SNN v Department of Communities & Justice

[2024] NSWDC 393

District Court

New South Wales

Medium Neutral Citation:

SNN v Department of Communities & Justice [2024] NSWDC 393

Hearing dates:

28 August 2024

Date of orders:

2 September 2024

Decision date:

02 September 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs [147]-[148]

Catchwords:

CHILD WELFARE – care and protection – final care orders reposed all aspects of parental responsibility for child in the Minister for Families, Communities and Disability Services – Mother’s unsuccessful application for leave to appeal Children’s Court’s decision – appeal to District Court – whether ‘significant change in circumstances’ – evaluation of mandatory and additional considerations – whether arguable case

STATUTORY INTERPRETATION – consideration of significance of recent amendments in the Children and Young Persons (Care and Protection) Act 1998 (NSW) in ss 9A(2)(b) and 10A(b)(1) to applications under s 90 of the Act

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 9A, 10A, 71, 79, 90, 90(2A) - (2C), 90(2E)

Cases Cited:

C v Department of Communities and Justice [2021] NSWDC 479

In the matter of Campbell [2011] NSWSC 761

JL v Secretary, Department of Family and Community Services [2015] NSWCA 88

Re Jeremy [2017] NSWCA 220

Re Tracey [2011] NSWCA 43

S v Department of Community Services [2002] NSWCA 151

Texts Cited:

Nil

Category:

Principal judgment

Parties:

The Mother (Plaintiff)
The Secretary of the Department of Communities and Justice (Defendant)

Representation:

Counsel:
Ms L Saw (Plaintiff)
Ms G Bromwich (Solicitor Advocate, Defendant)
Ms E Canning (Solicitor Advocate, Independent Legal Representative)

Solicitors:
Rafton Family Lawyers (the Mother)
NSW Crown Solicitor’s Office (First and Second Defendant)
Legal Aid NSW (Independent Legal Representative)

File Number(s):

2024/00170825

Publication restriction:

Non-publication order pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Parents' and relatives' names are also anonymised.

 Decision under appeal 

Court or tribunal:

NSW Children’s Court

Jurisdiction:

Care and protection

Date of Decision:

18 January 2024

Before:

Children’s Magistrate Hayes

File Number(s):

2020/00101091

REASONS FOR JUDGMENT

Procedural background

1. This proceeding concerns an appeal against a decision of the Children’s Court (Parramatta) made on 18 January 2024 which, in substance, refused an application brought under s 90 of the Children and Young Persons (Care and Protection) Act1998 (NSW) (‘the Act’) for leave to rescind an order made by that Court on 4 May 2021 which placed the applicant’s son (‘the Child’) under the sole parental responsibility of the Minister for Families, Communities and Disability Services until the Child reaches 18 years of age.

2. The applicant for leave is the mother of the Child, who is now over 40 years of age. The Child is over 4 years of age (4 years and 5 months). The Child has been described by his mother as being of Tamil Indian and Sri Lankan maternal heritage and Chilean parental heritage.

3. The Child had been assumed into care on 27 March 2020, less than two weeks after his birth. He was born in Kuala Lumpur, Malayasia. His assumption into care was based on the grounds stipulated in ss 71(1)(a), (d) and (e) of the Act.

4. During her pregnancy, the DCJ had arranged for Mother and baby (the Child) to be placed in the ‘Blissful Babies’ accommodation service upon discharge from hospital after birth. There were reports raising concerns about the mother’s mental health and parenting capacity.

5. The Mother has two elder children, who were not the subject of the application to the Children’s Court. Those children had previously been removed from the Mother’s care in 2018 and were living in the Northern Territory with their maternal grandparents. The Mother had significant mental health episodes following the births of each of her elder children (including, without limitation, post-partum psychosis).

6. On 1 April 2020, DCJ initiated the care proceeding and on 3 April 2020, interim orders were made placing the Child under the parental responsibility of the Minister. A Care Plan was filed on 25 September 2020. Amongst other things it set out the DCJ’s reasons for its view that there was not a realistic possibility of restoration of the Child to the Mother.

7. In December 2020, a neuropsychological assessment was prepared by Dr Shelley Simpson. The Secretary relied upon the assessment in support of the contention that the Child should remain out of home care. Reference was made in the report to the other’s ‘Higher Level Executive Functioning’ deficits. Dr Simpson had noted that, over many years, the Mother had received professional services that identified conditions such as anger management, depression and anxiety as a teenager and even panic attacks requiring a range of medication. Other symptoms identified include paranoia, sex addiction, disinhibition, and impaired judgment possibly arising from mania. Dr Simpson anticipated that the Mother would have significant difficulty in parenting with her cognitive impairment, making it difficult to learn and implement new parenting skills without direct supervision and support.

8. Of particular significance, given the Mother’s reliance upon her own treating psychologist’s opinion, was Dr Simpson’s belief that any treating professional ought to be made aware of findings about her higher executive functioning deficit, social anxiety and panic attacks. I will return to this matter later in these reasons when considering the parties’ arguments about the weight to be given to Ms Cruikshank’s letter.

9. More generally, in terms of prognosis, Dr Simpson did not expect that the Mother would benefit from traditional counselling. She expected that the Mother would experience on-going impaired functioning in the areas of her learning, self-management, stable accommodation, self-care and social interactions.

10. On 4 May 2021, Richardson CM relevantly determined, pursuant to s 79 of the Act that all aspects of parental responsibility for the Child be allocated to the Minister until the Child reached 18 years of age (the ‘Care Order’).

11. In the events that have since occurred, the DCJ delegated primary case management parental responsibility for the Child to Barnados Australia, pursuant to a deed of arrangement. The DCJ remains responsible for decisions.

12. On 4 June 2021, the Child was matched with her current carers, who are now proposed adoptive parents. On 11 June 2021, the Child (then only 15 months old) was placed with his current carers and proposed adoptive parents (MW and PW). PW is a currently serving police officer. MW was formerly a serving police officer until the Child was placed in her care.

13. On 21 December 2021, a GP Mental Health Care Plan set out the Mother’s extensive pharmacological treatment regime, including the anti-psychotic drug ‘Seroquel’.

14. On 4 April 2023, Barnados filed an application in the Supreme Court of New South Wales, seeking adoption orders in respect of the proposed adoptive parents in respect to the Child (including an order for dispensing with the requirement for the parents’ consent) (the ‘adoption proceedings’).

15. By an application filed in the Children’s Court on 22 September 2023 made under s 90 of the Act, the Mother sought an order that leave be granted for her to apply to rescind the care order and, in lieu, sought an order that all aspects of parental responsibility be allocated to her. The Secretary opposed that application and on 18 January 2024 Hayes CM refused the Mother’s application. Hayes CM did, however, grant some relief in favour of the Mother but only partially in relation to the terms of contact; not restoration. On the aspect of contact, opportunity was given to the parties to make further representations and indeed, a form of dispute resolution has been proposed.

16. The issue of contact, however, was put in abeyance, or adjourned by the Children’s Court (to 17 September 2024) as a result of the Mother filing the summons that initiated the current appeal to this Court on 8 May 2024. This was in the circumstance that the parties provided what appeared to be a proposed contact agreement. By this appeal, the Mother seeks what she referred to in her supporting affidavit in support as a “second opinion”. The Mother was dissatisfied with the adequacy of reasoning given by the learned Magistrate on her application for leave to argue rescission of the final order made for parental responsibility.

17. The Secretary does not contest the Mother’s standing to bring this appeal and does not oppose her being granted an extension of time to bring the appeal.

18. On 12 August 2024, when this matter came before me in a call-over, I ordered the appointment of Ms Canning of Counsel to act as the Independent Legal Representative for the Child. Ms Canning had previously appeared in that capacity in the Children’s Court.

19. The adoption proceedings in the Supreme Court have been stood over for mention on multiple occasions, most recently, to 4 September 2024.

20. At the hearing of this appeal, the Mother was represented by Ms Saw (who did not appear for the Mother in the Children’s Court). The Secretary was represented by the solicitor advocate Ms Bromwich, and Ms Canning appeared as the Independent Legal Representative (‘ILR’). All legal representatives supplied the Court with written submissions in advance of the hearing, which I have marked. The Secretary’s submissions are MFI 1, the ILR’s submissions are MFI 2 and the Mother’s written submissions are MFI 3. Those written submissions were supplemented by oral submissions at the hearing.

21. A two-volume court book was supplied to the Court for the hearing of the application (Exhibit A); comprising amongst other things all of the documentary record in the Children’s Court proceeding and subsequent evidence in this Court. I indicated to the parties’ advocates that they should not assume I would refer to the contents of that Court Book that were not specifically alluded to. The appropriateness of this course has, in my view, been supported by the need for expedition in the determination of this appeal: a generally desirable outcome in litigation of this kind; and strengthened further by the concurrency of adoption proceedings in the Supreme Court. The advocates were content with that course. In the event, specific reference was only given by the parties to the Court to a small number of documents.

The Legislation and case law authority

General objects and purposes

22. As with all applications, I take into account the objects of the Act (s 8) and its principles (s 9), including, without limitation, the ‘paramountcy’ principle and ‘permanent placement principles’ in s 10A.

23. As Counsel for the Mother pointed out, since the proceeding in the Children’s Court had commenced, and indeed the Care Order was made, the Act had been amended on 25 November 2022, with the insertion, relevantly, of s 10A(b1).

24. Thereafter, on 15 November 2023, a new provision was inserted, by s 9A(2)(b), which ushered in the expression of the ‘principle of active efforts’.

25. No point was taken that these new provisions had no effect as they came into operation after this litigation had commenced. There was, however, debate as to their significance.

26. Section 9A provides:

“(1) The Secretary must act in accordance with the principle of active efforts in exercising functions under this Act.

(2) The "principle of active efforts" means--

(a) in taking action to safeguard or promote the safety, welfare and well-being of a child or young person--making active efforts to prevent the child or young person from entering out-of-home care, and

(b) for a child and young person who has been removed from the child's or young person's parents or family--

(i) making active efforts to restore the child or young person to the child's or young person's parents, or

(ii) for a child or young person for whom it is not practicable or in the child's or young person's best interests to be restored to the child's or young person's parents--to place the child or young person with family, kin or community.

(3) Under the principle of active efforts, the Secretary must also ensure active efforts are--

(a) timely, and

(b) practicable, thorough and purposeful, and

(c) aimed at addressing the grounds on which the child or young person is considered to be in need of care and protection, and

(d) conducted, to the greatest extent possible, in partnership with the child or young person and the family, kin and community of the child or young person, and

(e) culturally appropriate, and

(f) otherwise in accordance with any requirements prescribed by the regulations.

(4) Without limiting subsections (1)-(3), active efforts include--

(a) providing, facilitating or assisting with access to support services and other resources, and

(b) if appropriate services or resources do not exist or are not available--considering alternative ways of addressing the relevant needs of the child or young person and the family, kin or community of the child or young person, and

(c) activities directed at finding and contacting the family, kin and community of the child or young person, and

(d) the use of any of the following--

(i) a parent responsibility contract,

(ii) a parent capacity order,

(iii) a temporary care arrangement under Chapter 8, Part 3, Division 1,

(iv) alternative dispute resolution under section 37, and

(e) another matter, activity or action prescribed by the regulations.

(5) To avoid doubt, this section is subject to the requirement under section 9(1) that this Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

27. Counsel referred the Court to extrinsic material relating to s 9A. This was the Second Reading Speech of the then Minister for Small Business and Fair Trading (Mr V Dominello), relevantly as follows:

“… One key amendment is that the bill puts a positive obligation on the secretary to comply with a new principle of "active efforts" in section 9A of the Care Act. This specifically requires the secretary to make timely and targeted active efforts to prevent children and young persons from entering out-of-home care where it is safe to do so. Where children and young persons have been removed from their parents or families, the secretary must make an active effort to restore them safely to their parents or place them safely with family, kin or community.

This implements recommendation 26 of the Family is Culture report. This principle is modelled on legislation in the United States, the Indian Child Welfare Act of 1978. But, unlike the United States model, which creates a tiered system as it only applies to American Indian and Alaska Native children, the positive obligation on the secretary to make active efforts extends beyond Aboriginal children. It will apply to all children and young people. This ensures that the highest standard of practice is the norm and is applied consistently across the board. We want to get it right for Aboriginal children and all children…”

28. Counsel also referred the Court to recent changes to the hierarchical order of ‘permanent placement principles’ contained in s 10A(3)(a) to 10A(3)(b1).

29. Putting that in context, s 10A(1) defined "permanent placement" as meaning “a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person”.

30. By s 10A(2), subject to the objects in section 8 and the principles in section 9, a child or young person who needed permanent placement is to be placed in accordance with the permanent placement principles.

31. Returning then to the permanent placement principles which the Mother emphasised at this hearing, by s 10A(3) these were relevantly:

“(3) The "permanent placement principles" are as follows--

(a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship,

(b) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is with a relative, kin or other suitable person in accordance with a guardianship order,

(b1) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is placement with a suitable person or persons jointly in accordance with an order made under section 79(1)(f), with the support of the Secretary under section 153(1) or financial assistance of the Secretary under section 161(1),

…..”

32. The recency of these amendments is such that on the application for leave before me, none of the legal practitioners were able to indicate whether they had been judicially considered. That result accorded with my own (brief) research.

33. Counsel for the Mother also referred the Court to s 79(1)(f), which, outside the context of guardianship orders, authorises the Court to allocate all aspects of parental responsibility, or one or more aspects of parental responsibility, to “a suitable person or persons jointly”.

Applications to rescind or vary care orders

‘Significant change in ... relevant circumstances’ (s 90)

34. By s 90(2) of the Act, the Children’s Court may grant leave to rescind or vary a care order if it appears that there has been “a significant change in any relevant circumstances since the care order was made or last varied”.

35. The onus falls upon the applicant to demonstrate such change^[1] . It has been observed that the assessment features a comparison between the situation at the time the (s 90) application was heard and the facts underlying the decision when the order was made (or last varied)^[2] . In particular, there should be demonstration of a change of sufficient significance to justify consideration of the application for rescission or variation ^[3] . This is a threshold requirement that imports two findings. First, that the changes are ‘significant’ and secondly, that they are ‘relevant’^[4] . The Court must then determine whether, if the changes are both relevant and significant, the Court should grant leave by taking into account the mandatory considerations in s 90. ^[5] As a practical litmus test, for the applicant, the change must be of such significance that, if it was established, it would cause the Court to wish to alter the existing order. ^[6]

Mandatory considerations (ss 90(2B)- (2C))

1. JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 per Basten JA (Meagher JA agreeing) at [200]

2. S v Department of Community Services [2002] NSWCA 151 at [23]; applied in C v Department of Communities and Justice [2021] NSWDC 479 (‘C’) at [30]

3. C at [31]

4. Re Jeremy [2017] NSWCA 220 (‘Jeremy’) at [47]

5. C at [32]

6. In the matter of Campbell [2011] NSWSC 761 (‘Campbell’) at [45]

36. By ss 90(2A)-(2C) (incl) of the Act, the mandatory considerations for the Court on the current application are, first, the primary considerations in s 90(2B):

(a) the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views,

(b) the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements,

(c) if the Children's Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person.

37. In Re Tracey [2011] NSWCA 43, Giles JA (Spigelman CJ and Beazley JA agreeing) considered the expression “least intrusive form of intervention” linked the concept to the considerations in s 90(6)(c), (d) and (f) which may give weight to the desirability of preservation of an existing care arrangement (at [81]).

Additional considerations (s 90(2C))

38. By s 90(2C) additional considerations are:

(a) the age of the child or young person,

(b) the nature of the application,

(c) the plans for the child or young person,

(d) whether the applicant has an arguable case,

(e) matters concerning the care and protection of the child or young person that are identified in--

(i) a report under section 82, or

(ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150.

39. ‘Arguable case’, in this context, has been described as a case that is not merely capable of being argued, but one that is reasonably capable of being argued; in the in the sense that the case has some prospects of success ^[7] . In C, Dicker SC DCJ observed that when considering whether an applicant has demonstrated an arguable case, the Court may need to look ahead to s 90(6) considerations, to the extent that they are relevant (even if those considerations are not ‘mandatory’) ^[8] . As Slattery J described it, the applicant must establish a realistic possibility of restoration which is real or practical and not fanciful, sentimental or idealistic or based upon ‘unlikely hopes for the future’. ^[9] This is effectively the same test as for s 83(1) of the Act.

    7. Campbell at [50]

    8. C at [38]

    9. Campbell at [54]-[56]; C at [40]

40. The considerations to which Dicker SC DCJ referred in s 90(6), are:

(a) the age of the child or young person,

(b) the views of the child or young person and the weight to be given to those views,

(c) the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements,

(d) the strength of the child's or young person's attachments to the birth parents and the present caregivers,

(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

41. By s 90(2E), the Children’s Court may dismiss an application for leave if it is satisfied that:

(a) the application has no reasonable prospect of success, and

(b) the applicant has previously made a series of applications for leave (under s 90) that the Court has dismissed.

42. At the hearing, the Mother submitted, without opposition, that if I was persuaded to grant leave, the proceeding generally would need to be remitted to the Children’s Court for a final hearing. This, as will be explained, would inevitably lead to further delay in the adoption proceedings currently on foot in the Supreme Court.

The Evidence relied upon by the parties

The Mother’s evidence

43. The Mother prepared two affidavits in support, being 8 May 2024 and on 10 August 2024. The last affidavit reproduced much of the content of the former affidavit.

44. In the affidavit of 10 August 2024, the Mother addressed the issues identified in the Proposed Plan filed in the Children’s Court: (a) her mental health; (b) domestic violence; (c) parenting; (d) housing and (e) engagement with the DCJ.

45. Dealing with those matters, in the order that the Mother addressed them in her affidavit, her position was as follows.

46. As to (e) whilst maintaining her disagreement with the DCJ as to why the Child was assumed into the Minister’s care, she asserted that she continued to work honestly and openly with the Department.

47. As to (a), she asserted that she had continuously engaged with a psychologist, Helen Cruikshank on a fortnightly basis, from January 2022. This was done by telephone and the focus was upon her anxiety and depression. The Mother annexed a letter from Ms Cruikshank. The letter was in the form of answers to a questionnaire requested by the Mother’s solicitors. The document was dated 25 August 2023. Points that were raised by Ms Cruickshank were:

• In the period January 2022 to July 2023, she had had telephone sessions (only) with the Mother, initially on a fortnightly basis; then on a monthly basis;

• She had been informed by the Mother of earlier diagnoses for panic disorder (2013), post-partum psychosis after the birth of her second child (2016), social adjustment disorder (2020) and current anxiety (due to threatened adoption of her youngest child);

• The Mother was not taking any medication for mental health issues and was only being treated for situational anxiety;

• The Mother always attends and engages well with the counselling process; and

• Ms Cruikshank opined that the Mother’s mental health appeared to be stable; despite facing the loss of her child through adoption and has no support from her parents. She did not report mental health problems to Ms Cruikshank and was engaging in society to the best of her ability: she finished a retail course and had a job in customer service. Her mood was rated as 7/10 over the period of engagement. She had moved from Westmead to Lidcombe and was happier not sharing with a family.

48. As to (c), she had completed parenting courses: ‘My Kids and Me’ (March 2021); ‘Turning into Kids’ (March 2021); ‘Bringing up great Kids’ (September 2020) and ‘Circle of Security’ (December 2020).

49. As to (b), she had completed a ‘Healthy Relationships’ program. She annexed a certificate of participation of that course.

50. As to (d), on 30 June 2023, she had moved into shared accommodation in Lidcombe; where she had remained. She acknowledged that should the Child be restored to her care, she would need to find more appropriate accommodation that was not shared.

The Secretary’s evidence

51. Since the decision of the Children’s Court on 18 January 2024, the Secretary obtained an affidavit from Caitlin Lambourne, from Barnados, affirmed on 20 August 2024, running to 82 pages, including annexures. It suffices for me to summarise the features emphasised in the body of the affidavit.

52. Ms Lambourne referred to the Child’s Case Plan review, most recently held on 23 April 2024. She observed a close, warm and affectionate bond between the Child and the proposed adoptive parents, who she considered were the Child’s primary attachment figures. She heard the Child referring to them as his mummy and daddy. He was said to be “thriving” under their care.

53. She deposed to discussing the issue of the Child’s cultural identity. The adoptive parents are practising Catholics and attend weekly Mass. The Child is taken to Mass regularly. He is exposed to Spanish language and Chilean and Indian food. The cultural plan was updated and provided to the adoptive parents on 19 August 2024.

54. In terms of the Child’s education, he attends daycare 4 days a week. The daycare provider provided a very positive report on 15 December 2023 as to the Child’s sociability, participation in group activities and eagerness to learn. The proposed adoptive parents have made plans for the Child’s enrolment in primary school, beginning next year.

55. The Child has no reported health concerns and there are no concerns as to his development.

56. Ms Lambourne referred to contact with the Child’s maternal family. She noted that family time with the Mother occurs 12 times a year (a matter recognised with an amended maternal adoption plan proposed for the adoption proceedings). Ms Lambourne annexed a file note of one family time visit in April 2024, this being the Child’s “Little Kickers” (soccer) game (indicating she had not received notes of other contact visits). The gist of the file note was such that the Mother appeared to have engaged more in friendly conversation with the proposed adoptive mother than the Child; although in fairness, the Child was busy playing soccer. Nevertheless, it was apparent that there was little interaction between Mother and Child unless the Child was prompted to so engage.

57. She indicated that the proposed adoptive parents had issued the Mother invitations to join them and the Child at certain events. Reference was also made to the Child receiving visits from his paternal family.

Submissions

The Mother’s submissions

Significant change in circumstances?

58. All parties agreed that the starting date for the comparison is the date of the final orders of the Children’s Court (ie. 4 May 2021). However, in oral argument, the Mother argued that those final orders were sustained, for their reasoning, upon what was contained in the Care Plan (authored on 3 July 2020) and, as I understood her to argue, the grounds in s 71 for the Child’s original removal from her. In effect, it seemed to me, I was invited to assess change from the standpoint of when the Care Plan was made and to consider what the Mother had done in respect to the content of that Care Plan. Counsel argued that the Mother had taken many steps to deal with the matters identified in that plan, which were detailed in her recent affidavit of 8 August 2024.

59. The Mother had identified as the ‘significant change in circumstances’ (for the purposes of s 90(2)):

1. her completion of additional courses to the parenting course completed by 25 September 2020; these being the ‘My Kids and Me’ course (23 March 2021), ‘Tuning into Kids’ course (18 March 2021); ‘Bringing up great Kids’ (3 September 2020), and ‘Circle of Security’ (3 December 2020);

2. her completion of the Healthy Relationships domestic violence program and the circumstance that she had not been engaged in any relationships featuring domestic violence;

3. her continuous engagement with her psychologist, Ms Cruikshank and the latter’s positive report about the stability of her mental health (notwithstanding the prospect of losing her child through adoption);

4. her completion in August 2022 of a retail course and current study about Business;

5. her move into shared accommodation in Lidcombe in June 2023, where she remains; and

6. her ‘honest’ and ‘open’ dealings with the Department whatever differences in opinion she holds about their decisions.

60. In oral argument, the Mother also argued that the s 71 grounds had been adequately addressed.

61. Her Counsel submitted that the Mother had made sufficient significant changes. She is available to care for the Child without impairment; is able or likely to meet the Child’s basic physical, psychological or educational needs and the Child is unlikely to suffer from serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he would be living.

62. When asked by me as to how these steps could be measured for their impact upon her parenting capacity, Counsel for the Mother referred to the reports of the (positive) quality of the contact visits and the absence of any (troublesome) ‘issues’ arising in connection with those visits.

63. Counsel for the Mother also emphasised that this current application was only one for ‘leave’. If there were omissions from her evidence, say, as to her mental health and stability, and any transitional plan away from the current carers, they could be developed in a final hearing in the Children’s Court. On the aspect about her mental health specifically, it was sufficient for the Mother to rely upon Ms Cruikshank’s letter. This point applied to the threshold requirement of ‘significant change’ and also the mandatory considerations.

64. Further, in oral argument, the Mother’s Counsel argued that the issue of cultural heritage was significant. Counsel referred to the recent cultural plan annexed to Ms Lambourne’s most recent affidavit (20/8/24) and criticised its adequacy. The Mother questioned the cultural appropriateness of the placement with the proposed adoptive parents. The maternal carer is not of Tamil or Sri Lankan background. The Mother had Malaysian ties. The Care Plan, insofar as it concerns cultural matters, does not provide for how those ties and his Tamil Indian and Sri Lankan ties can be retained. In particular, no provision was made to preserve or reflect the Mother’s Malaysian ties. Further to the extent that the Mother’s part Indian heritage was reflected, it was not upon the Tamil aspect of that heritage.

Mandatory considerations

The construction point

65. On a point of construction, Counsel for the Mother submitted that s 9A(2)(b) “prioritises” consideration of the preservation of the Child’s biological family, by restoration to it where that is practicable and in the Child’s best interests.

66. Counsel for the mother submitted, in particular, that when a Court adjudicates upon a s 90 application to rescind earlier care orders, a purposive construction of ss 9A and 10A indicated that priority needed to be given to the consideration that restoration to the biological family was the desirable objective.

67. As to the considerations in s 90(2B), the Mother acknowledges, firstly that the Child is not sufficiently mature of age for his views or wishes to be given determinative weight (s 90(2B)(a)).

68. Whilst acknowledging the circumstance of the Child being in the care of the proposed adoptive parents for most of his young life, the Mother emphasised the reports of positive contact visits with the Child; and also her constructive relationship with the carers. The Mother also pointed to some evidence of the Child identifying that he has “two mummies” and “two daddies” which was an indication of his developmental awareness of his biological family and the strength of his continuing ties to them. Acknowledging the importance of the stability of current care arrangements, this needed to be balanced against the Child’s interest being placed with his biological family (s 90(2B)(b)).

69. The Mother submitted that the consideration concerning the imperative of the ‘least intrusive intervention’ (s 90(2B)(c)) would, consistent with the objects and purposes of the Act (as amended), be such as to place the Child with his biological family; and more particularly, his Mother (the only biological parent bringing the application). In the course of oral argument, Counsel for the Mother clarified that her objective was to seek the sole parental responsibility for the Child.

70. Culturally, the ‘least intrusive’ course was to restore him to the Mother.

71. The Mother argued that, in terms of her future planning, she was prepared to take such other steps as were necessary, but emphasised that this was an application for leave. Such steps could be taken in the lead up to a final hearing in the Children’s Court. In terms of her planning for accommodation, for example, between the grant of leave and the hearing, the DCJ would be responsible for providing support to her and the Child. Further she emphasised the likelihood of there being a transitional period of between 1 year and 2 years even after final orders providing for restoration.

Arguable case

72. By reason of the above matters, it was submitted that the Mother had an arguable case for leave for rescission of the final orders made on 4 May 2021 to allow for the restoration of the Child to her care. Her Counsel suggested, indeed, that once the jurisdictional requirement in s 90(2) was met, it follows that she had established an arguable case for leave.

Significance of the adoption proceeding

73. I understood the Mother to argue that the subsistence of a current adoption proceedings in the Supreme Court would not weigh on the exercise of the Court’s discretion on this application. The reality is that the Supreme Court cannot finalise that proceeding unless litigation in this Court has been concluded.

The ILR’s submissions

74. The ILR joined the Secretary in opposing the grant of leave. The Mother had failed to demonstrate significant change in her own circumstances in relation to her mental health and parenting capacity since the final orders were made.

Significant change in circumstances?

75. The ILR argued that the focus for evaluation of this issue was not whether or not the Mother had addressed or dealt with the suggestions in the Care Plan, but what she had done since the final orders were made on 4 May 2021. Thus, participation in parental or other programs before that date was beside the point. As was also pointed out by the Secretary, the ILR emphasised that some of the parenting courses referred to by the Mother had actually been completed prior to the making of the Care Order in the Children’s Court in May 2021. At any rate, the mere completion of those courses, although commendable, could not support a finding of significant change.

76. The ILR’s main point on this threshold question, however, was that the Mother had not adequately confronted Dr Simpson’s report, which chronicled her chronic mental health, history of trauma, cognitive issues and negative mental health prognosis.

77. Like the Secretary, the ILR attacked the weight to be given to Ms Cruikshank’s opinion. It was not apparent that Ms Cruikshank had been made aware of the Mother’s psychiatric history, multiple hospital admissions and prior treatment with anti-psychotic medication. No acknowledgment or reference was made to the Mother’s mental health diagnoses over two decades. It was not apparent that the treating psychologist was even aware that the Mother had received specialist mental health care. From all this, the ILR invited the Court to infer, the Mother had been selective in what she had disclosed to Ms Cruikshank.

78. Also, alarmingly, the ILR observed that the Mother had not explained the circumstances in which she had been prescribed an anti-psychotic drug in December 2021 or indeed, whether she continues to take that drug (as well as the SSRI, Paroxetine).

79. No (serious or substantial) expert evidence was put in response to Dr Simpson’s report. Dr Simpson’s report, the ILR emphasised, was that of someone who was essentially a single expert in the Children’s Court proceeding and was based upon voluminous material. Ms Cruikshank’s answers to a one-page questionnaire were not insufficient to carry real weight; even on a leave application. The Court should, the ILR submitted, follow Hayes CM’s view (manifested at T 24.6) about the limited weight that could be ascribed to Ms Cruikshank’s opinion (in the context of a leave application). Further, the ILR emphasised that despite that clear indication from Hayes CM, the Mother had still not sought to update evidence from that which had been given by Ms Cruikshank. The implication was that Ms Cruikshank’s opinion was not only insufficient, in responding to Dr Simpson’s comprehensive report, but also stale. Whatever be the case, the ILR submitted that the Mother’s omission to provide a properly informed mental health assessment responsive to Dr Simpson’s opinions was fatal for the Mother’s requirement to prove the requirement of a significant change of circumstances.

Mandatory considerations

80. The ILR submitted that the Mother had also failed in respect to the primary considerations under s 90(2B)-(2C).

The construction point

81. The ILR submitted that the recent legislative amendments to ss 9A and 10A did not ‘lower the bar’ for the Court when considering a s 90 application. Specifically, if Parliament intended that the articulation of those objects was to be a substantive factor on such application, it might have been expected to result in express change, for example, to the matters in s 90(2B) and (2C); yet there was no alteration to those provisions. Properly understood, however, the ‘active efforts’ principle and permanent placement principles could be accommodated within the matters referred to in s 90(2B)(c).

82. The ILR further emphasised that there is a difference of focus when determining an application under s 90 than what there was in terms of an original care application. The latter was, by its nature, an inherently prospective and predictive exercise; the former was substantially retrospective and curative in the light of altered circumstances.

Addressing the statutory considerations

83. The ILR submitted:

1. Ms Lambourne’s evidence indicated that the Child was stable and happy with his foster parents and was meeting developmental milestones (in his daycare) whilst spending time with his biological family. The Child had resided in a stable foster placement for three years. This was not a case where the Child had been through various placements. Through the adoption proceedings, the carers were in the process of attempting to make the placement a permanent home. As I understood the ILR to submit, the making of an adoption application in the Supreme Court was indicative of the carers’ commitment to the Child which itself was a manifestation of the security and stability they had brought to him.

2. The extent that the Child described the Mother as one of two ‘mummies’ (or his biological father as another ‘daddy’) has no weight. The fact was that he had no demonstrable memory of ever living with the Mother. The Child identified his foster parents as this ‘mummy and daddy’. They were clearly the Child’s attachment figures. Distressing though it was likely to be to the Mother, the reality was that the foster parenting system had provided the Child with a stable, nurturing and loving family and home.

3. Removing the Child from his placement now would give rise to a significant disruption to his identity, his secure attachment to his caregivers and to his daily life and routine.

84. In oral argument, the ILR did not wish to discount the fact that the Mother’s contact visits were positive. I will touch upon this factor again below when referring to the Secretary’s position. But the ILR emphasised that no point had been raised by the Mother that the carers and proposed adoptive parents had denied her the opportunity to develop her relationship with the Child. They were, in fact, endeavouring to foster it.

85. The ILR emphasised that the Mother had not put forward any substantial evidence of her plans, should leave be granted. In particular, she did not provide evidence of what support(s) she would receive upon restoration; where she would live; how she would manage the Child; including meeting his needs; or what her intentions were in relation to the preservation of continuing contact with the carers.

86. The only offering that the Mother had raised at this hearing was the prospect, should leave be granted, that the Department would be responsible for ensuring accommodation. But the ILR, rather bluntly, submitted that the last time the Department had taken steps to provide for accommodation at or around the time of the Child’s birth; the experience was disastrous.

Arguable case?

87. The ILR submitted that no ‘arguable case’ was established. That conclusion could be founded upon findings that:

1. (assuming, against the ILR’s primary position, that the threshold requirement in s 90(2) was satisfied), there had not been much significant change;

2. The likely impact upon the Child of the disruption; and

3. The absence of evidence to manage the Child (and other planning).

The Secretary’s submissions

88. The Secretary relied upon their Solicitor Advocate’s written submissions. In oral argument, the Secretary’s solicitor generally supported the oral submissions of the ILR.

89. The Secretary submitted that there has not been significant change in relevant circumstances. The mandatory considerations (in s 90(2A) and s 90(2B)) weigh heavily against the grant of leave. In particular, the Mother does not have an arguable case for the Child to be placed under her sole parental responsibility.

Significant change in circumstances?

90. The Secretary responded to the circumstances that the Mother had relied upon in her s 90 application before the Children’s Court; and also her subsequent evidence. These matters were identified as:

1. her completion of parenting and domestic violence courses;

2. her engagement in counselling;

3. her consistent attendance in contact visits;

4. her commencement of casual employment (at McDonalds) in February 2024;

5. her completion of a Certificate III in retail and commencement of an online study in Business (Customer engagement)

91. As to the completion of parenting courses, like the ILR, the Secretary disputed that this circumstance does not post-date the final orders of the Children’s Court. The only course post-dating those orders was the Mother’s attendance in a ‘Healthy Relationship’ course which is not so much directed at parenting as opposed to domestic violence. But even if completion of courses could be regarded as a change in circumstance, at its highest, the circumstance would be relevant to improved parental capacity. Still, there was no evidence of actual improvements, to the extent that they may apply to parenting of the Child.

92. In oral argument, the Secretary’s advocate recognised that there might be difficulty, at least in the abstract, with demonstration of parental capacity, or the capacity of the particular child. That might be more so when the Mother has (but for the contact visits) not been an enduring influence upon the Child’s life. The Secretary suggested however, that demonstration might be made by the Mother, in practical ways, by indicating what she had learnt from her involvement or participation in programs; expressing insight into the matters that led to the Child’s removal in the first place. Here, the Secretary submitted, these matters were missing from the Mother’s evidence.

93. The Secretary further submitted that the Mother’s engagement in therapy, though laudable, was limited, in terms of its level of engagement and was not probative. Rather, it relied upon (in effect), her own self-reporting. There had been no reference to the circumstances that had originally led to the Child’s removal; and therefore no opinion about their currency. Dr Simpson had remarked upon the Mother’s impairment in executive function and, regrettably, the circumstance that her difficulties could not be ameliorated through therapy. Dr Simpson’s prognosis remained unchallenged. To the extent that Ms Cruikshank formed a more positive view about higher level functioning deficits, the basis forming that opinion was not transparent; other than the reference to the Mother’s self-reporting. Ms Cruikshank’s opinion was also more than a year old. Though the Secretary did not doubt the Mother’s attendance at therapy, there was no recent evidence of real therapeutic gain.

94. The Secretary acknowledged the Mother’s persistent attendance at contact sessions and completion of tertiary courses and maintenance of stable accommodation, but individually or in combination, they did not present as significant changes to circumstances. Her attendance at contact sessions was factored into the Children’s Court assessment, but the concern, not proven to be addressed, was the Mother’s capacity to meet the Child’s needs; including meeting set routines. The Secretary cited the Mother’s apparent acknowledgment that her current accommodation set up was unsuitable for the Child and her unspecified plans for alternative accommodation were only aspirational; and were not demonstrable of a real change. It appeared she was living in shared accommodation. Further, the Mother’s completion of tertiary training was already apparent in the Children’s Court proceeding. The completion of further tertiary courses had limited direct relevance to the Child.

95. Responding to the Mother’s oral submissions, echoing the ILR’s point, the focus was not upon the Mother’s compliance with the Care Plan and the concerns expressed in it. The suggestions or recommendations were not ends in themselves such that their accomplishment would be indicative of sufficient change.

Mandatory considerations

The construction point

96. The Secretary accepted that a general legislative object is restoration of the Child to biological family. This had already been reflected in placement principles, prior to November 2022.

97. Addressing the mandatory s 90(2B) considerations, the Secretary submitted:

1. The Child’s still very young age militates against his views carrying significant weight;

2. As to the duration and stability of the Child’s present care arrangements, the Child has spent all but a few months of his life with his carers. The carers’ commitment to the Child was demonstrated by the adoption proceedings. The Child’s case manager, Ms Lambourne observed a “close, warm and affectionate bond” between the Child and carers (identifying them both as his ‘mummy’ and ‘daddy’). His daycare educator has reported on how well the Child is thriving in that environment and testified to the strength of the carers’ relationship with the Child. He is meeting all developmental milestones.

3. In relation to what is the least intrusive form of intervention, that would be to leave the status quo for current living arrangements. Even if (contrary to the Secretary’s submission) the Mother did demonstrate significant improvements in her parental capacity, it would be highly disruptive to transfer the Child into her care. He would not only lose his most substantial parenting figures; but would lose his home and features of his current life.

Additional considerations

98. Addressing the considerations in s 90(2C), the Secretary submitted:

1. The Child is currently at a vulnerable age. He depends almost entirely upon adults to meet his physical and emotional needs. He is at a point where, whilst he is likely to be cognisant of effects of separation from his caregivers, he would not be old enough to understand the reasons for it. If he was to be removed from his carers, he would require ‘attuned, child-focussed and empathetic parenting’. By implication, it appears the Secretary submits that the Mother cannot provide that to the Child.

2. The Mother’s application is such that no transitional period is proposed that would provide for the Child’s ongoing contact with his carers (or within his paternal family).

3. In terms of the Mother’s plans for the Child, the Mother did not articulate any other than the Child’s return to her care. In particular, there was no plan for the Child to access therapeutical support. The Secretary reiterated that there were no specific plans for the Mother’s stated aspiration to live in more stable and child-friendly accommodation.

4. On the important consideration concerning proof of an ‘arguable case’, the Secretary submitted that there was no evidence of this. The Mother had not acknowledged concerns about her parenting capacity that led to the Children’s Court’s final orders; let alone shown how or whether those concerns would have dissipated if the Child was restored to her care. More tangibly, she did not identify formal sources of support (beyond telephone counselling) or less formal support through social connections. The Secretary posited that it was doubtful whether the Mother really understood the challenges ahead of her. All of this had to be compared with the circumstance, as the Secretary described it, that the Child is settled and thriving under his carers and the risks of what would occur if he was removed.

The significance of the adoption proceeding

99. The Secretary canvassed various possibilities in outcome having regard to this proceeding and the concurrent proceeding in the Supreme Court. There was, the Secretary’s advocate argued, clear factual overlap. One thing was clear: if the Adoption proceeding succeeded, that would effectively end any application for rescission. The Secretary observed that the circumstance that proceedings in the Children’s Court needed to be concluded meant that the Adoption proceeding was effectively stalled.

100. If the Adoption proceeding failed, however, there would be no necessary impediment to the Mother bringing another s 90 application should this one be rejected. The Secretary noted that the Mother could not and did not suggest that rejection of the current application for leave would lead to irremediable prejudice.

101. The stalling of two proceedings was undesirable and not in the best interests of the Child and the carers; given the lingering uncertainty.

Consideration

102. In what I am about to state, in no way do I intend to diminish or devalue the Mother’s love for the Child. Nor would I dismiss the application on the basis that it is ‘frivolous, vexatious or an abuse of process’ (s 90(2D) of the Act).

Significant change in circumstances?

103. Considering developments since 4 May 2021, I am not persuaded that such changes as there have been in the Mother’s position since then, individually or in combination, are sufficient, or ‘significant’ as to meet the threshold requirement for leave.

104. I substantially agree with the Secretary that an applicant’s purported compliance with recommendations or suggestions in a care plan of September 2020 is not enough to satisfy the requirement. Those recommendations and suggestions do not amount to a checklist for the purposes of surpassing the threshold in the statutory provision. No representation, express or implied, is provided that satisfaction of concerns identified in such plan automatically provides the gateway to a successful rescission application.

105. Without wishing to gloss over the meaning of ‘significant change’, to my understanding, an evaluative assessment of the changes are identified what is material, for the purpose of this provision, is demonstration of real and effective change; that those matters that an applicant has attended to are effective in their impact. It remains the case, as the Secretary pointed out, that the Mother has not demonstrated any real appreciation or insight into the circumstances that led to the Child’s removal. Indeed, it appears, despite strong (objective) evidence to the contrary, that the Mother still believes that it was wrong for the Child to be removed from her care when he was.

106. It is no complete answer to this concern that the Mother’s reported positive contact visits are proof of significant change. Those visits have arisen in a very controlled environment.

107. It is not sufficient, or at least persuasive, for the purpose of attaining the threshold, for an applicant to subjectively believe, and assert, that such changes as s/he has made are significant. Thus, the Mother’s bare assertion in her affidavit of 9 January 2024 that attendance at courses has provided with a “thorough understanding of (the Child’s) developmental needs and how I, as his Mother, can support him” is merely conclusionary and carries little weight.

108. I also substantially agree with the ILR that whatever other things that the Mother has done do not offset the outstanding questions regarding her mental capacity lingering after Dr Simpson’s report. That report was a thorough and fully informed assessment by a medical specialist. Sadly, it contained a very negative prognosis for the Mother. The report was prepared in December 2020. It appears that Dr Simpson was treated as if she was a single expert in the Children’s Court.

109. In my opinion, whilst I acknowledge that I am only entertaining an application for leave, which implicitly recognises the possibility of the Mother wishing to adduce further evidence on a final hearing (if leave was granted), I also have to take into account the circumstances of the history of this litigation, including its age and also the fact that I am dealing with an appeal from a s 90 application determined over 6 months ago. As I raised in oral argument, it might have been expected that the Mother would have put forward the strongest case she could on an appeal from the Children’s Court’s decision. Subject to my other observations of Ms Cruikshank’s report, and whatever else might be said about it; plainly it did not purport to provide a competing opinion to Dr Simpson’s report. Even after Hayes CM’s critical commentary on Ms Cruikshank (18/1/24, T24.38), in January this year, the Mother did not heed those criticisms by furnishing more convincing evidence.

110. I agree with the criticisms made by the Secretary and ILR of Ms Cruikshank’s answers to the questionnaire. Specifically, I find that her opinion was based on incomplete information. It was striking that it appeared that Ms Cruikshank was not even referred to Dr Simpson’s thorough report. There was missing from Ms Cruikshank’s letter an understanding of or reflection upon the Mother’s long history of mental health concerns and also treatment regimes, which were very serious in nature (including anti-psychotic treatment). It is, specifically, troubling to note that no explanation has been given about what has happened about that treatment regime, either in the letter Ms Cruikshanks prepared now over a year ago, or closer to the hearing of this appeal. The Court, in dealing with the present application, is entitled to expect recognition of past treatment and an evaluation, if there be change to it, what the effects of that change are.

111. Generally, the parenting and other courses referred to by the Mother do not, in fact, constitute any new development.

112. The Mother’s educational attainments, as indicated by her certificates are laudable, and I do not mean to devalue them when I say that they have peripheral relevance to the current application. There is, for example, no indication of what practical uses the Mother proposes to put the courses (which themselves are practically oriented) in terms of employment in a way that would provide a basis for assessing the Mother’s financial wherewithal or resources to look after the Child if he was restored to her.

113. I do not regard the Mother’s point about cultural heritage as being convincing. It was not referred to in her most recent affidavit. The Child’s heritage represents an amalgam of diverse cultural traditions. It may be accepted that the cultural needs of the Child must be addressed, and they have been. That a biological parent from whose care a child has been removed may point to the circumstance that the new carers are unable to replicate exactly the former cultural influences is not to the point. It was not suggested that, to the extent that the Mother wishes to have the Child exposed to Malaysian cultural influences (which she did not articulate), or the values or beliefs of Tamil Indians, it is not apparent that from the contact that she has with the Child, she could not herself try to instil or inculcate them. I agree with the submission that the carers have diligently been open-minded about exposing the Child to cultural influences that go beyond their own cultural and life experiences. Moreover, as the Secretary argued, if the matter is so material, the Mother is not impeded in approaching the Children’s Court. In the absence of any constructive suggestion by the Mother as to what might be done, in this appeal, in relation to this issue (which, as the Secretary also suggested, appeared rather belatedly), I do not think it is appropriate for me to say much more on the subject.

114. To reiterate, I am not persuaded that the threshold requirement in s 90(2) is satisfied. This application may be refused on that basis alone.

115. In case I am wrong in this conclusion, I now address the other matters raised by the parties.

Mandatory considerations

The construction point

116. A leave application does not provide the proper vehicle to venture definitive views upon the interpretation and application of the recent amendments to ss 9A and 10A of the Care Act. Nevertheless, as all parties addressed those changes, it is appropriate to touch on them.

117. To my mind, it suffices to say that I remain doubtful of the large proposition that those provisions should have a decisive substantive bearing (manifested by greater priority being given to their weight) on s 90 applications. There is, firstly, no specific textual linkage between the provisions. As the Secretary submitted in relation to s 9A, the provisions are directed to the responsibilities of the Secretary. They do not constitute any command to the Children’s Court. As to s 10A(3)(b1), the placement principles had previously provided, in the hierarchy, a general legislative direction as to what was preferential in terms of final placement (s 10A(3)(a)), and that preference was, by its terms, contingent. It is to be recalled that where a recission application is sought in connection with a care order which vests parental responsibility in the Minister after a child’s removal from his or her biological family, permanency planning placement principles under s 10A apply. For a s 90 application, it will be the applicant (here, the biological mother) who carries the onus of persuading the Court to restore the child to their care. This is after many supervening events in the child’s life. In such cases, it may be challenging to ascribe primacy to any suggested policy favouring restoration to the biological parents. Ultimately, it is the Child’s best interests that are paramount (s 9(1)) and there may be tension between that overriding imperative and an abstract ideal of restoration to the biological family.

116. As the ILR submitted, in both November 2022 and November 2023, Parliament did not see fit to alter the mandatory and additional considerations in s 90(2B)-(2C). It might have been thought that if, as the Mother argued, consideration of the placement principles, and ‘active efforts’ principle was to be regarded as paramount or should be accorded a higher priority than other mandatory or additional considerations, this would have been indicated in the express considerations.

117. Secondly, there is force in the Secretary’s reference to s 9A(5) insofar as it concerns the application of the ‘best efforts’ principle. In particular, there is no apparent policy or statutory purpose derogating from the paramountcy principle in s 9(1); focussing as the latter does generally on the safety, welfare and well-being on the Child.

118. Thirdly, it appears, by the reference to s 90(2B), that assessment of the Child’s best interests would generally, if not inevitably, feature consideration of the desirability of restoration to a member of the Child’s biological family anyway.

119. For these reasons, I do not consider that the enactment of the recent provisions have, as they were, automatically ‘shifted the dial’ in terms of the application of the primary or mandatory considerations in ss 90(2B)-(2C).

Section 90(2B)

S 90(2B)(a)

122. It is common ground that given his age, the Child’s expressed wishes, insofar as they could be ascertained, do not carry real weight. I am not satisfied that the Child has even been presented with a choice. I give this consideration no weight.

S 90(2B)(b)

123. I accept the submissions of the ILR and Secretary, that ever since the Child removed into care, the current carers have provided a consistently loving, nurturing, stable and safe environment for him for most of the Child’s life. This has had manifestly beneficial consequences for his health, social and educational development, as set out by Ms Lambourne’s affidavit.

124. The Mother’s response was two-fold. First, the contact visits suggest that she too, could provide this environment. Secondly, this consideration is outweighed by the priority the legislation accords to the desirability of restoration to biological family.

125. I have touched upon the latter consideration. It is enough to say that I do not find the Mother’s posited construction of the effect of those changes persuasive; let alone compelling. As to the former consideration, it is not really germane to this particular statutory mandatory consideration. The Mother’s argument is prospective; in effect, that she could, if the Child was restored to her, provide comparable care. But this particular statutory consideration is, however, focussed on experience since the Care Order was made. Even if I am wrong in this, for reasons expressed elsewhere, I am not persuaded that the Mother could, on the evidence in this application, provide comparable care to the current carers and prospective adoptive parents.

Least intrusive intervention (s 90(2B)(c))

126. I am comfortably satisfied that the least intrusive intervention requires the preservation of the status quo.

127. Whether or not, as the Mother submits, there is a legislative goal or objective, to see to it that a biological parent, who in a general sense, rehabilitates themself from the time a child has been removed from their care, has the child restored to them, it is likely that a rescission order will be highly disruptive. The Child, who still remains a very young boy, has lived with his current carers for nearly all but a few months of his young life. I consider that I can take it as a matter of common knowledge that he has no memory of actually living with his biological Mother. Controlled and supervised contact visits are no substitute. Nor is an appreciation in the Child – which has partly been fostered by the carers – that he has another ‘mummy’ of material weight in this context.

128. A further problem is that there is an absence of detail in planning aspects. It strikes me that the Mother’s accommodation arrangements are somewhat unstable (she herself recognises they would need to change if recission of the Care Order was made) and as was submitted, there is not only a lack of real or demonstrable insight into the matters leading to the Child’s earlier removal, but omitted from the Mother’s evidence is any consideration of aspects of what support she can provide for the Child and how she can supply it.

129. The Mother touched upon cultural influences and heritage under the rubric of this consideration. I repeat what I said earlier about this matter when dealing with the subject of ‘significant change’.

130. I do not find persuasive the Mother’s argument that, this being a leave application, the Mother can rely upon or expect further opportunity to present evidence of her planning.

Section 90(2C)

Child’s age (s 90(2C)(a))

131. I accept the Secretary’s submission that the Child is of an age that continuity is vital to his development. He is due to start primary school next year. He continues to remain substantially dependent upon his caregivers for all of his needs. It would be a large, probably seismic, development to substantially sever the connection that the Child has built up with his carers (especially in circumstances where the Mother has not given the Court any indication of her intentions as to the contact of those carers if a rescission order was made).

132. If he was to be removed, it would, as the Secretary also suggests, it be vital for the Mother, as applicant to demonstrate how she could make up for that loss, or diminution of connection. She did not persuasively do so.

Nature of application (s 90(2C)(b))

133. I have addressed this point sufficiently when considering the consideration in s 90(2C)(a) and it is unnecessary to repeat what I stated.

Plans for the Child (s 90(2C)(c))

134. I have referred, more than once, to the dearth of evidence on this application as to the Mother’s plans; as distinct from her aspirations.

Arguable case

135. I respectfully adopt the observations of Slattery J in Campbell and Dicker SC DCJ in C referred to earlier. I would also emphasise that although the test for ‘arguable case’ might appear to be a relatively low threshold, the strength of the case clearly affects the weight to be given to this ‘Additional consideration’. A case that is barely arguable is not likely to be persuasive.

136. The Mother had relied upon the circumstance that significant change had been demonstrated. I rejected that argument. She also raised the construction argument on the exercise of discretion. Without expressing final views on the matter, I have already indicated my belief that the point is not compelling; even though I accept that there is some force in a legislative desire to ascertain if a restoration to biological family members is desirable. That, however, is so fact-dependent and subject to so many contingencies is such that I cannot accede to the notion of priority that her Counsel urged upon me.

137. The Mother’s argument with reference to this consideration depends upon my acceptance of the aforementioned points and other arguments she raised. That has not, by and large occurred.

Section 90(6) considerations

138. At least some of the considerations in s 90(6)(a)-(c) have already been referred to. None of them support the Mother’s case.

139. For completeness, I will briefly consider the others.

140. As to s 90(6)(d), I find on the evidence before me, that there is, comparatively, a stronger attachment of the Child to its carers than to the Mother. That to my mind, is an inevitable consequence of continuous care for all but a very short period of the Child’s young life and the behavioural observations of Ms Lambourne.

141. As to s 90(6)(e), it also follows from earlier findings, that I am not satisfied that the Mother (the sole applicant) can provide the standard of care to which the Child has become accustomed.

142. As to s 90(6)(f), Dr Simpson’s opinions have effectively been unchallenged. I think that there is a not insignificant risk of psychological harm to the Child should the care order be rescinded.

143. Accepting the test that an arguable case presents a relatively low threshold, when evaluating the factors in s 90(6), I am not persuaded that an ‘arguable case’ arises. Put another way, on the evidence before me, I am not persuaded that there is a realistic possibility of restoration to the Mother. If I am wrong in that, however, the Mother’s prospects of success are not such as to significantly elevate the weight I attach to this additional consideration.

The significance of the adoption proceeding

144. Finally, I address the concurrency of the adoption proceeding. This presents something of a ‘chicken-and-egg’ conundrum for the Court. This Court does not know of the likelihood of success of the adoption proceeding; event though, as the parties all appear to accept, there is some commonality in the factual substratum. The Court accepts the Secretary’s submission that a grant of leave would draw out further already protracted litigation in the Children’s Court and stymie, indefinitely, the determination of the adoption proceeding.

145. In my view, this feeds into my observations regarding the ‘arguable case’ consideration; in the sense that the Court should not disregard the consequences, primarily for the Child but also for the carers and the Mother, of the grant of leave. If this Court refuses leave, the adoption proceeding will presumably shortly proceed to a hearing date. I do not expect that the Mother will be deprived of the opportunity to deploy arguments in the Supreme Court that she has run before me, in opposition to the relief sought in those proceedings. If her opposition is successful, there is no legal impediment to her bringing a future s 90 application in the Children’s Court. If she succeeds in her s 90 application, that will not bind the Supreme Court; and may not even have any influence at all given the statutory framework to be considered in that case. If the proposed adoption application succeeds, the Mother will not practically be in any worse position than she would be if the current appeal to this Court fails.

146. There are, as I suggested, various permutations but there is a real question, which is not capable now of being resolved, as to the utility of this appeal (otherwise than causing delay to the adoption proceeding). In that forensic context, it strikes me that it becomes of greater importance for the applicant for relief under s 90 to present her argument on the highest footing that it can be placed. I have alluded to certain omissions and weaknesses in the Mother’s evidentiary case in this Court. In short, the presence of concurrent litigation in another court involving relevant similar subject matter does not, in the circumstances, assist the Mother in her appeal in this Court.

Orders

147. For the above reasons, the Mother’s application for leave is refused.

148. The Court orders that:

1. The time for the applicant to commence this appeal is extended to 8 May 2024.

2. The Summons is dismissed.

3. The order of the Children’s Court of 18 January 2024 is confirmed.

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Endnotes

Decision last updated: 02 September 2024