When children and young people cannot safely live with their parents, they may be placed in alternative care arrangements, including with kin, kith or foster carers through the Department of Families, Fairness and Housing (‘DFFH’), which manages the Victorian Government Child Protection Service (‘Child Protection’).

When a child or young person has been living out of parental care for more than six (6) months, but commonly, for more than two (2) years, and Child Protection assesses that the child or young person’s parents are unable or unwilling to resume parental care and that the child’s current carers meet the prescribed criterion, Child Protection can recommend to the Children’s Court that a Permanent Care Order be granted.

How can you apply for a Permanent Care Order?

Significantly, as of March 2016, only Child Protection can apply to the Children’s Court of Victoria for a Permanent Care Order to be made. Prospective permanent carers can of course agitate DFFH to conduct a permanent care assessment and make the permanent care application, but they cannot bring this application themselves.

When is a carer eligible to be a permanent carer?

It is a requirement for permanent care applicants to demonstrate a commitment to remain in Australia and must be an Australian or New Zealand citizen or hold a permanent resident visa.

When can a Permanent Care order be made?

First, CP assess a permanent carer as suitable, having regard to many different criteria, such as the health (physical and psychiatric) of the potential permanent carer, their parenting skills and experience, their capacity to provide stability for the child for the duration of the permanent care order, their capacity to promote and protect the child’s safety, wellbeing and development, their capacity to support and maintain the child’s cultural identity and religious faith, their appreciation of the need to maintain contact with the child’s birth family where appropriate, and their general character including any criminal history.

Importantly, pursuant to section 321(1)(ca) of the Children, Youth and Families Act 2005 the person named in a permanent care application must, in the best interests of the child, preserve the child’s identity and connection to their culture of origin, as well as the child’s relationship with their birth parents and family unless this is inappropriate in the circumstances.

Once CP recommend that a permanent carer is suitable to have permanent care, CP will make application for a Permanent Care Order but the Children’s Court can only make a permanent care order if it is satisfied that:

1. The child’s parent has not had care of the child for at least 6 months or for periods that total at least 6 months of the last 12 months; and
2. 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
3. The person named in the permanent care application is suitable having regard to and prescribed matters and is willing and able to assume parental responsibility for the child; and
4. The child’s wishes and feelings have been ascertained and considered having regard to their age and understanding; and
5. The child’s best interests will be promoted by the making of the order.

Conditions on permanent care orders:

If the Children’s Court decides to make a Permanent Care Order, there are some limitations on what conditions it can make. Any condition must be in the best interests of the child.  For example, for any parent, the Children’s Court can only order contact up to 4 times per year. However, the carer can allow more from time to time by agreement with the parent. In relation to sibling contact, there is no such limit on the number of times per year.

The role of permanent carers:

Permanent carers assume parental responsibility of the child, which comes with the following responsibilities (but not limited to):

• Maintaining regular contact with the child’s birth family if appropriate;
• Navigating the challenges associated with adolescent development;
• Managing any special medical or dental needs;
• Accessing counselling or therapeutic services when required;
• Supporting the child through any educational challenges; and
• Respecting and fulfilling the child’s cultural needs

What does a Permanent Care Order mean?

Permanent care orders do not affect the child’s birth certificate, nor their name or inheritance rights.

When a Permanent Care Order is granted through the Children’s Court, full parental responsibility to the exclusion of all other persons is granted to the propose permanent carers who then become legally responsible for all day-to-day decisions, as well as long-term decisions, such as the child’s education, health and residence.

Why is Permanent Care important?

Permanent care enables children to live securely and with certainty about their future care, which is particularly important for children and young people in the Child Protection system in relation to whom a decision has been made that they are unable to live safely with their parents on a long-term basis.

The impact of Permanent Care Orders on children and families:

For families – both birth and permanent care families – the impact can be complex.

Permanent Care Orders can have a significant and lasting effect on both children and their families. For children, these orders can offer long-term stability, a sense of belonging, and the opportunity to form secure attachments with their carers and new family.

Birth families may experience grief, loss, or ongoing emotional challenges related to reduced contact with their child. Permanent carers, on the other hand, absorb the lifelong responsibility of raising the child, which brings both rewards as well as challenges, particularly in terms of navigating the child’s identity, history and emotional needs.

Restrictions on the making of Permanent Care Orders

In accordance with s 322(1) of the Children, Youth and Families Act 2005 (Vic), the court must not make a Permanent Care Order unless it has received and considered a disposition report. Furthermore, the court must not make a Permanent Care Order if a protection order is in force in respect of the child but an application to the Court to revoke it has been made but not yet determined.

In relation to the making of a Permanent Care Order for an Aboriginal child, specific restrictions apply. If an Aboriginal child is to be placed with non-Aboriginal carers, the Court must not make a Permanent Care Order unless:

• No suitable placement can be found with an Aboriginal carer; and
• The decision to seek the order has been made in consultation with the child (if appropriate); and
• The Secretary is satisfied that the order will accord with the Aboriginal Child Placement Principle.

A cultural plan for the Aboriginal child must also be prepared.

Can a Permanent Care Order be revoked?

Permanent Care Orders may be revoked. Child Protection, a child or the Permanent Carer can apply for revocation. However, if a parent wants to revoke a Permanent Care Order, the parent can only apply if the Children’s Court gives them permission to do so after considering a number of matters.

In determining the revocation of an order, the Court will have regard to whether the circumstances of the parent have changed significantly to the extent that the parent can demonstrate that the parent would be able to permanently fulfill the responsibilities and duties of parenthood.

Examples of circumstances that may justify revocation include:

• Significant improvement in the birth family’s situation;
• Concerns about the care being provided under the existing order; or
• If the child is mature and capable of expressing informed views and desires for the order to be revoked.

The Children’s Court will always prioritise the child’s best interests, including their safety, well-being, and long-term stability when making decisions about revocation.

Can a Permanent Care Order be varied?

Permanent Care Orders may be varied through the same process as revocation of an order under s 326 of the Children, Youth and Families Act 2005 (Vic).

In determining whether variation of a Permanent Care Order is necessary, the Court will have regard to any condition that has not been complied with by a party; or, if there has been a significant change in the circumstances of the parent or the child since the original order was made.

Nicholes Family Lawyers have expertise advising and representing parties in a wide variety of matters involving Permanent Care Orders. Please contact our office at 03 9670 4122 to arrange an initial consultation.