Section 168(1) of the CYFA requires a case plan to be prepared for every substantiated case. Section 166 requires every case plan to include a permanency objective. The permanency objectives are listed in s. 167 of the CYFA, in order of preference as determined to be appropriate in the best interests of the child:
a) family preservation—the objective of ensuring a child who is in the care of a parent of the child remains in the care of a parent;
b) family reunification—the objective of ensuring that a child who has been removed from the care of a parent of the child is returned to the care of a parent;
c) adoption—the objective of placing the child for adoption under the Adoption Act 1984;
d) permanent care—the objective of arranging a permanent placement of the child with a permanent carer or carers;
e) long-term out of home care—the objective of placing the child in-
i. a stable, long-term care arrangement with a specified carer or carers; or
ii. if an arrangement under subparagraph (i) is not possible, another suitable long-term care arrangement.
The CYFA states where out-of-home care is required, preference is to be given to placing children with suitable kin where possible, and if not, with another suitable carer or carers.
The underlying reason for this hierarchy is consistency with the child’s best interests to promote and maximise security and continuity of care arrangements, and thereby minimise harm caused by disrupted attachments and uncertainty about care arrangements, while also ensuring the child’s safety and wellbeing are promoted.
Family preservation is listed first in section 167 as it is the preferred permanency objective where it is consistent with the child’s best interests. It is the appropriate objective in all cases where a child remains at home
- as part of a case plan following substantiation where protective intervention is occurring by agreement,including where the child is in a voluntary placement, or where a protection application by notice has been issued
- where the child is subject to an interim accommodation order and a family preservation order (or less) is being recommended to the Court
- where the court has made a family preservation order and the circumstances have not changed since the order was made (if the risk assessment identifies that family preservation is no longer in the child’s best interests as a result of changes since the order was made, the permanency objective is to be changed, consistent with the child’s best interests, and an application for a consistent order is to be made within six weeks)
- after the parents of a child who has been in out–of-home care have been directed to resume full parental responsibility and the child has returned home with a family reunification order or care by Secretary order having been taken to be a family preservation order.
Where a child is placed in out-of-home care voluntarily, the appropriate permanency objective is family preservation, because the parents retain full parental responsibility for the child.
In all of these instances it is important to take all reasonable steps to provide the services and supports necessary to achieve the objective of sustainable family preservation.
Failure to provide services in a timely way is contrary to the child’s best interests and may weaken any future application to place the child in out-of-home care, if such an application becomes necessary.
Family preservation is only an appropriate permanency objective where remaining in parental care is consistent with the child’s best interests, including meeting their safety and developmental needs.
In the first instance where a child has been placed in out-of-home care under an order, family reunification will initially be the appropriate permanency objective. Exceptions to this may include:
- where a child has older siblings already placed in permanent care and where the child’s parents’ circumstances have not changed, making it unlikely family reunification can be achieved for this child
- where the child’s parents are dead or significantly incapacitated, or the child has been abandoned, or where the parents insist they do not wish to resume care of the child and want other arrangements made for their child’s care.
Family reunification will be the appropriate permanency objective where:
- a child is subject to an interim accommodation order to any form of out-of-home care (including with a suitable person), unless a family preservation order or less is being recommended to the Court
- the court has made or extended a family reunification order, and the circumstances have not changed since the order was made (if the risk assessment identifies that family reunification is no longer in the child’s best interests as a result of changes since the order was made: the objective is to be changed, consistent with the child’s best interests; and either the order is to be taken to be a family preservation order within six weeks, or an application for a consistent order is to be made within six weeks)
- a child has been in out-of-home care for more than 24 months and is subject to a care by Secretary order, and where there are exceptional circumstances justifying a belief that successful reunification can be achieved in a timely way, and is in the child’s best interests.
In all of these instances it is important to take all reasonable steps to provide the services and supports necessary to achieve the objective of sustainable family reunification.
Failure to provide services in a timely way is contrary to the child’s best interests and may weaken any future application to the Children's Court to place the child in out-of-home, long-term, or permanent care, if such an application becomes necessary.
It is a matter of natural justice for both children and parents that parents are offered the assistance necessary to resume care of a child within 12 months, and in limited circumstances up to 24 months, of a child entering out-of-home care where family reunification is the permanency objective. If services cannot be provided in a timely way due to waiting lists or lack of availability, the case planner should be informed as a matter of urgency so operational managers can seek ways to address the issue.
Progress towards reunification should be closely monitored and adjustments made to assistance being provided where this will promote timely achievement of the objective.
Regular review of the risk assessment will assist in determining whether the services and support provided to the family has increased safety and protection and decreased the consequence and probability of harm to the child and therefore informs what progress is being made toward reunification.
Progress must be reviewed as the end of the initial family reunification order approaches. A family reunification order will usually have an expiry date consistent with the child having been in out-of-home care for 12 months cumulatively during the current series of court orders. Review of progress toward reunification as informed by the review of risk assessment considers whether there is compelling evidence to support a recommendation to extend the family reunification order with the effect of placing the child in out-of-home care for a cumulative period of up to 24 months. A family reunification order can only be extended where there is compelling evidence that permanent reunification is likely to be achieved within that additional period of time.
If family reunification is assessed as not achievable during the course of an initial or extended family reunification order, the permanency objective should be changed to permanent or long-term out-of-home care and an application made to the Children's Court for a care by Secretary order or if the current carer has been assessed as being suitable, and is ready and able to offer permanent or long-term out-of-home care – a permanent or long-term care order.
If the Children's Court chooses to make a further family reunification order (up to the 24 month timeline), the permanency objective is to revert to family reunification and goals, tasks and an action plan are established to work towards achieving this objective.
A family reunification permanency objective may continue to be appropriate where a child has been in out-of-home care for more than 24 months, by which time they should be subject to a care by Secretary order, where there are exceptional circumstances justifying a belief that successful reunification can be achieved and is in the child’s best interests despite the length of time they have spent in out-of-home care.
Such circumstances may arise if a parent who is otherwise capable of providing adequate care is incarcerated for a crime unrelated to their parenting capacity and on release from prison will resume care, or where a parent is expected to recover from an illness that has prevented them from caring for their child.
Care should be taken to ensure any additional delay in achieving reunification will not cause harm to the child, as a result of remaining in out-of-home care facing uncertainty about their future. Affording parents the opportunity to resume care of a child in out-of-home care always must be balanced against the child’s need for safe and secure care arrangements to be made before serious damage is done to their ability to form attachments and develop normally. As in all other aspects of child protection practice, the child’s best interests are more important than the interests of parents, kin and carers.
Where reunification cannot be achieved within a timeframe consistent with a child’s developmental needs, it is important to make the most enduring alternate care arrangements possible, to maximise the child’s opportunity to form secure attachments and reach their developmental potential.
The most legally secure and enduring alternate care arrangement is adoption. Adoption law in Victoria makes an adopted child a member of the adoptive family for life and therefore, for example, provides for an adoptive child to have inheritance rights in relation to adoptive parents even when the adoptive child has become an adult.
The Adoption Act 1984 provides for adoption by consent and, in some cases, dispensation of consent. The thresholds for dispensing with consent are very high. It is therefore difficult to justify, and rarely pursued. However, where a child’s parents are seeking to relinquish care, adoption should be actively considered as the most appropriate permanency objective.
If a case plan is made with a permanency objective of adoption, and the child is not already subject to a care by Secretary order or a long-term care order, an application is to be made to the Children's Court as soon as possible for an order that is consistent with the permanency objective.
In rare cases where adoption is the permanency objective, see Adoption - advice for the process for obtaining an adoption order.
Permanent care provides a safe and secure care arrangement with specific carers until the child is 18 years old. It is the preferred means of providing alternate permanent care for a child where there is no consent for adoption, as is the case in most instances.
This objective may be selected where a child is already placed with a kinship or foster carer who is available to become the child’s permanent care parent, or where a permanent care parent is yet to be identified.
If the current carer is not willing or able to become the child’s permanent carer, and is not a suitable carer under a long-term care order, other appropriate permanent carers will need to be identified and the child matched with new carers. In all instances, alternative permanent carers in the child’s kinship network should be identified and considered first. A consultation with an adoption and permanent care team should be arranged as soon as it seems likely permanent care will be the appropriate permanency objective, and a referral should be made immediately after the decision is made.
A child in permanent care can, when they are 18 years old and legally an adult, apply to be adopted by their permanent care parents if they wish to establish an enduring life-long legal relationship with them.
An alternative to a permanent care order that may be considered in some cases is an order of the Family Court. This may be an appropriate means of transferring parental responsibility to a kinship carer until the child is 18. The process involves a carer being prepared to be the applicant for the order, and the department may have to assist them with the application. The CYFA includes provisions enabling this process. Consult with CPLO or divisional legal representative.
Long-term out-of-home care
Long-term out-of-home care will be the appropriate permanency objective where:
- the preferred carer is willing to be the child’s long-term carer but does not consent to a permanent care order, or
- a permanent care order would not be in the child’s best interests but long-term care is required.
Long-term out-of-home care is the least preferred permanency objective, because it involves the state having on-going parental responsibility for the child, rather than the person caring for the child. There is a greater chance that long term care arrangements for a child may be less secure and enduring. However, some forms of long-term out-of-home care are more secure than others, and the most secure options should be considered first.
The most secure long-term out-of-home care option is placement of a child with a home-based carer with whom they will live until they are 18 under a long-term care order. For most practical purposes, and especially when they are young, a child may not experience this as being different to a permanent care placement. The carer’s sense of commitment to the child may be qualitatively different, and as the child gets older and their views are sought for the required annual review and about significant decisions, the child is likely to become more aware of the fact that the Secretary is ultimately responsible for their safety and wellbeing.
A long-term care order provides departmental support to a carer who does not have parental responsibility for the child. Some carers may prefer this arrangement as they do not feel able to take on parental responsibility, or because they need more assistance than they may receive if a permanent care order was to be made.
Where carers wish to be the child’s carer under a long-term care order, this may be because the child has special needs that require ongoing specialist services, or because there is conflict about contact arrangements and the contact needs to be managed by the department.
Where possible, such carers should be provided with the reassurance and assistance they require in order to feel confident about becoming permanent care parents, but a long-term care order still provides the child with a high degree of security and continuity in care, and is the best outcome where the permanency objective is long-term out-of-home care.
Where a carer has not yet been found to care for a child until they are 18, there are other issues to consider that may have an impact on the child’s sense of identity and belonging. These include encouraging the child’s continuing contact with their birth family, and, wherever possible, placing siblings in out-of-home care together.
If a child cannot be reunified with their birth family, and a permanent or long-term carer cannot be found, the damage to the child’s sense of identity and belonging may manifest itself in the development of behavioural problems and this may make it increasingly hard for carers to cope with caring for the child. This can result in a destructive cycle where each placement disruption compounds behavioural problems and makes future placements increasingly unstable. Ultimately the child may be unable to cope in any family situation and residential care will have to be provided. This is the least desirable long-term out-of-home care placement option.
Permanency planning begins immediately after protective concerns are substantiated. It is important to explain to families and children, even at this early stage, that if the child is placed in out-of-home care, family reunification is the most desirable outcome, but needs to be achieved (except in exceptional circumstances) within the legislated timeframe of 12 months or, at most, 24 months.
A similar message needs to be given to carers, and they should be encouraged to consider how they will support reunification, and whether they will be able to offer ongoing care if family reunification cannot be achieved in a timely way.
Identifying a permanency objective, seeking its achievement, and reviewing and changing the objective where necessary, is part of the case planning process. This should comply with the decision making principles set out in the CYFA by ensuring the child, their parents and their carers, are enabled to contribute to the decision making process, and that their views are given proper consideration in a fair and transparent collaborative process (s. 11). Where a child is Aboriginal and/or Torres Strait Islander, additional principles apply including that members of the child’s community and an Aboriginal agency should also be involved in the process, and having regard to the Aboriginal Child Placement Principle (ss. 12 - 14).