Department of Human Services v RM & MW

Case •

[2010] NSWLC 32

•

10/21/2010

No judgment structure available for this case.

Local Court of New South Wales


CITATION: Department of Human Services V RM & MW [2010] NSWLC 32
JURISDICTION: Children's Court
PARTIES: Department of Human Services
RM
MW
FILE NUMBER: 8-11/2009
PLACE OF HEARING: Moree Local Court
DATE OF DECISION: 10/21/2010
MAGISTRATE: Magistrate Richardson
CATCHWORDS: Care and Protection - parental responsibility - whethr realistic possibility of restoration to mother's care - care plans - permanancy planning
LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1988
CASES CITED: Re Helen [2004] CLN 2
Re Josie [2004] NSWSC 642
Re Maree [2007] CLN 6
Re Nellie [2004] CLN 4
Re Rhett [2008] CLN 1
Re Sinead [2005] CLN 8
TEXTS CITED:
REPRESENTATION:
ORDERS:

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IN THE MATTER OF “L”, “S”, “E” AND “D”

1 The Department of Human Services seek orders in respect of the children “L” (born in February 2004), “S” (born in September 2006), “E” (born in November 2005) and “D” (born in May 2008) that all aspects of parental responsibility be allocated to the Minister pursuant to section 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 until each child attains the age of 18 years.

2 The application was made by the Department on 9 November 2009. All the children were taken from their parents on 3 November 2009. The children were placed with JM, a maternal relative and foster carer. The parents of the children, RM and MW, have had supervised contact with the children since they were taken.

3 The case was “established” for each of the four children on 22 March 2010. Establishment was based on the affidavit of Tania Davis sworn on 9 November 2009. That affidavit documented a number of domestic violence incidents between the parents from September 2004 to November 2009. Seventeen reports had been received that the children were at risk of harm. On some occasions the domestic violence was witnessed by one or some of the children and allegations are made of physical violence impacting on the children. The Court found that the children were in need of care and protection under section 71(1)(c)(d) and (e) of the Act. Provision had been made for the parents, who opposed establishment, to file evidence on their own behalf. Timetables were set but not adhered to by the parents. They have been represented by a number of different solicitors throughout the proceedings.

4 Following “establishment”, orders were made for the Department to prepare care plans for each child. Care plans were prepared. Orders were made for the parents to file evidence in response to the care plans with which they disagreed. Affidavits were filed by the mother and father on 13 July 2010.

5 Evidence relied on by the Department includes:

          Affidavit of Tania Davis dated 9 November 2009;
          Affidavit of Tania Davis dated 7 January 2010;
          Affidavit of Shannon Rogers dated 25 February 2010;
          Affidavit of Shannon Rogers dated 15 March 2010;
          Affidavit of Shannon Rogers dated 21 May 2010; and
          Affidavit of Shannon Rogers dated 12 August 2010.
      The father, RM, filed an affidavit dated 13 July 2010. The mother, MW, also filed an affidavit on that date.

6 Submissions on the evidence and issues were made by the Department in a letter dated 10 September 2010, by the children’s legal representative from Webb & Boland Lawyers in a letter dated 13 September 2010 and, belatedly, by Stuart Percy and Associates acting for both the mother and father by letter dated 24 September 2010. Orders had been made by the Court for written submissions to be filed by 13 September 2010 with a view to a decision being made on 23 September 2010 which was vacated because submissions on behalf of the parents had not been received. This adjournment enabled the Court to give proper consideration to the evidence, issues and submissions on the children’s “placement”.

7 There are a number of legal issues to consider before making “placement” decisions in relation to the four children in care. They are:


      (1) Is restoration to the parents a realistic possibility having regard to the evidence at the time of the hearing?

      (2) If not, is there a suitable family placement available for the children?

      (3) Do the placement plans for each of the four children in care embody the element of “permanency”? and

      (4) Are appropriate and reasonable contact arrangements planned for the children with their parents?

8 There are statutory provisions in the Children and Young Persons (Care and Protection) Act 1998 to be considered. As this case involves indigenous children, there are special provisions in the legislation to take into account. For the purpose of easy reference, statutory provisions which need to be complied with in this case are set out as follows:

          Section 9 What principles are to be applied in the administration of this Act?

          The principles to be applied in the administration of this Act are as follows:
            (a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.
            (b) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.
            (c) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.
            (d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.
            (e) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.
            (f) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.
            (g) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interest, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

          Section 13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles
          (1) The general order for placement
          Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in out-of-home care is to be placed with:

            (a) a member of the child’s or young person’s extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

            (b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed - a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

            (c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed – a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child’s or young person’s usual place of residence, or

            (d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed – a suitable person approved by the Director-General after consultation with:


          (i) members of the child’s or young person’s extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and

          (ii) such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person.

          (2) Relevance of self-identification and expressed wishes of child or young person

          I n determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person.

          Section 78 Care plans

          (1) If the Director-General applies to the Children’s Court for an order, not being an emergency protection order, for the removal of a child or young person from the care of his or her parents, the Director-General must present a care plan to the Children’s Court before final orders are made.

          (2) The care plan must make provision for the following:
            (a) the allocation of parental responsibility between the Minister and the parents of the child or young person for the duration of any period for which the child or young person is removed from the care of his or her parents, (b) the kind of placement proposed to be sought for the child or young person, including: (c) how it relates to permanency planning for the child or young person, and (d) any interim arrangements that are proposed for the child or young person pending permanent placement and the timetable proposed for achieving a permanent placement, (e) the arrangements for contact between the child or young person and his or her parents, relatives, friends and other persons connected with the child or young person, (f) the agency designated to supervise the placement in out-of-home care, (g) the services that need to be provided to the child or young person.

          (3) The care plan is to be made as far as possible with the agreement of the parents of the child or young person concerned.

          (4) The care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children’s Court.

          (5) Other requirements and the form of a care plan under this section may be prescribed by the regulations.

          Section 78A Permanency planning

          (1) For the purposes of this Act, permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security and that:

      (a) has regard, in particular, to the principle set out in section 9 (f) and

      (b) meets the needs of the child or young person, and

      (c) avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements.
          (2) Permanency planning recognises that long-term security will be assisted by a permanent placement.
          (3) A permanency plan for an Aboriginal or Torres Strait Islander child or young person must address how the plan has complied with the Aboriginal and Torres Islander Child and Young Person Placement Principles in section 13.
          (4) If a permanency plan indicates an intention to provide permanent placement through an order for sole parental responsibility or adoption of an Aboriginal or Torres Strait Islander child or young person with a non-Aboriginal or non-Torres Strait Islander person or persons, such an order should be made only:

        (a) if no suitable permanent placement can be found with an Aboriginal and Torres Strait Islander person or persons in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13, and

        (b) in consultation with the child or young person, where appropriate, and

        (c) in consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation and the local Aboriginal or Torres Strait Islander community, and

        (d) if the child or young person is able to be placed with a culturally appropriate family, and

        (e) with the approval of the Minister for Community Services and the Minister for Aboriginal Affairs.


          Section 83 Preparation of permanency plan

          (1) If the Director-General applies to the Children’s Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Director-General must assess whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to:

      (a) the circumstances of the child or young person, and

      (b) the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.


          (2) If the Director-General assesses that there is a realistic possibility of restoration, the Director-General is to prepare a permanency plan involving restoration and submit it to the Children’s Court for its consideration.

          (3) If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children’s Court for its consideration.

          (4) In preparing a plan under subsection (3), the Director-General may consider whether adoption is the preferred option for the child or young person.

          (5) The Children’s Court is to decide whether to accept the assessment of the Director-General.

          (6) If the Children’s Court does not accept the Director-General’s assessment, it may direct the Director-General to prepare a different permanency plan.

          (7) The Children’s Court must not make a final care order unless it expressly finds:

      (a) that permanency planning for the child or young person has been appropriately and adequately addressed, and

      (b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:
        (i) the circumstances of the child or young person, and (ii) the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.


          (8) A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children’s Court.

          (9) In this section, parent , in relation to the child or young person concerned, means:

      (a) if the child or young person has been adopted – the child’s or young person’s adoptive parent, or

      (b) if the child or young person has not been adopted – the child’s or young person’s birth parent.

9 In regard to restoration, the decisions, including from family law proceedings, have provided guidance to the Courts. These decisions are referred to in Re Maree [2007] CLN 6 and Re Nellie [2004] CLN 4. Obviously, the decisions recognise that it is preferable for children to remain in the care of their natural parents and that children should only be taken away from their natural parents if they are exposed to an “unacceptable risk”. The objectives in the legislation state that “… in all actions and decisions made under this Act … concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration” (section 9(a)). The Court is obliged to comply with the best interest principle. The focus should be on the “risk of harm” to the children. Whether the issues underlying the violence in their parents’ relationship have been resolved and whether there is evidence of ongoing violence since the children were taken into care are important questions in this particular case.

Submissions

10 Both parents strongly oppose the making of the orders sought by the Department. They want the children returned to their care and protection. The parents do not deny the domestic violence that has occurred between them. They argue that the children have not been physically assaulted. They argue that they did not appreciate the impact that their ongoing violence has had on the children but they now do. They point out that for a period of time since September 2009 they separated for various reasons. In relation to the endeavours of the Department to set up appropriate counselling arrangements including psychological assessments and the like, the parents did not consider that the underlying issues in their relationship were matters for the Department to be concerned about. They also say that the children have suffered since they were removed. They assert that the children have had medical issues while in care, e.g. ring worm, E had a urinary tract infection and one child may have had a broken collar bone while in care, which was not attended to.

11 The legal representative of the children supports the Court making the order sought by the Department. Various issues are highlighted in the submission including ongoing domestic violence between the parents, lack of attendance by the children at school, psychological effects on the children and the inability of the parents to confirm their relationship status. The submission points out that, on the basis of history, it is unlikely that they will work cooperatively with the Department in the best interests of the children. The submission notes the discrepancies in the evidence of the mother and the father as to the state of their relationship. The mother says that she is no longer in a relationship with the father who maintains that they do have an ongoing relationship. Further the mother concedes that she would cease the relationship with the father if the Department agreed to return the children. The submission notes that in her affidavit, Shannon Rogers records an ongoing incident of domestic violence involving the police on 15 January 2010 (Affidavit 25 February 2010).

12 The Department relies on affidavits filed since the children were taken into care. It submits that the children would be placed at risk if returned to their parents. It relies on numerous arguments and facts set out in its submission and affidavits including the attitude of the parents to the situation over a few years, poor school attendance by those children old enough to go to school, instances of domestic violence, the ongoing relationship issues between the parents, psychological evidence especially as it relates to two children, S and D, set out in Noelene Bloomfield’s reports dated 29 March 2010. It refers to mental health issues in regard to the mother and alcohol and anger issues for the father. The Department refutes the allegations about the children’s physical and medical problems while in care (Affidavit of Shannon Rogers dated 12 August 2010). The Department has provided numerous opportunities to both parents to assist them confront the issues in their relationship including arranging for Kim Kilpatrick to undertake a psychological assessment, sanctioned by the Court, in Moree in December 2009. The parents did not attend.

13 One issue raised in submissions is the attitude of the parents to initiatives suggested by the Department that the parents might undertake to improve the prospects of the children being returned to them. One aspect raised is their attitude to the proceedings and to orders of the Court in regard to the production of material. In regard to a placement hearing, the Court does not consider that this factor should be taken into consideration, when deciding to return the children to their parents or not. There may be reasons beyond their control which explain their non compliance with Court directions from time to time. It is not appropriate to interpret their failure as disinterest in the children. Clearly, both parents want their children returned to them. What the important is that the parents were offered procedural fairness and the chance to participate in the proceedings meaningfully. That said, their attitudes and responses to other initiatives, such as counselling, raised by the Department are clearly relevant to the proceedings before the Court.

14 Having regard to the submissions and the evidence, the Court concludes on the balance of probabilities that the children would be exposed to unacceptable risks if returned to their parents. The domestic violence between the parents is ongoing. The children, especially D and S, have problems identified by Noelene Bloomfield. The parents have not faced up to the issues identified by the Department and have declined to follow up on guidance and assistance including from professionals. The status of their relationship is not clear and there remain issues outstanding in regard to the mother’s mental health and the father’s alcohol and anger problems. While both parents want their children returned, the Court is required to acknowledge that the interests and well-being of the children are paramount considerations.

Placement

15 The care plans propose that the children remain with JM for the immediate future as this is not a long term possibility. She is a relative of the mother of the children but she can only have care of the children for a short time. The Department proposes to place the children with a family or kin group member in the Moree area. If this is not achieved within six months, a permanent Aboriginal foster care placement will be sought. This is consistent with section 13 of the Children and Young Persons (Care and Protection) Act 1998 and the principle that the option for the children should be the least intrusive. The Court notes the decision of in Re Sinead [2005] CLN 8 where this principle is explained. The Department will try to keep the four children together but, if this is not possible, they will be located close by to allow frequent contact to occur. Two family members have applied to be assessed to care for the children. AD has been successfully assessed and authorised to provide respite care only. AM was not successful in her application to be an appropriate person to provide care and protection to the children. The Department is proposing an out-of-home placement for the children until they attain 18 years old. The proposal focuses on maintaining kin and family links and the placement envisaged will attend to the needs of the children and their development. The Court cannot direct the Department what to do with children under the Minister’s parental responsibility. In Re Josie [2004] NSWSC 642 at paragraph 38, Justice Levine held:

          “when … parental responsibility has been allocated to the Minister without any qualification, exception or joint responsibility, then that parental responsibility solely to be exercised by the Minister includes residence, and the Children’s Court has no jurisdiction to interfere with the exercise by the Minister of that sole responsibility.”

16 The Court needs to be satisfied that there is in place a plan to cover the four children until they turn 18 years old. In Re Rhett [2008] CLN 1, Mitchell SCM analysed the authorities on placement plans. He referred to Lord Nicholls of Birkenhead who said in an English case:


          “despite all the inevitable uncertainties, when deciding to make a care order the Court should clearly have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of fairness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the Local Authority Act can foresee what will be best for the child at that time.” ( S v S and Ors [2002] UK HL10)

17 In my view, the proposed plan meets the requirements of the legislation and addresses the provisions directed at indigenous children. It provides a sufficiently firm and particular plan for all concerned to have a reasonably clear picture of the likely way ahead for the children.

Contact

18 The care plans for the children envisage contact between them and their parents four times each year. It is to be organised by the Department and supervised by an external agency. Other contact by letter, photographs and presents can occur with the children via the Department at Moree. In the Court’s view, the proposal for contact is reasonable and appropriate and meets the requirements discussed In Re Helen [2004] CLN 2.

Monitoring

19 There remains a substantial amount of work to be done by the Department in regard to the four children. While appropriate and reasonable, the plans may not be achieved as envisaged and circumstances may change. Accordingly, this is a case where the Court should require ongoing reports about the placement of the children, pursuant to section 82 of the Act. A report should be prepared and filed with the Court in six months and a second report within 12 months on progress made on outstanding issues.

Orders

(1) THAT in respect of each child (L, S, E and D) all aspects of parental responsibility are allocated solely to the Minister until each child pertains the age of 18 years, pursuant to section 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998.

(2) THAT in respect of each child (L, S, E and D) Community Services, Department of Human Services NSW, will prepare a written report concerning the suitability of arrangements for the care and protection of each child within six months and a further report within 12 months of this Decision, pursuant to section 82 of the Children and Young Persons (Care and Protection) Act 1998.

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Statutory Material Cited

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Re Josie [2004] NSWSC 642