If a child can’t safely remain in their parents’ care, a special guardianship order may provide a stable, long-term home with another trusted adult.
In Western Australia, a special guardianship order (SGO) is a specific type of child protection order that gives a child’s carer parental responsibility until the child turns 18, unless the order is revoked or replaced by an adoption order.
Understanding how special guardianship orders work, who can apply and what happens to a child’s relationship with their birth parents can help families understand their legal options.
What Is A Special Guardianship Order?
A special guardianship order in Western Australia is made by the Children’s Court under the Children and Community Services Act 2004. It transfers parental responsibility for a child to one or two special guardians, excluding other people from that responsibility while the order remains in place.
Special guardianship orders are designed to give children who can’t return to their parents’ care a secure, permanent living arrangement. They’re generally considered where long-term care is needed and reunification with the child’s parents isn’t possible or isn’t in the child’s best interests.
Unlike some other child protection arrangements, an SGO generally ends the Department of Communities’ ongoing involvement in the child’s care. The special guardian becomes responsible for the child’s day-to-day needs, wellbeing, development and long-term decisions.
Who Can Seek A Special Guardianship Order?
In Western Australia, the Department of Communities can apply to the Children’s Court for a special guardianship order. In certain circumstances, a child’s long-term carer can also apply to replace an existing protection order with an SGO.
The court must be satisfied that long-term arrangements are needed for the child’s wellbeing and that the proposed special guardian is suitable, willing and able to provide that care. The child’s best interests are central to the decision.
A special guardian might be a relative, such as a grandparent, aunt or uncle, or another person who has provided consistent care. However, being related to a child doesn’t automatically entitle someone to become their special guardian. The court considers the individual circumstances and the child’s needs before making an order.
Who Can Seek To End A Special Guardianship Order?
A special guardianship order can be revoked, or cancelled, by the Children’s Court. A parent or another party to the original proceedings may be able to apply to revoke the order. The court will consider whether cancelling it would be in the child’s best interests.
Generally, you’ll need to demonstrate that circumstances have changed or that a new factor has arisen since the order was made. The court may need to give permission for the application to proceed.
A parent can’t simply cancel an SGO because they disagree with the arrangement or want their child to return home. The court’s priority is the child’s safety, stability and wellbeing. If you’re considering challenging an existing order, it’s important to seek legal advice about your circumstances and the evidence you may need.
Who Has An Automatic Right To Apply For A Special Guardianship Order?
The Department of Communities can apply for a special guardianship order, but not everyone who cares for a child can apply independently. Under Western Australian law, a carer may be eligible to apply to replace an existing time-limited protection order or a protection order until the child turns 18 with an SGO.
To qualify under this pathway, the carer must have cared for the child while the child was subject to one of these protection orders for at least the two years immediately before the application. The Department will assess whether supporting the application is in the child’s best interests.
Parents, grandparents and other relatives should understand that a close family relationship alone doesn’t create an automatic right to apply. The available application pathways depend on the existing child protection arrangements and the person’s role in the proceedings.
Does An SGO End A Child’s Relationship With Their Parents?
No. A special guardianship order transfers parental responsibility to the special guardian, but it doesn’t automatically end the child’s relationship with their birth parents or other family members.
The Children’s Court can include conditions about contact between the child and their parents, siblings or other significant people. These conditions can help preserve important family relationships while ensuring the child has a safe and stable home.
Maintaining family and cultural connections can be particularly important for Aboriginal and Torres Strait Islander children and children from culturally and linguistically diverse backgrounds. An SGO may include relevant cultural support arrangements where required by law.
However, contact isn’t necessarily guaranteed in every circumstance. The court considers what’s appropriate for the individual child, including their safety, emotional wellbeing and need for stability. The special guardian must comply with any applicable conditions in the order.
SGO vs Foster Care vs Adoption
Special guardianship, foster care and adoption can all provide care for a child who can’t live with their birth parents, but they have different legal consequences.
Special guardianship: An SGO gives the appointed guardian parental responsibility for the child, generally until they turn 18. The child is no longer in the Department of Communities’ care, and the guardian makes the child’s day-to-day and long-term decisions, subject to the law and any applicable conditions.
Foster care: Foster carers provide a safe home for a child in the care of the Department. The Department retains parental responsibility according to the relevant protection order, and foster carers generally work with the Department and the child’s care team.
Adoption: Adoption creates a new legal parent-child relationship and has different consequences for the legal relationship with birth parents. It’s a separate legal process with its own requirements.
The most appropriate arrangement depends on the child’s circumstances, safety and long-term needs.
Do Special Guardians Get Financial Assistance?
Special guardians may be eligible for financial assistance to help meet the costs of caring for a child. In Western Australia, the Children’s Court can order the Department of Communities to make special payments to a special guardian, subject to the applicable requirements.
Financial assistance isn’t necessarily automatic, and the amount and availability of support can depend on the circumstances and relevant arrangements. Anyone considering becoming a special guardian should ask the Department about potential payments and what expenses may be covered before committing to the role.
Caring for a child can involve ongoing costs, including food, clothing, education, medical expenses and extracurricular activities. Understanding the financial implications can help you decide whether you’re able to provide stable, long-term care. It’s also worth clarifying what support may be available if the child has additional needs.
Can An SGO Be Changed Later On?
Yes, a special guardianship order can be subject to changes through the Children’s Court, although the process depends on what needs to change and who is applying.
For example, an application may be made to add or change a condition relating to contact between the child and a parent or another significant person. An application may also be made to revoke the order, although the court will consider the child’s best interests and whether the relevant legal requirements have been met.
An SGO generally remains in force until the child turns 18, unless it’s revoked or replaced by an adoption order. It’s not something that automatically expires because a parent’s circumstances improve or family members reach a new agreement.
If circumstances change significantly, seek legal advice before taking action. The court will need to consider whether any proposed change supports the child’s wellbeing and stability.
How Hickman Family Lawyers Can Assist With Special Guardianship Orders
Special guardianship orders involve important decisions about a child’s future, parental responsibility and ongoing family relationships. If you’re a parent, relative or carer affected by a child protection matter in Western Australia, understanding your legal position is an important first step.
At Hickman Family Lawyers, principal family lawyer Ella Hickman can help you understand relevant family law issues and explain your options based on your circumstances. This may include seeking advice about your parental rights, understanding the implications of an existing order or exploring the legal pathways available to you.
It’s important to recognise that special guardianship orders are made through the Children’s Court in child protection proceedings. They’re different from parenting orders made in the context of separation or divorce. If you’re dealing with both a separation and child protection concerns, getting advice about how the different legal processes interact can help you make informed decisions.
If you’re unsure where you stand or what steps to take next, seeking legal advice early can help you understand your rights and responsibilities.
If you’re dealing with a child protection matter or questions about parental responsibility, it’s important to understand the legal options available to your family. A special guardianship order can provide a child with long-term stability while preserving important family connections where appropriate. The right approach depends on the child’s circumstances and what’s in their best interests.
For advice tailored to your situation, contact Hickman Family Lawyers.
Our family lawyers in Perth offer a free, 15-minute, no-obligation information call to discuss getting legal help with your separation or divorce in Australia.
