This advice provides information regarding the legislation and policy for permanent care.
Document ID number 2109, version 6, 1 May 2020.
Permanent care is when a child, for whom a decision has been made that they are unable to live safely with their parents, is placed with approved permanent carers such as an existing kinship or foster carer, assessed as suitable to convert to permanent care, or with new permanent carers. In some circumstances an application to the Family Court for a parenting order may be more appropriate.
The permanent care placement is legalised through the Children’s Court which grants a permanent care order (PCO) providing the carer with parental responsibility for the child.
Permanent care provides long term security and certainty about the future care for children who have entered the child protection system and for whom a decision has been made that they are unable to live safely with their birth parents on a long-term basis. A PCO remains in force until the child turns 18, or marries, whichever happens first.
The updated Permanent Care Manual 2020, which replaces the Adoption and Permanent Care Procedures Manual (2004), outlines current policy and practice guidelines for permanent care teams, child protection and kinship and foster care service providers providing permanent care services in Victoria.
Permanent care orders
The CYFA provides for the Children’s Court to make a permanent care order to a person or persons if satisfied that the person or persons is/are suitable to have parental responsibility for the child. Sections 319-327 of the CYFA, provide for when the Court may make a PCO, how an application may be made, the effect of a PCO, the restrictions on making a PCO, when a PCO may lapse, how disputes between persons jointly granted parental responsibility are to be resolved, changes to the nature of a PCO and how applications to revoke or vary a PCO may be made and by whom.
A PCO operates within the jurisdiction of Victoria. However, section 70C of the Family Law Act 1975 when read with rule 23.01A of the Family Law Rules 2004 provide for the registration of a PCO in the Family Court by filing a sealed copy of the order in a registry of the Family Court. The effect of registering a PCO in the Family Court is that the PCO will have the same force and effect as if it were an order made by the Family Court.
Type of order in place prior to applying for a PCO
A child may be subject to any type of order prior to an application for a PCO. That is, a PCO can be sought when a child is subject to an interim accommodation order or protection order.
Application for a PCO
An application for a PCO is made by the Secretary of the Department of Health and Human Services, and is granted by the Family Division of the Children’s Court.
Permanent care applicants must be Australian citizens or hold a permanent resident visa and commit to remaining in Australia.
Section 321(1)(ca) specifies that a PCO must include a condition that a person caring for a child must, in the best interests of the child, preserve the child’s identity and connection to their culture of origin and the child’s relationships with their birth parents and family, unless the Court otherwise provides. The Secretary must not approve a prospective permanent carer unless satisfied that the person will comply with the condition under section 321(1)(ca).
When the Court may make a PCO
The Court may make a PCO if it is satisfied that:
- the child’s parent or, if the child’s parent has died, the child’s surviving parent has not had care of the child for at least six months or for periods that total at least six months of the last 12 months; and
- the child’s parent is unable or unwilling to resume parental responsibility for the child or, it would not be in the child’s best interests for the parent to resume parental responsibility; and
- the person(s) named in the PCO application is suitable having regard to any prescribed matters and any wishes expressed by the parent in relation to those prescribed matters; and
- the person(s) named in the PCO application is willing and able to assume responsibility for the permanent care of the child by having parental responsibility for the child; and
- the child’s wishes and feelings have been ascertained and considered having regard to their age and understanding; and
- the child’s best interests will be promoted by the making of the order.
The Children, Youth and Families Regulations 2007 prescribe the matters the Court must take into account when considering the suitability of persons to have parental responsibility of a child. Regulation 18 sets out the prescribed matters referred to in s. 319(1)(c)(i) of the CYFA, that the Children’s Court must consider in making a permanent care order. They include:
- the health, including medical and psychiatric health, of the person or persons;
- the skills and experience of the person or persons;
- the capacity of the person or persons to provide stability for a child for the duration of the permanent care order;
- the capacity of the person or persons to promote and protect a child's safety, wellbeing and development for the duration of the permanent care order;
- the capacity of the person or persons to provide appropriate support to the maintenance of a child's cultural identity and religious faith (if any);
- the person or person's appreciation of the importance of:
- contact with a child's birth parent and family; and
- exchange of information about the child with the child's birth parent and family;
- the person or person's general character including any criminal history;
- the person or person's relationship with other household and family members and the criminal records and history of the household members (if any).
Permanent care orders for Aboriginal Children
Section 323(1) CYFA places restrictions on the making of a PCO for an Aboriginal child. If an Aboriginal child is to be placed with non-Aboriginal carers, the Court must not make a permanent care order unless the disposition report states that:
- no suitable placement can be found with an Aboriginal person or persons; and
- the decision to seek the order has been made in consultation with the child, where appropriate; and
- the Secretary is satisfied that the order will accord with the Aboriginal Child Placement Principle.
The Court cannot make a PCO in respect of an Aboriginal child unless it has received a report from an Aboriginal agency that recommends the making of the order and that a cultural plan has been prepared for the child.
Foster care conversions and specific applications
Refer to the Chapter 7 in the Permanent Care Manual for advice about procedures for foster care conversions.
The purpose of contact in permanent care is very different from contact where reunification with the child's family is the objective. For children in permanent care, contact supports the development of the child's identity, history and connectedness with their birth parents, siblings and extended family.
Section 321(1)(d) CYFA provides the Court may include conditions on a PCO concerning the contact with child’s parent which may provide for contact up to four times per year. Section 321(1)(e) provides that the Court may include conditions concerning contact with siblings and other persons who are significant to the child. The legislation also allows for additional contact to be arranged by agreement if this is considered to be in the best interests of the child (s. 321(1A)).
Section 327(2) provides that if an application to vary a contact condition is made by a birth parent more than 12 months after the PCO was first made, the limit of four contacts per year (under s. 321(1)(d)) no longer applies.
Section 321(1B) provides that in making a decision regarding contact, the Court must have regard to the primacy of the child’s relationship with their permanent care family and whether the condition:
- is necessary to protect the child or support the permanence of the placement; and
- is necessary to promote the child’s continuing connection to their parents, siblings or culture; and
- is sufficiently flexible to accommodate the child’s changing developmental needs over time; and
- is reasonable in the context of the child’s permanent care family’s life; and
- is necessary given the capacity of the person caring for the child to meet the condition, which must be included on a PCO, that the carer must preserve the child’s identity and, connection to their culture or origin and the child’s relationships with their birth family.
Section 321(1C) CYFA provides that a PCO may include a condition that a child must not have contact with a parent, sibling or other person.
Variations and revocations
An application to vary or revoke a PCO can be made by the child, a person who is a parent of the child (other than a permanent care parent), the permanent carer(s), or the Secretary (s. 326(1)). Section 326(1A) provides that a sibling of the child may make an application to vary a PCO.
A parent (other than a permanent care parent) may make an application to vary a PCO order during the first 12 months of a PCO but only on the basis that a contact condition has not been complied with (s. 326(1B)).
If a parent (other than a permanent care parent) wishes to apply to revoke or vary a PCO, they must seek and be granted leave of the Court to make the application (s. 326(1C)). In determining whether to grant leave, the best interests of the child are the paramount consideration and the Court must have regard to:
- the current circumstances of the child; and
- the matters specified in s, 321(1B) (above); and
- the potential disruption to the child’s permanent care placement and relationship with the permanent care family; and
- in the case of an application to vary, whether it appears a party has not complied with a condition of the order, or there has been a significant change in the circumstances of the parent or the child since the order was made; and
- in the case or an application to revoke, whether the circumstances of the parent have changed significantly to the extent that the parent can demonstrate that they would be able to permanently fulfil the responsibilities and duties of parenthood, including the capacity to provide adequately for the emotional, intellectual, educational and other needs of the child.
In order to assist the Court to determine whether to grant leave to a parent (other than a permanent care parent) to apply to revoke or vary the order, the Court may request a report from the Secretary about the current circumstances of the child.
The parent must not serve notice of an application to vary or revoke a PCO unless leave is granted by the Court.
In order to assist the Court in determining whether to vary a contact condition on a PCO, the Court may request a report from the Secretary about the contact needs of the child. Similarly, the Court may request a report from the Secretary to assist the Court in determining whether revoking a PCO would be in the child’s best interests.
Direct contact between children and birth families can provide positive opportunities for children in permanent care. Even so, and despite careful management, it can arouse intense feelings in children, sometimes with consequent difficult behaviour. If contact is not adequately planned, supported and reviewed, it can undermine the stability of the placement.
Inappropriate or excessive contact can impede the development of a child's attachment to the permanent care family and may also result in further trauma or rejection. In a worst case scenario, conflicts of loyalty can lead to placement instability and breakdown.
- Contact arrangements when permanent care is the objective should be reviewed in accordance with the child's needs and development and changes in parental circumstances. Decisions about increased frequency of contact should consider: the child's capacity to form new attachments based on their previous attachment experiences; history of moves from placement to placement; reasons for care; and, ability to manage multiple relationships.
- Decisions about increased frequency of contact should also have regard to the birth parent's acceptance of the permanency objective and willingness to encourage attachment to permanent caregivers; the birth parents’ ability to keep to arrangements; the emotional impact on the child; and, any other commitments of the permanent carer(s) for the child or other children in their permanent care.
- Regard should also be had to the need for and amount of professional and other support available to all parties.
Ongoing decision making must:
- consider the child's best interests as the paramount consideration;
- involve all parties; and
- acknowledge that an ongoing relationship with the birth family is a child's right.
For further information regarding contact, see 2117 Contact - advice.
Death of permanent carer/s
Under s.325A of the CYFA the Secretary must notify the Court if they become aware that each person conferred with parental responsibility under a PCO for a child has died. On and from the date of that notice, the Secretary is taken to have sole parental responsibility for the child and the PCO is taken to be a care by Secretary order. Child protection will prepare a case plan identifying the appropriate permanency objective based on an assessment of the child’s current circumstances and arrange an alternative placement for the child. The provisions in respect to a care by Secretary order apply.
The matter will return to court in due course to seek a suitable order.
Family Court parenting orders
Parenting orders made by the Family Court may be an alternative option for some children. The Family Court has jurisdiction to confer parental responsibility on a child’s parent, relative or grandparent, or a third party. Parenting orders will provide for matters such as with whom the child is to live, with whom the child is to spend time with (contact), who has responsibility for the day to day and the long-term care, welfare and development of the child, and who may make decisions in respect of major long term issues such as education, religious observance, and medical matters.
The carers of the child must make an application to the Family Court, and may need to engage a solicitor to act on their behalf. The Family Court must not make a parenting order to a third party unless the parties to the proceedings have attended a conference with a family consultant, or the Court is satisfied this is not necessary.
The Department of Health and Human Services may apply to become a party to an application if this is considered to be in the child’s best interests. Legal advice and representation should be sought if child protection seeks to become involved.
Role of the permanent care team
Permanent care teams are specialist placement services with expertise in permanent family placement. Permanent care teams provide a number of services. They consult with child protection, accept referrals in relation to children who have a case plan for permanent care, provide information to birth parents whose children are to be placed in permanent care, prepare children for permanent placement, and match children with approved carers.
Permanent care teams recruit, educate, assess and approve permanent care applicants and are funded to provide support to permanent carers and children following the making of an order providing for the permanent care of a child.
To ensure that decision making is based on adequate information and takes place within an appropriate time frame, child protection must consult with the divisional permanent care team when a permanent care case plan is being considered.
Consultation would typically focus on areas such as the appropriateness of the plan, whether kinship options have been explored, contact arrangements, the birth parents’ understanding of permanent care, and the child's background, development, current situation and readiness for placement. The permanent care team can provide advice and assistance regarding recruiting a family for a particular child and the probable timelines involved. In the first instance, consultation may involve telephone or face to face conversations, and may involve the provision of written material.
Approved permanent carers are listed on the central resource exchange (CRE). All permanent care teams are able to access the CRE to identify potential carers for a child.
With regard to children with disabilities, the Disability Initiative in Adoption and Permanent Care (DSIAPC) allocates staffing and other resources for permanent care teams to place children with an intellectual disability or developmental delay. This ensures that the necessary specialised knowledge is applied to the planning, establishment and ongoing support for adoption and permanent care placements of children with an intellectual, physical or sensory disability, acquired brain injury or developmental delay.
Refer to the Permanent Care Manual for advice about making a referral to the permanent care team to identify permanent carers for a child.
Applications by child protection staff to be permanent carers
Child protection staff may apply to be approved as an adoptive or permanent care parent, or to convert from an existing foster care or kinship care placement to permanent care. To ensure a fair and open process, and avoid confusing personal and professional roles, it is imperative that the preparation and assessment associated with the application is not undertaken by an A&PC service located in the division where the staff member is employed. Arrangements must be made with another service to undertake these tasks and to manage any subsequent placement made with the staff member.