Care and Guardianship

Placing a Child in Care

A child may be placed with a member of the extended family or in an out-of-home care placement approved by Child Protection Services if the child needs protection and their safety cannot be guaranteed if they remain in the home. Sometimes this placement will change after Child Protection has assessed the situation and there have been changes at home to make sure that the risks to the child’s safety are no longer there.

The Children Young Persons and their Families Act (CYFPA) uses the term ‘guardianship’ to refer to placing a child in a protective environment. Care and protection orders may be made for short periods and there are provisions for when orders are to be reviewed. This means that children are no longer automatically in the care of the State until they are 18 years old.

Under the CYPFA, people, such as extended family or friends known to the child, can be granted guardianship or custody of a child so that the child can stay in a familiar, but protected, situation where there is little change in the child’s established family, religious, cultural, educational and social connections.

Guardianship

A ‘guardian’ under the CYPFA means (s3(1)):

• a parent of a child; and
• a person (other than the Secretary) who is the legal guardian of a child; and
• a person (other than the Secretary) who has the legal custody of a child; and
• any other person who generally acts in the place of a parent of a child and has done so for a significant length of time.

Note: some of these terms, such as ‘legal custody’ are no longer used in the Family Law Act.

Best Interests

The court must consider the following matters when determining what is in the child’s best interests (s55):

• any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court considers relevant to the weight it should give to the child’s wishes;
• the relationship the child has with guardians and other persons and the likely effect of any changes in the child’s circumstances on those relationships;
• the relationship that guardians have with the child and the capacity of each guardian or of any other person to provide for the needs of the child, including emotional and intellectual needs;
• the need to protect the child from physical or psychological harm;
• the child’s maturity, sex, background and culture and any other characteristic of the child and any other fact or circumstance that the court considers relevant.

Whether the child is represented by a lawyer or not, the court must allow the child a reasonable opportunity to give their own views personally to the court if they are capable of doing so and wish to do so.

The court must not proceed to hear an application unless:

• the child is represented in the proceedings by a lawyer; or
• the court is satisfied that the child has made an informed and independent decision not to be so represented.