Children’s Court of NSW Resource Handbook — Care and protection — articles

Attachment theory is now generally accepted in the field of child psychology. Following considerable empirical and research validation, it has become a pivotal consideration in the field of child protection and in care and protection proceedings in courts. Under the theory the earliest bonds formed by children with their primary caregiver/s (particularly before 4 years of age) have a profound impact upon the child (affecting neurological, physical, cognitive, emotional and social development), which continues throughout their life. The theory’s most important tenet is that an infant needs to develop a positive relationship with at least one primary care giver for social and emotional development to occur normally, and that further relationships build on the patterns developed in these first relationships.

The following is a description of attachment theory provided Mr Mark Allerton, Clinical Psychologist, who is the Director of the Children’s Court Clinic:

The critical importance of a child forming secure positive attachments in infancy and early childhood is partly the basis for the need for permanency planning under the Care Act (see ss 78A, 83 and 84) and requires that care proceedings, particularly when relating to very young children, be determined as expeditiously (and hopefully as successfully) as possible. The need for expedition in care hearings is a key feature of the Care Act. Principle 9(2)(e) provides:

Further, s 94(1) provides:

This need for expedition is reflected in the Children’s Court’s Time Standards which require that 90% of care cases are to be finalised within 9 months of commencement and that 100% be finalised within 12 months of commencement.

Section 71(1) of the Care Act provides that the 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”. (“Care order” is defined in s 60.) The finding that a child is in need of care and protection is sometimes referred to as “establishment”. Grounds upon which a child or young person may be found to be in need of care and protection are set out in the sub-section. Those grounds are not exhaustive.

Section 72 of the Care Act provides:

A finding that a child or young person is in need of care and protection is not a final determination as to the rights of the parties. The finding simply gives the court jurisdiction to make certain final care orders, for example, an order allocating parental responsibility under s 79 of the Care Act. The court does not have to make that finding before it can make an interim order: see Re Fernando and Gabriel [2001] NSWSC 905 per Bell J at [41] and Re Jayden [2007] NSWCA 35 at [74]. Nor does the court have to make that finding prior to registering a care plan under s 38 of the Care Act or registering a parental responsibility contract under s 38A of the Care Act.

Pursuant to s 83(1) of the Care Act, if the Director-General seeks a final order for removal of a child or young person, the Director-General must assess whether there is “a realistic possibility of the child or young person being restored to his or her parents” having regard to:

Curiously, s 83 does not expressly state that the court cannot make a final order for the removal of a child or young person unless the court has determined that there is no realistic possibility of restoration. But in my view, it is a necessary implication of the section that the court must make that determination before making a final order for removal of a child from the care of his or her parents. There is, however, an express requirement in s 83(7)(b) that, prior to approving a permanency plan involving restoration, the court must find that there is a realistic possibility of restoration.

In the vast majority of contested cases, which come before the Children’s Court, the central issue for determination, is whether there is a realistic possibility of restoration of the child or young person to their parents’ care.

As to the meaning of “realistic possibility of restoration” see Saunders and Morgan v Department of Community Services (NSW) (District Court of NSW, Johnstone DCJ, 12 December 2008); [2008] CLN 10. In the course of his judgment, Judge Johnstone referred to the following passage from the submission of the former Senior Children’s Magistrate Mr Scott Mitchell to The Special Commission of Inquiry into Child Protection Services in NSW (the Wood Inquiry):

In relation to this passage Judge Johnstone said at [12]–[15]:

Later in Re Leonard [2009] CLN 2 Mitchell SCM said at [30]:

If the Director-General applies to the court for a final order, not being an emergency protection order, for the removal of a child or young person from the care of his or her parents, the Director-General must present a care plan to the court before final orders are made: s 78(1).

The care plan must set out the allocation of parental responsibility; the kind of placement proposed and how it relates in general terms to permanency planning; proposed arrangements for contact between the child and his or her parents, relatives, friends and other relevant persons; the services that need to be provided to the child or young person and the agency designated to supervise the placement in out-of-home care: s 78(2).

As to the form and other required contents of a care plan see cl 22 of the Children and Young Persons (Care and Protection) Regulation 2012.

The court cannot make a final order for the removal of a child from the care and protection of his or her parents, or, for the allocation of parental responsibility in respect of the child, unless it has considered the Director-General’s care plan: s 80.

The requirement for the court to have a care plan before it does not apply to interim orders: Re Fernando and Gabriel [2001] NSWSC 905 at [45].

In Re Tracey, the Court of Appeal dealt with the requirements of a care plan. In that case the Department placed before the District Court on an appeal the same care plan that had been before the Children’s Court. That care plan proposed that the child was to be placed in the long-term care of two carers. However, since the matter had been in the Children’s Court, one of the two proposed carers had died and the care plan had not been revised so as to provide that the child was to be placed in the long-term care of the surviving carer only. Nor were the proposed orders for parental responsibility in the care plan amended. Giles JA said at [90]:

His Honour went on to say at [93]–[94]:

The decision means that a care plan will need to be very carefully scrutinised by the court to ensure that it accurately reflects the Department’s proposals with respect to allocation of parental responsibility, placement and contact arrangements. If the care plans fails to accurately reflect those proposals it may not be a valid care plan.

Where the Director-General assesses that there is no realistic possibility of restoration of the child to their parents’ care, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child and submit it to the court for consideration: s 83(3) of the Care Act.

If the Director-General assesses that there is a realistic possibility of restoration, the Director-General is to prepare a permanency plan involving restoration and submit it to the court for consideration: s 83(2).

The court is then to decide whether it accepts the assessment of the Director-General and if the court does not accept the assessment, it may direct the Director-General to prepare a different permanency plan: s 83(5) and (6).

Section 83(7)(a) of the Care Act provides that the 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”.

Sections 78A, 83(7A) and 84 deal with the meaning and requirements of permanency planning under the Care Act. Sections 78A(2A) and 83(7A) are recent amendments. These amendments mirror the applicable law concerning permanency planning as referred to in Re Rhett [2008] CLN 1 by Mitchell SCM, namely, that a permanency plan, whilst not needing to provide details as to the exact placement in the long-term of the child or young person concerned, must be:

See further in relation to these provisions: Re Hamilton [2010] CLN 2 (also at [3-1100]).

With respect to an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care, placement principles in s 13 of the Care Act provide a general order for placement with extended family and kinship groups. The effect of the principles is that if an Aboriginal child is to be placed in statutory out-of-home care, then priority is to be given to a placement with family or kinship groups in preference to other placements. However, pursuant to s 13(1), the general order for placement is “[s]ubject to the objects in section 8 and the principles in section 9”. The Aboriginal placement principles are not to be blindly implemented without regard to those objects and principles, in particular, the paramount interests of the child: see Re Victoria and Marcus [2010] CLN 2 at [49] [see also [3-1000]].

The Aboriginal placement principles only apply when the child “needs to be placed in statutory out-of-home care” as defined in ss 135 and 135A of the Care Act. Under s 135(3)(b), “out-of-home care” does not include any care provided by a “relative” unless:

The Regulations may prescribe what is not to be regarded as out-of-home care: (s 135(3)(c)) — see cl 28 of the Children and Young Persons (Care and Protection) Regulation 2012 (the Regulation).

Clause 4 of the Regulation defines “related” and “relative” for the purposes of the Care Act.

As to the meaning of “Aboriginal” and “Torres Strait Islander” see s 5 of the Care Act. Under the section “Aboriginal” has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983 and “Aboriginal child or young person” means a child or young person “descended” from an Aboriginal and includes a child or young person who is the subject of a determination under s 5(2).

Under the Aboriginal Land Rights Act, an “Aboriginal person” means a person who:

Section 5(2) of the Care Act provides that despite the definition of “Aboriginal person” in the Aboriginal Land Rights Act, the Children’s Court may determine that a child or young person is an Aboriginal for the purposes of the Care Act if the court is satisfied that that child is of Aboriginal descent.

As to the meaning of an “Aboriginal descent”, see Re Simon [2006] NSWSC 1410 per Campbell J where it was held that “descended” refers to “linear descent”. See also Re Earl and Tahneisha [2008] CLN 7 per Mitchell SCM where his Honour said at [13]:

In relation to the reliability of Aboriginal descent, Mitchell SCM referred to Shaw v Wolf [1989] 83 FCR 113 where Merkel J, when considering Aboriginality in the context of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), noted:

As to the operation of the placement principles generally see also: RL and DJ v DoCS [2009] CLN 3 per Garling DCJ.

The Wood Report found there to be significant inconsistencies across the State in the kinds of matters taken into account when making contact orders under s 86 of the Care Act. Accordingly, it was recommended that “evidence based guidelines” for contact orders be developed by the Children’s Court to assist Magistrates and to achieve a greater degree of consistency in the kinds of matters taken into account when making contact orders.

The Children’s Court has now developed these guidelines. The guidelines do not have the status of a Practice Note but are intended to be used purely as a guide. The guidelines seek to identify the variety of issues which may arise for consideration in making a contact order.

The guidelines are publicly available on the Children’s Court website.

Section 91(2) allows for a completely new hearing in the District Court. The sub-section refers to a “new hearing” (not a “rehearing”) and provides that not only may “fresh evidence” be given on the appeal but also “additional evidence” to the evidence led in the Children’s Court. The sub-section provides that the appellant may even adduce evidence on the appeal “in substitution for” the evidence led in the Children’s Court. There is no requirement in s 91(2) for leave before fresh evidence or additional evidence may be adduced on the appeal.

However, when you come to s 91(3) it is a very different picture. Under this sub-section, the District Court may determine that in conducting the appeal no fresh evidence may be adduced on the appeal and that the appeal is to be conducted only upon the transcript of the proceedings in the Children’s Court together with any exhibit tendered during those proceedings.

Whether a care appeal is to be conducted as a hearing de novo or a rehearing on the transcript appears to be a matter entirely within the discretion of the District Court. How then should the discretion be exercised? The District Court may take the view in a particular case that little has allegedly changed since the case was before the Children’s Court and that the appeal should properly be conducted on the transcript together with any fresh evidence. However, in a case where there appears to have been a substantial change in the situation of the parents and/or the child since the case was before the Children’s Court, the District Court may take the view that the appeal should properly be conducted as a completely new hearing.

However, the usual practice in the District Court is that a care appeal is conducted upon the transcript of the Children’s Court hearing together with any additional evidence admitted with the court’s leave. Practice Note DC (Civil) No 5 states at 2.1:

In relation to new evidence, cl 9 of the District Court information sheet for parties states as follows:

I would suggest that when an appeal is conducted upon the transcript from the Children’s Court, the District Court is required to have regard to the reasons of the Magistrate in which findings on credibility of witnesses may be found: see Paterson v Paterson (1953) 89 CLR 212 at 222–4 in relation to civil appeals generally.

Upon the hearing of an appeal, the District Court has, in addition to its functions and discretions that it has apart from s 91 of the Care Act (eg its functions and discretions under the Civil Procedure Act 2005 and the UCPR) all the functions and discretions that the Children’s Court has under Chapters 5 and 6 of the Care Act: s 91(4). Accordingly, an appeal hearing in the District Court is not to be conducted in an adversarial manner (s 93(1)); is to be conducted with as little formality and legal technicality and form as the circumstances of the case permit (s 93(2)); is not subject to the rules of evidence, or such of those rules as are specified by the court, are to apply to the proceedings or parts (s 93(3)). Further, the District Court may only make an order for costs under s 88 of the Act: see Costs orders below.

The decision of the District Court in respect of an appeal is deemed to be the decision of the Children’s Court and is given effect accordingly: s 91(6).

In relation to Care appeals to the District Court Rules rr 50.17–50.20 of the UCPR are also relevant. On the question of costs when appeal proceedings are discontinued also see r 42.19(3) of the UCPR: see Costs orders at [7] below.

On an appeal, the District Court may (subject to its functions and discretions under s 91(4)) confirm, vary or set aside the decision of the Children’s Court: s 91(5).

As stated earlier, the court cannot make a final care order unless it expressly finds “that permanency planning for the child or young person has been appropriately and adequately addressed”: s 83(7)(a). As an appeal in the District Court is to be conducted as either a re-hearing or a hearing de novo, if the District Court makes an order either for restoration or for long-term parental responsibility to be placed with the Minister, the District Court (like the Children’s Court) must expressly find that permanency planning for the child has been appropriately and adequately addressed by the Director-General before making a final care order.

Further, the court must not make an order allocating parental responsibility unless it has given “particular consideration” to the principle in s 9(2)(c) of the Care Act (the least intrusive intervention principle) and “is satisfied that any other order would be insufficient to meet the needs of the child or young person”: s 79(3).

The statutory requirement that, before making a final care order, the court needs to be satisfied that permanency planning for the child has been appropriately and adequately addressed, is an important requirement as circumstances pertaining to the child, the parents or the carers may have significantly changed since the matter was before the Children’s Court. If the Court is not satisfied that permanency planning has been appropriately and adequately addressed in the care plan, it should require the Director-General to prepare a revised or amended permanency plan.

An application to vary or rescind an order of the Children’s Court requires leave: s 90(1). A refusal of leave is an “order” for the purposes of s 91(1) of the Care Act: S v DoCS at [53] and accordingly, such refusal (or the granting) of leave may be the subject of a statutory appeal to the District Court.

In relation to the question of leave under s 90(1), the court may only grant leave “if it appears that there has been a significant change in any relevant circumstance since the care order was made or last varied”: s 90(1A).

Before granting leave, the court must take into account the matters in s 90(2A). One of those matters is whether the applicant for leave has an “arguable case”: s 90(2A)(e).

For a recent decision concerning the operation of the above provisions relating to the granting of leave under s 90(1) and the meaning of “significant change in any relevant circumstance” and “arguable case” in s 90(2A)(e) see: Re Troy [2010] CLN 2.

If the court grants leave, before making an order to vary or rescind a care order that places a child under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the court must take into consideration the matters set out in s 90(6).

With respect to appeals against a refusal by the Children’s Court to grant leave under s 91(1), in my view if the District Court upholds the appeal and grants leave it should remit the proceedings to the Children’s Court to determine the substantive s 90 application. Having granted leave the District Court would not have jurisdiction to hear the substantive application as the only “order” before the court (being the subject of an appeal under s 91(1)) is the order refusing leave. Further, if the District Court proceeded to hear the substantive s 90 application following it granting leave, the unsuccessful party on the substantive application in the District Court would be deprived of a statutory right of appeal.

Section 91(1) provides that a party cannot appeal to the District Court against an interim order. However, it appears that certain decisions made by the Children’s Court with respect to an interim order may be the subject of an appeal.

Section 62 of the Care Act provides that a care order may be made as an interim order or a final order, except as provided by Ch 5 Pt 2 of the Care Act.

Section 61(1) provides that “[a] care order may be made only on the application of the Director-General, except as provided by [Ch 5]”. An application for an interim order under ss 69 and 70 of the Care Act is an application for a care order: see s 60.

Section 70A provides that an interim care order should not be made unless the Children’s Court is satisfied that “the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings”.

Only the Director-General may make an application for an interim order under ss 69 or 70 of the Act: see s 61(1) and Re Timothy [2010] NSWSC 524 at [49], [52] and [57] per Rein J. In seeking an interim order under s 69, the Director-General must establish:

Section 69 relates to the making of an interim order which has the effect of removing a child or young person from the person or persons who have parental responsibility: Re Fernando and Gabriel [2001] NSWSC 905 at [48] and Re Timothy at [45].

An interim order under s 69 can only be made “after a care application is made and before the application is finally determined”. A “care application” is defined in s 60 to mean “an application for a care order”.

In making an interim order under s 69 placing parental responsibility in the Minister the court must also consider the least intrusive intervention principle expressed in s 9(2)(c) of the Act: Re Fernando and Gabriel at [50].

In relation to other interim orders (ie orders other than orders which have the effect of removing a child from the care of their parents or others having parental responsibility), the power to make such order derives from s 70 rather than s 69. Section 70 does not permit the court to make orders removing children from the care of the person or persons who have parental responsibility: Re Timothy at [46]. Under s 70 the court may make such other interim orders “as it considers appropriate for the safety, welfare and well-being of a child or young person”. Interim supervision orders (under s 76) and interim undertaking orders (under s 73) are examples of interim orders, which may be made under s 70 rather than s 69.

In Re Timothy, Rein J followed Re Elizabeth [2007] NSWSC 729 per Palmer J and Re Alan (2008) 71 NSWLR 573 per Gzell J which found that an application under s 90 of the Care Act to vary or rescind an order may be brought with respect to an interim order. However, in Re Edward (2001) 51 NSWLR 502 at [55] Kirby J came to the view that a s 90 application can only be made with respect to a final order.

In relation to variation or rescission of an interim order under ss 69 or 70 of the Care Act, in Re Edward Kirby J at [52] held that such an order can be varied by the bringing of a further application under ss 69 or 70. His Honour said in this way interim orders can be varied by going outside the scheme in s 90. This view of Kirby J was expressly approved in Re Fernando and Gabriel by Bell J at [49]. On this issue see the paper of Robert McLachlan, “Re Alan — Do the requirements of section 90 apply to any application seeking to vary or rescind an interim order?” [2008] CLN 7. In referring to Re Alan and Re Elizabeth, Mr McLachlan states:

While the weight of authority in the Supreme Court appears to be against Kirby J in Re Edward on the issue whether a s 90 application can be brought with respect to an interim order, his conclusion that a s 90 application can only be brought with respect to a final order has a great deal of force and seems sensible. His Honour’s view is supported by the terms of s 90.The whole scheme of s 90 requiring the granting of leave and requiring the consideration of a number of matters including the wishes of the child (s 90(6)(b)), the length of time the child has been in the care of the present caregivers (s 90(6)(c)), the strength of the child’s attachments to the birth parents and the present caregivers (s 90(6)(d)) and the risk to the child of psychological harm if present care arrangements are varied or rescinded (s 90(6)(f)) clearly suggests that the section is directed towards an application to rescind or vary a final order rather than an interim order.

The Care Act does not expressly require that any of the matters in ss 90(2A) or 90(6) be taken into account by the court when making an interim order. To obtain an interim order under s 69 the Director-General must only establish that “it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility”. Why then is it necessary for the multitude of matters referred to in ss 90 (2A) (re leave) and 90(6) (re the substantive application) to be taken into consideration in determining whether to vary or rescind an interim order?

The conclusion of Kirby J that s 90 does not apply to an interim order is supported by the very nature of an interim order. It has been held (in the context of interim orders made under the Family Law Act 1975) that at an interim hearing the court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process and ordinarily, at interim hearings, the court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties: see Cowling v Cowling (1998) FLC 92-801 at [18] and Goode & Goode [2006] FamCA 1346 at [66].

The inability of a parent to bring a s 90 application to vary or rescind an interim order which places the child under the parental responsibility of the Minister, would not disadvantage the parent. An interim order is made on the basis that it has effect until a specific time or “until further order”. The parent may therefore apply to the court at any time to seek discharge of the interim order without the necessity to proceed via the cumbersome and time-consuming procedures under s 90.

The reason I raise these issues about interim orders in a paper dealing with care appeals to the District Court is because as a result of the clear finding in Re Timothy that only the Director-General can bring an application for an interim order, we have recently been seeing more applications in the Children’s Court under s 90 brought by parents for variation or rescission of an interim order of parental responsibility to the Minister. Whilst there is no right of appeal to the District Court from an interim order, an order either refusing leave under s 90 or refusing the substantive s 90 application (after leave was granted) to vary or rescind an interim order would be an order which may be the subject of an appeal to the District Court: see S v DoCS at [52] and [53].

It is clearly incongruous that whilst there is no statutory right of appeal to the District Court against an interim order made by the Children’s Court, there should be a statutory right of appeal with respect to an order of the Children’s Court refusing an application to vary or rescind an interim order (or refusing leave to bring such an application).

I expect that in the future you may be seeing more appeals against such orders.

In ordering an assessment, the Clinic needs an assessment order with clear and unambiguous questions from the court. The Children’s Court will soon issue a new form of Assessment Application. This will be a useful model to help the District Court frame the questions that the Clinic can most helpfully answer.

The proposed new Assessment Application:

Clinic assessments are of greatest assistance to the court when the Clinic is asked to address specific and clear questions. Usually by the time a case has gone on appeal to the District Court, the issues which the Clinic is asked to address should be quite confined.

Problems can be encountered in preparing an assessment report when the parent is:

In each of these situations, a Clinic assessment may not be viable. For example, for a parent serving a lengthy sentence of imprisonment an assessment of parenting capacity would probably be of no utility. Further, it is extremely difficult (if not impossible) to carry out a proper parenting capacity assessment in the setting of a prison.

Following the making of an assessment order, all relevant documents must be sent to the Clinic as soon as possible together with the assessment order. Under the proposed Practice Note all documents upon which the assessment is to be based (which will be particularised in the Assessment Application and agreed to by all the parties) must be forwarded to the Clinic within 5 working days from the making of the assessment order.

The documents provided to the Clinic should provide the Authorised Clinician conducting the assessment with all relevant documents pertaining to the assessment being sought (including all prior assessments) and details of prior interventions. In addition to documents used to establish a case, other documents to be provided should include previous clinical assessments undertaken of the child, children or family (eg paediatric, psychological, psychiatric, social work assessments or reports, school reports, previous Children’s Court Clinic assessments and hospital discharge summaries relevant to the terms of the Assessment Order).

Assessment reports usually take six weeks to complete from when the Clinic receives the assessment order and all the relevant documents (“the file of documents”). This may need to be extended at the request of the Clinic due to case complexity, availability of clinicians, missed appointments, etc. It is obviously undesirable for the court to have to re-list a matter due to delays in the Clinic assessments, however, these delays can be avoided if the implications of conducting an assessment are considered carefully beforehand by the parties and the court.

In the event that an Authorised Clinician is requested by a party or parties to attend at court for cross-examination the court should ensure, by making appropriate directions, that the Clinician is requested to appear in good time, and also that he or she is provided with any updating documents early enough (no later than three weeks before the hearing) to be able to properly consider them before giving evidence.

Before a care case is listed for hearing it is important that the parties ensure that the Authorised Clinician (if required for cross-examination) is available to attend on a particular day. This may be done by either enquiring through the Clinic or directly with the Clinician. When the matter is listed for hearing, the court registry is to forward to the Clinic a Notice to Authorised Clinician to Attend Court (which is to be filed by a party requesting the attendance of the Clinician).

The Clinic website <www.lawlink.nsw.gov.au/ccc> has guidelines on the kind of questions that the Clinic can most usefully answer. It also has more detailed information to help develop Assessment Orders and requests for court appearance. You may contact the Clinic through its phone and fax numbers (Ph: 8688 1530, Fax: 8688 1520), and email address: childrens_court_clinic@agd.nsw.gov.au. The Clinic Director, Mr Mark Allerton, is very happy to discuss any matters relating to assessment orders and the Clinic with a judicial officer or a practitioner. He is also happy to give presentations on the Clinic to judicial officers and practitioners.

Recently issued Practice Note No 3 “Alternative Dispute Resolution Procedures in the Children’s Court” establishes the model under which internal DRCs are conducted: see [6-1020]. These procedures took effect from 7 February [2011]. The Practice Note also refers to the Bidura pilot. The Practice Note is available on the Children’s Court website [and a link can be found at [6-1020]].

The Practice Note states that DRCs are to be conducted by Children’s Registrars. DRCs are scheduled to run for a minimum of two hours, and personal attendance is required by:

DRCs are conducted as a conciliation process. In this sense, a DRC is a process in which the parties, with the assistance of the Children’s Registrar, identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. Under a conciliation model, the Children’s Registrar has an advisory role, but not a determinative one, and might, for instance, express views on what the Court may consider relevant if the matter goes to a hearing. The Children’s Registrar is also responsible for managing the DRC, including setting the ground rules, managing any apparent power imbalance between the participants and ensuring the participants conduct themselves appropriately.

The usual confidentiality arrangements apply to a DRC, pursuant to cl 19 of the Children and Young Persons (Care and Protection) Regulation 2012. Following the DRC, the Children’s Registrar will report back to the Court whether agreement was reached by the parties in relation to any issues, and, if agreement has not been reached, the Children’s Registrar will, in consultation with the parties, identify the issues remaining in dispute to allow the court to allocate hearing time.

Where all the parties have reached agreement, proposed consent orders will be prepared and provided to the Court at the next mention of the matter. The Court will then determine whether it is appropriate to make the consent orders which are sought taking into account the objects and principles of the Care Act as well as other relevant provisions of the Care Act. If the court declines to make the orders sought the Court will make directions for the further conduct of the matter.

The external mediation pilot commenced in the Bidura Children’s Court on 9 September 2010. A number of external mediations have now been held dealing with a variety of care and protection issues.

Mediations, unlike DRCs, are scheduled for a minimum duration of three hours and are conducted at Legal Aid’s Castlereagh St offices. Those required to attend an external mediation session are the same as those required to attend a DRC under s 65. Participants are also asked to sign a confidentiality agreement.

The Bidura Pilot will run for approximately 12 months. During this time, cases from Bidura that are suitable for mediation will go to the external mediation pilot, rather than a DRC.

Information sessions have been held for care and protection legal practitioners throughout the State. A pod cast recording of this information is available on the Children’s Court website.

Separate training has also been provided to Community Services staff.

Promotional material (including a DVD) is being developed for participants in both programs (including children and young people).

An external evaluation of both the new model of DRC and the external mediation pilot will be conducted, using a sample of 100 cases from each, and a control group of 100 cases that did not undergo any form of ADR. The purpose of the evaluation is to determine the costs and benefits of each model, and how they can best complement each other. Children’s Magistrates and Children’s Registrars will be consulted during the evaluation.

While the DRC model has only very recently commenced, the feedback from practitioners who have participated in the Bidura pilot so far has been very positive.

As the District Court, when conducting a care appeal, has all the functions and powers of the Children’s Court, the District Court may refer an appeal at any time to a DRC under s 65 of the Care Act or to external mediation under s 65A.

If the District Court wishes to refer a case to a DRC under s 65 to a Children’s Registrar in the Children’s Court, arrangements can be made through the Conference Co-ordinator on telephone (02) 8688 1471 or the conference assistant on telephone (02) 8688 1469.

Should the District Court wish to refer a case to external mediation under s 65A, enquiries can be made of Legal Aid as to whether it is able to refer the case to mediators on the Legal Aid panel. Alternatively, the Department may, in some circumstances, agree to funding other external mediation. For evaluation purposes, the Bidura external mediation pilot is restricted to cases referred from the Children’s Court at Bidura.

In relation to costs orders where appeal proceedings are discontinued, r 42.19(3) of the UCPR provides that the defendant’s costs in the appeal are not payable by the plaintiff unless the court finds there are “special circumstances to justify an order for their payment”.