Re Reuben

[2019] NSWSC 1855

Supreme Court

New South Wales

Medium Neutral Citation:	Re Reuben [2019] NSWSC 1855
Hearing dates:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	Orders made on 13 D2019ecember
Category:	Procedural and other rulings
Parties:	Secretary, Department of Family and Community Services (First Plaintiff) Minister for Family and Community Services (Second Plaintiff) “Mother” (First Defendant) “Father” (Second Defendant)
Representation:	Counsel: C McGorey (Plaintiff) D Ward (Child) K Renshall (Mother)   Solicitors: Crown Solicitors (Plaintiff) LegalAid
File Number(s):	2018/00034599
Publication restriction:	Pending further order, that there be no publication that would identify, or tend to identify, “Reuben” except for the purpose of the proper conduct of these proceedings (this order being made on the grounds specified in s 8(1)(a), (c), and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW)). This order applies throughout the Commonwealth.

EX TEMPORE Judgment

1. HER HONOUR: This matter is before me this afternoon for the continuation of certain orders that have been in place since February 2018 in relation to the care of a young child who has been referred to in the orders (and in previous documents in this case) as “Reuben” in order to protect his anonymity. In these reasons I refer to him as the young child.

2. The young child has been the subject of orders which permit him to be detained at certain secure residential accommodation and for arrangements to be in place for his education, for therapy and assessments and ongoing medical and other matters in relation to his care. An interim order for the allocation of parental responsibility for the young child to the Minister for Families, Community and Disability Services was made in February 2018.

3. For some time, the Department and case workers involved in the residential accommodation programme involving the young child have been engaged in what is referred to as “transition planning”, with a view to transition arrangements being arranged such that the young child could be placed into the care of his paternal uncle and his partner (his uncle and aunt) as authorised carers. That transition planning has been with the support and cooperation of the young child’s mother (who is separately represented in these proceedings), who has been positive and concerned in seeking what is in the best interests of the young child in circumstances where there are factors that make it difficult for the young child to live at the family home.

4. I make it very clear that the arrangements that have been put in place, and the arrangements that are proposed to be in place for the young child’s placement with his uncle and aunt, involve no negative reflection on the young child’s mother’s love and devotion for him. It is a testament to his mother that she has been prepared to work cooperatively in order to look after the young child’s best interests throughout. It has also been very positive that his uncle and aunt have been prepared to work with his mother, and with the Department and caseworkers, in order to seek to put in place a regime whereby the young child can have a secure place to live, supported by the caseworkers, and with continued contact with his family.

5. I have before me a confidential psychological progress report that has been prepared by a psychologist from Metro Intensive Support Services, Ms Susan Pike. Ms Pike has been involved in the young child’s therapeutic care and treatment for some time. Her report has detailed the young child’s progress to date, based on her ongoing interactions with the young child through individual therapy from August 2018 onwards and working with his extended care team. The psychologist has also provided training to the young child’s uncle and aunt in relation to the proposed transition to their care.

6. The young child has lived in the secure residential accommodation for nearly two years. The psychologist has reported that he found the transition to that accommodation difficult but he has gained and mastered many skills during his placement there. He has experienced a stable, supportive care team and has had access to allied health services and access to school; and he has had the opportunity to mix with other children his age who have experienced similar childhood trauma. (I should interpose to say that I commend those caseworkers who have been involved in the young child’s care throughout the period of his placement in the program.)

7. The report of the psychologist states that, in her professional opinion, the young child no longer requires the secure care at the level of his present placement in the abovementioned program and that any further time at the secure residential accommodation will result in a deterioration of the skills he has learnt there (the concern being that there will be increased school and “placement” refusal and in a deterioration of his behaviours, namely increased oppositional behaviour, property damage and increase in mental health concerns, including a decreased sense of self‑worth). Ms Pike, in her professional opinion, says that the young child is ready to have the opportunity to demonstrate how the skills he has learnt in his placement can be generalised within a family situation where supportive and attuned carers can support him in co‑regulation and further skill development.

8. As I have indicated earlier, an option that has been considered for some time, and an option that is with the full support of the young child’s mother, has been for him to live with his paternal uncle and his uncle’s partner in an area not too far removed from his family.

9. A carers’ assessment has been completed and this has highlighted some strengths of this being a successful placement but has also outlined certain difficulties. There has been work towards assessing how those difficulties can be met: in particular, support for a housing application for a larger house and provision of carer training to assist his paternal uncle and his partner to understand the potential challenges that they may experience with him.

10. There has today been a conference between family members, the caseworkers and the psychologist, to discuss the proposed transition plan with a view to what is in the child’s best interests in order to enable his settlement with his aunt and uncle on an interim basis pending (it is hoped) formal authorisation of the aunt and uncle as carers. I note (and will mark as exhibit A on this application) the agreed document which sets out the contract agreement made on 13 December 2019 in this respect.

11. One of the issues in relation to the proposal for transition to the full‑time care of the young child’s paternal uncle and his partner is the need to ensure an appropriate educational placement for the young child. It has been the strong recommendation of the psychologist, who has worked with the young child for some two years, that due to the young child’s significant educational challenges, he should repeat year 6.

12. This has been suggested because of a number of factors, including the young child’s limited schooling to date, his significant learning difficulties and the level of anxiety he experiences in terms of peer acceptance in schooling. Ms Pike has given the opinion that the advantages he would gain from repeating and remaining in primary school would mean that his learning difficulties and the associated behavioural difficulties could be catered for within a smaller school setting, where he will have the opportunity to gain additional support from a teacher’s aide and school counsellor, as well as the opportunity to make friends, who could transition with him to high school.

13. It is perceived that there is a greater risk that the young child will disengage from his education in a high school situation, given his fear of negative appraisals from others about his difficulties with education. It is also strongly recommended by this psychologist that the young child have the opportunity to start the educational year at a new school, so that he has the opportunity to get to know people and to receive the appropriate support from the beginning of the school year. If that is to be the case, then an access request for schooling needs to be completed prior to the end of this year (or, at the latest, by early next year) in order to secure the young child a placement, and to have appropriate supports in place, when he starts school next year.

14. I well understand that there are no doubt many factors that will be relevant when the Director General of Education considers a placement application for the young child in question, but I would add my strong support to the proposal for a placement that would involve the young child repeating year 6 and being able to start the beginning of the school year a new school (where it is hoped that he will be able to continue the year without disruption) in a local area, which will make practicable the transition to the proposed care placement with his paternal uncle and aunt.

15. I have had the opportunity, albeit only on one occasion, to observe the young child, and to hear directly from him. I well appreciate the concerns that Ms Pike has expressed in terms of the young child's anxiety and fear of negative appraisals in schooling, and I would lend my support and encouragement, to the extent appropriate, to a positive placement for the young child in a local school near his aunt and uncle, at the start of the next school year, to minimise difficulties in his transition from the secure residential accommodation where he is currently placed.

16. I have formed the opinion, having had the opportunity to observe the young child in court, that he is of a disposition that revealed some anxiety and (albeit that a courtroom setting is an intimidating setting for any child) I can well understand the views that have been expressed in relation to concerns as to his appropriate placement in a new school. It seems to me that he will benefit greatly if he is able to be placed in an appropriate school, in the local area, to start year 6 at the beginning of the new school term.

17. I have referred to the carer training. I am encouraged by the fact that there will be ongoing training available to the young child's parental uncle and partner, and that his psychologist will continue to work with him while he is in that placement, as will his care worker, Mr Ko, who has worked with him throughout the time that he has been at the secure residential accommodation.

18. I have referred to the care plan that has been agreed between the family members. I would emphasise that it is important, for a successful placement in his new care in the proposed transition placement, that the adults involved in the placement work together in order to minimise the stress that is likely to be experienced by the young child if he feels that his loyalty to one or other of his parents and those in a parenting role is in issue. The independent children’s representative has emphasised, and I have no doubt, that the young child has an enormous amount of love and affection for his mother, and will not wish his mother to be upset by the arrangements that are in place. I am encouraged by the fact that his mother is supporting him in the proposed placement. It is important that the young child not be confused or conflicted about where he is living and who is in charge and who sets the rules where he is living.

19. I consider that the transition plan that has been formulated, is one that is a positive plan: that supports increased time over the holiday period to support the young child form a closer relationship with the proposed full-time carers; and that the supervised contact with his mother and father, in the circumstances that are set out in the document plan, is also a positive step.

20. I note that the independent children’s representative’s opinion is that the young child’s anxiety will be lessened once the young child understands that there is a clear plan for transition in place, and I support that. I would ask that it be communicated to the young child that I am supportive of this placement, on the basis that all family members will work together to do the best they can, noting that any adjustment or change is difficult and particularly it will be difficult for a child in the young child's position. I would encourage him to stay positive and to work with his aunt and uncle on the one hand, and his family members on the other, to make this placement a success.

21. I will, for those reasons, make the orders in the short minutes of order.

22. I add to these reasons that I will make an amendment as necessary to the non-publication orders in order to permit disclosure of these reasons (on a confidential basis) in connection with the application for the young child’s placement in a new school in the area near his aunt and uncle, in connection with the proposed transition plan (to the extent that disclosure of the young child’s identity is necesssary). The plaintiff should forward short minutes of order to my chambers for that purpose.

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Decision last updated: 19 December 2019