In the Matter of the Children Young Persons And Their Families Act 1997 And in the Matter of An Application By Stephen James Hayes
[2006] TASSC 101
•28 November 2006
[2006] TASSC 101
CITATION:In the Matter of the Children Young Persons and Their Families Act 1997 and in the Matter of an Application by Stephen James Hayes [2006] TASSC 101
PARTIES:IN THE MATTER OF THE CHILDREN YOUNG PERSONS AND THEIR FAMILIES ACT 1997 AND IN THE MATTER OF AN APPLICATION BY STEPHEN JAMES HAYES
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 12/2006
DELIVERED ON: 28 November 2006
DELIVERED AT: Burnie
HEARING DATE: 20, 21, 26 September 2006
JUDGMENT OF: Slicer J
CATCHWORDS:
Magistrates - Magistrates' jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Duty to state reasons - Extent and character of reasons - Nature of proceedings under child welfare legislation.
S v Sielito [1999] TASSC 119, followed.
Children Young Persons and Their Families Act 1997 (Tas), ss42, 43 and 44.
Aust Dig Magistrates [128]
REPRESENTATION:
Counsel:
Applicant: P B Fitzgerald
Respondent: S Brown
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Department of Health and Human Services
Judgment Number: [2006] TASSC 101
Number of paragraphs: 49
Serial No 101/2006
File No LCA 12/2006
IN THE MATTER OF THE CHILDREN YOUNG PERSONS AND THEIR FAMILIES ACT 1997 AND IN THE MATTER OF AN APPLICATION
BY STEPHEN JAMES HAYES
REASONS FOR JUDGMENT SLICER J
28 November 2006
This appeal involves orders by the Magistrates Court (Children's Division), pursuant to the Children Young Persons and Their Families Act 1997 ("the Act"), placing three children of the applicant under the care and protection of the Secretary of the Department of Health and Human Services ("the Secretary"). In strict terms there are three appeals since the magistrates court was required to consider the circumstances and interests of each child separately. The applicant has contended, both at the hearing and on this appeal, that, if necessary, the interests of one child warranted separation from her siblings, but eventually abandoned that as a basis for her claim of error. The potential for such unfortunate reasoning might have resulted in the separation of the children from each other. In some cases, of course, such a result might be unavoidable or even desirable, but here the reasoning suggested by the applicant produces complexity and unrealistic outcomes. The interests of the children were intermingled
Whilst the interests of each child will be separately considered in the determination of this appeal, the matters, both separate and as a whole, can be dealt with as one appeal. The applicant is the mother of each child who are presently in the one household. The many factors common to each child and criticisms made of any claimed failure by the learned Chief Magistrate to take into account differences will be identified and dealt with as part of the whole appeal.
Each child will be referred to by the first letter of their first name, while those of carers and persons residing in the community who were witnesses in the case, will be referred to by the first letter of the surname. Approximate dates and places will be used where possible.
Chronology
The applicant was born in 1955 and her children, daughters C and S, and son J, were born in 1994, 1997 and 1996, respectively. In the mid-90s the family came to the notice of the New South Wales Department of Community Services, and in 1996 and at varying subsequent times thereafter the children were the subject of a number of temporary and/or voluntary placements in that State by the applicant. The children had been subjected to violence at the hands of their father and witnessed numerous assaults on their mother. There were suspicions recorded by case workers that one of the children had been subjected to sexual misconduct by a member of the extended family. In September 2002, the applicant moved to Tasmania with her children, accompanying a person with whom she was involved, and another couple, intending to settle here. The applicant hoped for a fresh start for herself and children and an end to a violent relationship. The journey to, and stay in, Tasmania was traumatic. The applicant ended up living in a refuge, the intended partner but a repetition of a violent past and the children separated, both from their mother and each other. The combination of the group proved to be dysfunctional. In the words of the applicant, "It became another nightmare situation".
In January 2003, the applicant, having sought legal advice, arranged for the children to be taken temporarily into the care of the Secretary. In April of that year a care and protection order was made pursuant to the Act, s42, with a desired aim of family reunification. The order was, in accordance with statute, for twelve months. Various steps were taken to achieve the desired aim and in December a conference held between the interested parties to evaluate and further develop a "case management plan". As part of that process the children were returned to the applicant's home and, subject to supervision and guidance, resumed life as a family unit. The family spent time together during the period December into the following January. Events during that period occupied much of the subsequent hearing and were the subject of factual contention and differing interpretations.
Following a particular incident, that form of contact between the applicant and her children ceased, and alterations made to the reunification proposals and general strategy.
On 26 March 2004, the court made a further care and protection order for a period of twelve months. Again the order was finite but the scheme of the legislation limited a further extension of that temporary order. Proceedings were adjourned to enable a continuation of family and professional conferences and permit consideration for the future. That conference was held on 6 May 2004. The matter returned to court on 10 May 2005 and the hearing was listed for 10 June. There followed two further adjournments in June and August because of claims by the applicant's legal advisors that fresh material supplied by the Secretary required detailed consideration and further preparation. The hearing took place on 21 and 22 April, 23, 24 and 29 June, 19 and 29 July, 10 August, 27 and 28 October, 3 November and 7 December 2005. The learned Chief Magistrate published his reasons for decision and made orders on 19 April 2006. The matter was again before the magistrates court on 26 April in relation to issues of contact between the mother and her children. The applicant appealed the orders which came before this Court on 20 September 2006.
A great deal of material was placed before the learned Chief Magistrate, including some 350 pages of affidavits, departmental records, file notes, psychological assessments and the like. Both parties called witnesses on the hearing and cross-examined some of the witnesses of the other party.
Statement and exposition of reasoning
The grounds of appeal generally could be more properly described as an outline of argument and make it difficult to identify the claimed errors of law.
The applicant claims that the learned Chief Magistrate failed to give any, or any sufficient reasons for his decision. The grounds of appeal compendiously state:
"1That the Learned Chief Magistrate erred in fact and in law by failing to give any, or any sufficient, reasons to enable the Applicant:-
i To identify, for the purposes of Section 42(3)(b)(ii) of the Children, Young Persons and Their Families Act 1997 (the Act), the disturbance, injury, damage or behaviour which constituted the significant psychological harm which each child would be likely to suffer if the present arrangement was to be disturbed;
ii To ascertain the arguments and evidence the Court relied on in its determination that each of the children were likely to suffer the significant psychological harm if the existing arrangement for the children, as identified at page 21 of the Reasons of Decision, was disturbed;
iii To identify the matters set out in Section 54 and 55(1) of the Act considered by the Learned Chief Magistrate in finding it was in the best interest of each of the children for the said arrangement to be incorporated into a Care and Protection Order whereby each children [sic], until they attained eighteen years of age, would be under the unconditional guardianship and custody of the Secretary;
iv For the children [C] and [J] that it was in their best interest that the Order be made under Section 42(4)(d) or at all;
v To identify why no other Care and Protection Order was appropriate in the circumstances;
1AThe learned Chief Magistrate erred in fact and law by failing to adequately expose within his reasons for decision;
(i)How he applied Section 140(2) of the Evidence Act 2001 to the evidence; and
(ii)The evidence he relied upon, which was of the requisite quality and exactness of proof, for the purposes of Section 140(2) of the Evidence Act 2001.
So as to be satisfied that the requirements of Section 42(3)(b)(ii) & (iii) of the Children & Young Persons and their Families Act 1997 were made out."
Before consideration of those bases of appeal, it is appropriate to set out a number of general propositions:
(1)The children had been in the effective care and control of the Secretary since January 2003. At varying times they had lived with their mother, but in the main had been placed with carers. For some considerable time before the date of the hearing, the children had been together within the one family unit. This was not a case of removal, but one which required the court to determine whether the children should be taken from an existing situation and returned to a different environment. The scheme of the legislation required additional consideration of the question of removal before an order altering the status quo would be made.
(2)The children had been kept together as a family unit and at the hearing it seemed to have been common ground that it was in their interests for that position to remain. Despite some suggestions to the contrary, the evidence presented by both parties showed it was desirable for the children to remain together.
(3)This was not a case of removing the children from their mother as a result of moral judgment or as punishment. The applicant cared for her children and the learned Chief Magistrate attempted to remove any assessment of value or moral judgment from his consideration of the case.
(4)The applicant had a perception that officers of the department held fixed views about her fitness as a mother and were not favourably disposed to her. Doubtless there was friction between departmental officers, carers, the applicant and other persons who were attempting to support the applicant, both in relation to her children and her own life generally. There was a concurrent perception, at least in the mind of the applicant, that officers of the department did not welcome the involvement of supporters of the applicant in the decision-making process. The learned Chief Magistrate dealt fairly and properly with those differing perceptions.
(5)Allowing for a degree of friction between various parties involved in the proceedings, it should be remembered that the court was not so placed. The hearing, designed to consider competing claims or contentions advanced by the parties, did not involve the same complex dynamics as between the parties during their conference. The court was required to consider competing versions and interpretations untouched by the understandable reactions which might have flowed through contact between the applicant and others during a long, complex and difficult period.
(6)Proceedings of this nature are protective, not punitive. Whilst a parent might believe that he or she is being punished for conduct or misconduct, such is not the object of the legislation. It is intended to accommodate the family unit, but to provide protection for young persons.
(7)The court was required to provide recourse to inappropriate use of executive power, protection of the interests of parents and, where necessary, uphold the interests of the community in the welfare of the young and, above all, the wellbeing of a child. In some instances differing perceptions are held by a parent, a social worker or other persons involved in a difficult and often harrowing process. But the court remains the ultimate arbiter responsible for either the reconciliation or determination of the weight to be given to those interests. But the interests of the child remains paramount.
(8)The legislation itself presents a limited range of options to a court.
(9)In this case separate legal representation was provided for the children.
(10)A "permanent" guardianship order does not preclude return of the children to a parent or parents at an appropriate time. Reunification of the family, subject to supervisory power retained by the Secretary, is always possible.
(11)Those principles, practical outcomes, and objects of the legislation, can often be overlooked or misunderstood by a person engaged as a parent, relative or friend in the course of proceedings.
Reasons for decision
The reasons as published comprise 28 pages. They provide:
(1)An introduction which includes a statement of the basic legislative provisions governing jurisdiction, powers and duties of the court.
(2)A general history of the circumstances of the family unit, the proceedings and the appointment and duties of the special representative of the child.
(3)A statement of the core issues, including a précis of matters not in dispute. The learned Chief Magistrate stated, at 7 - 8, the imperatives to be:
"(a)Is there a potential for serious harm to any or all of the children by making or declining to make the orders sought by the Secretary, and
(b)In considering the choices open to the Court, careful attention must be given to the issue whether [the applicant] has the capacity in terms of having a perception of the children's needs and an ability to respond to them appropriately in a consistent way with or without support from her 'advocates' (a matter that I shall address in detail later in the Reasons for Decision) and, perhaps, others, and to care properly for the children and to keep them from risk of harm.
…
· the compelling and urgent need to provide stability and consistency in the care of the three children, and
· a decision as to the environment in which those needs can be best delivered, that is, by the children's mother at her home or by those with whom the children might be placed by the Secretary. As to the latter, of course, there is always the risk that such placements might break down or change for a variety of reasons."
(4)A statement of legal principles, the legislative provisions and reference to the United Nations Conventions on the Rights of the Child, and the principles governing the exercise of power and the determination of a "child's best interests".
(5)Statement and consideration of the expert opinion evidence. The learned Chief Magistrate considered that the provisions of the Act, s63, permitted him to apply "a flexible attitude to the operation of that provision". His weighing of the evidence was utilitarian since "moral turpitude or other grave factor(s) has(ve) not been a consideration".
Both parties called opinion evidence and, in particular, that of two highly qualified psychologists, Christina Brown and Dr Janet Haines. The learned Chief Magistrate identified the role of each and found no relevant differences in their respective qualifications or relevant expertise. He accepted that some of the factual material upon which some of Ms Brown's opinion evidence was based was not substantiated at the hearing but did not affect the substance or validity of much of that evidence. Conversely he paid respect to the opinions stated by Dr Haines acknowledging them as being derived from "a massive bulk of documentary material but [which] lacked the advantage of greater contact with officers of the Secretary and that direct contact with the family unit was more limited".
The learned Chief Magistrate dealt with the critique that Ms Brown had become too close to the situation, contrasting her:
"… advantages of interviews, a massive bulk of documentary material, discussions with the Secretary's officers, repeated personal contact with [the applicant] and her children and she has observed them all in various situations, formal and informal."
with the more limited opportunity afforded to Dr Haines:
"… to gain valuable information from others, or at least, a direct perspective and the contact with [the applicant] and the children has, as I understand the evidence, been restricted to two occasions, both at the Legal Aid Commission's office in Launceston (hardly a 'natural setting' for interviews of this type) on two days in April, 2005, for a total of less than 3 hours."
He concluded:
"In my view, Mrs Brown's opportunity to appreciate the factual bases as they have evolved over time and her continuing involvement with [the applicant] and her children and those professionally associated with them over a time span approaching almost 3 years has advantaged her in forming opinions as to that which is likely to conduce to the longer terms [sic] best interests of the children."
Relevant to the grounds of appeal concerning the final order and the critique of the opinion evidence, he, as the "fact finder":
"… accept[ed] Mrs Brown's opinions expressed in her latter reports as to the future management of the children."
(6)An examination of the claim of cultural identity. The reasons dealt with the applicant's claim that continued separation of the children from their mother would destroy or impact on her capacity to import a sense of identity or heritage, with the conclusion that the evidence had not shown that she:
"… has actively promoted a sense of her formal national identity in her children; nor, on the other hand, has she ignored it. In spite of the adverse comments directed towards the Secretary's officers as to this matter, I perceive their attitude as being precisely the same.
In any event, even if I should find that there had been an unjustified disregard of the children's cultural heritage that had been otherwise promoted, that is, I regret, a factor that would have to yield if it were to be in conflict with or could not otherwise be accommodated within a safe and proper regime for the children."
(7)The learned Chief Magistrate next identified some matters which he did not find helpful, which he identified as:
(a) allegations of professional misconduct on the part of officers or advisers to the Secretary;
(b) undue concentration on claims of lack of sensitivity or inappropriate behaviour on the part of the applicant.
In dealing with matters which were not central to the evaluation or the appropriate resolution of the matter, the learned Chief Magistrate stated the major factors in any consideration as being:
(a) The children had been traumatised by many events over a long period of time.
(b) The family unit had been fractured before the involvement of officers of the Secretary.
(c) Serious violence by "a person" towards C soon after the applicant and her children had moved to Tasmania. It was this event which was but one catalyst for the applicant seeking the involvement of officers of the Secretary.
(d) Evidence of disturbance manifested through S's sleep walking, incontinence and "smearing of faeces".
(e) The inability of the applicant as observed by others to properly control the conduct of the children during contact visits or at least to fail to establish or maintain the conditions for problem-solving as between members of the family unit.
Much of the evidence had concentrated on identified events during the contact period in December 2004. Counsel for the applicant had extensively reviewed these events in the calling of evidence, cross-examination, and submissions. In real terms they were but examples or products of a far deeper and wider problem and conditions elevated to an unwarranted significance at the hearing and used as a "vehicle" to weaken the other's case. In deference to the applicant's concentration, at the hearing, on these events, and favouring the opponent's detailed response, the learned Chief Magistrate examined the identified events of "the Nativity play", "tap dancing", and "the Santa Claus presentation". He commenced his examination of these events by observing that:
"I take the view that none of the following events, whether viewed in isolation from the others or together, assists me in any material way to resolve these applications. However, having stated that, I shall examine them."
(8)Following the statement of the terms of the Act, s42(3)(a), the learned Chief Magistrate found that he did:
"… not perceive a current risk to the children. Rather, the Court's concern is to focus upon any deleterious change in the current arrangements, particularly in view of their long-standing status, that is, in total over approximately 3 years."
He next considered the application of s42(3)(b), observing that while this provision did not represent the Secretary's preferred position, it was the "recommended preference of the children's representative". He then determined:
(a)that he was satisfied on the balance of probabilities that proper arrangements existed for the care and protection of each of the three children, in accordance with the Act, s42(3)(b)(i);
(b)he was satisfied on the balance of probabilities of the requirement of s42(3)(b)(ii), that the children would be likely to suffer significant harm if those arrangements were to be disturbed.
In dealing with this ground he considered the interests of C and J as individuals and did not subsume their interests into those of the third child, S. However he accepted that on all approaches it was preferable that the children "not be separated in any way from each other" and in accepting that view, the learned Chief Magistrate regarded S's future welfare as a key to the resolution of the matter.
(c)He next dealt with the combined effect of the Act, s43(3)(b)(i) and (ii), stating his reasons for his eventual conclusion as:
(i)The children had been at risk when they first came into the care of the Secretary. The risk had preceded their coming to Tasmania.
(ii)It mattered not whether conduct that puts a child at risk or which might be likely to occur, occurs wholly or partly outside Tasmania.
(iii)The children had been at risk whilst in the care of the applicant. Her love and affection for them or desire to care was a question different from that required by s43(3)(b)(i) and (ii). While the Act states the retention of the family unit as a desired aspect and uses as a commencing point the proposition that children should reside with their parents, it also contemplates that such arrangements might be inappropriate in some cases.
He accepted that there had been improvements in the capacity of the mother to care for her children. He found that her home situation had become more stable and that she had been addressing and learning parenting and self-development skills through a number of courses she had undertaken. However the series of unfortunate choices made by the applicant in New South Wales and following her move to Tasmania, together with problems identified during contact visits or residence, showed that the experiment had failed. The observed condition of the children shortly after their arrival in Tasmania, and their continued condition mitigated against a return to the applicant. The learned Chief Magistrate then dealt with a number of incidents relevant to his testing of the present capacity of the applicant to properly care for her children. He concluded that she lacked, at the time of the hearing, adequate capacity to do so. He was correct to so conclude.
(9)In relation to the requirement of the Act, s43(3)(b)(iii), he relevantly found:
(a) While the applicant had been able to obtain support from others which provided a network in the event of reunification of the family unit, such support would not address the full time needs of the children. The support network would be, of its very nature, available at particular times, but to assume that it could address the full time concerns would constitute a hazardous experiment. In his view "to alter the current arrangements would be to engage in a hazardous experiment, the failure of which would do a lifelong disservice to each of the three children."
(b) He rejected the contention that there was resentment by officers of the Secretary, including carers, towards the involvement of the applicant's friends and members of her support network. The learned Chief Magistrate detected no such resentment.
(10)The essence of the learned Chief Magistrate's reasoning in relation to the capacity of the applicant to care for her children is stated as:
"… her testimony established in my mind her lack of adequate capacity at this time to promote the key requirements of stability and consistency in the raising of her children. That absence of current capacity exists not through any want of trying on her part to create it. Specifically, I am mindful of two matters – first, her repeated and, no doubt, dedicated attempts to enhance her parenting skills and, secondly, the development by her of the so-called 'advocates' in order to assist her. I shall return to some matters relating to 'the advocates' later in these Reasons for Decision.
…
the assessment of Christina Brown – an assessment often repeated in different words – that, '[the applicant] is capable of holding it together for short periods.' That assessment explains her apparent capacity to cope for short periods in set situations. It explains the favourable impression that she made upon Dr Haines.
…
I formed the view that I was listening to forms of words that communicated the appropriate concepts, but as to which the speaker had no feeling for their meaning or, perhaps, more pertinently, how the concepts that they expressed could operate in practice. I formed the view that, at one level, [the applicant] could enunciate the words as from a text book; I had no confidence that she really understood them and could translate the concepts into effective on-the-ground management of her children's lives, given the realities that, as I accept, [S] is a highly disturbed child who needs a continuing and constant regime of management that, I believe, would try the skills of the most insightful, knowledgeable and empathetic parent. Sadly [the applicant] does not have those qualities."
(c)Whilst he accepted without reservation that the applicant would do nothing intentionally to harm her children, he assessed the danger as:
"… that they will be harmed by virtue of her inability to appreciate their needs and to respond appropriately. Upon the evidence adduced before me, there is a serious risk, I find, that that [sic] she does not or cannot differentiate between her own needs and their needs. Those needs to not coincide. Her children's needs are vital and pressing. I gained no inkling from her evidence that she really appreciates that."
Relevant to the grounds generally, but in particular 1A and 5, the Act, ss42(4)(d), 54 and 55, states:
"42 ¾ (4) A care and protection order may contain one or more of the following orders:
…
(d) an order placing the child, until the child attains 18 years of age, under the guardianship of the Secretary or one or 2 other persons as the Court considers appropriate in the circumstances.
54 Matters Court must consider
In any proceedings under this Act, the Court must ¾
(a) consider the best interests of the child to be the paramount consideration; and
(b) observe the principles set out in sections 8 and 9.
55 Determining what is child's best interests
(1) In determining what is in the child's best interests, the Court must consider the following matters:
(a)any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court considers relevant to the weight it should give to the child's wishes;
(b)the nature of the relationship of the child with each of the child's guardians and with other persons;
(c)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from ¾
(i)either of his or her guardians; and
(ii)any other child, or other person, with whom he or she has been living;
(d)the practical difficulty and expense of a child having contact with a guardian and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with each guardian on a regular basis;
(e)the capacity of each guardian, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f)the child's maturity, sex, background and culture (including any need to maintain a connection with the lifestyle, culture and traditions of the Aboriginal community) and any other characteristics of the child that the Court considers relevant;
(g)the need to protect the child from physical or psychological harm;
(h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's guardians;
(i)any other fact or circumstance that the Court considers relevant.
(2) If the Court is considering whether to make an order with the consent of all the parties to the proceedings, the Court may, but is not required to, have regard to all or any of the matters set out in subsection (1)."
The Evidence Act 2001, s140, states:
"140 Civil proceedings: standard of proof Evidence Act
(1) In a civil proceeding, the court must find the case of a party proved if satisfied that it has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account ¾
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged."
Examination of the evidence, the statement of reasoning and the written material filed in the proceedings, show that the learned Chief Magistrate paid regard to the statutory requirements.
(11)The learned Chief Magistrate specifically addressed the requirements of the Act, s42. He identified the disturbances, injuries, damage and behaviour which constituted psychological harm to each of the children. He accurately recounted the history of the children and the varying traumas and consequences to the health of each child. Ground 1(iii) and (v) show a misunderstanding of the legislative requirements. This was not a case of removing the children from an existing situation. The learned Chief Magistrate was required to consider the effects of removal and return to the applicant. He was not involved in a process of adjudging moral right or worth. The Act permitted the renewal of interim orders, but not for further extension. The remaining order available to the court was one of guardianship until each child attained the age of 18 years. That was the statutory option open to him. He could not, as was suggested by counsel for the applicant, make a joint order as between the applicant and the Secretary. He could not make an order less than one which provided for guardianship until each child reached the age of 18. It does not follow that his order precluded the return of each or all of the children before attaining the age of 18.
The court applied the test required by the Evidence Act, s140.
The learned Chief Magistrate comprehensively dealt with the issues raised by the application, examined the evidence in detail, and provided clear and cogent reasons for his conclusion and orders. The grounds and particulars 1 and 1A of the notice of appeal have not been made out and are not sustained.
In summary, these grounds of appeal can be briefly answered from the reasons.
· The significant harm was psychological, a consequence of longstanding and historic trauma which had arisen within the family unit or its extension.
· The children had become more settled in their conduct and had for a considerable period responded well to the care of others. Return to a dysfunctional unit was problematic with an extremely strong chance that the behaviour and form of care provided by the applicant, even if well intentioned, would defeat the progress made and in all probability exacerbate the harm already caused.
· The learned Chief Magistrate correctly identified the statutory provisions.
· Insofar as the ground suggests that the children should be separated, the ground should be rejected.
· All options were examined and no other appropriate "care and protection order" was permitted by the legislation.
The learned Chief Magistrate correctly identified and applied the provisions of the Evidence Act, s140.
The grounds of appeal, 1 and 1A, are not sustained.
Opinion evidence
The grounds of appeal concerning the opinion evidence state:
"legal, factual and evidential errors of learned Chief Magistrate
2That the Learned Chief Magistrate erred in fact and law in giving the weight he did to the evidence of the psychologist Ms Christina Brown.
Particulars
AThe factual platform underpinning the reports annexed to the Affidavit of the 18 April 2005 and 20th October 2004 was evidence which was either accorded little probative force or simply not taken into account at all; or lacked objective balance.
Sub Particulars
Evidence which was accorded little weight or not taken into account.
a Placement of the children in New South Wales to predominantly avoid the domestic violence;
b The nativity play incident;
c The tap dancing incident;
d The Santa Claus incident;
e The car trip incident involving Ms C Brown;
f In the Applicant's care; the risk of further changes in the accommodation arrangements for the children.
Lacking Balance
g Unequivocally accepting the interpretation of events or views expressed by the Respondents' Witnesses even where there was clear contradictory evidence to such interpretation of events or views;
h Minimising cogent or uncontradicted evidence inconsistent with the observations or evidence of the Respondents' Witnesses;
i Failing to give effect or full weight to the evidence inconsistent with or casting adverse inference upon the Respondents' Witnesses such as their failure to implement recommendations of her report of the 3 March 2003, the concerns expressed as to the discipline of the child [S] in the foster carer's care and the disrespect and hostility shown by the Respondents' Witnesses to [the applicant] in the context of the importance to engage her as recommended in her report of 3 March 2003;
j Failing to give weight to the evidence the children's current emotional state was in significant part a consequence of circumstances other than the care, control, parenting or conduct of the Applicant;
k Failing to give effect or full weight to evidence positive to the Applicant such as the lack of psycho pathology, her stable emotional state, her undertaking parenting courses, her capacity to work with a support network, her stable and satisfactory accommodation, her capacity to attend to the children's material needs her keen interest in their health and welfare and that she would always try to promote their best interest;
l Failing to give any weight to the attachment between the Applicant and the children observed by her;
m Failing to address the impact 'identification purpose' contact only would have on the children's attachment to their mother;
n Failing to address how the direct observations contained in the previous report of the 20 September 2004 were applied in the recommendations found in the report of the 20th October 2004;
o Failing to address the evidence of [MB], [PC] and the evidence of [the applicant]'s other witnesses who had observed her, in social and non structured settings interacting with the children in a positive way;
p Failing to address her own observations of the interactions of [the applicant] with the children in a non structured setting;
q Failing to opinion and/or identify with any precision why the children as individuals or as a sibling unit were at significant psychological harm if returned to their mother or the long term consequence of the Order on the psychological wellbeing of the children.
r Ms Brown ventured views beyond or outside her field of expertise
B The reasoning process leading to the change in her view as expressed in the reports of the 20 September 2004 to that of the 20 October 2004 and more particularly that of the 18 April 2005 is not rationally based, does not demonstrate sound methodology or reasoning process.
C Ms Christina Brown demonstrated loss of independence and/or objectivity .
Particulars
The Applicant repeats the matters set out under ground 2 A g, h, i, n, o, p and r
3The Learned Chief Magistrate erred in law and/or fact in failing to accord any or sufficient weight to the observations and opinion or evidence of Dr Janet Haines.
Particulars
a That the divergence in the opinion between Ms Christina Brown and Dr Janet Haines was not a consequence of opportunity to observe the children; rather it resulted from a different emphasis on information provided by the Respondents' Witnesses or methodology/reasoning process and it was this emphasis which led to the change in recommendation by Ms Brown from her report of 20 September 2004 to that of the 20th October 2004 and more particularly the 18 April 2005;
b The observations of the interactions with and attitudes expressed by the case workers and Respondents' Witnesses to the Applicant was important evidence in the context of the criticism of [the applicant's] failure to co-operate with the said case workers and Respondents' Witnesses including those interactions reflecting the service providers disrespect of [the applicant];
c Dr Janet Haines retained an objectivity lost by Ms Christina Brown when making the assessment of the information before her;
d Dr Janet Haines had comparable access to the probative evidence which was before the Court;
e That Dr Haines did identify with the requisite precision the psychological consequence of the proposed order on the emotional and psychological well being of the children;
f That Dr Janet Haines' assessment demonstrated balance, objectivity and sound methodology and reasoning process."
The Secretary had sought and obtained the advice of Christina Brown, a specialist psychologist. She was involved in the assessment of the children in the years 2003 – 2006. All of her reports were tendered on the hearing of the final applications and had been used during the hearings of interlocutory proceedings. She had also been involved as a treating psychologist who assisted in case management, advice to other carers, and the setting up of methods of treatment and assistance for the children. She was eminently qualified to do so. Her varying reports were comprehensive, cautious, and professional. They were not ones of advocacy. In 2003 she performed assessments on 3 February, 5 February, 7 February, 8 February, 13 February, 14 February, 17 February, 27 March and 1 March to address the immediate problems which became apparent soon after the children had come within the care of the Secretary. She prepared further reports in March 2003, September 2004, October 2004, January 2005 and April 2005. She gave evidence on the hearing and was extensively cross-examined.
It is difficult to understand the thrust of ground 2 of the notice to review. The learned Chief Magistrate did give weight to the problems experienced by the children in New South Wales. He disregarded the respondent's reliance on certain incidents which occurred and identified as "the nativity play, tap dancing and Santa Claus incident". He did pay regard to the changes in the children's behaviour during or subsequent to their visits with their mother. He did not unequivocally accept the interpretation of events expressed by the respondent's witnesses. The applicant's witnesses had little direct contact with the children and little opportunity to form a comprehensive opinion. Grounds (g) to (q) are but artificial constructs. The applicant seeks to elevate findings which might be to her advantage to ones of greater importance and then seeks to employ them as reflecting inadequate reasoning. The learned Chief Magistrate did give weight to the evidence of the children's current emotional state as of the time of the hearing. He did pay regard to the fact that the respondent's officers had attempted reunification of the family unit and had arranged for periods of contact. It was the desire of officers of the department to return the children to the family unit. But the attempts were not productive. The family unit had proved to be dysfunctional. The reaction of the children did not stem solely from the events which occurred during contact, but were long-standing. The children themselves showed adverse effects from the attempts of reunification. That the mother loved her children and the children returned that emotion was not the issue. Each of the children had been damaged in particular ways. They were, at the time of the hearing, in a relatively secure and stable position. They had shown signs of improvement over a period of time, doubtless due to the professional care of trained and professional workers and the stability provided through their foster home environment. Ground 2(q) seems to suggest that the court failed to pay sufficient regard to differences between the children with the potential for returning one child alone to the mother. With respect to that argument, it would show either a lack of understanding by her and/or her legal advisers of the problem, or indifference to the interests of the children as a unit within themselves.
I have been unable to identify, in the mass of material filed in support of the appeal, any views expressed by Ms Brown which were beyond or outside her field of expertise.
It is true that Ms Brown changed the emphasis of her recommendation between September 2004, October 2004 and April 2005. In 2004 all involved were seeking some form of solution which involved reunification. The period December into early January showed continuing problems which adversely affected the children. The emphasis of the approach taken by the Secretary became more of stability and protection. Views, opinions and reasoning of Ms Brown reflected sound methodology rather than its opposite. She was attempting to put forward feasible alternatives based on her evaluation in the light of events and the history of the children since coming into contact with the department and its officers.
The learned Chief Magistrate did not disregard the assessment of Dr Haines. He pointed out, correctly, that there was little difference between the respective views of the psychologists. The question central to any difference was whether the children could be safely removed from an existing and stable environment and their re-introduction to inconsistency, uncertainty and an historical dysfunctional environment.
But there is a more fundamental reason to uphold the assessment made by the learned Chief Magistrate. This was not a case of opinion against opinion. This was not a case of a simple assessment of the evidence of Dr Haines and Ms Brown. The court had before it:
1Evidence from one of the counsellors pointing out how the applicant's behaviour had been exacerbating the situation and making it difficult, if not virtually impossible, for the department to properly address the problem experienced by the children.
2Evidence of inappropriate behaviour and response on the part of the applicant.
3Observations and assessments made by teachers of each of the children over an extensive period.
4Evidence which included the marked improvement for all the children, socially and academically following their placement in a caring home and movement to a new school.
5Evidence of a qualified social worker, adoption worker and support worker. Their evidence included direct evidence of inappropriate parenting by the applicant and, disturbingly, evidence of manipulation by the applicant in the furtherance of her court case.
6Evidence of a foster carer, licensed through the department, who had been the fulltime carer for the children for two years, since 17 January 2003. Her evidence included:
"5that During the two years I have cared for the children I have noted ongoing evidence that the children display the following behaviours;
- Challenging behaviours including signs of hyperactivity and symptoms of significant distractibility from completing everyday basic tasks.
- The children need constant supervision including overnight supervision.
- [C] reverts frequently to a parenting role with regard to her younger siblings, a role she is being encouraged to hand over adults [sic].
- [J], whilst showing some improvement, still finds school and visits with his mum very unsettling.
- [S] reverts to child-like behaviours following contact with her mother. These behaviours include baby talk, flopping around like a baby, wetting, pre-school 'full-on' tantrums and regressing to messing her pants and clothing.
6that on quite a number of occasions I am required to deal with [S] becoming faecally incontinent. This involves [S] smearing faeces on her bed clothes, over bathroom walls and fittings, over clothing and over herself. This has included instances where I have had to dispose of fruit and other food which [S] has contaminated. The faecal incontinence is most noticeable in the period immediately following contact between [S] and her mother. The instances of this behaviour decreases significantly the longer the period following any contact with mum."
7Evidence of a carer and contact supervising officer who had been involved with the children since Easter 2003.
8Evidence of a support worker with the department who had been involved in the care of the children for over two years previous to the hearing.
9Evidence of an experienced social worker employed by the department since 1996.
10Evidence of the case manager for the children.
11Risk assessments made in April 2005.
12Material supplied by Dr Bailey, a consulting paediatrician.
13A report from the New South Wales Department of Community Services dated 5 February 2003 which supported, and was consistent with, the observations and opinions expressed about the welfare of the children following their move to Tasmania.
There was ample evidence, both factual and opinion, to ground the opinion expressed by Ms Brown.
The grounds are not sustained and ought be dismissed.
Weight of evidence
The learned Chief Magistrate applied the correct test required by the Evidence Act, s140. The grounds as advanced claim "error by giving disproportionate weight to identified persons of the evidence". Ground 4 alleges:
"4That the Learned Chief Magistrate fell into error taking into account and/or in the alternative giving disproportionate weight to the following evidence:
a The evidence of the Respondents' witnesses that something occurred that attracted the Respondents' Witnesses attention which she considered to be inappropriate at a function where [the applicant] was alleged to have tap danced in front of the entire room;
b [S's] sleep walking, incontinence and smearing of faeces;
c Ms Brown's inability to control [S] during the car ride;
d The alleged attempt by a person at a house where [C] was staying soon after her arrival in Tasmania in 2002 to 'drown' her in the shower as referred to by Ms Brown;
e That the child [S's] highly disturbed state was the result of her mother's previous actions in 2002;
f That [S] has a 'Daddy' at her current placement;
g His view that [the applicant] did not understand the words that she was using in her evidence in chief;
h That [the applicant's] network of advocates had defeated the contact arrangements and a reunification arrangement by their participation."
Counsel for the applicant did not pursue all of the grounds as originally formulated. He abandoned grounds (f) and (h) which were clearly misconceived. However to state the grounds as originally formulated is to illustrate the fundamental problem with this appeal. The learned Chief Magistrate disregarded some portions of evidence, which might have been adverse to the applicant, because he did not think they added much to the case as a whole. He was correct to so do. He was involved in a case requiring protection for children. He did not give disproportionate weight to the tap dancing incident, rather, he disregarded it. The complaint that he gave disproportionate weight to "that [S] had a Daddy at her current placement" was obviously misconceived. The observation that the applicant was unable to control [S] during a car ride, was simply a statement of fact. It was the observation of an experienced person. No disproportionate weight was given to it. Matters of sleepwalking, incontinence and smearing of faeces, an attempt by the then partner of the applicant to drown or harm a child and the highly disturbed state of that child were, and ought remain, cogent matters. His observation that the applicant did not understand some of the words she was using in her evidence-in-chief was shown by a reading of the transcript. It was not an untoward criticism of the applicant. The learned Chief Magistrate was simply observing that the applicant had learnt the language associated with the discipline of social work, without necessarily developing a corresponding insight into what the concepts meant or their true meaning.
The learned Chief Magistrate had dealt with the various matters of previous trauma, sleepwalking and the like in the following manner:
"As I have indicated, I shall examine each in turn out of deference to the attention paid to them. However, in the final analysis, the resolution of these applications depends upon major factors – such as, in my view, the existence of children who have been traumatized by various events and how those young people can be best helped in the future. Detailed examinations of the Santa Claus event do little to assist other than to shine a weak torchlight on a transitory event, the report of which rests largely in perception.
On the other hand:
- the alleged attempt by a person at a house where [C] was staying soon after her arrival in Tasmania to 'drown' her in the shower (as referred to by Mrs Brown in one of her reports), or
- [S's] sleep-walking, incontinence and smearing of faeces, or
- Mrs Brown's inability to control [S] during a car ride,
are much more likely than, say, the Santa Claus incident, to shine a spotlight on whether the three applications that I have the responsibility to hear and determine might suggest the presence of traumatized children with 'challenging behaviours' that will need to be carefully and sensitively managed if they have any chance of having happy, let alone, fulfilling lives."
The learned Chief Magistrate was entitled to give those matters significant weight and did so in his reasons. The grounds are not made out.
Weight of evidence of respondent's witnesses
The applicant claims:
"5That the Learned Chief Magistrate erred in fact and/or law in failing to give any, or sufficient weight to material facts and/or findings for the purposes of Section 42(3)(b)(ii).
Particulars
a The evidence of [B], [C] and the evidence of [the applicant's] other witnesses who had observed her interacting with her children;
b The evidence of the witnesses for [the applicant] as to her behaviour and the behaviour of all three children during the reunification attempt in December 2004;
c [The applicant's] emotional state was more stable and the lack of psychosis or behavioural disorders;
d The capacity of [the applicant] to maintain an interest in the children's health and welfare and her capacity to provide for the physical needs of the children;
e The fact that Ms Brown did not observe any lack of attachment between the mother and children as alleged by the Respondent witnesses;
f That Ms Brown did not opinion and/or identify with any precision why the children as individuals or as a sibling unit were at significant psychological harm if returned to their mother and the long term consequence of the order on the psychological wellbeing of the children."
The applicant called evidence. The learned Chief Magistrate did not reject the substance of that evidence but found, quite properly, that there was no evidence supporting the applicant's accusation that Child and Family Service officers had resented the involvement of the applicant's supporters and advocates. He continued to consider their support in the following terms:
"I detected no such resentment.
True, there was criticism by some officers of the utilisation by [the applicant] of her 'network' of advocates. However, the criticism was very focussed – it was directed exclusively at the involvement of a significant number of persons who would frequently be active participants in seeking to involve themselves in the detail of contact arrangements to the extent that some arrangements were defeated by the sheer magnitude of the problems created by the involvement of so many people. It was clear that the logistics of making such arrangements can be time-consuming and complex in the most favourable circumstances. The criticism was, in effect, that 'too many cooks spoil the broth' and, unfortunately, some arrangements were defeated by those whose well meaning intervention had been arranged. As a consequence, frustration and disappointment were, doubtless, felt by everyone. Indeed, I am in no doubt that the carefully planned and major attempt at reunification failed as a result of unnecessary last-minute complications and communications problems that attended it.
Much of what I have written above is by way of an aside. I now turn to consider another aspect of the 'support network' that is immediately relevant.
Learned counsel for [the applicant] correctly turns the spotlight on a potentially very positive aspect of her 'advocates', as they have been described.
I perceive two positives:
First, it is to [the applicant's] credit that she has been able to marshal the wide-ranging and enthusiastic support that is motivated to assist her.
Secondly, in the event of reunification occurring, it is apparent that [the applicant] would have a well of experienced and well-meaning assistance upon which to draw. For example, I was impressed by [C] and [B], in particular, whose integrity, maturity and relevant experience could be invaluable in the event of reunification occurring."
The learned Chief Magistrate repeated his comments in relation to the evidence of [C] and [B] at a later stage in his reasons.
Counsel for the applicant did not pursue particulars (e) and (f) of ground 5 of the notice to review.
Ground 5 is simply the converse of the grounds earlier considered. Witnesses called by the applicant had supported the claim that the mother was deeply attached to the children. The evidence was not rejected. The events of December 2004 had not been given undue significance by the learned Chief Magistrate. The approach adopted by the court favoured the case as advanced by the applicant. But the observations of witnesses called by the applicant were but transient. Their testimony was accepted and their support found to be praiseworthy. The grounds are not made out.
General claims of error
Grounds 6, 7 and 9 repeat some of the earlier grounds or particulars, or simply restate general statutory provisions and principles of law. They add little to the arguments already addressed and can be regarded as little more than the seeking of review through a rehearing. That is not what the High Court did or said in Fox v Percy (2002) 214 CLR 118.
The grounds will be dealt with together. They state:
"6That the Court misapplied the law in its approach to the inquiry at hand in that the Learned Chief Magistrate found the two foci and the imperatives that he was to address were as set out in page 7 of the Judgment whereas the property [sic] inquiry for the Court is as set out in Section 42(3)(b) of the Act.
7That in all the circumstances and as a result of the errors noted the Court erred in fact and law in finding the evidence, for the purposes of Section 140 of the Evidence Act 2001, was of sufficient cogency and exactness of proof to be satisfied the children were:
a Likely to suffer;
b Significant psychological harm;
c If the arrangements were to be disturbed as required by section 42(3)(b)(ii) of the Act and that it would be in the best interests of the children that the only appropriate Care and Protection Order to be made pursuant to Section 42(2) was one made under Section 42(4)(d).
exercise of discretion
9That the Learned Chief Magistrate erred in fact and in law in failing to give any, or any sufficient weight to the material factual and legal considerations when determining the appropriate Care and protection Order to be made was one under Section 42(4)(d).
Particulars
a The principles founded in Section 8 and/or the matters set out in 55(1) of the Act;
b The need to preserve and strengthen the family relationship between the children and the children's mother;
c The need to give serious consideration to the desirability of keeping the children within the natural family unit;
d Failing to give sufficient or any weight to the rights or interest of the child's mother;
e The need to preserve and enhance the children's sense of ethnic and cultural identity;
f Failing to give sufficient, or any, weight to the inherent and disrupted dislocation attendant to the unconditional Order sought and made under Section 42(4)(d)."
The learned Chief Magistrate had set out the various divisions of the Act in his reasons for decision. He specifically addressed the provisions of s8(2)(b)(v) in relation to the claim of loss of cultural identity. He correctly identified the matters raised by the Act, ss3, 4, 6 and 42. He stated the central issues to be:
"(a)Is there a potential for serious harm to any or all of the children by making or declining to make the orders sought by the Secretary, and
(b)In considering the choices open to the Court, careful attention must be given to the issue whether [the applicant] has the capacity in terms of having a perception of the children's needs and an ability to respond to them appropriately in a consistent way with or without support from her 'advocates' (a matter that I shall address in detail later in the Reasons for Decision) and, perhaps, others, and to care properly for the children and to keep them from risk of harm.
…
· the compelling and urgent need to provide stability and consistency in the care of the three children, and
· a decision as to the environment in which those needs can be best delivered, that is, by the children's mother at her home or by those with whom the children might be placed by the Secretary. As to the latter, of course, there is always the risk that such placements might break down or change for a variety of reasons."
He identified the risk of harm as being "psychological or emotional harm" and had dismissed other forms of potential harm as irrelevant. In doing so, he might have erred in favour of the applicant. There was some suggestion raised on the evidence that the applicant had put the children back in touch with their father in New South Wales and had initiated communication between them. If such were the case, then she had exposed the children to a potential further form of harm. There was a potential for further contact with the father through the applicant's attempt to involve him in her dispute with the department. That is not to say that the attempt was conscious, simply that it involved risk.
The learned Chief Magistrate was concerned with the longstanding interests of the children. He indicated that the concern of the court was upon any "deleterious change in the current arrangements, particularly in view of their longstanding status … approximately three years". He noted that an approach based on the Act, s42(3)(b), was the Secretary's secondary preference.
In relation to the Act, s42(3)(b)(i), he was "satisfied on the balance of probabilities that proper arrangements exist for the care and protection of each of the three children" and in relation to s42(3)(b)(ii), "that the children would be likely to suffer significant harm if those arrangements were to be disturbed". He did not regard separation of the children as being desirable. Accordingly, he identified the approach required by the legislation as being:
"(a)Is there a potential for serious harm to any or all of the children by making or declining to make the orders sought by the Secretary, and
(b)In considering the choices open to the Court, careful attention must be given to the issue whether [the applicant] has the capacity in terms of having a perception of the children's needs and an ability to respond to them appropriately in a consistent way with or without support from her 'advocates' … and, perhaps, others, and to care properly for the children and to keep them from risk of harm."
He noted that both limbs of the proposition were intertwined. He then concluded:
"… after considering the totality of the evidence and the submissions of learned counsel, I have reached the conclusion, as I have foreshadowed, that the question that I have posed for myself, that is, 'Should the Court have any concern that the children would be at risk of serious harm if I were to do so?' should be answered with a clear, 'Yes'.
In my firm view, to alter the current arrangements would be to engage in a hazardous experiment, the failure of which would do a life-long disservice to each of the three children.
As to (b)(iii), for the reasons that I have set out above, I am satisfied on the balance of probabilities that it would be in the best interests of the children for the current arrangements to be incorporated in a child and protection order."
The learned Chief Magistrate applied the correct tests.
Grounds 8 and 10
"8The errors set out in grounds 2, 3, 4, 5, 6 or 7 herein by the Learned Chief Magistrate are such that his findings pursuant to Section 42 (3) (b) the children were likely to suffer significant psychological harm if their arrangements were disturbed is unsustainable on the evidence and therefore unsafe and/or unsatisfactory.
10That as a consequence of the errors noted herein the Learned Chief Magistrates [sic] exercise of discretion in making the order pursuant to Section 42(4)(d) was in all the circumstances unjust and/or plainly wrong."
These grounds ought not be sustained. But they provide an appropriate basis for consideration of the operation of the legislation as a whole. The following propositions may be generally stated:
(1)The Act is both beneficial and protective in nature and to be interpreted accordingly (S v Sielito [1999] TASSC 119).
(2)It recognises the interest of the parents (J v Lieschke (1986) 162 CLR 447), but not as one proprietary in nature or extent.
(3)Section 4 provides a wide meaning for the test of "at risk". It is not confined to "abuse" or "neglect", terms which in themselves do not necessarily connote moral turpitude. A hearing is not required to determine respective "moral" values or "worth".
(4)The principles stated in s8 acknowledge that "the primary responsibility for a child's care and protection lies with the child's family", "the desirability of keeping the child within his or her family", and "preserving and strengthening family relationships between the child and the child's guardians and other family members". Concomitantly, in stating that the "best interests of the child must be the paramount consideration", it provides that:
"(c) if a family is not able to meet its responsibilities to the child and the child is at risk, the Secretary may accept those responsibilities."
Those respective principles and responsibilities reflect the wider social and public interest and ought not turn any determination into a contest. The role of a court is not only to protect the family from misuse or overuse of power by the Secretary or his officers, but to require intervention when necessary. Parents, children and the Secretary may themselves arrange or determine outcomes (the Act, Pt2) but ultimately coercive power is afforded by Parliament to the judicial arm of governance.
(5)The tests of "likely to suffer significant psychological harm" and similar preconditions must be properly considered in "real" terms as required of judicial reasoning (L v Child Protection Assessment Board B44/1994) and be properly proved or established (Briginshaw v Briginshaw (1938) 60 CLR 336).
(6)Assessment and short term orders are preconditions to appropriate and considered solutions to problems (Part 4).
(7)The desirability of family involvement in any strategy or remedial steps which might provide a solution is recognised in Part 5. Those principles and procedures were followed here. These proceedings did not involve a sudden and inappropriate application by the Secretary for a guardianship order. The original placement of the children had been by arrangement between the applicant and the Secretary. Assessment and interim orders were made, both to ascertain the necessary factual material and professional guidance, and to develop a strategy for the appropriate solution to what all acknowledge to be a complex problem. The involvement of a psychologist was not as a partisan witness in the eventual hearing but as an assessor and treating professional for the children and the family unit as a whole. Conferences were held to attempt a satisfactory outcome.
(8)The operation of the Act, Part 5, Division 2, must be considered in the light of the above. In many instances, as here, there have been a number of preliminary steps and measures taken before an application is made for a care and control order. Once that is done, there are specified preconditions and restriction of options available to the court.
(9)A care and protection order may be made if the court is satisfied that:
(a)a child is at risk and an order is required to secure the care and protection of the child; or
(b)proper arrangements exist for that care and protection but the child would be likely to suffer significant harm if the arrangements were to be disturbed; and it would be in the bests interests of the child for those arrangements to be incorporated in a care and protection order (s42(3)).
(10)If, and only if, the court is satisfied as to the requirements of s42(3), it has a limited number of options afforded by s42(4), but is not required to revisit anew the preconditions stated by s42(3). It could proceed immediately to make a guardianship order in accordance with s42(4)(d). But, as here, the court would be more likely, but not compelled, to follow a graded response. But that response is limited by statute.
(11)A care and control order might:
(a)require the performance of specified responsibilities or actions for a period not exceeding 12 months (s42(4)(a));
(b)provide for limited custody or guardianship to specified persons (subs(4)(b) and (c)) for a period not exceeding 12 months;
but any order made in accordance with s42(4)(a), (b) or (c) cannot be extended beyond three years (s44(2)).
(12)One could not interpret the Act, s44, as permitting the making of separate orders under s42(4)(a), (b) and (c) with a combined effect of nine years. Thus any graded response or, as here, the extension of the original order, is limited to a period of three years.
(13)At that stage, unless an order is made for guardianship under subs(4)(d), a power not confined to the appointment of the Secretary, the court has no power to provide further protection for the child. The Act, s45, limits any power of the court to further adjourn the application.
(14)Here the learned Chief Magistrate treated the application as one for an original order. He accepted that he was required to be satisfied as to the prerequisites of s42(3), and was right to so do. But he was required to pay regard to the history of the matter, including:
(a)the making of the original order;
(b)its extension;
(c)the attempts through family conferences and other arrangements, negotiations and choices or strategies, to best serve the interests of the children;
(d)the fact that he was effectively being asked to change the existing living and caring arrangements for a problematic alternative;
(e)a legislative prohibition of any further extension of orders already made;
(f)the restriction imposed by s45 on further adjournment;
(g)the absence of other alternatives. It was suggested on appeal that he ought to have considered the option afforded by s42(4)(d) of appointing the applicant and one of her supporters (not identified) as co-guardians. The applicant was already the legal guardian and not a person to whom the provision applied. In any event, it was never a suggested or viable option;
(h)the Act, s42(4)(g), could not be used to circumvent the requirement of s44(2) or require the Secretary to be a "joint guardian" under s42(4)(d). No other appropriate orders were, on the evidence, appropriate (s49(4)).
(15)The learned Chief Magistrate was entitled to use the test required by s42(3)(b). In many cases a care and protection order initially limited to twelve months will be made upon satisfaction of the requirements of s42(3)(a), but an extension granted on satisfaction of s42(3)(b).
(16)An order made pursuant to s42(4)(d) is susceptible to variation or revocation (s48). As a matter of practice, if appropriate arrangements can be made, children are returned to the family unit. This was not a case, as contended for by the applicant, that the effect of the order was the permanent separation of a mother from her children.
Conclusion
None of the grounds specified have been made out, nor has review of the evidence given at the hearing or arguments advanced during the appeal shown the decision to be "unsustainable", "unsafe or unsatisfactory", "unjust", or "plainly wrong".
The motion to review is dismissed.
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