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

The Wood Special Commission of Inquiry into the Child Protection Services in NSW reviewed the current system of making contact orders and concluded:

The NSW Government supports Commissioner Wood’s recommendation. As a result, the Government presently proposes an amendment to s 86 of the Care Act limiting the Court’s power to make contact orders only in cases where restoration is a realistic possibility. Until the proposed amendment comes into effect, the court will retain its power to make contact orders in both cases where restoration is and is not a realistic possibility.

The Inquiry was informed that there appears to be some discrepancy in the nature of contact orders made by different judicial officers. The Inquiry noted that:

The Inquiry was of the view that discrepancies may arise not only as a result of unique circumstances of each care and protection case, but due to a lack of guidance regarding matters which judicial officers should consider, and the approach which they should adopt in making contact orders. As a result, the Inquiry recommended that:

A number of Children’s magistrates informed the court that they experienced some difficulties when faced with the task of making contact orders, and that these difficulties could be minimised by providing them with some guidance on how to approach these orders. In these circumstances, some form of guidelines would appear to be beneficial, both by informing magistrates of various matters which should be taken into account when making contact orders thereby leading to better informed decisions, and by ensuring consistency of the court’s decisions.

As the court will soon be limited to making contact orders only in cases where restoration is a realistic possibility, it is necessary to have regard to some of the literature which analyses the impact of contact on family reunification. In particular, a considerable amount of literature supports the notion that the greater the amount of contact between a child and his or her birth family, the stronger the likelihood that the child will return home. ^[12]It is important to note however, that some authors argue that while contact may be associated with reunification, it may not necessarily cause it.^[13] A variety of factors quite independent of contact will shape the ultimate decision to return a child to his or her birth family. As a result, in cases where the Court has determined on the basis of the evidence before it, that restoration is a realistic possibility, the studies suggest that orders encouraging frequent contact may further assist the child’s return to the family.

A number of studies have noted that frequent contact can have a significant impact on the child’s attachment to his or her birth family. As a result, a few studies have focused on the impact of birth family attachment on foster family attachment, and the extent to which any dual attachment produces loyalty conflict in turn causing behavioural and psychological problems for the child. The results of these studies are rather mixed. This may be in part due to different time periods over which these studies were carried out. That is, patterns of placement and contact may have been quite different twenty years ago from today. Equally, patterns may vary across countries. Further, it is difficult to compare sample sizes used in various studies. Nevertheless, these studies may be of some assistance in cases where the child is expected to return home, and should therefore be encouraged through various means including contact to retain some attachment to their birth parents, while developing an attachment to their new foster parents.

In 1990 Fanshel found that parental contact was positively related to children’s negative behavioural outcomes.^[14] His study concluded that children who had regular contact with their birth families had more emotional and behavioural problems both in their foster homes and as young adults.^[15] Fanshel hypothesized that the reason for the children’s greater disturbance may be that they come from highly dysfunctional families and that they may be drawn into their parents’ stressful life events or difficulties.^[16] However, as Leathers points out this hypothesis appears inconsistent with Fanshel’s earlier study which found that children with more frequent parental contact had greater adjustment problems in their foster homes and weaker attachment to their new families, even after controlling for the biological mother’s disturbance and capacity to function in the maternal role.^[17]

Poulin’s study concluded that frequency of contact fostered stronger biological family allegiance which in turn produced loyalty conflict.^[18] This finding was supported by a number of later studies which also concluded that while contact is beneficial to children in short term foster placements, children in long term foster care were likely to experience loyalty conflict when visited frequently as a result of having to manage allegiances to multiple parents. The impact of loyalty conflict is not only relevant in cases where a child is placed in permanent foster care. Children who are expected to return home eventually but who remain in foster care for an extended period of time are likely to experience the same difficulties as children who are placed in permanent care but who are frequently visited by their birth parents. These findings suggest that magistrates making contact orders in cases where restoration is a realistic possibility may face the difficult task of crafting orders which encourage family reunification while at the same time limit the adverse effect that frequent contact may have on children who spend a considerable amount of time in care. On the other hand, the findings imply that in cases where there is no realistic possibility of restoration, contact should be kept to a minimum so as to prevent the child from experiencing loyalty conflict.

On the other hand Cantos et al made the following findings in relation to children in care who display behavioural difficulties in their placements and were consequently referred to therapy:

Similarly McWey and Mullis found that children who were visited more frequently and who had higher attachment to their parents had “fewer behavioural problems, were less likely to take psychiatric medication, and were less likely to be termed ‘developmentally delayed’ than children with lower levels of attachment”.^[20]

In a most recent study, Leathers made the following findings in relation to visiting and it’s impact on loyalty conflict:

Leathers also noted:

Differences were also found between the effects that biological mother allegiance had on foster family allegiance of boys and girls. According to the study:

Aside from birth and/or foster family allegiance, foster parents’ attitude to contact visits was also found to have a direct impact on children’s behavioural problems. Foster parents who were opposed to, or anxious about contact, were more likely to have children with the greatest number of behavioural problems, whereas the opposite was true for foster parents who encouraged contact with the birth family.^[24]

Overall the study concluded that “frequency of parental visiting is not directly related to the emotional and behavioural problems of young adolescents who have been placed in non-relative foster care longer than a year”.^[25] Instead loyalty conflict was directly related to biological and foster family allegiance. Specifically “children who have strong allegiances to both their foster families and their mothers are likely to experience loyalty conflict, but also that loyalty conflict might be associated with weaker foster family allegiance”.^[26]

In light of the above findings it is not surprising that a number of studies have noted that children who were visited frequently and who had strong attachment to their biological families had more difficulty attaching to their foster family which in turn caused placement disturbances. These findings could have significant implications for the making of contact orders where restoration is contemplated. The literature suggests that children with strong birth family allegiance are most likely to experience loyalty conflict and placement disturbances. Given that family allegiance would be encouraged when a child is expected to return home, contact visits will need to be organised in a way that seeks to minimise loyalty conflict. Literature suggests that supportive foster carers may, to some extent, help minimise these difficulties. However foster carer support is an independent factor which may be difficult, if at all possible, to influence through court-imposed contact orders. On the other hand, the literature suggests that where restoration is not a realistic possibility, it may be more appropriate to reduce or even completely cease contact between a child and his or her birth family, as the emotional disturbance and difficulty of forming attachment to the foster carers may override the benefits of contact, and may not be in the best interests of the child.

A few studies have found that the longer children stayed in care the more likely they were to experience a gradual decline in contact with their birth families.^[27] Although Leathers’ study noted that stronger foster family allegiance resulted in less frequent maternal visits, the studies do not make it clear whether growing attachment to the foster family or increasing barriers to contact were the cause of reduced contact.

This is another factor which will need to be considered when making contact orders — if restoration is a case plan goal it will be necessary to ensure that the child is not placed in care for an extended period of time which may negatively affect the child’s contact with the birth family. Alternatively, contact orders may need to impose more frequent contact which could counter the effect of lengthy stay in foster care, as long as the frequency of visits does not lead to loyalty conflict.

A number of studies have found that kinship care encourages more contact than non-kinship care. In fact, according to Berrick et al “56% of children in kinship care received at least monthly contact visits, compared with 32% of children in non-kin care”.^[28] As a result contact orders for children in this type of care will need to reflect these differences.

Interestingly, despite increased contact between the child and his or her birth parents, children in kinship care tend to remain in care for longer than children in ordinary foster care. Kovalesky suggests that placing children in kinship care reduces the parents’ motivation to address their substance abuse or other issues which lead to the child’s removal.^[29]

If the court is of the view that the child should be restored to the family, it may be necessary to impose strict contact guidelines to ensure that the child’s placement with kin does not jeopardise his or her return to birth parents.

Where a child has been removed from his or her family as a result of physical or sexual abuse, contact visits will most likely need to be supervised in order to ensure the safety of the child. In addition, the following matters will need to be considered prior to making contact orders:

On the other hand where a parent has been imprisoned and the reasons for the parent’s imprisonment are not linked to the child’s removal, contact should proceed particularly if the parent is excepted to be incarcerated for a short time and reunification is a case plan goal. Consideration will however need to be given to the impact of visiting a parent in prison and other physical aspects of visitation in this unique setting.^[31]

Where the safety of the child is not an issue, the Children’s Court Clinic supports ample contact with the birth parent who is suffering from a psychiatric illness. Frequent contact reassures the child that his or her parent is coping with the separation and may also alleviate any fears that the child will develop the same psychiatric issues. If the child has inherited the parent’s mood or psychiatric disorder, contact can provide a forum in which the child can discuss their mental health with their parent, and gain a better understanding of how to cope with the illness or disorder. If the child has expressed a desire to have contact with the parent contact visits will help the child feel less powerless and insignificant about his or her situation.

In order to ensure the safety and welfare of a particular child, a contact visit may need to be supervised. Where the need for supervision is evident, the court is required to make that order and is not permitted to leave the requirement for supervision to the discretion of the Director-General of Community Services.^[32]

Finally, magistrates making contact orders will need to be conscious of the resource implications of their orders. While it is important that contact orders adequately address a child’s needs, it is also important not to make orders which may be too burdensome on either foster carers, birth parents or Community Services. Where a child cannot be placed in close proximity to his or her birth parents the cost of travel will need to be taken into account prior to making contact orders. As the Court of Appeal clarified in George v Children’s Court of NSW [2003] NSWCA 389, the court cannot order the Director-General of Community Services to bear the cost of travel incurred by birth parents in the course of attending contact visits.

The New South Wales Community Services Commission interviewed a number of children and young people in care as part of its “Voice of Children and Young People in Foster Care” project. The Commission was informed by the children who were interviewed that:

The Commission also found that:

In addition:

The importance of contact with birth family for children in care is evident from individual accounts reproduced in the report. Many of these accounts indicated strong feelings of sadness, frustration and confusion on the part of the child in care.^[43] On the other hand a young person who was placed with her own brother indicated that that was the best aspect of foster care.^[44]

Barnardos acknowledge the need for children in care to remain in contact with their birth families. Barnardos also recognise that a child’s need for contact does not remain static as they get older and that there is a need to regularly review contact plans and tailor them to the child’s specific needs. For example, Barnardos recognise that infants and very young children who have not formed a very strong attachment to their birth parents prior to removal will require less contact than children in their pre-pubescent or adolescent years. However, Barnardos also stress the need for a realistic understanding of the difficulties of finding and maintaining foster or adoptive families and the importance of encouraging the child’s attachment to the new family, particularly if the child is not expected to return home. According to Barnardos’ Establishing permanency for children — the issue of contact between children in permanent foster care and their birth families monograph:

Where a child is expected to remain in long-term care, Barnardos place paramount importance on the child’s need to form an attachment to their new family, rather than on maintaining contact with their birth family. While this position is understandable, magistrates making contact orders in cases where restoration is not a realistic possibility should still have regard to the views expressed to the Community Services Commission by children in care, including views of children who had been in long-term care at the time of the interviews, and who also indicated that they needed some contact with their birth family, at the very least for identity and information purposes.

For children who come from families with a history of mental illnesses, and who may be predisposed to developing a similar illness, contact visits can help the child deal with his or her removal from the family, understand his or her parent’s mental illness, and address, at an early stage, any inclination to develop similar thinking patterns to those of their parents.

Speaking of a child in these circumstances, a Children’s Court clinician explained the importance of contact in the following way:

Children’s mental health professionals also view contact as essential to a child’s development of identity and means of dealing with any experiences of loss. In particular the professionals state that:

However, they warn that the reverse is also true:

Community Services suggests that the following questions should be asked when making contact orders:

Once the above questions have been addressed and the overall relationship between the child and his or her parent/s has been assessed it is imperative to tailor contact arrangements to suit those needs and the nature of the particular relationship. The literature suggests that any prescriptive guidelines which do not adequately take into account the multifaceted nature of a particular parent child relationship, (like the ones proposed by CS), would not be an appropriate guide to making contact orders. Instead sufficient flexibility and judicial discretion needs to be permitted in order to create the most effective contact orders.

In Re Helen [2004] NSWLC 7 Magistrate Mitchell held that in making contact orders it is imperative to have regard to the particular circumstances of the case, and make orders which specifically address those circumstances. Magistrate Mitchell stated that the making of contact orders should be approached in the following way:

Magistrate Mitchell further held that the scarcity of foster placements as well as agency policies should not dictate the manner in which contact orders are made, nor should they be seen as more important than the child’s need for contact. His Honour specifically stated:

Once contact orders are made, they should be regularly reviewed. As Hess pointed out, contact will lose much of its treatment capacity if not “used flexibility in a carefully and continuously planned process”.^[50] Regular review should be left to Community Services who are best placed to monitor and review contact. However, the extent to which the Community Services will follow any prescriptions in relation to review of contact plans is questionable, particularly if the New South Wales experience mirrors that of other states. Gilbertson and Barber found that in South Australia annual case plan reviews were not conducted as frequently as prescribed by the legislation. In particular they found that “in 1998, 1999/2000 and 2000/2001, a review had been conducted within the last 12 months in [only] 47%, 40% and 48% of cases, respectively”.^[51] Given the importance of regularly reviewing contact plans and maintaining their flexibility, the court may need to involve itself in this aspect of contact orders as well.