When Children in Foster Care Want to Come Home

The order is final until the child turns 18.

A 12 year old child is considered a change of circumstance. That is because a 12 year old child, gets to have a "Child Representative" this is your child's independent children's lawyer. The child can inform her or his solicitor that "they would like to go home now, thanks". If appropriate, and this must be considered by the court.

Under the current guidelines each case is different and is dependent on situational factors.

There are two things that can happen:

1. Restoration: This is a plan from DoCS that is supporting the child in going home to live with the parents. That plan will be based on circumstances, DoCS may decide you don't need them anymore or that they might need to continue to support your family in some way but basically the kids are going home. The Minister decides if they will approve restoration.

2. Application Section 90. (S.90) This is the application to the court where a parent can prove that their circumstances have changed and they are capable now to look after their children. In a S.90 you can be self representing however you must prove a lifestyle change that will compliment your child, and show that any issues have been resolved. You would know from your previous affidavits what you need to address.

Furthermore:

There are situational times when DoCS will cease proceedings.

When a child has reached the age of 12, they can self place, however DoCS may still remove a child that they see as at risk of danger in the home, even at 12. As the child grows older into the teens, if they continue to self place, DoCS loose interest and agree to the child's wishes. Remembering of course, that this is situational advice, they can still have the child removed from the home at all times. Unless, a S.90 or Restorative Order has been approved. These Childrens Court Matters depends on case to case, situational circumstances.

An Order under the Care of the Minister is Final, and unless you take it to court and take responsibility for your child, and gain the full parental rights to your child back into your name, the child remains the legal guardian of the Minister. This is what is meant by the legal term "under the Care and Protection of the Minister for Family and Community Services".

With thanks to Kathleen Obrien

QLD

When Can My Child Decide?

Parents almost always ask me "at what age can my children decide where they live?". They have usually been told by someone (usually a bush lawyer) that their child "is old enough". I think it's a shock to some parents when I tell them that the Family Law Act does not in fact nominate an age at which their child can make a choice. I also remind them that there are sometimes very mature 9 year olds, and sometimes very immature 13year olds. So each case (and child) is judged on its own merits.

The Court’s paramount consideration is the best interests of the child. The Family Law Act states that a child’s views are to be considered when determining this issue. These views can be placed before the Court in a number of ways, but usually by way of a report from a family consultant or experienced family report writer who has spoken to the child.

In determining issues of where a child should live, the court is required to consider:
1.The degree of emotional and intellectual maturity of the child. Age is not, of itself, an indicator of maturity;
2.The apparent strength of the child’s wishes, and whether the strength of the views has been indicated by overt acts such as running away, emotional displays, temper tantrums etc.;
3.Whether the child’s views seem to have a rational basis; and
4.Whether the child’s views can be shown to be wholly or partly the result of parental or other family manipulation.

The Court is required to give the child’s views the amount of weight it considers appropriate in the circumstances of the case. Generally, a child’s view will be given greater weight the older they are and the shorter the period of time until the child attains the age of 18.

It is important however that children are not put in a position of choosing between their parents. The issue of a child’s wishes should be canvassed first with professional advisers, including social workers, psychologists and counsellors. If parental manipulation is the driving force this may well have an adverse impact on the weighting the Court gives to the child’s wishes (and of course may have long term impact on the child in the future).

if you wish to discuss any aspect of family law, please phone us on (07) 3285 6888.

Tasmania

If the child is running away from foster care to the parents home.