Guardianship means the guardian will have full legal responsibility for the child and can make decisions for your child, including health, education, and daily care decisions (section 79A(1) of the Care Act). But it also doesn’t legally change your relationship with your child. Your child will have much less involvement from DCJ, as the casework from service providers and DCJ is no longer available. This means less home visits, meetings, and carers having to ask agencies or DCJ for medical permissions. The details of your family time will be outlined in your child’s care plan or Contact Orders made at final orders. A carer can only be considered to be a guardian if they can independently support your child, as there is no consistent support from DCJ, and they can independently facilitate contact, without the need for DCJ to provide support or supervision (including planning or contacting the parents to arrange it).
Guardianship is not sought after for every child, but DCJ or Non-Government Organisations (NGOs) might pursue this option because they say it increases physical permanency, and reduces casework.
Carers who would want guardianship might want to make all the decisions for the child that a parent normally makes or might want less involvement from DCJ. Guardianship orders will most likely be sought for children who have a stable long-term foster care placement, do not want to be in out-of-home care (OOHC), and do not want to have DCJ involved in their life anymore.
The NSW Child, Family and Community Peak Aboriginal Corporation (AbSec) opposes guardianship orders for Aboriginal children when administered by non-Aboriginal systems without proper safeguards, because they undermine cultural rights, safety, connection, and self-determination. With guardianship, there are no built-in ways to know if your child is happy, safe, or connected to their culture and Aboriginal family, as services such as DCJ and child and family support services are not involved anymore. DCJ says that guardianship is better because it is more stable for your child than foster care. However, it also costs the government less money, as there is an agreed amount of money provided to the guardian (agreed at the time of the final order), and they have less casework involvement with your child. A child who is on guardianship is not considered to be in OOHC when DCJ is preparing their statistics for reporting. DCJ can be coercive with families and try to push for children to go to guardianship. It’s the experience of parents that DCJ can present Guardianship as a great thing but not give you all the facts.
Even though your family time is outlined in the care plan or Court orders, a Guardianship Order could be a negative thing for seeing your child. This is because once DCJ is not supporting family time visits, the guardian is in charge of organising the family time visits, and if they are not supportive, they can make family time visits difficult. They don’t have to comply with what the care plan says about family time either. If you think there is a chance of this happening, or it is already happening, you can request a contact order which goes through the Children’s Court (section 86 of the Care Act). This will outline the minimum amount of time you’re entitled to have with your child. You can increase this frequency and amount of time, but under guardianship it is up to the guardian to make this happen.
If guardianship is to be used, the most appropriate way would be if the child was living with a family member, your child’s connection to family, culture and country is supported, and the decision was Aboriginal family- led. A Guardianship Order can be used so that a family member has full legal responsibility for the child, whilst also not changing the relationship legally with the parent. Guardianship means much less involvement from DCJ in you and your child’s lives. This can be a good or bad thing depending on your situation. It could be a good thing if your child is with an Aboriginal family member who you get along with and DCJ is less involved in your family. This would mean your child is not technically in out-of-home care (OOHC) anymore, and a caseworker would not be involved in their lives anymore. However, this could mean you have less support, such as help with transportation to family time visits. The Court has to consider a guardianship financial plan, which includes financial support for the placement.
If a child is over 12 years old, they can either consent or not consent to guardianship. This consent needs to be written. They will also get a Direct Legal Representative (DLR) that should act on the young person’s direction (other than in certain situations, such as if they have a guardian ad litem appointed) (section 99A of the Care Act). This means the lawyer should be accurately representing the voice of the young person, and is compelled to act on their instructions. The law assumes that being over 12 years old means that your child can say what they want for themselves. However, if their lawyer (after speaking with them) thinks they are not capable of giving proper instructions, they can apply to the Court to “act in their best interests” (which might mean not doing what they ask).
“A guardian must agree to keep your child in contact with you and support their cultural needs and connections” (DCJ Child Protection Guide for Families, page 43). However, it’s the experience of families that when Aboriginal and Torres Strait Islander children are placed on guardianship orders with non-Aboriginal carers, their connection to family is not supported as well as it should be. This is because there is no one (like DCJ) watching to see what they are doing. If a carer is not a relative or kin and they want guardianship, then a Cultural Plan must be done, and approval given from the DCJ Executive District Director. It is a right for Aboriginal and Torres Strait Islander children to have a cultural support plan (section 83A(3)(b) of the Care Act). But this is not always happening, or DCJ are not involving family in making it. One of the greatest barriers to guardianship is the requirement that the proposed guardian needs to show that they can make sure contact (family time) continues. Often, this can be hard to show.
‘Permanency options’ means there are different placement options for children, with a focus on stability. For Aboriginal children, helping to keep children at home (preservation) is the best and first option. If that does not happen, bringing children home (restoration) is the next best option. If this does not happen, guardianship is the third best option, with the option of a relative having parental responsibility (not through guardianship) as the next preferred option. Finally, long-term care and then adoption are the last options (see the permanent placement principles in section 10A(3) of the Care Act). Section 12 of the Care Act says that DCJ are required to include Aboriginal family and community members in decision making processes. This is known as Aboriginal family- led decision making and is a right that is protected by both legislation (law) and policy.
DCJ caseworkers need to show evidence of Aboriginal consultation with a member of the child’s family or community, and it has been used at key planning and decision-making points. They need to show that the Aboriginal placement principles have been followed with all efforts to identify and locate family and kin recorded (Standard 2, DCJ Practice Framework Standards). DCJ caseworkers need to involve and value Aboriginal families (including fathers and stepfathers), extended relatives, community and Aboriginal representative organisations. They need to assist them to participate in all decisions and interventions using Aboriginal family-led decision-making processes (Standard 2.2 of the Practice Framework Standards). DCJ caseworkers are required to follow their Practice Framework Standards. If you think or you know your caseworker has not followed their Practice Framework Standards, you should document this and talk to your lawyer, advocate, and support service. If it is safe enough, you can also speak to your caseworker and ask why they have not followed their Practice Framework Standards.
It’s the experience of families that family time can become less frequent because it’s only up to the carer to make it happen. If you are having issues with this, look at:
AbSec and our partners acknowledge the Traditional Custodians of Country throughout NSW and their continuing connections to land, waters, and communities. We also acknowledge the lands on which these stories were told, the lands of the Dharawal, Yuin and Wonnarua people.
We acknowledge the Elders, leaders and advocates that have led the way and continue to fight for our children. We also acknowledge the Stolen Generations who never came home and the ongoing impact of government policy and practice on Aboriginal and Torres Strait Islander children, young people and families.
This website shares the experiences and advice of Aboriginal families involved in the NSW child protection system who participated in the Bring Them Home, Keep Them Home research at UNSW. We acknowledge and thank the families who generously gave permission to share their stories.
These experiences reflect what worked for those families and do not constitute advice or views of AbSec. AbSec recommends seeking independent legal advice for your own circumstances.
