necessary, upon assessing the needs of the special guardian and child, 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, we may need to re-open the case.  In these instances, the district office must provide support to the child and special guardian, and work with them through any challenges they may be experiencing.

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    Revocation of a protection order (special guardianship)

    Any party to the initial proceedings may apply to the Court for the revocation of a SGO.  We 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, we may conduct a review of the child's circumstances and provide a report to the Court.  If we determine that it is in the child's best interests to remain under the SGO, we 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.

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