Guardianship – the who, what, where, when and why (in no particular order)

If you are already a foster or relative/kin carer then you very likely to understand that legal parental responsibility sits within the government structure instead of the child’s birth parent/s. You are then also likely to understand that this brings you, as the carer and the child in your care into a complex legal and regulatory system to ensure children in care are indeed safer and doing well.

If you are the ongoing carer for a child and you find you are doing most of the doing (not your agency) and the child/ren in your care are well supported within your own family and network, then it is really worth taking a look at Guardianship or Adoption. In this post I am going to focus on Guardianship as I have already posted on adoption and there are some key differences in terms of who can access each and why. The two key differences I will touch on but do deserve more time is that depending on your jurisdiction, adoption is considered more suitable for non- relative carers as it does impact birth certificates, family trees etc. The other key factor which you can read about in an earlier blog is that it is very much the exception and not the general approach that Aboriginal children are adopted.

Guardianship is a way for children to exit the ‘In Care’ system if a child cannot return to birth parents.

Why would this be better for a child in my care?

A good way to consider whether you are ready to make this move is to think of this from the perspective of the child you care for.

Here are some reasons that may resonate :

  • no more strangers turning up at school for meetings about them
  • not having to ‘seek’ permission from the agency every time you travel
  • not having to see agency staff monthly/6 weekly
  • not being the ‘kid in foster care’ at school (which truly shouldn’t be a thing but continues to be)
  • much stronger sense of permanency (it is not unusual for children with trauma background to feel they may get moved on if they don’t behave – this decision helps them see how committed you are)

Key information about Guardianship

  • Hands legal responsibility for all aspects of a child to a person who is not the birth mother or/and father
  • The child/s surname will not change
  • Legal rights do not change ie inheritance of a guardian (unless there is a will) do not automatically go to a child that is under a Guardian order
  • A child under a Guardianship can be bought back to the Children’s Courts if there is a significant change in circumstances
  • If the guardian passes away, the child reverts back to the child welfare department while decisions are made
  • Guardianship is only valid until a child/young person reaches 18
  • Guardianship is a more logical fit for family/kin caring for children.

Each state/territory will have their own nuances in terms of

  • Whether an allowance will continue to be paid
  • Guidelines for financial support for additional needs
  • Who participates in the decision making for Guardianship

How to know if you are ready to consider this further

If you feel you rely too much on your agency for support (practical, financial) but you absolutely are committed to the ongoing care of a child in your care, then it is worth having conversations with your agency about this. I know of many carers who have felt this way but once community based supports were put in place, this wasn’t such an issue.

If the issue is about ensuring connection to a particular person who you may not feel comfortable with, again, talk with your agency. It may be that between you, your own network (family and community) and the agency you can come up with some different approaches to ensure this works ongoing – without agency intervention.

If you are doing everything, are committed ongoing and really do not gain much value from agency involvement, then definitely have a conversation about the idea of the child in your care (and you) moving out of the statutory care system.

When can I ask to become a Guardian?

If you are ready then you can commence this conversation at any time. You do not need to wait for an annual case plan to do this. The decision to move to a different court order, should be sufficient to re-align the case plan at any time of the year. 

How do I become a Guardian ?

Its good to share with you upfront that it is a process that will involve further assessment and going back to Court but all these costs should be covered by your agency and your primary government department.

If you personally feel it is time to consider this, then start with conversations within your own family to make sure this is what you all want. Individuals positions may change but it is good to know where you are all at as you start the journey to exit the system.

Let your agency know that you want to discuss this and that you would like them to provide any information that will support your understanding.

You should receive some form of ‘pack’ or at the very least an application form. Each jurisdiction will be different but it is likely there will be a time limit in terms of you completing the form and the agency progressing to assessment.

The assessment process (similar to becoming a carer) may be outsourced to an independent assessor. The key difference is they are assessing for permanency for a particular child.

The assessment will consider

  • Conversations with all key people including understanding the child’s views (if they are old enough)
  • You are able to ensure the ongoing care of the child in all domains (health, education, wellbeing, connection to other significant people)
  • Childs specific needs
  • Your own health is good to support you in your caring role

Once the assessment is completed then the matter goes back to Court for consideration. It is difficult to put a timeframe on this as it depends on the speed at which your agency, government systems (including Court) all work towards this goal. It definitely should not take any longer than one year if everyone is doing their part.

Where can I find out more?

There are many resources available to help you navigate this space and again, a conversation with your agency staff should get you on your way.

There is a recent paper released by University of Western Sydney proposing a step in between Guardianship and Adoption which honours the existence of two families https://researchdirect.westernsydney.edu.au/islandora/object/uws:53559

Note on grief and loss for family

I will post more about this shortly but I do want to acknowledge that this decision can bring up significant grief/loss for a parent or both parents as well as extended family (if Guardianship is to a foster carer). Any conversations with family must acknowledge the gravity for parents when they hear that this is being explored. For children that have entered care recently, guardianship or adoption should not be on the table until restoration is exhausted. My hope is that parent’s have been well supported during to support restoration but sadly, not all parents are able to make the change needed for children to be able to go back home safely. For children who have been in care a considerable amount of time, then bonding/attachment with carers is also taken into consideration (as is the childs view). The best way to support a parent/s or extended family through this time is to show respect by honouring their family time with the child you care for and view these as lifelong connections.

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