Re Ashley

[2008] NSWLC 22

Local Court of New South Wales

CITATION:	Re Ashley [2008] NSWLC 22
JURISDICTION:	Children's Court
PARTIES:	Director General of Department of Community Services; Re Ashley
FILE NUMBER:
PLACE OF HEARING:	Parramatta
DATE OF DECISION:	05/23/2008
MAGISTRATE:	Senior Children's Magistrate S Mitchell
CATCHWORDS:	Final care order - permanency planning
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	S. v S and Ors (2002) UKHL 10 Re Rhett (2008) CLN 1 CW & SW and the London Borough of Enfield (2007) EWCA 402 Re J. (1994) 1 FLR 253 C. v Solihull Metropolitan Borough Council (1993) 1 FLR 290
TEXTS CITED:
REPRESENTATION:
ORDERS:

These are care proceedings commenced by the Director-General of the Department of Community Services on 31 August, 2007. They relate to Ashley who was born on 3 July 1994. Ashley is the son of Denise L. who lives in Victoria and Robert T. who lives in western Sydney Mr. T. is disengaged from his son and from these proceedings and Ms. L., who maintains contact with her son, acknowledges that she is unable to care for him. Neither parent is able to point to any family member able to provide a home for Ashley and, pending further order, he is in the parental responsibility of the Minister pursuant to an order of the Children’s Court made on 31 August, 2007. A finding of need of care and protection was made on 3 September, 2007 and it is common ground that there is no realistic possibility of restoration of Ashley to either parent.

The matter came on for final hearing on 12 March, 2008 when Ms. Renshall appeared for the Director-General and Mr. Guterres of LegalAidNSW appeared for Ashley as his direct legal representative. The Director-General seeks a final care order that Ashley be in the parental responsibility of the Minister until he shall have attained the age of 18 years and Mr. Guterres asks that no final order be made at this time and that the matter be further adjourned to enable the Director-General to further address the issue of permanency placement.

At this time, Ashley lives in a Links placement in the Quaker’s Hill area where he has 24 hour per day care by adult supervisors. According to Mr. Guterres, Ashley is lonely and feels he is being singled out for special and unwelcome treatment. He complains that his privacy and his right to an ordinary upbringing are being infringed and that he is being isolated, even to the point that he is not allowed to see his friends or invite them to visit him at home. The Director-General’s contention is that many of Ashley’s complaints are not based in fact but she agrees that his present placement is most unsatisfactory. The placement is an extremely high-cost one and for that, among other reasons, she is extremely anxious to do everything possible to locate a satisfactory long-term placement for Ashley as soon as possible.

Up to this time, however, it has proved impossible to recruit such a placement and so the Director-General undertakes to continue her efforts in that regard and to maintain Ashley’s present Links placement until a permanent placement is found. Mr. Guterres is critical of the Department’s earlier efforts on behalf of Ashley and he complains that he has written to the Director-General on several occasions seeking details of her efforts to find a home for Ashley and, as at 8 February, 2008, had received no reply. A further complaint made by Mr. Guterres is that, although Ashley passed into care in August, 2007, no steps were taken to locate a permanent placement for him until 24 December, 2007 when relevant enquiries were first made to the agencies.

Another significant complaint raised by Mr. Guterres relates to an unconfirmed report that Ashley had sexually assaulted another young person while in care. As the addendum to the care plan recited on 6 November, 2007, “it is anticipated that the sexual assault allegations will limit the number of potential carers as Ashley may require a carer who has experience in caring for children with challenging behaviours.” A “Risk and Need Assessment” was prepared for the Director-General by Jillian Murray, a contracted therapist. The document is undated and a copy was filed in court on 13 December, 2007 and affirms, as I think the Director-General now accepts, that Ashley presents no acute risk factors, that there is no history of him engaging an any sort of sexualised or sexually problematic behaviour and that his only risk factor relates to aggressive rather than sexually inappropriate behaviour.

The really unfortunate and unfair effect of the unconfirmed sexual allegations is that, according to Ms. Ward who appeared for the Director-General on 8 February, 2008, the Director-General found it necessary to mention the allegations of sexual misbehaviour when referrals were made to the agencies but felt that, for reasons of protecting Ashely’s privacy, the document assessing him as presenting no sexual risk must remain confidential so that it could not be revealed to the agencies. Little wonder then that, until sometime after 8 February, 2008, when this policy was reversed and any references to Ashley’s alleged sexual misbehaviour were omitted from the material going to the agencies, it proved impossible to find a permanent placement for the boy. Mr. Guterres told the court that Ashley had been “incredibly distressed” by this matter having been disclosed to the agencies.

I do not understand Ms. Renshall to be arguing that the Director-General’s efforts on behalf of Ashley have always been timely and adequate and indeed they have not always been so but, as she put it, “We’re past that” and it seems to me that, currently, the Director-General’s officers are acting pro-actively and very diligently and are doing their best with Ashley’s interests very much to the fore. But the fact remains that, as Mr. Guterres reminded the Court, “my instruction from Ashley are not to consent (at this time) to the final order. Ashley’s position has been consistent throughout these proceedings. He’s been in care, he’s been in the same placement for almost 7 (now 8) months. His instructions to me have always been firstly that he would like to go back to his mum but he understands that she has difficulties in looking after him, that he would like to be with a family, he would like to be with someone, with an older male who can be a brother to him, but his greatest concern is that he wants to know what’s going to happen to him and I simply have not been able to tell him…”

The issue is whether, in the present context of uncertainty as to what is going to happen to this boy, the court should or, even, is entitled to make a final care order. In her affidavits of 23 January and 7 February, 2008 and in her evidence before the court, Child Protection Caseworker Megan Sullivan has itemized the attempts which have already been made to find a permanent home for Ashley but it is common ground that it is likely to prove extremely difficult to find a satisfactory placement for him and, presently, the Director-General is unable to say when one might be found and how long he might be required to remain in his present, unsatisfactory, temporary placement.

Section 83(7) of the Act provides, relevantly, that “The Children’s Court must not make a final care order unless it expressly finds… …(a) that permanency planning for the child or young person has been appropriately and adequately addressed…” and, on behalf of Ashley, Mr. Guterres submits that it has not. There is a large measure of common ground between the Director-General and Ashley as to his particular needs. They both agree that he needs a secure permanent placement, preferably with a family. The Director-General’s sense is that there should be no younger children in the placement because of Ashley’s sometimes aggressive behaviours. They both agree that, if the placement is to be with a single carer, that person should be a male. According to Ms. Renshall, Ashley has found fault with every one of his female carers.

Ashley enjoys a Samoan heritage which he inherits from his father and it will be important for him to gain a knowledge and maintain a connection with that culture. He has special needs with regard to his health – he has been diagnosed with ADD, and with regard to his education. He attends Casuarina special school on three and a half days per week and it is hoped that, within the next eighteen months or so, he can be mainstreamed to another school. In order for this to happen successfully, the school believes that he will need counselling which is currently “on hold” until his ultimate placement is settled. Because time may well be running out, the urgency of his need for this counselling is increasing.

Ashley has no desire to see his father and his paternal aunt with whom, for a time, he was unsuccessfully placed. I think the Director-General knows that he is somewhat frightened of them. But he does need to see and maintain contacts with his mother and this is a need which will have to be taken into account in planning for his future. Perhaps most of all, he needs to know what is going to happen to him and he needs to know that as soon as possible.

In Re Rhett (2008) CLN 1, the Children’s Court drew attention to the close parallels between the position and function of courts in England and Wales and the Children’s Court of New South Wales in the matter of child care and protection. In the leading English case, S. v S and Ors (2002) UKHL 10, the House of Lords stated as the “cardinal principle” that, in general terms, it is for the welfare authorities to formulate the care plan and ultimately to implement it and for the courts, in deciding whether or not to make a final care order, to approve or disapprove the care plan and, subject to a jurisdiction conferred on the Children’s Court by section 82 to monitor care orders – a jurisdiction which is not to be found in the English legislation, and a responsibility conferred by section 86 to make contact orders and resolve contact disputes, the “cardinal principle” seems to apply in New South Wales as it does in England and Wales.

In New South Wales, approval or disapproval of a care plan will be effected by the making of or the refusal to make a final care order and will depend on a judgment as to whether or not the proposals in the care plan correspond with and will promote the safety, welfare and well-being of the subject child or young person. Section 9(a) of the Act provides that “in all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration…” In an application for a final care order, then, the Children’s Court must consider whether the provisions of the care plan are appropriate in that regard.

In CW & SW and the London Borough of Enfield (2007) EWCA 402, Munby J. noted that “there is an element of future uncertainty necessarily inherent in the very nature of a care plan,” first of all because “a Local Authority must always respond appropriately to changes, of varying degrees of predictability, which from time to time are bound to occur after a care order has been made and while the care plan is being implemented. No care plan can be regarded as set in stone.” Further, as Wall J. held in Re J. (1994) 1 FLR 253, 262 “there are cases in which the action which requires to be taken in the interests of children necessarily involves steps into the unknown… …Provided the court is satisfied that the Local Authority is alert to the difficulties which may arise in the execution of a care plan, the function of the court is not to seek to oversee the plan but to entrust its execution to the Local Authority……The court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of over zealous investigation into matters which are properly within the administrative discretion of the Local Authority…”

But in S. v S & Ors., Lord Nichols of Birkenhead considered that, “despite all the inevitable uncertainties and unknowns when deciding whether to make a care order, the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the Local Authority can foresee what will be best for the child at that time.”

The primary basis of the demand for “a reasonably firm picture” as called for by Lord Nicholls is that, as was pointed out in C. v Solihull Metropolitan Borough Council (1993) 1 FLR 290, without it, the Court is not in a position to exercise its function to approve or disapprove the care plan consistent with the English “best interests” principle or the local section 9(a) principle. And as Munby J. added in CW & SW and Enfield, “If the parents and the child’s guardian are to have a fair and adequate opportunity to make representation to the Court on whether a care order should be made, the care plan must be appropriately specific.”

In Re Rhett, the Children’s Court sought to stress the relatively limited nature of the information which the court will require when it is asked to make a final care order. In particular, it will not demand to know the identity of the proposed carers or even if they have already been recruited. Nor will it demand the same degree of specificity in every case. As was pointed out, “There are cases where the Director-General just doesn’t know and cannot reasonably be expected to know what lies in store for a child or young person in care.” Ashley’s may be such a case but what is important is that a plan, describing the significant needs of the child/young person and illustrating the “reasonably firm picture” of which Lord Nicholls speaks has been formulated with reasonable specificity given the particular circumstances of the case.

Section 78 (2) describes a care plan which “must make provision for the following:-

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

Additionally, section 78A provides for permanency planning which involves the making of a plan which is one which, leaving aside special provisions in the case of an Aboriginal or Torres Strait Islander person, “aims to provide a child or young person with a stable placement that offers long-term security and that:-

(a) has regard in particular to the principle set out in section 9(f), and
(b) meets the needs of the child or young person, and
(c) avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements.”

Section 83 mandates the preparation of a permanency plan wherever the Director-General seeks a final care order whether, in her assessment, restoration to a parent is a realistic possibility or not. The practice which has developed is that the care plan and the permanency plan usually form one and the same document. It is not possible to prescribe all of the details which should be found in a care plan and these may differ from case to case but it is likely that the court will insist on knowing the type of placement proposed and whether it is a family placement, a placement in a foster family, or perhaps in a group home, whether the child or young person will be placed alone or with others, whether he or she will be placed with or separated from his or her siblings and, if so, why and what arrangements will be made to ensure the maintenance of or enhancement of the inter-sibling relationships, whether the proposed placement will be appropriate from a religious and cultural point of view and, if not, what arrangements will be put in place to ensure that the needs of the child or young person in that regard will be guarded, whether there are any special medical or educational or other needs of the child or young person and how they will be met in the placement, what supports will be made available to support the placement, what are the contact needs of the child or young person with regard to parents, siblings, extended family and any other persons, how it is proposed that those needs be met and whether the proposed placement will lend itself geographically and in other ways to those contact needs being met.

There are special provisions in the Act regarding the placement of Aboriginal and Torres Strait Island children and young persons and, in those instances, there will be additional matters to be found in care plans. Ashley, however, is not an Aboriginal or Torres Strait Island child.

In Re J., Wall J. proposed other details which he thought might usefully find their way into a care plan. Among these were a précis of the family and social history of the child or young person, the likely duration of the placement, a contingency plan in the event of the failure of the placement, information as to who or which agency is to be responsible for the implementation of the plan and for administering the placement, details as to what, if anything, should be the role of the natural parents and extended family during the currency of the placement, information as to the extent to which the wishes of the child or young person, the natural parents and anybody else with a relevant interest have been canvassed and the arrangements for further input by those persons in the ongoing decision making process, the arrangements, if any, for keeping the parents and other interested persons au fait with the progress of the child or young person and the dates when the placement might be reviewed.

Further, details might be provided of the time scale in which the implementation of the plan is anticipated and the steps, if any, which have already been taken and those which remain to be taken in that regard.

Some of these matters go to permanency planning and, until sufficient of them are formulated in the plan so that a “reasonably firm picture of the way ahead” is presented, the Children’s Court will be restrained by section 83(7) from making a final care order. Others will be matters appropriate to a care plan but not matters of permanency planning so that failure to address them will not necessarily be fatal to the application. The court, in considering the plan, will perform a dual function namely determining whether it can make a final care order approving the plan on the basis that permanency planning has been adequately and appropriately addressed and, if it has been, determining whether the plan should be approved in that it properly addresses the safety, welfare and well-being of the child or young person.

It is important to recognise that the “addressing” of permanency placement is to do with formulating a plan rather than achieving the outcome which has been planned. Permanency planning itself is defined in section 78A as “the making of a plan…” and not as the achievement of particular outcomes. It is the function of the Director-General to formulate a plan which promotes the safety, welfare and well-being of the subject child or young person and which adequately and appropriately addresses permanency planning and for the Children’s Court to approve or disapprove the plan either because it does not correspond with the court’s understanding of the child’s or young person’s safety, welfare and well-being or because the court is unable to say that the plan as formulated makes proper proposals for permanency. Problems which might arise in implementing the plan after final orders are made are matters which may be dealt with under section 82 and/or section 90.

Turning to the care plan in Ashley’s case, it was filed on 21 September, 2007 and an addendum to care plan was filed on 6 November, 2007. The addendum details the report of Ashley’s alleged sexual misbehaviour, now acknowledged by the Director-General as not relevant to a search for a permanent placement, but, otherwise, adds little to the original care plan.

The care plan of 21 September, 2007 proposes that parental responsibility for Ashley be allocated to the Minister until he shall have attained the age of eighteen years and that proposal remains current. The care plan announces that Ashley can remain in his Links placement for three months while a permanent placement is sought and, in fact, it is now clear that such placement will be made available to him for as long as it takes to find a permanent placement. The care plan records, accurately, that there is no realistic possibility of restoration and that a family placement is not a possibility and that “if a long term foster placement is not available, then an alternate proposal for Ashley’s placement is a residential accommodation unit managed by an agency.”

In the care plan, there is a precis of Ashley’s family history and a description of some of his special health, behavioural, educational, cultural and contact needs. Only in the broadest terms can it be said that the care plan addresses those needs. For instance, it is said that “Ashley will attend medical appointments as required” and that his medication “will be reviewed as recommended by his treating doctor” but one is left to wonder how often he will see his doctors and how often his medication will be reviewed. As to behaviour management, the care plan announces that a behaviour management plan will be developed with “effective strategies to address Ashley’s behavioural problems” and that “clinicians recommendations (will be) implemented where appropriate” but there is no indication of when the management plan might be developed and by whom and how the recommendations of the clinician, whoever that will be, will be implemented and it is significant that the counselling and presumably the development of a behaviour management plan necessary to achieve the important aim of mainstreaming Ashley at school is “on hold” awaiting, as I understand it, not the making of final orders but a final placement. These are important matters and, although they might normally be left until a final placement is achieved, in the present case such a delay, which might be very lengthy indeed, is unacceptable. There is real doubt, as the Director-General is among the first to admit, as to when a permanent placement will be recruited for Ashley and the evidence is that he should be mainstreamed at school within about eighteen months so there is little time left to allow any further delay in providing counselling and other therapies directed towards the effective management of his behavioural difficulties and his mainstreaming at school. I think that these matters need to be clearly specified in the care plan and that they are matters which go to permanency.

Although the care plan announces that Ashley “will attend activities and events to promote his Australian and Samoan identity” and “will have a sense of belonging and an understanding of his cultural identity,” there is absolutely no indication of the type of activities and events the Director-General has in mind or of how he will be introduced into the Samoan community and by whom. Ashley’s Samoan identity is inherited from his father and he has a disinclination to have anything to do with Mr. T. or any of his paternal family and the care plan gives no clue as to how, in practical terms, the boy will meet and mix with any Samoans. Here, too, I think the care plan needs to address in some detail the practical proposals of the Director-General as to Ashley’s exposure to his Samoan heritage.

On the other hand, the care plan does propose that Ashley and his mother have contact “four times per year for a period of not less than five days each during school holidays” together with twice weekly telephone contact. These are “minimum” proposals and they seem to me to be consistent with Ashley’s safety, welfare and well-being. The evidence is that the telephone contact is already taking place and, although the care plan doesn’t say it, I was informed from the bar table that face to face contact already takes place when the Mother visits from Victoria with the practical assistance of the Director-General.

The care plan identifies Megan Sullivan as the person who will be responsible for the implementation of the plan, responsible to Judy Su who is the relevant Manager Casework, although it does not specify the agency to which the Director-General proposes to refer the matter.

Most significantly, however, although the care plan proposes “that Ashley be placed in a long-term foster care placement through an (unidentified) agency and that the placement be supported by respite care,” it says little if anything about the timeframe within which it is suggested that the recruitment of a permanent placement or, for that matter, the recommended respite placement will be achieved. These are matters which are causing the Director-General great difficulty and it may be that the care plan can do little more in that regard than to reflect the difficulties and outline the steps proposed to overcome them as they were outlined to the court by Ms. Renshall. Given what may be a significant likelihood of placement failure and the difficulties in this case of formulating a suitable contingency plan, the Director-General would do well to formulate detailed proposals for respite care.

Further, the care plan provides no details of the likely location of either the permanent placement or a respite placement and their availability to the boy’s special school or some other suitable special school and to the other services which Ashley is likely to require and nothing is said about what is now seen as a requirement that Ashley’s foster carer be male and that the placement be one where no other younger children are living.

These are important matters and many go directly to permanency and they need to be formulated as proposals in some detail. I accept what Ms. Renshall has told the court about the very significant difficulties which the Director-General anticipates in achieving the sort of placement which she seeks but what section 83(7) requires in this case is that the Director-General’s proposals for Ashley to which I have already referred be fleshed out and formulated in an updated care plan which can be put to the court for approval and, if approved, submitted the an agency or otherwise acted upon. A failure or inability to achieve the proposals to be set out in the plan is something for the future and, if necessary, can be dealt with under section 82 but that is not what is at issue in this case.

On behalf of Ashley, Mr. Guterres argued that, once a final order is made, his capacity to intervene and the Children’s Court’s capacity to monitor progress in achieving what the care plan proposes will be diminished to Ashley’s disadvantage but I am satisfied that the Director-General is now as keen as Ashley himself to achieve a good result for him. Although she assures the court that this is not one of those cases where agencies simply refuse to begin the process of recruitment until a final order is made, Ms. Renshall is hopeful that a final order may assist in recruitment. However that may be, the Director-General is entitled to expect that this case will be completed without delay. Since at least 24 December, 2007, the Director-General has used her best endeavours to find a permanent placement for Ashley but, so far, to no avail. There is no reason to suppose that she will relax her efforts once a final care order is made or that Ashley will be disadvantaged by such an order. The implementation of the plan can be monitored by way of a report or reports pursuant to section 82 and, if the court is not satisfied that proper arrangements have been made for Ashley’s care and protection, it may order the case to be brought before it for the purpose of reviewing the then existing orders.

For the foregoing reasons, I think that permanency placement has not been appropriately and adequately addressed in this case but it is clear that the Director-General is in a position to do so by filing a fresh care plan enumerating and fleshing out her various proposals. These are well advanced and I think the matter should be brought back in three weeks in the hope that it can be completed then. If the matters to which I have referred find their way into the fresh care plan, there seems no reason why the Court would not then approve the care plan and make final orders as sought by the Director-General. I direct the Director-General to file and serve a fresh care plan dealing with permanency issues on or before 5 June, 2008 and the case is adjourned for further mention to 12 June, 2008.