What are guardianship orders?
Guardianship orders are made by the Children's Court of NSW on a final and long-term basis by placing a child or young person in the independent care of a guardian.
Such orders are made as an alternative to foster or out-of-home care where the court decides it's not safe for a child or young person to live with their parents.
The aim is to provide the child or young person with a more stable, nurturing and safe home until they are at least 18 years of age, without cutting legal ties to their family.
The only other orders that can be made in conjunction with a guardianship order are an "order for contact", and an "order prohibiting action".
An order for contact specifies when and how often a parent can see their child. Such orders can also apply to grandparents and other family and significant members of a child's life.
A contact order cannot be made if Family and Community Services (FACS) or another relevant agency is required to coordinate or provide supervision of contact with birth parents or other relatives.
An order prohibiting action is made by the Children's Court to specify actions parents and others cannot take. This could include specifying a particular named person not be present when a parent visits a child or prohibiting a parent from visiting their child's school.
What does a guardianship order mean for a child or young person?
If a guardianship order is made, the child or young person will be cared for by their guardian until they turn 18, or the Children’s Court changes the order. The child or young person may still have contact with their parents, family and important people in their life, if this is included in the court order. Where this applies, the details of the contact will be outlined in the child's care or case plan or the court order.
It's important every child and young person be given opportunities to learn about their family heritage, even if they don't have contact with their family. This enables them to have a strong and healthy sense of self and identity.
If the child or young person is Aboriginal or Torres Strait Islander, or from a different cultural background to their guardian, they have the right to maintain connections with their culture and community and to have a cultural support plan in place. The guardian must ensure the child or young person’s cultural needs are met by encouraging and facilitating their participation in cultural activities and events.
What is discussed before a guardianship order is made?
Initial conversations about the option of guardianship
Caseworkers will have initial discussions with the current carer or prospective guardian and the child or young person and their parents about:
- the long-term needs of the child or young person
- the different care options
- the most appropriate order to meet the long term needs of the child or young person.
Case plan meeting
If it's agreed during these initial discussions that guardianship should be considered, the next step will be for FACS, or relevant out-of-home care agency to organise a case plan meeting.
This meeting should involve the child or young person (where developmentally appropriate), their parent or parents and or other significant people in their life and the carer and prospective guardian.
The meeting is an opportunity to focus on the assessed short-term and long-terms needs of the child or young person, and then to discuss what would be the most appropriate court order to meet their long-term needs.
If it's agreed that guardianship is the right way to meet the child or young person's needs, then the guardianship assessment will proceed to assess the suitability of the prospective guardian.
What if a child or young person is already in my care?
If the child or young person is already in your care, take time to talk to them about what guardianship will mean for them. It's important they understand that under guardianship orders, there is no longer a caseworker to support them.
Talk to your caseworker or contact FACS or the agency responsible for the child or young person’s case management to find out more. This will help you make an informed decision about whether guardianship is the best option for the child or young person you are caring for or would like to care for.
One important step will be a case plan review meeting with the child or young person, their parents, you as the prospective guardian, and other significant people in the child’s life. This is an opportunity to discuss the most appropriate options, including exploring guardianship. If it's decided that guardianship is the right option, the guardianship assessment process will begin.
How does the Children’s Court decide?
The Children’s Court can make a guardianship order for a child or young person it deems is in need of care and protection or who is in out-of-home care. Guardianship orders can be made if the Children's Court is satisfied that:
- there is no real possibility of a child or young person returning to the care of their parents
- the prospective guardian will provide a safe, nurturing, stable and secure environment for the child or young person now and into the future
- if the child or young person is Aboriginal or Torres Strait Islander, their permanent placement under a guardianship order follows the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles
- written consent is given by the child or young person if they're aged 12 or older and are capable of giving consent.
What will change about contact arrangements under a guardianship order?
The Children's Court can make contact arrangements that will specify how often and where a young person has contact with their parent or other family members. A guardian must follow the contact arrangement as a minimum.
A guardian or a parent can make an application to the Children’s Court to change a contact order. A guardian and parent or parents can also make a mutual agreement to increase the frequency of contact. A guardian is responsible for arranging, coordinating and (where required) supervising contact between the child or young person and their family members.
Contact arrangements, usually outlined in a care plan, should remain in place unless it's in the child or young person’s best interest to change them. Even so, changes must be negotiated with all the relevant parties or be the result of a mediation process as outlined below.
It's important that anyone thinking of becoming a guardian understands that once a guardianship order is in place, FACS or the relevant out-of-home care agency will no longer be responsible for supervising or supporting contact arrangements.
What if there is a disagreement over contact arrangements after a guardianship order has been made?
If there is an ongoing disagreement about contact arrangements, Legal Aid NSW may be able to provide help through a mediation process.
Sometimes the practical part of contact can be difficult to negotiate and Legal Aid can help people talk about issues and try to find solutions.
FACS or the agency previously responsible for case management for the child or young person will not be involved in the discussions.
Free advice and assistance about this process is available by contacting Legal Aid on 1800 551 589.
Can the guardianship order be changed?
If the guardian, parents or FACS would like any part of the guardianship order to be changed, they have the right to make an application to the Children’s Court.
A guardianship order may be changed if there has been a significant change in circumstances since the order was made. For example, if the guardian has a serious illness and is unable to continue to care for the child.
If you're considering making an application to change a guardianship order, it's a good idea to seek legal advice.