Nan v Secretary Department of Family and Community Services

[2016] NSWDC 271

District Court

New South Wales

Medium Neutral Citation:	Nan v Secretary Department of Family and Community Services [2016] NSWDC 271
Hearing dates:	26 April 2016
Date of orders:	03 May 2016
Decision date:	03 May 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Summons dismissed.
Catchwords:	CHILDREN – care and protection – application for leave to rescind Children’s Court order dismissing an application under s 90 Children and Young Persons (Care and Protection) Act 1998 (NSW) – “significant change” – “arguable case” – relevant s 82 and s 90(2A) matters
Legislation Cited:	Dempster v National Companies and Securities Commission (1993) 9 WAR 215 Department of Family and Human Services (NSW) re Day [2012] NSWChC 14 DFaCS (NSW) and the Colt Children [2013] NSWCHC 5 Re Tina [2002] CLN 6 S v Department of Community Services [2002] NSWCA 161 Susan Kestle v Department of Family and Community Services [2012] NSWChC 2
Cases Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 9, 10A, 82, 90 and 91
Category:	Principal judgment
Parties:	Plaintiff: Nan First Defendant: Secretary, Department of Family and Community Services Second Defendant: Independent Legal Representative (Jody Hanson)
Representation:	Counsel: Plaintiff: Ms D McMullen (solicitor) First Defendant: Ms T Stevens Second Defendant: Ms V Willoughby (solicitor)   Solicitors: Plaintiff: Legal Aid NSW First Defendant: Crown Solicitor’s Office Second Defendant: Willoughby Law
File Number(s):	2015/299336
Publication restriction:	Identifying features of the mother, the child, their relatives and medical advisers anonymised

Judgment

Background

1. The plaintiff (“the mother”), by Summons filed on 13 October 2015, brings an application for leave to rescind orders made on 17 September 2015 by Magistrate Wilson in the Children’s Court dismissing an application under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”).

2. The child the subject of this application was born prematurely at 32 weeks on 3 June 2011 and spent the first seven weeks of his life in hospital. The child’s father, who was the mother’s third husband, played no role in his care as he and the mother had separated, and he was then deported. Now four years old, the child was removed from his mother’s care on 24 May 2012 after a series of Risk of Harm reports commencing shortly before his discharge from hospital into the mother’s care in late July 2011 up to the date of his removal from his mother’s care on 24 May 2012.

3. The circumstances in which final orders were made in the Children’s Court were as follows. After the Secretary, Department of Family and Community Services made an application to the Children’s Court for care orders in respect of the child on 29 May 2012, there was interim placement with the mother’s uncle and aunt on 16 July 2012. This placement was made on an interim basis because the mother’s uncle informed Community Services that he and his wife could not be long term carers for health reasons.

4. A clinician’s report dated 17 September 2012, prepared while the child was in the mother’s uncle and aunt’s care, stated that there were no realistic prospects of restoration to the mother. In November 2012 the mother sought orders that the child continue to live with her uncle and aunt until he could be restored to her.

5. Shortly after Magistrate Sbrizzi’s findings on 7 December 2012 that there was no realistic possibility of restoration, the uncle advised that he and his wife were no longer able to look after the child because of his wife’s deteriorating health. The child was returned to the Department’s care. The Children’s Court made final orders, with the consent of the mother, on 18 January 2013, placing the child under the parental responsibility of the Minister for Family and Community Services, until he attains the age of 18 years.

6. The child was placed with his current carers, a husband and wife of Thai and Chinese racial origin, and two other foster children of similar racial origin, in May 2013, and he remains there to this day. This means that this current placement of slightly less than three years is effectively the child’s fourth placement, a relevant factor when considering any change.

7. The child has thus been in his current placement for most of his life. The placement is acknowledged to be stable and his health and general wellbeing cause no concerns. His foster parents and the two other boys in the same placement are, however, from a different ethnic and religious background, in that they are of Thai and Chinese racial backgrounds and practising Christians, whereas the mother is a Burmese Buddhist. The plaintiff is concerned that the child should learn Burmese, practice Buddhist traditions (principally vegetarianism and meditation) and understand his Burmese cultural heritage. The child’s father is Indian and not Burmese, but the plaintiff discounts any relevant heritage derived from the father.

8. The issue of attachment was considered by the clinician, Ms Zhofova, in her lengthy and comprehensive report of 17 September 2011 (Exhibit A, pp. 402 – 453). That includes not only her observations of the rapid transfer of attachment from the mother to the aunt and uncle, but observations about attachment at the child’s age and an Appendix (at p. 451) containing a guide for the court on attachment principles with particular regard to children of up to two years of age.

9. The mother’s legal representative submits there is no current evidence of attachment between the child and any member of his foster family, and that I cannot assume, without the benefit of expert evidence, that any such evidence exists. In particular, it is submitted that the reports from Wesley Dalmar concerning observations of the child with his foster family are not expert reports and not capable of being evidence of attachment.

10. I note the observations of attachment set out by Ms Melissa Glavin, the social worker, in her affidavit of 8 December 2015 at paragraphs 38 – 42 and the Wesley Dalmar case worker’s observations in her 2014 report set out at pages 573 – 576. I am troubled by the submission that only a clinician can give expert evidence as to attachment, when evidence of conduct evidencing attachment is often provided by persons with social work qualifications, and a number of clinicians (including Ms Zhohova) hold social work qualifications. I have not been taken to any authority which supports this submission.

11. While I do not accept that I can only make attachment findings where there is expert evidence, I am content to refrain from making such findings in relation to any persons as at the current time. This is because the clinician’s view is that the child is a child who is “in a stage where he is forming significant attachments and any further placement changes would need to be undertaken carefully to minimise further attachment disturbances” (Exhibit A p. 407). By using this statement as a guide, I can take into account the factual material provided by the Department’s witnesses, such as the child’s strong relationship with the foster family and particularly his two foster brothers (Exhibit A, p. 575) and calling his foster parents “mum” and “dad” (Exhibit A, p. 560), as well as the mother’s own evidence about her close relationship with the child.

12. Having noted these factual issues I next set out the relevant principles to apply.

The relevant principles

13. The provision in the Act on which the plaintiff’s application is brought is the statutory power for revision and variation of care orders under s 90. This provision, which requires leave, enables a review of orders without the need for an appeal, where there has been a “significant change in any relevant circumstances” since the original order. A refusal of leave is an “order” for the purposes of s 91(1) of the Act (S v Department of Community Services [2002] NSWCA 161 at [53]) and the refusal of the Children’s Court Magistrate to grant leave is the subject of an appeal on a de novo basis before me.

14. The parties agree that, if leave is granted, the hearing of the substantive action which must then follow is that the proceedings be remitted to the Children’s Court for hearing in that court, as to do otherwise would be to deprive the parties of their appeal rights to this court.

15. Both parties referred me to the objects and principles of the Act under ss 8 and 9, the permanent placement principles under s 10A and the relevant portions of s 90.

16. The first issue for determination is whether there has been change of a sufficient kind to justify the rescission of the care order.

“Significant change”

17. Ms McMullen refers to the description of “significant change” in S v Department of Community Services, Davies AJA, with whom Heydon and Hodgson JJA agreed, held that a consideration of whether there has been a significant change in circumstances “requires a comparison between the situation at the time when the application was heard and the facts underlying the decision when the order was made or last varied”.

18. Davies AJA (at [23]) described the change required for leave to be granted as being as follows:

“I should observe that a person seeking leave to apply for the rescission or variation of a care order is not required to prove on such an application that, if leave be granted, the person would be entitled to the order sought. The first step is simply to establish that there has been a change of sufficient significance to justify the consideration of an application for rescission or variation of the care order.”

19. These questions are largely issues of fact. The mother has put evidence before me consisting of the following:

1. Her affidavits of 12 October 2015 and 10 February 2016 containing, inter alia, information about her accommodation, English language classes, attendances on Dr X and commencement of attempts to find employment;

2. Certificates from three courses on parenting she has completed, together with an affidavit from Ms Candlin of Catholic Care;

3. Reports from Dr X (a psychiatrist) and Professor Z (a psychologist);

4. Information about her monthly contact meetings with the child.

20. The Department has supplied information from the Children’s Court proceedings, as well as an affidavit from Melissa Glavin providing information about the child’s carers and their family, which include two older boys.

The parties’ submissions

21. The mother submits that the “relevant” circumstances (In the matter of Campbell [2011] NSWSC 761 at [35]), when considering the evidence filed in the 2013 proceedings, is that the concerns in respect of the mother’s parenting at that time were:

1. The mother’s lack of insight into the child protection concerns which led to the child’s removal, and ability to work constructively with Community Services and support services;

2. The mother’s parenting capacity;

3. The mother’s mental health;

4. The mother’s lack of stable accommodation;

5. The lack of a support network for the mother.

22. The submissions made on behalf of the Department responded to the list of factors identified on behalf of the mother as well as additional matters as set out below. The Department submitted that there was insufficient change to be significant and that, even if there were significant change, there was no “arguable case”. The Independent Legal Representative supported those submissions.

23. This brings me to a consideration of whether there was “significant change”, the establishment of which is “a necessary but not a sufficient condition for leave to be granted: Susan Kestle v Department of Family and Community Services [2012] NSWChC 2 at [22] per Marien SC DCJ.

Evidence of “significant change”

24. The mother submits that she has satisfactorily addressed each of the concerns which gave rise to the removal of the child from her care, and that she would therefore now be able to provide a safe and nurturing home for the child.

25. However, issues of “significant change” need not be restricted to actual findings or issues in earlier proceedings, for the reasons explained in Kestle v Department of Family and Community Resources at [22](ii). The court has a wide discretion to grant leave (Re Tina [2002] CLN 6) and whether or not a circumstance (or change of circumstance) is relevant will depend upon the issues presented for the Court’s determination. In those proceedings, the court noted that such circumstances were not necessarily limited to a “snapshot” of events occurring between the time of the original order and the date the leave application is heard. Similarly, in the present case, I may have regard to issues of concern to the clinician, such as the mother’s physical health, relationship with other family members both in Australia and Burma and her ability to make realistic proposals for the child’s welfare.

26. Nor is the fact that some “relevant” circumstances have materially changed for the better necessarily an indicia of significant change. Some issues, such as the ability to obtain rental accommodation, are matters which were relevant to the care proceedings, but are so fundamental that change, even where material (as is the case here) should be given very little weight. In these proceedings, at the time the child was initially taken into care, the mother was living in a garage with no running water, with food containers and rubbish littering the floor, according to the clinician’s report (Exhibit A pp. 413 – 415). Whether a change from living in those conditions to being able to live in rental accommodation is capable of being “significant” needs to be seen in context of the facts as a whole.

27. Accordingly, while I have paid close attention to the submissions made on behalf of the mother in relation to the five areas identified as areas of significant change, I have not restricted my findings of fact to those issues, but taken into account the additional issues raised on behalf of the Department and the Independent Legal Representative.

28. Although I have dealt with the five main areas of significant change separately, much of the evidence overlaps. The main basis upon which the mother put her case was that she had effected significant changes to her attitudes and lifestyle as a result of attending three parenting course, continuing regular consultations with her psychiatrist, Dr X, and in consulting a psychologist, Professor Z, who asked her a series of questions as an informal alternative to a psychometric assessment. I shall deal with this evidence first, as it is relevant to all five of the nominated areas of change.

The mother’s attendance at three parenting courses

29. The most significant change put forward by the mother is that not only has she continued to attend Dr X since the care proceedings orders were made, but she has completed three parenting courses. These courses are are:

1. Triple P Parenting (see Exhibit B);

2. My Kids and Me; and

3. 123 Magic.

30. As is set out below, the mother saw Dr X, a Burmese-speaking psychiatrist, about half a dozen times before orders were made in the Children’s Court, and she has continued to see him since that time.

31. There is no doubt that these courses provide valuable information, and that the mother was considered by the clinician to require “extensive and intensive training and education about child development” (Exhibit A, p. 441). However, the counsellor went on to say, in the same paragraph:

“She needs to learn about behaviour management of children and she also needs to know about her son’s current and future emotional development and his about [sic] attachment needs. She also needs to understand the needs of her son as a moderately pre-term baby who is at risk of developing behavioural, emotional and even mental health problems. These are complex issues and it is the Clinician’s view that attending just parenting courses would not be enough, particularly as [the mother] has retained so very little from the course she attended previously. She needs to attend mothers and women’s groups and almost needs a one to one mentor/social worker to guide her through the complexities of parenting.”

32. As the Independent Legal Representative pointed out, in the course of her submissions, the mother needs to do more than attend courses. While Dr X briefly states (without exposing his reasoning or identifying how) that she was able to demonstrate to him how she would apply what she has learned from these courses, this is all on a theoretical level, as the mother has not had the child in her care for three years. With one exception, there is no evidence the mother has attended any mothers’ or women’s groups, or Burmese community groups, or even spent time with friends who have children.

33. That exception is the mother’s evidence that she has the support of “friends within my community” and in particular a person whom she describes as the manager of a family day care centre. The mother states, in her affidavit of 10 February 2016, that this family day care centre manager is willing to talk to the mother about “any issues which might come up” while she is caring for the child, as well as to help her, and that the child could meet the children in her day care (paragraph 22).

34. This very general information does not give the address and name of the family day care centre. The mother has made similar statements of this kind in the past about assistance from friends. The clinician noted (Exhibit A, p. 414):

“She said she is going to rent a home or a unit with a female Burmese friend with children of her own. When she was asked more about this, she admitted the friend she had in mind is a lady she worked with a long time ago and although she discussed her plans with her at that time, she has not seen her for a long time. [The mother] added that she knows a lot of Burmese people and she was positive that she would be able to rent shared accommodation with them, though how realistic her plans are would need to be seen.”

35. The fact that the mother has attended three parenting courses and has continued to have regular contact visits to her son are to her credit but, given the very serious deficiencies in her parenting outlined in the meticulous report of the clinician, and the clinician’s considered view that attending courses was insufficient to combat those problems, attending courses is not of itself capable of being a significant change.

36. In making this finding, I take into account that Dr X expresses the view that he is satisfied that the mother has absorbed the lessons from these courses. There are, however, two problems with Dr X’s reports. The first is that he has not exposed his reasons for being satisfied that the mother has understood the deficiencies. The second is that his information about the range of problems the child might have if returned to her is limited. For example, he does not refer at all to the child’s relationship with the two older boys living in the same foster home, which suggests that he may not have been told about them. If the child were to return to live with the mother, any bonds of friendship between the child and the older boys would have to be strained or even completely severed. This is the kind of issue about which the mother should be able to give evidence that she has sought guidance and counselling from Dr X, as it does not appear to form any part of the basic parenting skills taught in the three courses she has attended.

The mother’s consultations with Dr X and Professor Z

37. The mother’s consultations with Dr X were to assist her with her grief and provided support over the removal of the child. The mother describes his role as being “to deal with my sadness from [the child] being taken away” (Exhibit A, p.520; see also Dr X’s statements to this effect in his report of 27 July 2015, Exhibit A, p. 516).

38. The expert evidence of Dr X and Professor Z does not constitute evidence of a significant change in circumstances. These reports were commissioned for the purpose of excluding a diagnosis of a mental illness or cognitive deficiency. In particular, Professor Z’s report (Exhibit A, p. 517) is in response to a proposal that she undergo psychometric testing, which he did not consider appropriate as there were no test measures in the Burmese language. Instead, he asked her a series of general questions and considered that her responses were “fitting” (Exhibit A, p. 517), an answer which fails to expose not only his method but his reasoning. As there is no assertion that the mother suffers from mental illness or cognitive deficiency requiring information of this kind, these reports are of little assistance.

37. Nor do these reports address and respond to the circumstances and child protection concerns that arose in May 2012 and resulted in the removal of the child. Neither expert appears to have any information about these events or concerns, or about the nature of the orders sought in these proceedings. For example, Professor Z took great comfort from the mother’s willingness to have a court-appointed person make unannounced visits to her home to see how she was coping with the child. The clinician noted refusals by the mother to allow the Early Childhood Nurse to come to her home (Exhibit A, p. 395) and the Independent Legal Representative noted the mother’s refusal to go to Tressilian and Newpin. The mother’s proposal that the Department were welcome to come to visit her without prior warning is not a practical or structured solution. Additionally, as counsel for the Department noted, the mother does not put forward any proposal (beyond this suggestion) that the Department play any part in the child’s life if he is restored to her care.

38. Additionally, as is set out below, given the significant role the mother’s uncle and his family played in the Children’s Court proceedings, the absence of any evidence of contact, let alone support, is significant. The mother’s brother also lives in New South Wales (although it is unclear where), and there is no evidence of any support or contact with his family. The limited contact the mother has with her own family in Burma (she has only seen her two children from her first marriage twice since she left Burma 11 years ago) should also be noted, as should her lack of contact with the child’s father (who was deported). These absences of social networks and support do not seem to have been considered by Dr X as significant.

39. However, given the history of her reluctance to engage not only with the Department but with a variety of organisations seeking to help her (such as the Early Childhood nurse, Tressilian and Newpin), the clinician’s concerns (Exhibit A, p. 407) that “the mother does not want people intervening in her life as she feels that it is too stressful” are matters that are crucial to address for any claim of significant change warranting the making of orders under s 90 of the Act to succeed.

The mother’s lack of stable accommodation

42. Ms McMullen submits that the mother has demonstrated an ability to have stable long-term accommodation because she has maintained a lease on a two-bedroom apartment and to manage her income and finances.

43. The lease is jointly held by the mother and a male friend who does not live there, and whose name is on the lease because the mother has no leasing history.

44. Ms Stevens submits that the ability to rent accommodation is a basic pre-requisite of the kind that would be considered relevant in the Children’s Court hearing, and that an ability to remain in rental accommodation should be seen only as basic, and not as a significant improvement.

45. Ms Stevens also points to the absence of any evidence as to what furnishings or other needs for the child’s welfare have been provided. There are no photographs of the room the child is to occupy. There is no information about neighbours with children, or play groups, apart from the reference to the friend who runs a child care centre.

46. While Ms McMullen submits that this is the kind of evidence which should be provided at the hearing as opposed to being provided on this application, it is of concern that there is no evidence about accommodation beyond the fact that it is stable. I do not consider this evidence to be an improvement; it is a maintaining of the status quo. The absence of information tends to underline the complete social isolation of the mother which is such a concerning feature in this application.

47. This brings me to what I see as the principal issue in these proceedings, namely the mother’s lack of a support network.

Lack of a support network

48. While she was before the Children’s Court, the mother had the support of her uncle and his family. They are now completely out of the picture. She has some limited contact with her mother in Burma, who sends her money, and telephone calls with her sons, in whose life she appears (for cultural reasons) to have played little part, but none at all with her brother, her uncle, her cousin and his wife or their 10 year old son.

49. The mother says that she has “the support of friends within my community” (Exhibit A, p. 520) but provides no details beyond the reference to the manager of the family day care centre. Nor does she provide information about community activities in which she participates.

50. Similarly, there is no evidence about the mother’s interaction with non-Burmese community groups, neighbourhood activities or social life generally.

51. This is a significant problem in this application, as the mother has not simply failed to improve, but has gone backwards. While Ms McMullen says that the mother would “happily accept” the involvement of a formal support service as recommended by the Department (paragraph 50), Ms Stevens points out that the orders sought do not make any such proposal.

Conclusions concerning “significant change”

52. For the reasons set out above, I am satisfied that the mother has not made out a case for significant change. She has remained on a steady course in some areas, including her contact with the child, her English studies, her accommodation and her visits to Dr X. Her attendance at the courses is an improvement upon her previous refusal to attend courses such as Tressilian.

53. However, in one of the most important areas, namely having a support network, the mother has actually gone backwards.

54. This brings me to the consideration of s 90(2A) factors, the most important of which is whether the mother has an arguable case.

Section 90(2A) factors

55. The relevant factors are:

1. The nature of the application, which is the rescission of orders in place since 18 January 2013, a considerable period of time given the child’s age.

2. The age of the child, who is four years of age.

3. The length of time that the child has been in the present carer’s care: This is approximately three years, a significant period of the child’s life.

4. The plans for the child: The Department proposes that the child remain in his present care until he turns 18. His carers are Thai/Chinese rather than Burmese, and his foster brothers are also Thai/Chinese. They are Christians, whereas the mother wants the child to grow up as a Buddhist practising cultural requirements such as meditation and vegetarianism. The mother proposes that the child would live with her in her two-bedroom flat while the arrangement proposed by the Department places the child in a family with two adults and two foster brothers.

5. Whether the mother has an arguable case: this is set out in more detail below.

6. Relevant section 82 matters.

“Arguable case”

56. The matters listed in s 90(6) must be taken into account in determining whether the applicant for leave has an arguable case.

57. The relationship between “significant change” and “arguable case” is explained by Marien SC DCJ in Susan Kestle v Department of Family and Community Services [2012] NSWChC 2 at [22] as follows:

“[22] The relevant legal principles to be applied upon an application for leave under s 90(1) of the Care Act were recently stated in Campbell [2011] NSWSC 761 by Slattery J. They may be summarised as follows:

(i) In determining whether to grant leave the court must first be satisfied under s 90(2) that there has been a significant change in a relevant circumstance since the care order was made or last varied.

(ii) The range of relevant circumstances will depend upon the issues presented for the court’s decision. They may not necessarily be limited to just a ’snapshot’ of events occurring between the time of the original order and the date the leave application is heard.

(iii) The change that must appear should be of sufficient significance to justify the court’s consideration of an application for rescission or variation of the existing care order: S v Department of Community Services [2002] NSWCA 151.

(iv) The establishment of a significant change in a relevant circumstance is a necessary but not a sufficient condition for leave to be granted. The court retains a general discretion whether or not to grant leave.

(v) Having been satisfied that a significant change in a relevant circumstance has been established by the applicant, the court must take into account the mandatory considerations set out in s 90 (2A) in determining whether to grant leave.

(vi) The s 90(2A) mandatory considerations include that the applicant has an "arguable case" for the making of an order to rescind or vary the current orders.

(vii) An arguable case means a case "which has some prospect of success" or "has some chance of success".

(viii) In determining whether an applicant has an arguable case and whether to grant leave, the court may need to have regard to the mandatory considerations in s 90(6).”

58. Similar statements are also to be found in Department of Family and Human Services (NSW) re Day [2012] NSWChC 14 and in DFaCS (NSW) and the Colt Children [2013] NSWCHC 5 by Johnstone DCJ, where his Honour also noted the importance of the overriding principles of the Act in all judicial determinations.

59. In In the matter of Campbell, Slattery J agreed with Marien SC DCJ that the interpretation of “arguable case”, as expressed in Dempster v National Companies and Securities Commission (1993) 9 WAR 215, should be adopted; namely a case “reasonably capable of being argued which has “some prospect of success” or “some chance of success”.

60. Additionally, Slattery J confirmed that establishing a significant change was a necessary, but not sufficient condition for leave to be granted. The court retains a general discretion whether or not to grant leave. Section 90(2A) sets out the mandatory considerations that must inform that discretion, but the overriding principles of the Act are also relevant.

The relevant factors for “arguable case”

61. It is not in dispute that the child’s placement for nearly three of the four years with his life is a very significant factor.

62. As noted above, the mother submits that I cannot determine any issue of attachment without expert evidence. Ms McMullen submits that in those circumstances, I must make the orders sought, so that a fresh clinician’s report can be obtained. If that were the case, most if not all such applications would have to result in the making of orders for a fresh clinician’s report.

63. I am satisfied that I have sufficient evidence before me to determine that the child is of an age where he is capable of, and does, form attachments, and that by applying the principles set out in the clinician’s report in relation to her findings concerning attachment, I can be satisfied that despite not having expert evidence on the current situation, the child is very well settled in a happy family and that removal from that family (which would be his fifth placement) would have a significant impact upon him in terms of stress and potential long-term damage. The clinician’s report notes that the mother’s attachment may already have been compromised by the child’s removal in May 2012 (Exhibit A, p. 406).

64. I am particularly concerned at the likelihood that the loss of the two older boys who form part of his foster family would have an impact. He would also have to change schools.

65. I do not accept the submission that I should take into account, in terms of “arguable case” the fact that the applicant’s case is, to quote Ms McMullen’s submissions, “on a course which is likely to be supplemented with further evidence by the time the case gets to a hearing, once leave has been granted”, and that these gaps in the mother’s case would be remedied by such evidence, or that it is not necessary for the mother to provide concrete evidence on essential issues such as her plans for the child to adapt into a significant change of environment and school, her support network and proposals for ongoing support from the Department, including acknowledgement of Departmental courses rather than a generalised statement that she would comply with Department requirements (in circumstances where she does not propose the Department play any role in the child’s ongoing care or welfare).

66. Finally, and most importantly, I am not persuaded that a court would consider the mother has an arguable case if her evidence before that court was the same as she has given in her affidavits. She explains her problems in the past as being that “I was a single mum and I was stressed” (Exhibit A, p. 482). That does not accord with the Department’s evidence of the mother living in circumstances and having the attitudes which resulted in the strongly worded criticisms of the clinician, and confirms that the mother still does not have insight into child protection issues.

67. I am satisfied that, given the short period of time the child spent living with his mother, the problems caused when the uncle had to surrender placement and the long period of happy and stable care with the carers and their other two foster children, there is a significant risk to the child of psychological harm if the present care arrangements are rescinded.

68. Finally, I note that there have been two s 82 reports since the final orders were made, those reports set out how the child went from the care of the maternal uncle to his present care and case management went to Wesley Dalmar, and paint a vivid picture of a happy and well-settled child. I note the assessment of these organisations that the mother’s engagement with appropriate services was inadequate to consider restoration.

69. I note that these views are endorsed by the Independent Children’s Representative. The role of the Independent Children’s Representative is of vital importance in applications such as these.

Conclusions concerning “arguable case”

70. Taking all of the above into account I am satisfied that the mother does not have an arguable case.

71. I appreciate that this decision will have a devastating impact on the mother. She loves the child dearly and has developed a close relationship with him through regular contact visits. However, the overriding principles of the legislation, the absence of sufficient evidence and the concerns expressed by the Department and Independent Legal Representative are sufficient to make me comfortably satisfied that the mother has not established significant improvement or that she can satisfy the s 90(6) factors, including that she has any arguable case.

Orders

1. Summons dismissed.

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Decision last updated: 27 October 2016