Care and protection — allocation of parental responsibility — permanency planning — Children and Young Persons (Care and Protection) Act 1998 (Care Act) — appeal from a decision of a Presidential Children’s Court — four children of a separated couple are assumed into care in June 2022 — care orders made in August 2022 that the children were in need of care and protection under Care Act s 71(1)(a),(b) and (c) on the grounds that both parents were involved in physical abuse or ill-treatment of the children, threatened serious psychological harm to them and were not meeting their psychological needs — orders made by a Presidential Children’s Court in October 2023 allocating parental responsibility between the mother and the Minister for the two older children and in May 2024 orders were made allocating parental responsibility for the two younger children to the mother to the exclusion of the father — father appeals against all findings and conclusions of the Children’s Court — by the time of the appeal hearing the eldest child is 18 and outside the jurisdiction of the Children’s Court under the Care Act — whether the three children are in need of care and protection within Care Act s 72 — whether there is a realistic possibility of the three children being restored to the father within a reasonable period within Care Act s 83 — what orders should be made or continued under Care Act s 79 in relation to the parental responsibility of the children — whether prohibition orders made under Care Act s 90 in relation to the father should be varied — appeal dismissed.

Care proceedings — placement — best interests of the child — permanency planning — two viable placements.

Care proceedings — nature of the Court’s jurisdiction — s 83(5) Children and Young Persons (Care and Protection) Act 1998 does not restrict the Court in matters it may consider — not possible to determine a realistic possibility of restoration on the balance of probabilities — unacceptable risk caters for all considerations — the proper test to be applied is not that of “unacceptable risk to the child”.

Care and protection — allocation of parental responsibility — permanency planning — s 90A Care Act — special circumstances.

Care and protection — permanency planning and case management — permanency planning appropriately and adequately addressed — order of parental responsibility to the Minister.

Twin infants had healing fractures at multiple sites — most probable cause was the application of excessive force by a parent — parents unable to explain injuries and children were assumed into care and placed with their maternal great aunt — non-exhaustive list of factors in assessing safety at [53] — parents are intelligent, educated and engaged with services as recommended by the Department — parents have made the children available for medical assessments and reviews and have personally undertaken medical tests in search of a medical explanation for the injuries — parents have both attended psychologists to address concerns about their capacity to support their children — exposure of the harm will cause both parents to reflect on the way they have handled the children and to closely observe the other when handling the children — children’s maternal uncle and grandparents will remain connected to the children and are alert to any signs of physical distress — children attend childcare three days each week and are supported by a nanny — risk of harm has been sufficiently mitigated such that the children are likely to be safe in the care of their parents — realistic possibility of restoration of children to their parents.

Child assumed into care as newborn — parent has drug and mental health issues — unacceptable risk of significant harm — no realistic possibility of restoration — permanency planning — a plan must be realistic, reasonable and achievable and not underdeveloped, vague or aspirational to satisfy ss 78A(1)(b), (2A) and 83(7A) — child is of Ethiopian and West African heritage — permanency plan must sufficiently identify or address cultural needs — permanency planning not appropriately and adequately addressed.

Guardianship — two children being cared for by maternal cousin who did not want an order of guardianship — mother died, father relinquished care of younger child — no realistic possibility of restoration — care plans suggest Department would like to progress towards guardianship in the future — ILR for the younger child opposes care plan because permanency planning has not been addressed — Department of Communities and Justice and Teddy [2020] NSWChC 1 applies — meaning of the expression “a permanency plan involving guardianship” is one that has guardianship as a necessary or integral part or result, there must be a reasonable degree of inevitability about a guardianship order being made at an appropriate time in the foreseeable future — the plans proposed are not plans involving guardianship as permanency planning must be addressed — Department directed to file new permanency plans.

Adoption — child placed in a kinship foster care placement with the proposed adoptive parents after birth — no realistic prospect of restoration to parents — interim order allocating all aspects of Parental Responsibility to the Minister — Secretary filed a Care Plan proposing adoption — IRL not satisfied with permanency planning — found that adoption is premature and court cannot be satisfied the Care Plan addresses all the needs of the child — Plan not approved and Secretary invited to prepare a further Care Plan.

Care Plan to place child permanently with paternal aunt and uncle who have cared for child on an interim basis since birth — no realistic possibility of restoration to either of the parents — parents and ILR oppose making a short-term order which is proposed in Care Plan — permanency plan does not include guardianship, it merely proposes to consider guardianship in six months’ time — two conditions precedent to the making of a guardianship order: the consent of the proposed guardians, and a positive guardianship assessment — held that permanency planning has not been appropriately and adequately addressed and Secretary invited to prepare and file a further Care Plan.

Care Act s 91 — three children removed from parents and parental responsibility allocated to Minister — parents unsuccessfully appealed to District Court — no realistic possibility of restoration of children to either parent and permanent placement was determined to be in best interests of children — NSWCA has power of review in its supervisory jurisdiction pursuant to s 69 Supreme Court Act 1970 — no jurisdictional error nor any error of law on the face of the record in District Court — summons for judicial review dismissed.

Adoption — children placed with carers with a view to adoption — no realistic possibility of restoration to parents — Secretary proposed short-term care orders of parental responsibility to the Minister for two years with a view to adoption — parents opposed adoption — ILR contends that permanency planning is not achieved — proposed adoptive parents are highly regarded foster carers with extensive experience in caring for children in short-term, respite and emergency capacities as well as caring for children with delays or disabilities — adoption plan is real and not simply aspirational, not a case of a mere intention to adopt — unlikely adoption process will finalise within two years — Care Plan should place an onus on the Secretary to bring an application for rescission under s 90 Care Act if adoption is delayed or does not proceed — the permanency planning has not been appropriately and adequately addressed unless Care Plan has a mechanism to ensure a s 90 application is made — Secretary directed to prepare a different permanency plan.