CM v Secretary, New South Wales Department of Communities and Justice

[2020] NSWSC 1740

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740

Hearing dates:

5 November 2020

Date of orders:

5 November 2020

Decision date:

05 November 2020

Jurisdiction:

Equity

Before:

Rees J

Decision:

Refuse interlocutory application to return child to mother under parens patriae jurisdiction.

Catchwords:

Parens patriae – mother seeks return of child – interim care orders made by Children’s Court – Children’s Court proceedings part-heard.

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 44, 69, 90AA

Cases Cited:

Director-General of the Department of Community Services v Priestley [2004] NSWSC 639

GR v Secretary, Department of Communities and Justice [2020] NSWSC 739

Hospital v Baby M [2020] NSWSC 1481

J v C [1970] AC 668

R v Gyngall [1893] 2 QB 232

Re Anna, Burno Courtney and Deepak [2001] NSWSC 79

Re Frances and Benny [2005] NSWSC 1207

Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608

Re Joel [2013] NSWSC 1299

Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97

Re O'Hara [1900] 2 IR 23

Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157

Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15

Wellesley v The Duke of Beaufort (1827) 2 Russ 1 at 20

Texts Cited:

David Tune AO PSM, Independent Review of Out of Home Care in New South Wales (2015)

The Hon. James Wood AO QC, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008)

Category:

Principal judgment

Parties:

CM (Plaintiff, in person with the assistance of Professor D Kenny)
Secretary, New South Wales Department of Communities and Justice (First Defendant)
Minister for Families, Communities and Disability Services (Second Defendant)
The Child (Third Defendant)

Representation:

CM (Plaintiff, self-represented)
Professor D Kenny (Plaintiff’s McKenzie Friend)

Counsel:
Mr J Harris (First and Second Defendants)
Ms E Stolier (Third Defendant)

Solicitors:
(Plaintiff)
Crown Solicitor for NSW (First and Second Defendants)
Ms V Hall (Independent Legal Representative for the Third Defendant)

File Number(s):

2020/301470

EX TEMPORE Judgment

1. HER HONOUR: This is an application by the mother of a six year old boy to a Duty Judge to have the care of her son returned to her today. The application is opposed by the Secretary for the Department of Communities and Justice and the Minister for Families, Communities and Disability Services (the Minister). The application is also opposed by the independent legal representative for the boy.

2. In support of the application, the mother relied on her two affidavits of 3 and 4 November 2020. The Minister relied on an affidavit of the caseworker for the boy. There was no cross-examination. The parties also relied on various reports and file notes. The parties also referred to orders made in related proceedings, some contained in various folders submitted by the mother to the Court at earlier hearings but not tendered on this application. As the mother was not legally represented, I have allowed some latitude in this regard.

3. The mother appeared in person with the assistance of Professor Dianna Kenny, a qualified specialist in psychotherapy, mediation and family dispute resolution. The Court was much assisted by Professor Kenny's written submissions and oral arguments, as well as those made by the mother herself.

Facts

4. The boy first came to the notice of the Minister in 2017 when a Risk of Significant Harm report was made. Quite a number of further reports followed. It is not necessary today to go into the details of the reports. A caseworker was appointed. On 3 March 2020, the boy was assumed into the care of the Minister under section 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The boy was placed with emergency carers. On 5 March 2020, the Minister commenced proceedings in the Children's Court of New South Wales, seeking an order allocating interim parental responsibility of the boy to the Minister. On 10 March 2020, the interim care orders were made.

5. The mother filed applications for rescission or variation of the interim care orders on 11 March 2020 and 17 March 2020. On 8 April 2020, the Children’s Court heard the matter. According to an email from the Registrar of the Children’s Court to the mother, the Court found:

The Court finds [the child] is in need of care and protection. This finding is made on the following grounds:

Under Section 71(c) that the child or young person has been, or is likely to be, physically or sexually abused or ill-treated.

Under Section 71(d) that the child’s or young person’s basic physical, psychological or education needs are not being met, or are likely not to be met, by his or her parents or primary care-givers.

Under Section 71(e) that the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living.

The Registrar made an interim care order under section 69 of the Children and Young Persons (Care and Protection) Act that all aspects of parental responsibility for the boy were allocated to the Minister until further order.

6. On 17 April 2020, the mother filed a summons with the District Court of New South Wales seeking to set aside the interim care order. On 7 May 2020, the boy was moved from the emergency carers to a respite carer, with whom he had been spending some time already. On 20 May 2020, the District Court dismissed the mother's appeal and the boy moved to the care of his aunt, being the mother's sister.

7. On 20 June 2020, a clinical assessment report was prepared, on which both the mother and the Minister rely. The clinician had met with the mother and boy on 5 June 2020 and observed the mother and boy again at the Children’s Court on 16 June 2020. For the mother's part, the clinician’s report was said to indicate that the boy was traumatised by being removed from his mother and placed in care. In particular, the clinician stated:

The Clinician highlights that there are significant emotional injuries present for [the child], which were obvious during this visit. [The child] does not understand why he is not living with his Mother and was asking questions about this.

The Clinician comments that [the boy] is confused about why he is in care and expresses distress around this. [The boy] was observed to become very overwhelmed at the end of the contact visit and was sobbing, and difficult to soothe. The Caseworker […] said that he generally exhibits these behaviours but is able to self-soothe about five minutes after the end of the visit.

8. Further, the clinician’s observations of the mother and boy together indicated that the mother's parenting had improved substantially. Professor Kenny also submitted that the clinician’s report also contained inconsistencies. For example, whilst the clinician found that the mother had vastly improved empathy and sensitivity to her son during the mother/son assessment, the clinician nonetheless concluded that the mother was deficient in her parenting skills and recommended that the mother attend to the clinician’s recommendations over the course of a minimum of 12 months to allow the mother “to gain some traction towards attending to the recommendations appropriately.”

9. The Minister and the independent legal representative for the boy pointed to other portions of the clinician's report which suggested that improvements made by the mother were not widespread and significant difficulties remained. In particular, the clinician’s observation that the mother and young boy had relatively positive interactions was an assessment made on one occasion and the clinician’s report also stated:

The Caseworker was asked directly by the Clinician at the end of the observation visit in this assessment, whether the visit was an accurate representation of normal visits between [the boy] and his Mother. The Caseworker said that it was not, and that this visit was much better than other visits.

This information is important to note, as one of the limitations of this assessment is having access to one observation visit. The Clinician has read through all of the other contact visit reports completed by the Caseworker for this family to date. This collaborative information will inform the bigger picture lens of this assessment by considering how these visits have been for [the boy], to date ...

[The mother’s] behaviours during the court clinic observation visits were completely different to the usual visits that happen, according to the Caseworker.

10. In July 2020, a care plan meeting took place with the mother and Professor Kenny. On 22 July 2020, the mother made a further application for rescission / variation of the interim care order. On 29 July 2020, the boy was referred for trauma–informed therapeutic intervention and, from 30 July 2020, the boy and his aunt attended counselling sessions, this in addition to regular occupational therapy sessions and paediatric review. As well, the mother attended regular contact visits with her son.

11. On 2 September 2020, the Minister’s solicitor advised the mother and the independent legal representative for the boy by email:

I note that at the previous court mention it was raised that we were awaiting the outcome of a long term placement assessment on the maternal aunt. I confirm that whilst I am awaiting the finalised report, the outcome of that report is not favourable for the aunt being the child’s long term carer.

[The aunt] has reported to my client that she finds it difficult to manage the child’s behaviour and she has been advised that the outcome of the assessment was not favourable.

A possible long-term placement option has been located however there needs further investigation to be undertaken as to whether that is a suitable placement option for [the child]. The maternal aunt has been made aware of this.

I will advise the parties of whether there is any change in placement as soon as practicably possible.

12. Professor Kenny submitted that this email suggested bad faith on the part of the Minister; the prospect of returning the boy to his mother was not being seriously considering by the Minister. Rather, plans were already being made to place the boy in long-term foster care. Whilst the email could be read that way, I read it to mean that the Minister was acting on the basis of the interim care orders in place and, as it was becoming apparent that the aunt may not be suitable or willing to continue to care for the boy, the Minister was making other care arrangements, including in the event that the Children's Court decided not to return the boy to his mother, as was certainly one of the possible outcomes of the proceedings in the Children’s Court, also being the course then recommended by the clinician.

13. On 4 September 2020, Professor Kenny wrote to the Children's Court requesting that the boy remain with his aunt – at least until the Children's Court hearing then listed for 8 and 9 October 2020 – as moving him to a further carer in the meantime would cause further trauma to the boy. Professor Kenny noted:

[The mother] acknowledges that there were some significant deficits in her care of her son at the time of his removal but has worked tirelessly to rectify these by undertaking numerous parenting skills courses … and parent/child interaction therapies.

The Professor's request was heeded and that the aunt continued to care for the boy, with respite care also provided by Jane. The mother’s contact visits with her son continued.

14. On 1 October 2020, the Minister submitted an amended care plan in relation to the boy. The care plan noted that restoration of the boy to his mother was not a realistic possibility and proposed that final orders be made allocating parental responsibility to the Minister.

15. Unfortunately, the day before the hearing, the clinician advised that she was unable to attend the hearing. On 7 October 2020, the Registrar of the Children's Court informed the mother by email:

… Due to a family health issue [the] Clinician...will not be able to attend.

While I expect the matter to still run on both days, this may mean that the hearing needs to be adjourned part heard to a date on which [the clinician] is able to attend.

16. The Children's Court hearing proceeded on 8 and 9 October 2020, following which emails were exchanged between the Registrar of the Children’s Court and the parties to arrange a further date for the hearing to resume. The next available date was 15 February 2021, some four months later. The matter was eventually listed for hearing for four days from 15 to 18 February 2021. It would thus appear that the amount of evidence which the Children's Court is to consider on that occasion is substantial, noting of course that it has already heard the matter for two days.

17. On 12 October 2020, the aunt had a telephone call with the caseworker and asked what had happened in court. There was some discussion about moving the boy’s care to Jane at the end of the month, being the person with whom the boy was then spending some time as a respite carer. Professor Kenny submitted that this conversation indicates that the Minister had already decided that the boy would be placed with a long term carer rather than returned to the mother's care. Certainly, those were the orders which the Minister was then seeking from the Children’s Court.

18. On 13 October 2020, the caseworker attended an enrolment meeting at a behavioural school, to which it was proposed to move the boy. It was decided that it would be best for the boy to move to his new placement with Jane on 30 October 2020 and allow two weeks to settle before starting at the new school. On 15 October 2020, the caseworker advised the mother by email that the boy would move to the care of Jane on 30 October 2020. On 16 October 2020, the caseworker collected the boy from school and took him to Jane’s for a sleepover. The boy said he did not want to go and wanted to stay with his aunt and, on arrival, was reluctant to get out of the car but settled once with Jane.

19. Which brings us to these proceedings. On 20 October 2020, the mother appeared in person before Lindsay J, seeking an order that her child be returned to her care immediately. His Honour identified that the summons which the mother had prepared, which was in the form of an appeal from the District Court decision, may not be the correct format but perhaps the mother was seeking for this Court to exercise its parens patriae jurisdiction. The matter was adjourned so that the Minister could be notified of these proceedings, and that occurred.

20. On 22 October 2020, the caseworker collected the boy from school, who asked why he could not live with his mother. In conversation which followed, the caseworker informed the boy that he would be transitioning to his placement with Jane in eight days but could still see his mother and aunt. The boy said this was “ok” and that he would live with Jane for “300 years”. On 23 October 2020, the caseworker collected the boy from school and told him that he was going to sleepover at Jane’s house; the boy was excited.

21. A further hearing took place on 23 October 2020, when Lindsay J ordered that the independent legal representative for the boy in the Children's Court be joined and that a summons be filed. His Honour also asked the parties to contact the Children's Court to see whether the hearing scheduled for February 2021 could be brought forward. Further emails ensued between the mother, the Minister and the Children's Court as to whether an earlier hearing date could be obtained. It is apparent that it could not, although it is clear that the Registrar of the Children's Court looked into the matter. The Registrar advised there were almost no single days left in the diary prior to 15 to 18 February 2021 and that the Children's Court was now listing matters in March 2021.

22. On 26 October 2020, the caseworker telephoned the aunt and asked how she felt about the boy transitioning to a long-term placement with Jane. The aunt spoke positively about Jane, saying Jane was more “suitable”. The aunt expressed concern that, if the boy’s transition to Jane was delayed, then the aunt would become “exhausted”. The aunt admitted that she was already struggling to cope and it was a “good idea” for the boy to transition to Jane’s care.

23. On 27 October 2020, the caseworker spoke to the aunt again. The caseworker asked whether the aunt would be able to continue to look after the boy if further support was provided, but the aunt stated that she only wanted to be the boy’s part-time or respite carer and not his primary carer. The aunt said she was struggling as the boy had “become too much” to look after.

24. A further hearing took place on 29 October 2020, when Lindsay J directed the parties to have a settlement conference to see whether arrangements could be made for the care of the boy between now and the resumption of the Children's Court hearing. A settlement conference was arranged to take place on 3 November 2020. On 29 October 2020, in advance of the settlement meeting, the mother proposed a care regime until the resumed hearing in the Children’s Court. The mother proposed to care for her boy on the weekends until the end of school, then fulltime care until February 2021. On 30 October 2020, the Minister’s solicitor replied:

The Minister … retains interim parental responsibility for [the boy]. It remains the case that my client does not support [the boy’s] placement with you at this stage of the proceedings and does not consent to your proposal.

25. The mother submitted that this indicated a lack of good faith on the part of the Minister in participating in the settlement meeting. The Minister submitted that it did not consent to the mother’s proposal as there was a real prospect that the boy would not be returned to his mother’s care after February 2021 and, if the Children’s Court determined as such, then it would be in the best interests of the boy to remain with his current carer, with whom he is familiar, than face the possibility of the boy being removed from his mother once more. Either way, the settlement meeting was not successful, which brings the matter before the Court today.

Submissions

26. Professor Kenny submitted that the out-of-home care services administered by the Minister had been shown by the report of David Tune AO PSM, Independent Review of Out of Home Care in New South Wales (2015) and the report of the Hon. James Wood AO QC, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008) to be seriously lacking. The result of the boy being removed from his mother's care is to expose him to significant trauma. The sooner the boy is returned to the mother's care, the better for his emotional and psychological well-being. Professor Kenny expressed concern that the boy has been moved four times since he left the care of his mother and that he was exhibiting signs of detachment from his mother, which would lead to long-term problems as he grows up.

27. Professor Kenny submitted that the Minister had formed an early view that the boy should never be returned to his mother, without giving due regard to the mother’s efforts to adopt the recommendations in the clinician’s report. Professor Kenny has been working with the mother intensively and considers that the mother now meets all the requirements to take parental responsibility. Having personally supervised the mother’s achievement of all the requirements and recommendations in the clinician’s report, the clinician’s conclusions were now out of date. Professor Kenny assured the Court that she has worked hard with the mother to address each of the problems that have been identified with her parenting since the mother first came to the Minister's notice. The mother has improved substantially, has addressed each of the complaints made by the Minister and is a fit and proper person to care for her son until the Children's Court hearing resumes in February 2021.

26. Although Professor Kenny's submissions were put in very strong terms, I take that to be an expression of her firm belief that the best outcome today for the boy is that he be returned to his mother's care. As the Professor put it, whatever harm the boy may have suffered before by reason of the mother's parenting has now been reduced substantially, and on any view of it, was said to be less than the harm that he was suffering by a prolonged absence from his mother.

27. Both the Department and the independent legal representative for the child opposed the order I am asked to make today on, essentially, four grounds. First, exceptional circumstances must be demonstrated before this Court would exercise its parens patriae jurisdiction, and it was submitted that that was not the case here. In particular, where a specialist Children's Court is part-heard on the question I am now asked to determine today, this Court would be very reluctant to interfere. I will return to this ground shortly.

28. Second, the appropriate procedure was for the mother to apply to vary the interim care order under section 90AA of the Children and Young Persons (Care and Protection) Act 1998. To this, the mother submitted that she had made many applications and, in fact, had been asked by the Registry at the Children’s Court not to make any more. Further, any such application would likely not be heard before February 2021 in any event and so would be futile. I accept the mother’s submission.

29. Third, the evidence before the Court indicated that the risk of harm to the boy, if returned to his mother's care, remained. Although it was said that the mother had improved her parenting skills, that there was no evidence of this. Rather, the mother lacked insight as to the problems which had caused the boy to come into the Minister's care in the first place.

30. Perhaps most importantly, the Minister – and also the independent legal representative for the boy – submitted that returning the boy to his mother's care now may, in fact, have the result that further trauma is imposed upon the boy if, in February 2021, after a further four days of evidence, the Children's Court decides that the boy should remain in the care of the Minister on a permanent basis. In that event, not only would the boy be returned to his mother and then have to be removed again – which would obviously be most traumatic – but it may actually lead to a further placement if Jane was not available next year to resume long-term care of the boy. Whilst it was to be regretted that the boy was in his fourth placement, this occurred in circumstances where the Minister had planned for the aunt to continue to be his carer until the Children’s Court made its final determination, but the aunt was not prepared to do so.

Parens patriae

33. Drawing on my judgment in Hospital v Baby M [2020] NSWSC 1481, the nature of the parens patriae jurisdiction was explained by Lord Eldon in Wellesley v The Duke of Beaufort (1827) 2 Russ 1 at 20 (38 ER 236 at 243):

[It] belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them.

34. As Lord Esher MR described the jurisdiction in R v Gyngall [1893] 2 QB 232 at 241:

The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of the children, and must exercise that jurisdiction in the manner in which a wise, affectionate and careful parent would act for the welfare of the child.

35. As Brennan J observed Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 (at 280), although the jurisdiction is extremely broad, it is exercised cautiously in the manner stated by Lord Fitzgibbon LJ in Re O'Hara [1900] 2 IR 232 at 240 (and adopted by the House of Lords in J v C [1970] AC 668 at 695) as follows:

In exercising the jurisdiction to control or to ignore the parental right the Court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be superseded or suspended.

Further, Brennan J noted there must be some clear justification for a Court's intervention to set aside the primary parental responsibility to attending to the welfare of the child: at 280.

36. In a case similar to the one at hand, in Re Joel [2013] NSWSC 1299, the child was a ward of the State. The Minister was entrusted with medical decisions in respect of the child. The child required a bone marrow transplant. The Minister ultimately decided that he was prepared to give consent for the transplant and Bergin CJ in Eq then held, in circumstances where she was asked to make orders approving the treatment, at [12]:

The Court's resistance to the making of an order in this case is because it is unnecessary. When the Court is exercising its parens patriae jurisdiction, it must be careful not to intrude unnecessarily into matters. It is understandable that medical practitioners, parents and those with parental responsibility, would want the imprimatur of a Court order, particularly where there is a fear that the treatment may be unsuccessful and the child may perish; but that is not the role of the Court in this particular application. However, I should say that on the evidence, it seems to me that the Minister would be justified in consenting to this treatment.

Her Honour made no order. I followed Re Joel in Hospital v Baby M, where a children’s hospital sought orders from the Court under its parens patriae jurisdiction to authorise surgery on a newborn baby. Whilst the parents had initially not given their consent to surgery, the parents had done so by commencement of the hearing and I declined to make the orders sought by the hospital. The parents having given their consent, there was no need for the Court to act as “supreme parent” to make decisions about their baby for them: at [11].

37. Relevant authorities setting out the approach with the Court should take on an application such as this – where the matter is the subject of proceedings in the Children’s Court – were set out in the Minister’s written submissions, which I gratefully adopt. In GR v Secretary, Department of Communities and Justice [2020] NSWSC 739, Ward CJ in Equity observed at [201]:

With that in mind, I start from the proposition that the parens patriae jurisdiction of this Court is an exceptional jurisdiction …. For example in Re Victoria [2002] NSWSC 647; (2002) Fam LR 157, Palmer J stated the proposition that the jurisdiction is to be exercised only in exceptional circumstances (and see also; Re Frances and Benny [2005] NSWSC 1207 at [18] per Young CJ in Eq as his Honour then was; both by Justice Brereton, speaking extra-judicially in "Children's Issues in the Supreme Court" (Address to the Children's Court of New South Wales Meeting, 8 April 2016) to which GR herself has drawn the Court's attention).

38. In Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97, Ward JA also observed that “exceptional circumstances are required for this Court to interfere with orders that have been made by judicial officers exercising specialist jurisdiction such as those in the Children's Court”: at [22]. See likewise Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 at [37]-[40] per Palmer J; Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608 per White J; Re Frances and Benny [2005] NSWSC 1207 at [18] per Young CJ in Eq; Re Anna, Burno Courtney and Deepak [2001] NSWSC 79 at [20]-[22] per Hodgson CJ in Eq; Director-General of the Department of Community Services v Priestley [2004] NSWSC 639 at [8] per Young CJ in Eq.

Conclusion

39. As matters presently stand, the parent of the child for the purposes of the Court’s parens patriae jurisdiction is not the mother but the Minister, as the Minister has parental responsibility for the boy under orders made by the Children's Court, albeit interim orders. The Minister is not declining to make decision about the boy; the Minister is simply making decisions with which the mother does not agree.

40. Thus, the question is whether circumstances have been demonstrated which warrant this Court overriding the parental powers presently being exercised by the Minister. Exceptional circumstances must be demonstrated, particularly in circumstances where the matter is presently part-heard before the Children’s Court. I am not satisfied that exceptional circumstances have been established to warrant this Court exercising its parens patriae jurisdiction.

41. It is not necessary, nor possible, to ascertain which portions of the clinician's report are more important than others, save to note that the clinician concluded that the boy would be at risk of further inadequate supervision, direct harm and emotional and psychological harm if he was returned to the care of his mother at that time. Further, the clinician considered:

[The mother] continues to pose a risk to [the boy], should he be restored to her care at this time. Given her lack of insight in to the impact of her own behaviours on [the boy], and her lack of understanding as to how these behaviours led to [the boy] being in care, there has been minimal opportunity for demonstrated change by [the mother] thus far.

42. I am in no position, on the evidence before the Court today, to determine whether the clinician was right or wrong in her report of June 2020, or whether her view no longer reflects the current situation in November 2020 – five months later – given improvements said to have been achieved by the mother since. Whilst I accept that Professor Kenny has worked hard with the mother to improve her parenting skills, there is no evidence as to the extent to which the Professor has been successful. As already noted, I do not accept that the evidence establishes bad faith on the part of the Minister.

43. This matter has already been the subject of two days of evidence before the Children's Court and that a further four days of hearing have been scheduled in February 2021. This case is clearly complicated. It would appear that the case involves a large amount of evidence, which the Court needs to take over six days in total. I have heard what I expect is a mere sliver of that material, but nonetheless I am being asked to override the interim care orders made by the Children's Court.

44. I do understand Professor Kenny’s submission that removing a child from his mother at such a tender age is likely to be traumatic and damaging. Likely, a child would not be removed from their mother's care unless there were significant circumstances warranting it. It would appear from the caseworker’s affidavit and exhibit that there was such circumstances here. Indeed, I do not understand the mother to suggest that those circumstances did not exist, but rather that those circumstances had now been remedied.

45. As the independent legal representative for the boy observed today, staying with the aunt would obviously have been in the best interests of the boy, but the aunt had trouble managing some of the boy’s behavioural problems and, by the end of October 2020, made it plain that she, whilst loving her nephew very much, wished for him to be placed with another carer.

46. This matter is now being considered by the Children's Court in the ordinary way. I am not prepared to intervene in that process on the basis of the evidence before the Court. I have in mind particularly the concern expressed by the independent legal representative for the boy that it is not considered to be in the interests of the boy to cause him potentially even more trauma by acceding to the mother’s request today but perhaps having to return the boy to a long-term carer in February 2021. I am not prepared run a real risk of inflicting further trauma on the boy, which may be the consequence of making the orders sought.

47. Before passing, might I just record that it is clear that the mother loves her boy. It is clear that his aunt does as well. Obviously, if it is in the interests of the boy to return to his mother’s care, then that should happen. It is also clear to me that the Children's Court has expertise in this area and do seem to have this matter in hand.

48. For these reasons, I make the following orders and directions:

1. Leave granted to the plaintiff to file in Court a Summons dated 26 October 2020, initialled by her Honour, dated today and placed with the papers.

2. Dismiss the Notice of Motion received by the Court on 3 November 2020.

3. Dismiss the Summons dated 26 October 2020 filed on 5 November 2020.

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Amendments

07 December 2020 - Amendment made to plaintiff's name on the coversheet.

Decision last updated: 07 December 2020