Child Representatives

1. What is the purpose of this operational guideline?

This Operational Guideline is intended to provide guidance in relation to determining who will be a child's representative (i.e. the person/s responsible for undertaking acts and making decisions on behalf of a child) for the purposes of the National Disability Insurance Scheme Act 2013 (NDIS Act).

Generally, a child's representative will be the person who has, or the persons who jointly have parental responsibility for the child. Therefore, this Operational Guideline will also provide guidance in relation to determining who has parental responsibility for a child, and when it will be appropriate for the National Disability Insurance Agency (NDIA) to appoint another person as a child's representative or decide that a child can represent themselves.

2. What is the relevant legislation?

3. Overview

A child is a person who is under 18 years of age (section 9).

The NDIS Act requires and permits participants to do a range of different things for the purposes of the National Disability Insurance Scheme (NDIS). For example, participants must prepare a statement of goals and aspirations, and may make a plan management request.

In this context, a child will be assumed not to be able to do the things required under the NDIS Act, and instead these things will be done on behalf of a child by the child's representative.

Generally, a child's representative will be the person, or the persons who have parental responsibility for the child (see determining who has parental responsibility for a child) (section 74(1)(a)).

However, a child's representative will be a person other than the person, or persons with parental responsibility where the NDIA:

  • decides to appoint another person (see determining whether a person other than a person with parental responsibility should be a child's representative) (section 74(1)(b)); or
  • decides that a child can represent themselves (section 74(5)).

4. Principles relating to children

The following general principles which guide all actions under the NDIS Act are particularly relevant to children:

  • people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity (section 4(8));
  • the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected (section 4(12)); and
  • positive personal and social development of people with disability, including children and young people, is to be promoted (section 4(16)).

In addition to the general principles which guide all actions under the NDIS Act, there are also general principles which guide the actions of people who act on behalf of others (section 5).

These further principles state that if a person with disability is a child, the best interests of the child are paramount, and full consideration should be given to the need to:

  • protect the child from harm (section 5(f)(i));
  • promote the child's development (section 5(f)(ii)); and
  • strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child (section 5(f)(iii)).

The remainder of the general principles which guide the actions of people who may actor do things on behalf of others are also relevant. These principles state that:

  • people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves (section 5(a));
  • people with disability should be encouraged to engage in the life of the community (section 5(b));
  • the judgements and decisions that people with disability would have made for themselves should be taken into account (section 5(c));
  • the cultural and linguistic circumstances, and the gender, of people with disability should be taken into account (section 5(d)); and
  • the supportive relationships, friendships and connections with others of people with disability should be recognised (section 5(e)).

5. Determining who has parental responsibility for a child

Generally, a child will be represented for the purposes of the NDIS by the person or persons who have parental responsibility for the child (section 74(1)(a)).

However, this will not be the case where the NDIA decides:

  • that it is not appropriate for the person or persons with parental responsibility to represent the child and appoints another person (see determining whether a person other than a person with parental responsibility should be a child's representative);
  • or decides that a child can represent themselves.

There are different rules for determining who has parental responsibility for a child depending on whether or not the child has a guardian.

5.1 Children who do not have a guardian

In most cases, there will not be a guardian appointed for a child.

When there is no guardian appointed for a child, the person with parental responsibility for a child, and who will normally be the child's representative will be:

  • the child's parent (provided the child's parent has not ceased to have parental responsibility for the child because of a court order or under a State or Territory law) (section 75(1)(a)); or
  • the person identified in a parenting order (within the meaning of the Family Law Act 1975):
  1. that the child is to live with (section 75(1)(b)(i));
  2. that the child is to spend time with (section 75(1)(b)(ii)); or
  3. who is responsible for the child's long term or day-to-day care, welfare and development (section 75(1)(b)(iii)).

5.1.1 Where more than one person has parental responsibility for a child

In some circumstances, the rules which apply for children who do not have guardians may result in more than one person having parental responsibility for a child. For example, where a child's parents have separated both parents may continue to have parental responsibility for the child.

Where this occurs, all those persons will generally have joint parental responsibility and will together be the child's representative for the purposes of the NDIS Act.

However, the NDIA may decide that one or more of those persons is to have parental responsibility for the child to the exclusion of others for the purposes of the NDIS Act (section 75(3)).

Any decision by the NDIA that one or more persons with parental responsibility for a child is to be the child's representative to the exclusion of others must be in writing (section 75(5)).

A decision of this kind is discretionary and the NDIA may simply choose to leave all persons having parental responsibility for the child to jointly be the child's representative for the purposes of the NDIS Act.

When deciding whether it is appropriate for one or more persons with parental responsibility to be the child's representative to the exclusion of others, the NDIA must have regard to:

  • the preferences (if any) of the child (rule 4.9(a) of the Children Rules);
  • the views of any person who has parental responsibility for the child (rule 4.9(b) of the Children Rules);
  • whether one or more of those persons are best placed to carry out the duties to children taking into account:
  1. existing arrangements that are in place between those persons and the child (rule 4.9(c)(i) of the Children Rules);
  2. which persons have responsibility for day-to-day parenting decisions (rule 4.9(c)(ii) of the Children Rules); and
  3. which persons can act in conjunction with other representatives and supporters of the child in the best interests of the child (rule 4.9(c)(iii) of the Children Rules).
  • whether one or more of those persons are willing and able to work together in the best interests of the child (rule 4.9(d) of the Children Rules);
  • the desirability of preserving family relationships and informal support networks of the child (rule 4.9(e) of the Children Rules); and
  • for any of the persons:
  1. where the NDIA has asked the person to answer any questions or provide any information in relation to making a determination that applies to that person (including requesting the person to consent to the release of information concerning their criminal history or suitability to work with children):
  • any answers or information that have been provided by the person;
  • any refusal by the person to provide answers or information;
  • any relevant conviction for an offence under Commonwealth, State or Territory law; and
  • any relevant information relating to the suitability of the person to work with children (rule 4.9(f) of the Children Rules).

Where more than one person has parental responsibility for a child, a decision by the NDIA in relation to whether one or more of those persons is to have parental responsibility for the child (to the exclusion of others) can be reviewed, and is known as a reviewable decision (section 99(k)).

The NDIA must notify each person directly affected by the decision relating to whether a person with parental responsibility should be the child's representative to the exclusion of others in writing, including a statement to the effect that the person may request that the NDIA review the decision (section 100(1)).

The NDIA will also attempt to contact all people directly affected by the decision by telephone to advise them of the decision which has been made.

5.2 Children who have a guardian

If a child has a guardian, the guardian normally has parental responsibility for the child, and will therefore normally be the child's representative (section 75(2)).

However, the NDIA is able to decide that one or more other persons with parental responsibility (i.e. a child's parents or a person identified in a parenting order) be the child's representative instead of the child's guardian (section 75(2)).

A decision of this kind must be in writing (section 75(5)).

When deciding whether one or more persons with parental responsibility should be the child's representative instead of the child's guardian, the NDIA must:

  • consult, in writing, with the child's guardian (rule 4.6(a) of the Children Rules); and
  • have regard to the following:
  1. the preferences (if any) of the child (rule 4.6(b)(i) of the Children Rules);
  2. the principle that the child's guardian should be the child's representative unless the NDIA is satisfied that this is not appropriate (rule 4.6(b)(ii) of the Children Rules);
  3. whether the child's guardian recommends that another person should be the child's representative (rule 4.6(b)(iii) of the Children Rules);
  4. the extent to which the child's guardian is willing and able to perform the duties to children (rule 4.6(b)(iv) of the Children Rules); and
  5. whether a child's parent/s or a person with a parenting order is more willing and able to carry out the duties to children (rule 4.6(b)(v) of the Children Rules);

Note, where the child's guardian is a State or Territory Minister, or the head of a Department of State, that person must agree in writing to the NDIA deciding that another person with parental responsibility is to be the child's representative (section 75(3A)).

A decision by the NDIA in relation to whether one or more other persons with parental responsibility should be the child's representative instead of the child's guardian can be reviewed, and is known as a reviewable decision (section 99(k)).

The NDIA must notify each person directly affected by the decision to allow, or refuse to allow another person with parental responsibility to be the child's representative instead of the child's guardian in writing, including a statement to the effect that the persons may request that the NDIA review the decision (section 100(1)).

The NDIA will also attempt to contact all people directly affected by the decision by telephone to advise them of the decision which has been made.

6. Determining whether a person other than a person with parental responsibility should be a child's representative

The person or persons who have parental responsibility for a child will usually be the child's representative under the NDIS.

However, in exceptional circumstances it may be appropriate for the NDIA to decide that a person who does not have parental responsibility for a child should be a child's representative.

Where the NDIA is satisfied that it is not appropriate for the person or persons who have parental responsibility be the child's representative, the NDIA can appoint another person in writing (section 74(1)(b)).

In deciding whether to determine that a person who does not have parental responsibility for a child should be the child's representative, the NDIA must have regard to:

  • the preferences (if any) of the child (rule 3.5(a) of the Children Rules);
  • the desirability of preserving family relationships and informal support networks of the child (rule 3.5(b) of the Children Rules);
  • who is best placed to carry out the duties to children (rule 3.5(c) of the Children Rules);
  • for a particular person that the CEO is considering appointing:
  1. any existing arrangements that are in place between that person and the child (rule 3.5(d)(i) of the Children Rules); and
  2. whether that person has responsibility for day-to-day parenting decisions (rule 3.5(d)(ii) of the Children Rules); and
  3. whether that person can act in conjunction with other representatives and supporters of the child in the best interests of the child (rule 3.5(d)(iii) of the Children Rules); and
  4. where the CEO has asked the person to answer any questions or provide any information in relation to the possible appointment of that person as a child's representative (including requesting the person to consent to the release of information concerning their criminal history or suitability to work with children):
  • any answers or information that have been provided by the person; and
  • any refusal by the person to provide answers or information (rule 3.5(d)(iv) of the Children Rules); and
  • any relevant conviction for an offence under Commonwealth, State or Territory law (rule 3.5(d)(iv) of the Children Rules); and
  • any relevant information relating to the suitability of the person to work with children (rule 3.5(d)(v) of the Children Rules).

Note, where the child's guardian is a State or Territory Minister, or the head of a Department of State, that person must agree in writing to the NDIA deciding that another person with parental responsibility is to be the child's representative (section 75(3A)).

A decision by the NDIA in relation to whether a person who does not have parental responsibility for a child should be the child's representative can be reviewed, and is known as a reviewable decision (section 99(i)).

Therefore, the NDIA must notify each person directly affected by the decision to allow, or refuse to allow a person who does not have parental responsibility for a child to be the child's representative in writing, including a statement to the effect that the person may request that the NDIA review the decision (section 100(1)).

The NDIA will also to attempt to contact all people directly affected by the decision by telephone to advise them of the decision which has been made.

6.1 Revoking a determination

The NDIA may revoke a determination that a person other than a person with parental responsibility for a child is to be the child's representative where:

  • the person makes a written request to the NDIA asking that the determination be revoked (section 77(1)(a)); or
  • the NDIA is satisfied that it is no longer appropriate for the determination to remain in effect (section 77(1)(b)).

The NDIA will make decisions in relation to whether it is appropriate for a person who does not have parental responsibility to continue to be a child's representative on a case by case basis. For example, it will not be appropriate for a person to continue to be a child's representative where the NDIA has reliable information that the person has caused, or is likely to cause, physical, mental or financial harm to the child.

7. Determining whether a child can represent themselves

Ordinarily, a participant who is a child will have a child representative to perform actions and make decisions on his or her behalf. A child's representative will be the person or persons who have parental responsibility for the child, or another person appointed by the NDIA.

However, the NDIA may decide that a child can represent themselves for the purposes of the NDIS Act if it is satisfied that:

  • the child is capable of making decisions for themselves (section 74(5)(a)); and
  • it is appropriate for the child to do things under the NDIS Act for themselves (section 74(5)(b)).

When deciding whether a child is capable of making decisions for themselves, the NDIA must:

  • consult with the child and the child's representative (rule 5.2(a) of the Children Rules); and
  • have regard to the following:
  1. whether the child:
  • is able to understand the kind of information relevant to decisions that need to be made under the NDIS;
  • is able to use information of that kind when making decisions;
  • is able to understand the consequences of decisions that need to be made under the NDIS; and
  • is able to communicate decisions in some way (rule 5.2(b)(i) of the Children Rules); and
  • whether there are people in the child's life who can support them to make their own decisions (rule 5.2(b)(ii) of the Children Rules).

When deciding whether it is appropriate for a child to do things under the NDIS Act for themselves, the NDIA must:

  • consult with the child and the child's representative (rule 5.3(a) of the Children Rules); and
  • have regard to the following:
  1. the preferences (if any) of the child;
  2. whether there are other people in the child's life who would be willing and able to assist them in carrying out actions and making decisions under the NDIS;
  3. the need to preserve existing family relationships;
  4. any existing arrangements in place under Commonwealth, State and Territory schemes (rule 5.3(b) of the Children Rules).

Most children will have arrangements in place, either for people to undertake actions on their behalf or to support them to make decisions themselves. The NDIA will be sensitive to the important role these existing support networks play and take them into consideration when determining whether it is appropriate for a child to act on his or her own behalf.

A child's capacity for making decisions, as well as the appropriateness of them acting for themselves will evolve over time. The NDIA will be considerate of the evolving nature of a child's capacity and take this into account when making decisions about whether a child can represent themselves.

The NDIA is also conscious that a child's decision making capacity may vary according to the environment in which the child makes the decisions. The NDIA will, wherever possible, make their assessment of whether a child is capable of making decisions in the environment in which the child feels most comfortable.

A decision by the NDIA to determine that a child cannot represent themselves can be reviewed, and is known as a reviewable decision (section 99(j)).

Therefore, the NDIA must notify a child in writing of the decision not to allow them to represent themselves, including a statement to the effect that the child may request that the NDIA review the decision (section 100(1)).

The NDIA will also attempt to contact the child by telephone to advise them of the decision which has been made.

8. Duties of child representatives

Where a child has a representative, the child's representative has duties to the child that guide how the representative is to make decisions and undertake actions for the child. These duties indicate how a child's representative is expected to perform their role.

A child's representative has a duty under the NDIS Act to:

  • ascertain the wishes of the child; and
  • act in the best interests of the child (section 76(1)).

This duty is not breached if the child's representative does something, or refrains from doing something, so long as:

  • the child's representative reasonably believes they have ascertained the wishes of the child (sections 76(2)(a) and 76(3)(a)); and
  • the child's representative reasonably believes that the doing of the thing, or not doing of the thing is in the best interests of the child (section 76(2)(b) and 76(3)(b)).

A child's representative has a duty to consult wherever practicable with the following people:

  • the guardian of the child (if one has been appointed) and any other person with parental responsibility (rule 6.4(a) of the Children Rules); and
  • any other person who assists the child to manage their day-to-day activities and make decisions (rule 6.4(b) of the Children Rules).
This page current as of
6 December 2018