Child out of care without consent 102-05050040

If a child is taken away from the person who has legal responsibility for them by someone who is not their parent, the child may be considered to be abducted or out of care without consent. If the other parent has taken the child in contradiction of the current care arrangements, payment for the child will be considered under the disputed care provisions. Payment of FTB may continue for up to 14 weeks in some of these circumstances and income support payments for up to 8 weeks.

If a child stops being in a person's care without their consent on or after 1 July 2012, discretion can be applied so that the percentage of care can immediately be based on the actual level of care if there are special circumstances which support that outcome. The decision would result in the losing carer's eligibility for FTB for the child stopping. The person who has actual care of the child may be eligible for FTB payments for the child if they meet the normal eligibility criteria.

In some cases, (for example, if the child is at risk of harm), an assessment by a social worker may be needed. This also applies to ongoing entitlements for a regular care child. A separate procedure applies for determining the principal carer of a child when the child is temporarily absent from a person's care. A decision about a customer's principal carer status for income support payments must be made separately to the decision about the customer's entitlement.

If a child has been abducted or is at risk of being harmed, then an assessment must be made by a social worker.

It is possible for the customer to remain eligible for family assistance for the child for up to 14 weeks if the customer asks to continue to receive payment for the child and is taking reasonable steps to have the child returned to their care in the following cases:

• the child is missing for any reason (for example, child has run away from the family home, has been abducted or is at risk of harm)
• the child is living with a person who does not have legal responsibility for the child

Reasonable steps to have the child returned to their care may include:

• notifying the police that the child is missing, or
• taking legal action for the return of the child

If both the losing and the gaining carer have legal responsibility for the child, then the change of care is regarded as legal. If there is a disagreement over care arrangements, it is treated as a disputed care situation rather than 'leaving care without consent'.

If a child has been abducted or is at risk of being harmed, then an assessment must be made by a social worker.

A parent always has legal responsibility for their child unless the legal responsibility has been removed by order of the Family Court. Therefore, if the child has gone into the care of the other parent and there is no family care arrangement, the losing parent is no longer eligible for FTB from the date the child left their care. The gaining parent should be invited to claim.

If the terms of the care arrangement have not been complied with, either due to action taken by another carer or by the child, and they are taking reasonable steps to regain care of the child, the disputed care provisions can apply and eligibility may be extended for up to 14 weeks (qualifying period). For example, prevention of contact, not returning a child after a contact visit, or the child chooses to live with the other person.

From 1 July 2012, if a child stops being in a person's care without their consent, discretion can be used to determine that the child immediately stops being an FTB child or regular care child of the person if there are special circumstances which support that outcome.

The term 'special circumstances' refers to circumstances that are out of the ordinary and not something that could be considered to be common place. In the context of deciding if to base care immediately on actual care, rather than continue to base care on a written agreement for an interim period, the circumstances that led to the change in care in each case are important. These circumstances should be a significant cause of the change in care. They may include unusual or unreasonable actions and behaviour of the parent with reduced care, however they can also arise due to factors beyond the parent's direct control.

For more details regarding 'special circumstances', refer to the Actual Care in Special Circumstances information package located on the Resources tab.

If the customer is receiving Parental Leave Pay at the time, assess the eligibility.

A child can only be considered abducted if the person who has lost care of the child has legal responsibility for the child and the person who has taken the child does not have legal responsibility for the child.

FTB can continue for up to 4 weeks before a review is undertaken to see if payment can continue for a further 10 weeks under the 'out of care without consent' rules.

If a child has been abducted or is at risk of being harmed, then an assessment must be made by a social worker.

An abductor who does not have legal responsibility for the child would not normally be entitled to FTB for a child.

Under no circumstances can information about the new claimant be released to the losing carer. Normal privacy and confidentiality requirements apply for both the previous and new claimant, except for the release of information in the public interest.

Requests for information about the abductor must be referred to a social worker who can make a determination under public interest provisions if the child is at risk of harm, for the purpose of notifying relevant details to an appropriate authority.

Examples of an appropriate authority are the police, a State Welfare authority, a Guardianship board, a State Trustee or a mental health team. This list is not exclusive, as each case needs to be assessed individually.

Service Officers must respect the privacy of both the losing carer and the abductor.

Any information disclosed must be recorded on the Release of Information online form. The Resources page has a link to the form.

This is not considered 'out of care without consent'. See Child leaves customer's care/custody.

Manual Follow-up (MFU) reviews

These reviews are undertaken to confirm that reasonable steps are being taken by a customer to regain care of the child. The reviews are automatically created with a maturity date of 4 weeks from the date of receipt of the 'Left Customer Care Without Consent' update to the customer's record. Upon maturity, the MFU will be present on their record for manual action.

A review will continue to generate every 4 weeks during the left care period where the customer's record continues to reflect the child as having left care without consent.

System reviews

A further system review is set for 14 weeks after the child left care and, if the child is still recorded as left care without consent, FTB for the child is automatically cancelled.

Manual reviews for Parenting Payment (PP) customers

An automatic MFU review is not created for PP customers whose child has left care without consent. A manual review must be created.