How to obtain an order placing a child under court guardianship

Introduction

Court guardianship is a special form of guardianship in which the Family Court or High Court becomes the child's guardian and displaces the parents (or other guardians) from that role. (It used to be called "wardship".) The court usually appoints the Department of Child, Youth and Family Services to play the role of guardian as the court's agent.

The central principle behind court guardianship is the protection of the child. In some cases it is the only effective legal response to a new and unforeseen problem.

Placing a child under court guardianship does not deprive natural parents of guardianship, but rather makes their rights and powers subject to the authority of the court.

Court guardianship is governed by the CARE OF CHILDREN ACT 2004, which came into force on 1 July 2005, replacing the GUARDIANSHIP ACT 1968.

Who can apply for court guardianship?

The following people may apply to the Family or High Court for a child to be placed under the court's guardianship -

  • a parent or guardian
  • a grandparent or aunt or uncle of the child
  • a partner of one of the parents (whether they are married, in a civil union or in a de facto relationship) if they've been sharing day-to-day care of the child
  • a brother or sister of the child (including half-brothers and half-sisters)
  • the Department of Child, Youth and Family Services
  • the child himself or herself
  • any other person who has the court's permission

When will the court make an order for court guardianship?

Placing a child under court guardianship is a measure of last resort, and the power should be exercised only where it is necessary in the interests of the child and any aspects of the wider public interest. In all cases involving the guardianship or care of children the court will treat the child's welfare and best interests as the first and most important concern.

The court's guardianship powers have been exercised in a variety of situations. The reasons for making an order could include the following –

  • to stop a particular person having contact with the child
  • to restrict or deny parents from having contact with the child
  • to specify a particular type of religious upbringing
  • to give consent to blood transfusions or other medical treatment when this is necessary to override the religious convictions of parents or guardians
  • to prevent proposed sterilisation operations
  • to prevent the child being removed from the country
  • to introduce some stability until a dispute over care arrangements for the child is resolved

Up to what age can an application for court guardianship be made?

An application for court guardianship cannot be made if the person who would be the subject of the application is -

  • 18 or older, or
  • married or in a civil union or de facto relationship (children who are 16 or 17 must get written permission from their guardian before marrying or entering into a civil union or de facto relationship)

Restrictions on the court's powers

The court's powers are subject to these restrictions –

  • The court may not direct any child who is 16 or over to live with any person unless the circumstances are exceptional.
  • The court may not commit for contempt of court a child (or the child's spouse) for marrying without the court's consent while the child is under the guardianship of the court (see How to get married).

When does the court's guardianship end?

Unless the court makes some earlier order, the court's guardianship automatically ends when 

  • the child turns 18, or
  • at age 16 or 17, the child marries or enters into a civil union or de facto relationship (to do that a 16- or 17-year-old needs the court's permission).


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