A Foster Carers’ Legal Rights
Foster care is the term used for the system in which children are placed into the private homes of state-certified caregivers, referred to as foster parents. The placement of the child is usually arranged through the government or a social services agency in each state. Being a foster carer means providing safe and secure care for children who can’t live with their own families for various reasons. Foster care is a non-permanent care option for children.
Adoption, on the other hand, is a permanent legal arrangement. In adoption, birth parents legally give up their parental rights to and ties with their child, and the adoptive family takes on all responsibility for the child’s care and parenting.
Guardianship is for a relative or kinship carer who is considering seeking long-term responsibility for a child or young person through an order of the respective children’s court. Under a guardianship order, a guardian takes on full responsibility of the child or young person, making all decisions about their care and parenting until they reach 18 years of age.
Who can be a foster parent?
Foster parents need to be Australian citizens or permanent residents and over 21 years of age. It doesn’t matter if a prospective carer is single, married or in a de facto or same-sex relationship. It doesn’t matter what ethnic or cultural background they are from. There is currently a shortage of people making themselves available as foster parents, which means anyone can apply as long as they are healthy and have a genuine interest in helping children or young people.
Types of care
There are four different types of care arrangements and carers are able to choose one that suits:
- Emergency carers step in when a child’s safety is in jeopardy, providing care at short notice, including weekends.
- Respite carers provide relief for short periods of time when parents and other carers need a break. They may be required during school holidays, a few days a week or possibly even weekends.
- Short to medium-term care can last up to six months. The goal is always to return the child to the care of their biological parents and family.
- Long-term or permanent care is required when the child is not expected to return to their family.
What are the legal rights of foster carers?
Laws governing foster care are state-based, but are similar in most jurisdictions across Australia.
In Victoria, the Children’s Court applies the Children, Youth and Families Act 2005 to make decisions about child protection matters, such as whether or not a child or young person should be removed from the care of their parents, the type of order a child or young person should be placed on, and the conditions and length of that order. The legal rights of the foster carer will depend on the Children’s Court order in place.
In most foster care situations, the birth parents retain primary rights over the child even if they surrender guardianship. The fact that parents retain primary rights over the child was highlighted recently in South Australia with the Monica Perrett case, where the child she was caring for and loved died, and she had no legal avenue to see his body, to know the reason or cause of his death, and was unable to arrange his funeral or be listed on the death certificate. Under Families South Australia rules, the legal rights to the dead foster child reverted to the biological parents.
“When a foster child passes away and it doesn’t matter how old they are and how long you’ve had that child, all the rights the foster parents had with the child dies with the child and everything goes back to the biological parent,” Ms Perrett told the ABC.
The right to support
Foster carers are entitled to support and respect. Foster carers are supported by various people invested in the wellbeing of the child or young person placed in their care. The government in each state and non-government foster care services provide support in the form of formal training, access to local support groups, financial support, crisis response services, home visits, telephone support, information and resources, and short breaks where required.
While the birth parents retain rights primary rights over the child, foster carers are entitled to be informed at all times and be involved in any matter affecting them. In other words, foster carers are entitled to have as much information as required to meet the needs of the child and be prepared for the placement, as well as to be warned about any possible risks. They also need to be included when it comes to making decisions regarding day-to-day care and control of the child, and be consulted as a respected member of the care team.