A READER S GUIDE TO THE CARE AND PROTECTION JURISDICTION

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1 A READER S GUIDE TO THE CARE AND PROTECTION JURISDICTION The Care and Protection jurisdiction is an often undervalued and misunderstood jurisdiction. This is despite the fact that decisions are made in the Care and Protection jurisdiction which have a far reaching impact on children, their families and society in general. Statistics: The number of children in out of home care in Australia rose by almost 115% from 14,470 in June 1998 to 31,166 in June 2008 The rates of children in out of home care ranged from 4.2 per 1000 in Victoria to 8.4 per thousand in New South Wales In New South Wales there were 5,603 children in out of home care in In 2008 this figure soared to 13,566 Across Australia of those children removed, 48% were in foster care, 45% were in relative of kinship care and 5% were in residential care. The rate of Indigenous children in out of home care was almost 9 times the rate of non indigenous children *Figures taken from the Australian Institute of Health and Welfare, Child Protection Australia What is the Care and Protection Jurisdiction?: Care and Protection proceedings concern the safety, welfare and well-being of a child. Whereas the Family Court usually deals with private disputes between families, the care and protection jurisdiction usually deals with disputes between the state and the family. For example, whether a child should be removed from his or her family and placed in long term foster care? Whether a child in long term foster care should have contact with her or her birth parents? At first instance, care and protection disputes are heard by a Magistrate in the Children s Court. On appeal, such disputes are heard in the District Court (s91). 1

2 There has recently been the creation of the position of President of the Children s Court. The President of the Children s Court is a District Court Judge however the President sits in the Children s Court and hears matters at first instance (and not as an appellant Judge). Appeals from the President of the Children s Court are heard in the Supreme Court (Children s Court Regulation 2009 Rule 5). Relevant Legislation: Proceedings before the Children s Court are governed by the Children and Young Persons (Care and Protection) Act 1998 The Act. Practitioners should also be familiar with the following: - The Children s Court Act The Children and Young Persons (Care and Protection) Regulation The Children s Court Regulation The Children s Court Rule 2000 Following the Wood Inquiry into the Child Protection system in NSW, Parliament passed the Children Legislative Amendment (Wood Inquiry Recommendations) Act Some of the changes recommended in the Wood Inquiry Recommendations Act 2009 are currently in force. Other changes have been delayed pending the outcome of various pilots (eg: the proposed changes to section 86 contact orders). Children s Court Proceedings: In all actions and decisions made under the Act concerning a particular child or young person, the safety, welfare and well being of the child or young person must be the paramount consideration (s9). Proceedings before the Children s Court are heard in a closed court (s104b of the Act) Practitioners in the Children s Court remain seated when addressing the court. The Children s Court is not bound by the rules of evidence unless the Children s Court determines that the rules of evidence apply (s93(3) of the Act) 2

3 In any proceedings before the Children s Court, the standard of proof is proof on the balance of probabilities (s93(4). Proceedings before the Children s Court are not to be conducted in an adversarial manner (s93(1) of the Act). Proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit (s93(2) of the Act). The parties to the proceedings: Department of Human Services, Community Services (DoHS) The Department of Human Services, Community Services is the Department formerly known as DoCS. The Department of Human Services is a party to all proceedings in the care and protection jurisdictions. The Department of Human Services is said to be the model litigant and should conduct themselves accordingly. A Care application is an application for a care order (s60 definitions). Except as otherwise provided for under the Act, Care Applications are brought by the Director General of the Department of Human Services (s61 of the Act). Where there is an application to vary or rescind an already existing final order (pursuant to s90 of the Act) or to vary or rescind an interim order, the Department of Human Services, Community Services can be either the applicant or the respondent. Children: A child or young person has a right of appearance (s98). The child will usually have a legal representative appointed by the court (s99). A child under 12 years of age is presumed incapable of giving proper instructions (s99b). This is a rebuttable presumption. A legal representative for a child under the age of 12 will usually act as their independent legal representative. A child over the age of 12 years of age is presumed capable of giving proper instructions (s99c). This again is a rebuttable presumption. A legal 3

4 representative for a child over the age of 12 will usually act as their direct legal representative. Parents and significant others: A person having parental responsibility for a child has a right of appearance in care and protection proceedings (s98). Where a person does not have automatic standing under the Act, they can seek to be joined to the proceedings on the basis that they have a genuine concern for the safety, welfare and well-being of the child (s98 (3)). If the Court forms the view that the person satisfies the test under s98 of the Act, the Court then has the discretion to join the person. When considering whether to join a person to the proceedings the Court, in the exercise of its discretion, often considers the following factors (subject of course to the paramountcy principle); - Whether the joinder will cause further delay? - Whether the applicant to the joinder has an arguable case? - Whether the applicant to the joinder brings a unique voice to the proceedings? When a person is joined to the proceedings, they then have the right to be legally represented and may examine, cross-examine witnesses on matters relevant to the proceedings (s98(3). Preliminary orders: Emergency Care and Protection Orders: Where a child is at serious risk of harm, the Children s Court may make an emergency care and protection order placing the child in the temporary care of the Director General of the Department of Human Services. This is a 14 day order however it can be extended on application for a further 14 days (s46). During the life of the emergency care and protection order it does not appear that Children s Court has the power to make contact orders between the child and his or her birth family. Such contact is left to the discretion of the Department. Care Applications: A Care Application is an application for a Care Order (s60 definitions). 4

5 Examples of Care Applications include: - an application that parental responsibility be allocated to the Minister until the child attains the age of 18 - an application that parental responsibility be allocated to the Mother to the exclusion of the father until the child attains the age of 18 - an application for a twelve month supervision order Care Applications are accompanied by a Report Initiating Care Proceedings (s61(2)(b). The freshly minted Children s Court of NSW Practice Note 2, 2 nd Am outlines the procedure for the Department s source documents to be made available to parties to the proceedings (known as stage 1 and stage 2 documents). Interim care orders may be made pending the Court s final determination of the Care Application (s62, s67, s69, s70). The recent Supreme Court decision of Re Timothy [2010] NSWSC 524 raises doubts as to the capacity of parties other than the Director General to apply to the Court for interim care orders unless specifically provided for under the Act. This decision suggests that the proper avenue for the parents to seek interim relief is via s90. At the first return date of a Care Application the Children s Court will usually make an interim care order placing the child in the parental responsibility of the Minister of the Department of Human Services, Community Services. This is often because the matter comes before the Court at short notice and parents have not yet had the opportunity to prepare a response challenging the concerns raised by the Departmental material. Establishment phase: There are two main phases of Care and Protection Proceedings. The first phase is often referred to as the Establishment Phase. It involves the threshold question: Is the child in need of care and protection? A final care order (eg an order allocating parental responsibility, a supervision order or a contact order) in relation to a child may only be made if the Children s Court is satisfied that the child or young person is in need of care and protection (s72). The Children s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following (s71): 5

6 (a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason, (b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection, (c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated, (d) subject to subsection (2), the child s or young person s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers, (e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living, (f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children s Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service, (g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with, (h) section 171 (1) applies in respect of the child or young person, (i) in the case where the application for the order is made by filing a contract breach notice any presumption arising from the operation of section 38E (4) that the child or young person is in need of care and protection has not been rebutted. (1A) If the Children s Court makes a care order in relation to a reason not listed in subsection (1), the Court may only do so if the Director-General pleads the reason in the care application. (2) The Children s Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of: (a) a parent s or primary care-giver s disability, or (b) poverty. 6

7 Where a parent or a party contests that a child is in need of care and protection the matter is set down for an Establishment Hearing. Establishment is also referred to as a finding or a determination of the threshold question. If the court finds that a child is not in need of care and protection then the proceedings are dismissed. If the court finds that the child is in need of care and protection then the matter proceeds to the second phase of care and protection proceedings. The question of whether the child is in need for care and protection is rarely contested by parents. Most parents consent to a finding on a without admissions basis. This usually means that the parent accepts that the child is in need of care and protection however they do not necessarily accept the specific facts alleged by Department of Human Services, Community Services (see: decision of Re Dessertaine). Nonetheless, the importance of establishment phase was upheld in the decision of Price J in SB v Parramatta Children s Court [2007] NSWSC 1297 The establishment phase involves a determination of the need for care and protection, such as to warrant the intervention of the Court. It is a threshold issue. Lord Nicholls of Birkenhead in Re O (Minors), in the context of similar although not identical legislation in England (The Children Act 1989), said this (p1080 para 14):...The purpose of this threshold requirement is to protect families, both adults and children, from inappropriate interference in their lives by public authorities through the making of care and supervision orders. It seems to me that to deny a parent of a child the right to be heard on an issue which is fundamental to the determination of the need for care is to deny that parent natural justice. Disposition / Placement phase: If a matter is established (either by a concession or following a contested establishment hearing) the second phase of care proceedings commences. The second phase of proceedings is referred to as the welfare, placement, or disposition phase of the proceedings. Upon the formal establishment of a matter a timetable is then set for the exchange of material. The Department of Human Services, Community Services is required to prepare a Care Plan. A Care Plan contains an assessment of 7

8 whether, in Department s view, there is a realistic possibility of restoration of the child to his or her parents (s78). If the Department contends that there is no realistic possibility of restoration then the Department is required to set out its plans for the child. Parties have the opportunity to respond to the Department s Care Plan. If you are acting for a parent (or significant other) such a response is usually by way of affidavit. A party can of course prepare affidavits from other witnesses in support of their case. A party may also wish to consider applying for an order for a clinic assessment as to the capacity of a person seeking parental responsibility (s53, s54) Once parties have filed and served their responses to the care plan, a Dispute Resolution Conference is usually held (sometimes referred to as a section 65 conference or, using the old terminology, a PC ). Such conferences are held by a Registrar of the Children s Court. Following the Wood Inquiry Recommendations Act, it is envisaged that there will be greater referrals to external mediation (s65a). If the matter cannot settle then it is set down for a final hearing. At the final hearing, the Children s Court must decide whether to accept the assessment of the Director General of the Department of Human Services as to whether there is a realistic possibility of restoration to the child s parents (s83(5)). Where the Children s Court does not accept the assessment of the Department of Human Services, the Children s Court may direct the Department to prepare a different Care Plan/ Permanency Plan in line with the Court s findings (s83(6). The meaning of realistic possibility of restoration was recently considered by Johnstone DCJ in the matter of Saunders and Morgan (date of judgment 12 December 2008) There are aspects of a possibility that might be confidently stated as trite. First, a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible. The section requires, however, that the possibility be realistic. That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon unlikely hopes for the future. Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words sensible and commonsensical. Furthermore, the determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration. The object import notions of safety, welfare, well-being, health, 8

9 needs, a safe and nurturing environment, and the like. Section 9 and other sections set out the principles to be applied. At present, the Children s Court has the power to make the following orders (not limited to): - an order allocating parental responsibility (s79) - an order for supervision (s76) - an order for contact (s86) - an order prohibiting certain action (s90a) - an order accepting undertakings (s73) - an order for costs in exceptional circumstances (s88) Practitioners should be aware that the Children and Young Person s Care and Protection Act has been significantly amended following the Children Legislative Amendment (Wood Inquiry Recommendations) Act Controversially, in the future the Children s Court (and District Court) may not retain its current powers to make contact orders. Permanency planning: The Children s Court must not make a final care order unless it expressly finds that permanency planning for the child or young person has been appropriately and adequately addressed (s83(7). In the decisions of Re Rhett and the later decision of Re Ashley (23 May 2008) Mitchell SCM identified the applicable test in permanency planning: What should be provided is material from which the court can see a reasonable clear picture of the way ahead for the child in the foreseeable future (adopting the test of Lord Nicholls of Birkenhead in Re S (Minors)(Care Order; Implementation of Care Plan) and others (2002) UKHL 10; [2002] l FLR 815. The magistrate recognised cases where the Director-General doesn t know and cannot reasonably be expected to know what lies in store for the child. Following the Wood Inquiry, this has now been enshrined in law (s78a). "permanency planning" means the making of a plan that 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 (2) (e), 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. 9

10 (2) Permanency planning recognises that long-term security will be assisted by a permanent placement. (2A) A permanency plan need not provide details as to the exact placement in the long-term of the child or young person concerned but must be sufficiently clear and particularised so as to provide the Children s Court with a reasonably clear picture as to the way in which the child s or young person s needs, welfare and well-being will be met in the foreseeable future. (3) A permanency plan for an Aboriginal or Torres Strait Islander child or young person must address how the plan has complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13. (4) If a permanency plan indicates an intention to provide permanent placement through an order for sole parental responsibility or adoption of an Aboriginal or Torres Strait Islander child or young person with a non- Aboriginal or non-torres Strait Islander person or persons, such an order should be made only: (a) if no suitable permanent placement can be found with an Aboriginal or Torres Strait Islander person or persons in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13, and (b) in consultation with the child or young person, where appropriate, and (c) in consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation and the local Aboriginal or Torres Strait Islander community, and (d) if the child or young person is able to be placed with a culturally appropriate family, and (e) with the approval of the Minister for Community Services and the Minister for Aboriginal Affairs. Recession and variation of final orders Section 90 Applications: An application to rescind or vary a care order may be made with leave of the Children s Court (s90). 10

11 The Children s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was last made or varied. If the Court finds that there has been a significant change in relevant circumstances then the Court has the discretion to reopen the original orders. When considering whether to vary or rescind an order the Court is mandated to take into account the following matters (s90(2a): - the nature of the application - the age of the child or young person - the length of time that the child or young person has been I the care of the present carer - the plans for the child - and whether the applicant has an arguable case In practical terms, a section 90 leave hearing is usually heard as a stand alone hearing. If leave is granted, there is usually a second hearing in relation the actual variation or rescission of the original orders. Where a client has little prospect of success at the original final disposition hearing, it is important to remind the client that they can seek leave in the future to reopen the matter provided they can demonstrate a significant change in relevant circumstances and that they can convince the Court to exercise its discretion to reopen the proceedings. Such reopening can be in respect of restoration of the child and/or contact a variation of contact arrangements. In S v DoCS [2002] NSWCA Davies AJA (with whom Hodgson JA and Heydon JA agreed) stated: I should observe that a person seeking leave to apply for the rescission or variation of a care order is not required to prove on such an application that, if leave were granted, the person would be entitled to the order sought. The first step is to simply establish that there has been a change in circumstances sufficient to justify the consideration of an application for recession or variation of the care order. Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children s Court must take the following matters into consideration: (a) the age of the child or young person, (b) the wishes of the child or young person and the weight to be given to those wishes, 11

12 (c) the length of time the child or young person has been in the care of the present caregivers, (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 (s90(6). If a child has been in foster care for a considerable period of time and has settled into his or her placement, it will usually take a lot of convincing for the Court to disturb that arrangement. Appeals to the District Court: Any party who is dissatisfied with an order (other than an interim order) of the Children s Court may appeal to the District Court (s91). In this sense, it is a relatively low threshold for appeal. A party simply needs to be unhappy with the decision of the Children s Court. An appeal is by way of new hearing and fresh evidence in addition or in substitution for the evidence on which the order was made may be given on appeal (s(91(2). Although it is a new hearing, the District Court will usually admit the transcript from the proceedings below (s91(3). The District Court has the same functions and discretions as the Children s Court under Chapter 5 and 6. Unlike the Children s Court, practitioners do stand when addressing the District Court. Where can I find further information?: Unfortunately there does not appear to be any text book which specifically relates to Care and Protection Law. Children s Law News is a useful website for finding precedents and papers on care and protection law. It can be found via the lawlink website at: Esther Lawson 4 th Floor Selborne Chambers 12

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