I am concerned about the care of a child, but I am not a parent. What can I do?
In our work as Family Lawyers, we are occasionally contacted by people with a concern for children who are not their biological parent. This might be a family member, such as a grandparent or aunt, but it can also be a close friend, a god parent or a person that has regularly cared for a child.
Often, when contacted by these people, they are concerned about the welfare of a child. They might be concerned because their parents are not providing sufficient care to a child, it might be that their parents are exposing them to dangerous situations, or it could be that this person has a significant relationship with a child that is now being denied.
Where do I start?
Usually, the first step in any of these situations is to consider whether there is any room to negotiate with the parents. Where the issue is a breakdown in a relationship between a parent and another person (say for example, a grandparent), working out the cause of the breakdown is necessary. Ultimately, family relationships are for life, and trying to repair that relationship will often be a better long-term solution than litigation.
However, where it is unlikely that a relationship can be repaired, or there are immediate significant risks for children, it may be that intervention is the necessary route.
Intervention: Department of Communities
Intervention can come in two forms. Where there are significant risks for children in the care of parents it may be worthwhile considering whether you want to contact the Department of Communities. The Department of Communities used to be known as the Department of Child Protection, and they are the governmental body that is tasked with the care of children in circumstances where their parents are unfit to do so. If you are aware that children are being exposed to family violence, drug use and significant neglect, and you do not have the financial capacity to commence Family Court proceedings or to care for those children out of your own pocket, then contacting the Department may be the option for you.
The Department of Communities jurisdiction only allows them to be involved where there is risk to the care of children. Where there is no risk, or you do not have confidence in the Department of Communities, then your only other option is to consider whether you wish to commence or join proceedings in the Family Court of Western Australia.
Intervention: Family Court of Western Australia
The Family Court of Western Australia has the power to make orders about the parenting arrangements for children, as well as orders associated with the care of children. There orders are known as ‘parenting orders’.
The Court has the power to make parenting orders in favour of any person – they are not limited to making them in relation to parents. However, in exercising this power:
- The Court must always make orders in the best interests of children; and
- Parenting orders can only be made for the benefit of parties to a proceeding.
What this means is, that if you are person that wishes to have parenting orders made to your benefit (ie. you may want an order for children to spend time with you), then you must also be a party to the proceedings.
In order to be a party to family court proceedings, and to be able to apply for parenting orders, you must be:
- A parent of the child;
- The child;
- A grandparent of the child; or
- Any other person connected with the care, welfare, or development of the child.
Point iv. is broad, but there needs to be a significant relationship between a child and a person before the Court will consider permitting them to seek parenting orders. If you believe you may fall into this category, you ought to seek legal advice about whether you have standing to apply.
If no Family Court proceedings have been commenced, then you would need to consider filing an Initiating Application with the Family Court. It is a requirement of the Family Court that an attempt to mediate is made prior to an application being filed, unless you meet very specific exemptions. Further information in relation to this can be found on the Family Court website, or through the advice of a family lawyer. We can provide you with this advice if you need.
If Court proceedings have already been commenced, and you wish to intervene in those proceedings, then you would need to make an application to intervene in those proceedings. In attempting to intervene, you need to file an application and affidavit that sets out:
- the facts you rely on to support the application;
- an explanation of your relationship to the parties; and
- a schedule setting out the orders you would seek if permitted to intervene.
The information to be included in an application will vary depending on your circumstances. At the very least, the Court will want to know what your relationship to the children and the family are, and why you should be entitled to seek orders in the same way as a child’s parents. In most cases, a strong case establishing risk in the parent’s care, or a very significant relationship between the child and you would be needed. However, every case is different, and you ought to seek legal advice about your personal circumstances. Please feel free to get in contact with us if you would like some advice.