A protection order (special guardianship) (SGO) is an order made by the Children's Court of Western Australia (the Court) (s.60 of the Children and Community Services Act 2004 (the Act)). An SGO grants parental responsibility for a child to an individual or two individuals jointly until the child reaches 18 years of age, to the exclusion of any other person. These individuals are known as special guardians (s.3). Special guardians no longer need to consult with the Department of Communities (the Department) or the child's parents' in exercising their parental responsibility for the child. An SGO cannot be granted to the CEO or to a parent of the child.
An SGO is one of the Stability and Connection options for children in long term out-of-home care, providing a child with long-term stable care while maintaining their connection to parents, family, culture and their community where possible. This enhances the child's sense of belonging and provides them with the security and stability they need in their life.
The Court may place certain types of conditions on a SGO with which special guardians must comply. They include conditions about contact between the child and another person or, for Aboriginal children or children from a culturally and linguistically diverse (CaLD) background, conditions about cultural support aimed at maintaining the child's cultural identity and traditions.
It is a condition of every SGO that a special guardian
must not, except with the permission of the Court, make an application under the Births, Deaths and Marriages Registration Act 1998 to change the child’s name (s.63).
Note: CEO refers to the Chief Executive Officer of the Department. The term "placement arrangement" is used in the Children and Communities Services Act (2004) to refer to care arrangement made under s. 79(2) for the placement of a child. These terms mean the same thing and are interchangeable.
Where an SGO application is for an Aboriginal child with a sole non-Aboriginal person or two non-Aboriginal people, the CEO must also provide the Court with a report prepared by an Aboriginal organisation or Aboriginal individual who meets the criteria in regulation 23 of the Regulations (s.61(2B)). The purpose of this additional report is to provide the Court with an independent Aboriginal perspective on the cultural implications of the proposed SGO. For further direction on this requirement see Guidance Note – s61(2B) SGO Court Reports.
The best interests of the child
must always be your paramount consideration, including when making decisions about the appropriateness of an SGO.
Before considering an SGO for a child, you should be sure that it is a better option for the child than another type of order.
Before deciding whether to apply for an SGO for a child, or to support a carer's SGO application, an assessment of the proposed special guardian
must be undertaken. This assessment will form the basis of your report to the Court under s.61(3) of the Act.
You should carefully consider if an SGO is the best option if a child requires significant and/or increasing levels of support due to their disability, physical or mental health status. If an SGO is assessed to be suitable in these circumstances, ensure the carer and parents clearly understand what support options may be available to them, including from the Department and the Commonwealth government, but that it will be the carer's responsibility to meet the child's future needs if such support is not forthcoming. If the child is eligible for assistance from the National Disability Insurance Scheme (NDIS), the child's care plan should reflect this, including that communicating with the service provider will become the sole responsibility of the special guardian.
Information relevant to the assessment will include the child's Care Plan, Stability and Connection Planning, carer reviews, health care planning, education planning and Cultural Support Plan.
The Needs Assessment Tool (NAT) is a tool that assesses the complexity and changing needs of children in the CEO's care and will assist to determine if an SGO will meet these needs. For more information, see
Chapter 3.4 Needs Assessment Tool. Any assessment regarding the child's needs should address future needs and identify any current and future support services required.
Either the CEO or a child's carer can apply for an SGO. The CEO may make an initial protection application for an SGO (s.44) or apply to revoke and replace an existing protection order with an SGO (s.68).
An individual (carer) may apply for an SGO only if they have been the child's carer, while the child has been the subject of a protection order (time limited) or (until 18), for at least two years immediately preceding the application (s.69A).
The decision to apply for an SGO is an appropriate option only where:
Where a child is Aboriginal or from a CaLD background, you must support their specific language and cultural needs when considering an SGO. Where possible, this information should be obtained from the child's family and community.
For more information relating to supporting the cultural, ethnic and religious needs of CaLD children, refer to Chapter 3.4 – Cultural Support Planning, or to the Principal Policy and Planning Officer, Cultural Diversity in SCPU.
When considering an SGO for an Aboriginal child, you must take into account the child's cultural needs in accordance with their cultural support plan, and should consult with the following to determine if the proposed SGO will meet these needs:
Record all consultations in Assist in the case plan screen. For further details, refer to the Assist User Guide – Case Plan Consultations (related resources) and Chapter 3.4 – Child Placement Principle and Culturally Responsive Care Arrangements.
The report referred to in s.61(2B) of the Act
must be prepared by an Aboriginal organisation or Aboriginal individual who meets criteria in regulation 23 of the Regulations. For further direction on this requirement see Guidance Note – s61(2B) SGO Court Reports.
An assessment to determine if a proposed special guardian is suitable for an Aboriginal child must be made with careful consideration of the principle in ss.8 and 9(ga) of the Act regarding the importance of preserving and enhancing a child's connection with the culture and traditions of the child's family or community, and also the intent of the Aboriginal and Torres Strait Islander Child Placement Principle to promote the child's connection to their family, community and culture.
Where the child is not cared for, or in regular or consistent contact with family, the importance of commitment and capacity of special guardians to support and maintain cultural connection is reinforced. For further information, refer to SNAICC’s
Aboriginal and Torres Strait Islander Child Placement Principle: Aims and Core Elements
Before assessing a person's suitability to be a special guardian, provide them with the
SGO - Proposed Special Guardians Information Sheet (in related resources). Before deciding to proceed, the proposed special guardian should be:
Before an application for an SGO is made, ensure the proposed special guardian is aware of their obligation to pursue any legal claims on behalf of the child. For further information, refer to Chapter
3.3 – Legal support for children in the CEO's care.
Before starting a suitability assessment make sure the proposed special guardian/s understands their responsibilities and the Department's role under an SGO. The assessment should comprehensively consider the willingness and capacity of the proposed special guardian to meet the child's ongoing needs across the 9 dimensions of care.
Proposed SGO assessment (in related resources) for prompts and examples of questions. It should also be completed alongside
Stage 3 and
Stage 4 of Stability and Connection Planning. These are the stages where decisions to transition to long-term out-of-home care occur. For more information, see
Chapter 3.4 – Stability and Connection.
Subject to the child's age and level of understanding, the child must be given an opportunity to express their wishes and views about the SGO freely, if they wish to do so (s.10 of the Act). To ensure the child can participate meaningfully, they must be provided with:
Note: Appointment of a child representative in this situation is not a legal requirement but is advisable, especially in regard to older children. The CEO may recommend to the Court that it make an order for a child to be separately represented by a legal practitioner (s.148) and may liaise with Legal Aid or the Aboriginal Legal Service regarding arrangements for representation for the child.
Use different methods to explore and capture the child's wishes and views. Three Houses and Words and Pictures are helpful if the child is non-verbal due to age or disability, and Viewpoint is an additional tool that can be considered if a child is struggling to express their feelings for other reasons.
For more information and suggestions on engaging the child, see Chapter 3.4 – Charter of Rights for Children and Young People.
Aboriginal and Torres Strait Islander people have a right to participate in the protection and care of their children with as much self-determination as possible (s.13).
Family, community, or a representative organisation of Aboriginal people
must be given, where appropriate, an opportunity and assistance to participate in decision making processes under the Act that are likely to have a significant impact on the life of a child who is a member of, or represented by, the family, community or organisation (s.14).
must provide the child's parents and family an opportunity to share their views and wishes about the proposed SGO. Alongside discussions with carers and the child, conversations with the child's parents and family are vital to consider if the proposed SGO is in the best interests of the child.
Parents and other people significant to the child or young person should be given adequate information in a manner and language they can understand. Where a client has difficulty understanding or communicating in English or has a disability which prevents or restricts their understanding of, or participation in, decision-making processes you should, as far as practicable, offer interpreter or other services to support the person's understanding and participation in the process (s.9(l)). Where support is required, it may include:
For more information regarding the use of interpreters, see
Chapter 4.2 – Language Services Booking and Payment.
When engaging with parents, family, other significant people, or the child themselves, make sure you clearly, accurately, and comprehensively document their views, wishes and any other relevant information discussed. The type of documentation you use will depend on the type of engagement, but as a minimum, ensure there is a case note on the child's file to record the family's wishes and views about the proposed SGO.
These case notes will inform the CEO's report to the Court required under s.61(3) of the Act.
Opportunities for decision making meetings or conversations about a proposed SGO with a parent, family member or other person significant to the child can occur during:
There may be circumstances or situations where formal meetings are difficult or impossible, such as in regional areas or across large geographical distance. Where this is the case, consider using other strategies for engagement such as:
Provide the child's parents and family with as much information as possible about the process and explain the legal impacts the SGO will have on them and the child. Even if you are confident the family understand the impact the SGO may have on them, provide them with the SGO - Information Sheet for Parents and encourage them to seek independent legal advice. Independent legal advice can be sought from:
When cessation or significant reduction of AOD use is part of a safety plan, be aware of related mental health risks.
Where a person is suffering from trauma-related symptoms, treating the addiction alone will not help the person recover.
If, in consultation with the Team Leader, and where appropriate, the Aboriginal Practice Leader, it is determined that an SGO is in the child's best interests, document decision making in the Stage 4 Stability and Connection Planning Form. This is also where current and proposed family contact arrangements should be documented. See the Stage 4 Long-term Guidance template for examples of how to complete the form and the information required.
Stability and Connection Planning should be reflected in the child's case plan on Assist, and, where appropriate, endorsed by the Aboriginal Practice Leader before being approved by the District Director. The District Director should be provided a copy of the draft case plan via email prior to approval. Save the case plan to the child's case file in Objective and link the case plan to Assist.
Ideally, contact should be consistent, regular, and supported as a positive part of the child's life. The special guardian can support contact in many ways, such as:
Existing contact plans for the child should be recorded in the child's Care Plan and, if relevant, in their CSP. The contact plans should set out the frequency, duration and nature of the contact and will inform the Department's s.61(3) Court report. The Court may accept the Department's recommendation that current contact continue as a condition on the order or may make alternative conditions related to contact.
If the proposed special guardian is not able to manage contact arrangements, you should consider if they would be a suitable special guardian. However, if there are complicating factors, such as safety concerns, use of a contact service can assist to facilitate and maintain contact arrangements.
If a contact service is required, complete the referral process before submitting the application. It is important to demonstrate that the use of the contact service will ensure contact will be maintained and to provide this information to the Court. If the contact service declines the referral, an alternative proposal for contact arrangements must be included in the application to the Court.
Costs associated with use of a contact service should be included in the application, as the Court may impose payment to cover associated costs.
If an SGO is granted, send a copy to the contact service.
A list of contact service providers can be found on the Australian Children's Contact Services Association website.
must not make an SGO for an Aboriginal or Torres Strait Islander child, if no Aboriginal person or Torres Strait Islander is to be the special guardian, unless it first considers a written report prepared by an Aboriginal organisation or Aboriginal individual who meets criteria in regulation 23 of the Regulations (s.61(2B)).
must arrange for the preparation of this report and provide it to the Court. While this is a new requirement, the Specialist Child Protection Unit will procure these reports in consultation with relevant district staff including the Aboriginal Practice Leaders. For further direction on this requirement see
Guidance Note – s61(2B) SGO Court Reports.
This report is in addition to the CEO's s.61(3) report, which is required for every SGO application.
A report from the CEO (or delegate) to the Court is required under s.61(3) for every SGO application before the Court. The s.61(3) report
If the child is Aboriginal, Torres Strait Islander or a child of culturally or linguistically diverse background, their CSP must be attached to the report and provided to the Court as part of the SGO application. For further information, see Chapter 3.4 – Cultural Support Planning.
Note: The CSP does not have to be included if the SGO application is made under s.69(A) by the carer.
If a child has a potential legal claim which has not been settled before an SGO application is made, consult with LBS and discuss how to proceed. If a child leaves the CEO's care under an SGO with an outstanding claim, it is the special guardian's responsibility to lodge the claim at an appropriate time.
However, the Department may be able to assist. For more information on possible assistance, see
Chapter 3.4 – Leaving the CEO's Care and Transitioning to Adulthood. In consultation with LBS, consider if financial assistance should be provided to the special guardian to proceed with a legal claim on behalf of the child at the appropriate time. Any sum committed to provide legal assistance will come from case support costs and should be documented in the child's Care Plan before the SGO application. It is important to track when these costs are likely to arise to assist with district budgeting. Some, or all, funds committed may be provided on the agreement that they will be reimbursed when an award of compensation is granted. The amount of funding should be informed by the:
Payments to the special guardian
Court ordered payments
When making an SGO or at any time after, the Court may order the CEO to make fortnightly payments to the special guardian in accordance with the regulations (s.65). An application for these payments may be made by any party to the SGO proceedings at any time before the SGO expires. The carer will continue to receive their foster care subsidy throughout the SGO application process. When the SGO is granted with an order regarding payment, the foster care subsidy will be replaced with the SGO payment.
Court ordered SGO payments to a special guardian should cease in the following circumstances:
Special Needs Loading
If the carer is receiving Special Needs Loading (SNL) for the child, the Department may also continue to provide this financial support under an SGO. Decisions relating to the ongoing payment of SNL under a proposed SGO are to be reviewed as part of Case Planning and
must be considered by the relevant Executive Director (ED) before an SGO application is made.
If SNL payments are approved to continue under an SGO, advise the special guardian to contact the Central Intake Team before a review of the SNL is due (unless the SNL will no longer be required). A review is required to ensure the child still meets the criteria for the SNL, to assess their current needs and to confirm that the child is still in the special guardian’s care.
If continued payment of a SNL to the proposed special guardian is approved for a time-limited period (for example, 12-months), the special guardian will need to contact the Central Intake Team who will refer to the relevant district office before that period concludes. The district office
must review the SNL before the review period ends. An assigned officer from the district will confirm if the child remains in the special guardian's full-time care and undertake an assessment to determine if the child's current care needs are being met. Where the special guardian does not contact the Department, SNL payment will cease.
Financial support may also be required where a children's contact service will be used to manage contact, or where the cost of travel and/or accommodation to facilitate contact will be quite onerous on the proposed special guardian; for example, travel to remote communities or interstate. In this instance, submit an SNL / Additional Financial Support Application (related resources) for approval by the relevant Executive Director before making an application to the Court.
The application and approval process for SNL is detailed in
Chapter 3.5 – Case management costs – special needs loading.
Under an SGO, the child is entitled to a Health Care Card and Youth Allowance. Youth Allowance may be paid, regardless of the assets or income of the special guardian, if the young person meets the standard criteria (such as study or training).
The special guardian may be eligible for an exemption from the Centrelink activity levels and work participation requirements. Where this occurs, you can provide the special guardian with a letter for Centrelink, specifying that they meet the exemption criteria. See Letter to Centrelink - Exemption From the Activity Test and Work (related resources). If the proposed special guardian requires eligibility information, advise them to visit their local Services Australia Centre, to contact Services Australia on 132 307, or to visit the website at: https://www.servicesaustralia.gov.au/
Where relevant, a Centrelink Grandparent Adviser may also assist a special guardian to understand the payments and services they may be eligible for and can be contacted on 1800 245 965.
Children who are the subject of an SGO are eligible for the Additional Child Care Subsidy (child wellbeing) under Division 3 of the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017. It is the district's responsibility to complete and provide a letter to the childcare service and the special guardian's responsibility to pay any applicable gap fees. For further information, refer to Chapter – 3.4 Child care attendance.
If an SGO is made, the Court will send a copy of the order to each person who is a party to the proceedings. The Court will usually send the Department's copy to LBS, but it may be sent to you directly via the district. If you receive the order directly, forward a copy to LBS for their records and to the Subsidies Processing Unit if it includes details of payments to be processed. LBS will forward you the original order, and details of any court ordered payment required.
When LBS receives the order, they will email it to you and to the Subsidies Processing Unit with:
Once the SGO is finalised and all outstanding case planning tasks have been completed, transfer the case on Assist to the Coordinator of Client Support Services. For information on how to do this, see the
Assist User Guides – Manage Family Group Allocations.
If the Department made the application for an SGO, it is the responsibility of the Department to advise the special guardian that the order has been granted, and to advise of any court ordered payments.
Upon receipt of the SGO and any court order for special guardian payment, update the order details in Assist, including:
Once these details have been recorded, the Subsidies Unit will process the payments. The Subsidies Unit will advise you via email that the payment to the special guardian has commenced and the foster care subsidy payment has ceased.
For further information on recording, refer to the
Assist User Guide - Protection Order (Special Guardianship Order) (related resources)
Prior approval for SNL or additional financial support payments should be reflected in the child's case plan and emailed to the Subsidies Processing Unit immediately after transferring the case.
Complete the template letter Acknowledgement Letter and Information Sheet for the Special Guardian (in related resources), which includes an information sheet for the special guardian. If SNL payments to the special guardian have been approved for a time-limited period, include this information in the letter.
To support a child or young person on an SGO, include functions in the CREATE Sortlii mobile phone app so they can readily access support/resource information in a confidential manner.
The Department may support a child under an SGO or their special guardians to access any social services considered appropriate to their needs (s.66). The child or special guardian can seek assistance and advice from the Department throughout the life of the SGO by contacting the local district office. The district can also determine whether any additional social services or SNL is required (see below for more information about SNL). If the special guardian is also a carer for a child in the CEO's care, they can contact the district responsible for the case management of that child.
You must give the special guardian copies of all essential
documents, such as health reports and the child's genogram.
It is a condition of all SGOs that the special guardian must not, except with the permission of the Court, make an application to change the child’s name under the Births, Deaths and Marriages Registration Act 1998 (s.63).
Inform the special guardian that they must notify us if the child ceases to be in their full-time care. This is outlined in the acknowledgement letter, fortnightly letter, and recipient statement that are sent to all special guardians who receive an SGO payment.
The Department may need to undertake further assessment of the child's circumstances where the child is not in the full-time care of the special guardian. In some instances, the child's living arrangements may be appropriate and/or short-term, and further action may not be necessary. Where safety concerns for the child exist, the Department may need to take statutory action and seek a revocation of the SGO and payment order.
An application to revoke an SGO payment order should not be made without an assessment of the child's circumstances, their means of support, and how the withdrawal of this payment will affect the child.
In some circumstances, the Department may need to re-open the case. If this occurs, the district office must provide support and work with the child and special guardian, through any challenges they may be experiencing. Each contact should be reflected in an interaction on Assist, even where the case is not re-opened.
Any party to the initial proceedings (as identified by s.42 and s.147 of the Act) can apply to the Court for a variation, addition or substitution of the conditions included in the SGO if there are new facts or circumstances, or where each party to the initial proceedings consents to the application (s.64).
A child with sufficient maturity and understanding will be required to provide consent for a variation of contact conditions. Consent is not required where the child is too young or the consent may be provided through legal representation.
Any party to the initial proceedings may apply to the Court for the revocation of an SGO. Only the CEO may apply to the Court for the revocation of an SGO and subsequent replacement with a different protection order. If an application for the revocation of an SGO is made, a separate application must be made for the revocation of an order for payment.
When a child's family applies to revoke an SGO, the Department may conduct a review of the child's circumstances and provide a report to the Court. If it is determined that it is in the child's best interests to remain under an SGO, assist the child and/or special guardian to seek legal support.
Following the application, the Court will decide to keep, revoke, or replace the original order.
For further information, refer to Long-term out-of-home care orders for children in the CEO's care (related resources) and Chapter 3.3 – Protection orders (time-limited and until 18).
In the event that a child's sole or joint special guardian(s) die, you must provide written notice to the Court as soon as practicable after being advised of their deaths. On the day of notification, the child's SGO will be revoked and replaced with a protection order (time-limited), which is to remain in force for two years or until the child turns 18. After notifying the Court, you must provide written notice to the child, each party to the initial proceedings, and each other person who has a direct and significant interest in the child's wellbeing (s.69B).
The proposed special guardians and child's parents and, where appropriate, the child, should understand the implications of seeking an SGO in terms of access to leaving care services, including where a child leaves the CEO's care under an SGO before turning 15 years. For further information, see Chapter 3.4 – Leaving the CEO's Care.
Under s.99, assistance to obtain education and training, employment, legal advice, and access to accommodation, health and counselling services must be provided to children who "qualify for assistance" under s.96, which applies to children under an SGO only if the SGO was granted after they turned 15.
However, children who are the subject of an SGO before turning 15 years may still receive leaving care assistance from the Department. For further information about providing leaving care supports, refer to Chapter 3.4 – Leaving the CEO's care.