Permanency preferences

The Child Protection Act 1999 lists an order of preference for deciding which action, goal or order best achieves permanency for a child identified as being in need of protection.

First preference: care by the child’s family

The first preference of permanency is for the child to be cared for by their family.

This is either through supporting the child remaining in the care of a parent or reunifying the child with their parents after a period of time in care.

Reunification is the case work goal of building on a family’s strengths while addressing the concerns that led to the removal of the child. Once enough safety has been achieved (through the parents’ actions AND a safety and support network around the child) a child can be returned to their parents’ care.

Reunification involves tenacious case work. Strengths-based and solution focused case work, strong partnerships with family and professionals, and early planning are all required in order to achieve safe, timely and sustainable reunification.

Reunification is based on the assumption that the birth family is the best option for children to return to if it offers a safe and nurturing environment.

Second preference: guardianship to a family member or suitable person

Children who are unable to return safely to their parents require permanent care with a guardian. A guardian may be kin or another suitable person. This could be achieved by:

• parenting orders made by the Family Court under the Family Law Act
• child protection orders granting guardianship to kin
• child protection orders granting guardianship to a foster carer.

The benefit of guardianship orders is that they:

• allow a child to retain their legal connections with birth parents
• support a guardian’s decision-making responsibility
• provide legal stability.

Family Court orders

For some children, permanency may be achieved through an order made by the Family Court.

A parent, grandparent or any other person concerned with a child’s welfare can apply for a parenting order. The Family Court will make a decision based on the child’s best interests.  

Anyone important to the child's welfare can be included in a parenting plan or consent order or can apply to the court for a parenting order.

The law encourages parents and other people interested in a child’s welfare to try to agree on arrangements for them. If an agreement cannot be reached, the process will move to family dispute resolution.

If family dispute resolution does not reach an agreement, a person can apply to court for a parenting order. 

Parenting orders and consent orders are legally binding, and there may be serious penalties if orders are breached.

Further information can be found at the Family Court of Australia and Legal Aid websites.    

Permanent care order

A permanent care order is another option to achieve permanency for a child who has been living with a kinship carer, foster carer or other significant person.

Permanent guardians must be committed to preserving the child’s identity, connection to community and culture, and relationships with members of the child’s family.

A permanent care order is similar to a long-term guardianship order to a suitable person in that it grants the guardianship of the child to a person until the age of 18. This order differs from other long-term care options in that only the DCPL can apply for a variation to/revocation of this order.

Once a permanent care order is granted, there is no requirement of Child Safety to have ongoing case management or provide support. Therefore, it is important to make a holistic assessment of the guardian’s ability and suitability to meet the child’s permanency care needs without ongoing support or monitoring.

A permanent guardian is responsible for:

• ensuring the Charter of Rights is complied with in relation to the child, as far as reasonably practicable
• ensuring the child is provided with appropriate help in making the transition from being a child in care to adulthood
• preserving the child’s identity and connection to their culture of origin
• helping to maintain the child’s relationships with their parents, family members and other people of significance
• complying with any modifications or limitations that the Childrens Court places on these obligations.

The permanent guardian is also responsible for:

• keeping Child Safety informed about where the child is living
• notifying Child Safety if the child ceases to be in their care
• notifying Child Safety if they reasonably believe their care of the child will end in the near future, for example, because the guardian suffers a serious health issue that will affect their ability to care for the child.

The guardian is also responsible for:

• telling the child’s parents where the child is living
• giving the parents information about the child’s care.

The child, parents or the guardian can request a review of the case plan at any time after the order is granted. A parent or child can also make a complaint through the department’s complaints process if they have concerns. You can also read the permanent care order brochures: information for children and young people, information for parents and information for proposed guardians.

Permanent guardians may be able to access supports from Child Safety and the Department of Human Services.

Long-term guardianship to a suitable person

Permanency for a child who is unable to be reunified with their parents may be achieved through a child protection order granting guardianship to a kinship carer or foster carer.

In order to make a decision about a long-term guardianship order to a suitable person, Child Safety must complete a holistic, rigorous planning and assessment process to determine that it is the best possible option for a child. This includes assessing whether the proposed guardian is able and willing to provide for the child’s needs until the child reaches 18 years of age, and if they can support the child into independent adulthood.

A long-term guardian is responsible for:

• ensuring the Charter of Rights is complied with in relation to the child, as far as reasonably practicable
• ensuring the child is provided with appropriate help in making the transition from being a child in care to adulthood
• preserving the child’s identity and connection to their culture of origin
• helping to maintain the child’s relationships with their parents, family members and other people of significance
• complying with any modifications or limitations that the Childrens Court places on these obligations.

The long-term guardian is also responsible for:

• keeping Child Safety informed about where the child is living
• notifying Child Safety if a child ceases to be in their care
• notifying Child Safety if they reasonably believe their care of the child will end in the near future, for example, because the guardian suffers a serious health issue that will affect their ability to care for the child.

The long-term guardian is also responsible for:

• telling the child’s parents where the child is living
• giving the parents information about the child’s care.

Long-term guardianship to a suitable person (kinship or foster carer) involves annual follow-up from Child Safety to see the child and capacity to review the case plan. Parents have the right to apply to vary or revoke the order.

Third preference for Aboriginal and Torres Strait Islander children and fourth preference for other children: long-term guardianship to the chief executive

In some circumstances, a child protection order granting long-term guardianship to the chief executive may be more appropriate than an order granting long-term guardianship to a suitable person. These circumstances can only be considered on a case-by-case basis, having regard to the needs of the child and the proposed guardian’s assessed ability and willingness to fulfil all guardianship responsibilities.

If long-term guardianship is being considered, and there is no suitable person able and willing to accept guardianship of the child, a long-term order granting guardianship to the chief executive will be recommended as the appropriate order.

Following the making of an order granting long-term guardianship to the chief executive, the child will continue to be supported and monitored in their care arrangement and the cycle of assessment, planning, implementation and review will continue. 

Children can be placed with kinship carers and be on a long-term order to the chief executive. These placements continue to support relational permanency for the child while continuing to offer the kinship carer extra levels of continuous support.

A number of child factors (age, history of abuse, and existing emotional and behavioural problems) have been recognised as reasons for why guardianship to the chief executive may be a better permanency option for some children.

Children with significant emotional/behavioural problems may be better placed in long-term foster care rather than, for example, being adopted. These children may be more effectively cared for by foster carers who are trained and highly skilled at responding to the effects of harm and have access to a specialised network of support services if the child remains in long-term care.

Children who have strong family relationships, such as sibling relationships, may also be better served by long-term foster care. Keeping siblings together may be more easily achieved with foster care or kinship care as compared to other permanency options.

Long-term foster or kinship care placements may be supported by a child protection order granting long-term guardianship to the chief executive. Opportunities for the foster carer to become the child’s guardian are to be revisited at case plan reviews to further strengthen the child’s legal permanency with the carer family.

Third preference for children who are neither Aboriginal or Torres Strait Islander: adoption

Adoption is the third option to be considered for achieving permanence for a child in care, other than Aboriginal and Torres Strait Islander child under the Child Protection Act 1999, section 5BA(4).

Adoption terminates parental rights and creates new legal relationships for a child the child's adopted parent or parents. It is an option that requires significant consideration, as it permanently alters the legal identity for the child.

Adoption and Permanent Care Service is the first point of contact for Child Safety staff and families wanting information about the adoption process, eligibility requirements or other options available to provide long term, stable and permanent care.

The legal permanency of adoption can provide a child with a higher level of stability as well as an increased sense of wellbeing and belonging. 

Adoptions are no longer considered to be ‘Open’ or 'Closed'. Contemporary practice is to view all adoptions as having 'degrees of openness'. Open adoption recognises positive adoption outcomes are more likely when adopted children are able to include knowledge of their birth and adoption into a positive self-image. Open adoption may include the exchange of non-identifying information through the "Mailbox" service, exchange of photographs, identifying information or in-person contact. An Adoptive Plan is drafted to capture the views, wishes and agreements of all parties to an adoption. For a child who is adopted and who has been subject of a child protection order an Adoption Plan is mandatory. Adoption and Permanent Care Services works with all parties to help negotiate and draft an Adoption Plan. 

Adoptive parents become the child’s legal parents and have full responsibility for the child’s upbringing, for decisions that affect their wellbeing, and for determining the best interests of their child. An adoption order is 'lifelong' and does not cease to have effect when a person obtains the age of 18. 

Fourth preference for Aboriginal and Torres Strait Islander children: adoption

There may be circumstances where an Aboriginal and/or Torres Strait Islander child cannot be cared for under the guardianship of a member of their family or another suitable person and being cared for under the guardianship of the chief executive would not meet the child’s permanency needs. If this was the case, then consideration is to be given to whether adoption would best achieve permanency for the child under the Child Protection Act 1999, section 5BA(4).

Adoption is the last option to be considered for achieving permanence for an Aboriginal and Torres Strait Islander child because an adoption order severs a child’s legal relationship with their birth parents and family and creates an enduring (beyond the child’s eighteenth birthday) legal parental relationship. Adoption (as provided for in the Adoption Act 2009,) is not part of Aboriginal tradition or Island custom and the adoption of an Aboriginal or Torres Strait Islander child can only occur if there is no better available, under the Adoption Act 2009, section 7.

Adoption is unlikely to uphold the rights of Aboriginal and Torres Strait Islander children and their families or to enable Child Safety to fulfill its obligations under the Aboriginal and Torres Strait Islander Child Placement principle. 

While adoption is to be considered if no other option can achieve permanency for a child, there would need to be compelling evidence that in the specific child’s circumstances the making of an adoption order would meet their permanency needs better than any other action or order type.