Care and protection matters — practice and procedure

[2-0100] Contact guidelines for magistrates

These guidelines are intended to assist magistrates to identify issues to be considered in making a decision regarding contact in care and protection proceedings. They assume the law as it stood on [date] at which time the court had power to make contact orders regarding all care matters, both those involving restoration and those where there will be no restoration.

What is the purpose of contact

  • Restoration to the care of a parent or other carer?

    If an order that will result in restoring the child to a care of a parent is made, contact will need to be sufficiently frequent to maintain or develop the relationship between the parent and child.

  • Maintenance of a relationship which has some positive features

    Some parents will be unable to care for their child but will nevertheless be able to love and affirm the child and not undermine the placement with another carer. It is necessary to ask whether the frequency of visits enhance or destabilise the current placement.

  • Maintaining a sense of identity regarding kinship and culture

    For some children the benefit of contact will be primarily that they understand who they are in the context of their birth family and cultural background. Contact might also help ensure that they have a realistic understanding of who the parent is and do not idealise an unsuitable parent and develop unrealistic hopes of being reunited with them.

Look at contact from the child’s perspective

The focus must be on the needs of the child. How will the child benefit? Some benefit may be over long term ie providing the foundation for a relationship which will develop later.

Restoration contact

If contact is part of a restoration plan it must be sufficiently frequent to allow a positive healthy relationship between parent and child to be maintained or to develop. It will ideally be in a situation that is as natural and relaxed as possible. It may need to increase as restoration nears.

How old and at what developmental stage is the child?

Younger children will usually need more frequent contact for a shorter duration than older children to maintain a relationship. Older children may benefit more from less frequent (and thus less intrusive in carer family, sporting, cultural or friendship activities) contact of greater duration.

What are the child’s wishes regarding contact

  • How do they react to contact that is occurring?

    Often a child’s wishes can be deduced from their behaviour at contact. Older children should be able to express their views and care should be taken to ensure that this expression is not influenced. The child’s legal representative will have an important role here.

    Negative reactions immediately before or following a contact visit may not necessarily indicate that the child is not enjoying and benefiting from contact with their birth family, but that contact visits tend to bring out strong emotions in both the child and the parents and that any negative behaviours exhibited by the child may simply be an indication of their heightened emotional state. For recently removed children there may be some separation anxiety which will need to be addressed. This could involve gradually reduced contact or a brief suspension of contact or some way of reassuring the child regarding

  • Should the child be able to refuse to attend contact at a particular age?

    As a child matures their views about contact should have increased weight. Great care should be taken about agreeing with a young child who refuses contact when there is not an apparently sound reason. It may be difficult to get an older child to contact that they don’t wish to attend without causing greater harm than the benefit to be derived from the contact. The burden placed on carers to get an unwilling child to contact should be considered.

  • Older children asked to reflect on contact arrangements often wish that they had more contact than occurred.

How healthy is the attachment or relationship between children and their birth parents?

  • How long was the child in the care of the parent before removal from their care?

    In most cases there will be a strong attachment between a child and a parent who has been their carer for a long time. It is likely that the child will be adversely affected if contact becomes minimal in the absence of reasons to believe that the child will be harmed by contact. An infant or very young child will not have this strength of relationship.

  • How does the parent behave at contact?

    Some behaviour by parents at contact if persisted with should result in limited contact eg attending contact substance affected, denigrating others, not actively interacting with their child, favouring one child over the other.

  • Has the parent failed to attend contact without good reason?

    Persistent non-attendance will be harmful to a child whose expectations will be disappointed. This will often have impacts on their behaviour and possibly affect their placement.

  • Is there a strong relationship that is dysfunctional?

    For some children there will be a strong relationship with a parent that will be dysfunctional. The parent may encourage poor behaviour ie violence, challenging appropriate limits on behaviour, diet etc. It is better to look at the health of the relationship.

What are the practical considerations?

  • Is there a substantial distance to be travelled?

    Younger children especially should not be subjected to long travel to attend contact.

  • Are there limitations on people travelling to contact eg cost, disability?

    Sometimes a carer will live at some distance from the parent either because the care was not able to be found in the local community or because a parent has changed address. Ordinarily the onus should be on the parent to travel to the contact rather than having the child travel, especially younger children. If a parent is to be travelling cost issues might need to be addressed.

  • Will there be disruption cause to the child or the household in which the child is living?

    Children and carer families will have their own commitments and patterns involving such things as piano lessons, basketball games, church attendance. It is important to ensure that a child is not made to feel greatly different from others in the household because they are at contact rather than carer family events. It is also important that the child does not resent attendance at contact because it takes them away from something that they enjoy doing.

What are the arrangements for contact with siblings, extended family and other significant people?

It is very important to see children in the context of their extended family and not just their parents. Particular attention should be paid to supporting sibling relationships. Even if extended family members are unable to care for a child it is still likely that contact will be beneficial — providing information and family and cultural identity. Existing healthy relationships should be supported even if a child is to remain in and out of home care.

Balancing extended family contact and placement stability and normality requires careful consideration. For example what would be usual contact with grandparents if the child was not in care?

In some situations provision for contact with a carer will be very important even though a child is being restored to the care of a parent or moving to another carer.

What indirect contact arrangements are appropriate?

  • Do arrangements need to be made regarding phone calls, cards and letters, email and social networking (eg Facebook/MySpace/Twitter/Skype)

    Contact can occur in other ways than face-to-face. In some situations it will be necessary to limit or prohibit indirect contact or to ensure that it is supervised. For example, it may be necessary to prohibit a parent from making any reference to the child on a social networking website. Alternatively, especially if the parent is at some distance from the child the use of electronic communication should be encouraged.

Are there special events that should be provided for — birthdays, religious events, special cultural events?

Events such as these are important ways of maintaining identity and heritage. It should also be recognised that carer families will wish to celebrate some of these events as well. Often an order that contact near a particular date will be the best outcome.

What length of order is realistic?

  • How will the needs and circumstances of the child change over time?

    A long term order for contact may create problems as a child’s circumstances change, particularly if the contact is to be relatively frequent. School, sport, cultural activities and friendship dynamics are just some of the factors which change over time. As a child gets older less frequent but longer contact may be appropriate.

    The need for contact to be supervised may also change as the child and parent’s circumstances change.

  • How will the needs and circumstances of the carers/parents/others change over time?

    Carers are often unknown at this stage of the proceedings. In cases where carers are known their attitudes to contact should be considered, as some of the literature suggests that their attitudes can have a powerful influence on the quality and frequency of contact.

What does the care plan contain regarding contact?

  • Is there a need for a specific order or is the care plan sufficient?

  • Does the plan include provision for determining location?

  • Will a written contact plan be provided to parent/child/carer/others? Will this include contact rules?

    For many parents and children it is difficult to predict future circumstances, particularly if a specific long-term carer has not been identified. Care should be exercised in ensuring that an unduly limiting contact order is not made. It may be preferable to ensure that plans for contact are clearly set out in the care plan without contact orders being made. Even if an order is made it is likely to be for a short duration rather than until the child turns 18 so the care plan should contemplate as much of the longer term future as possible.

Aboriginal and Torres Strait Islander families

Contact, whether with parents or with extended family, is likely to assist in maintaining cultural identity when a child is placed outside of kinship or community. If family contact is limited there will need to be an appropriate cultural plan in the care plan.

What is appropriate for an interim contact order?

In making an interim order the court must to some extent predict the likely outcome of the proceedings and make orders that are in keeping with this. Nevertheless interim orders can also assist transition. For example it may be appropriate to provide for more frequent contact in an interim order than will be contemplated long-term. It may also be appropriate to provide for declining or increasing amounts of contact that are in keeping with a move to the likely outcome.

Are there real risks to the safety, welfare and wellbeing of the child?

  • Should contact be supervised?

(i) 

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. If there has been trauma caused by a parent a child may not feel safe unless contact is closely supervised.

(ii) 

If there is a real risk that a parent is likely to be substance affected, affected by uncontrolled mental illness, is likely to behave in a way at contact which will be detrimental to the child or the placement general supervision will be needed.

(iii) 

In some situations where restoration is planned contact can be used to help a parent improve their parenting skills. It would need to be specifically planned that this would be the case. Specific orders or undertakings may be needed to support this educative purpose.

  • Who should supervise contact?

    (i) 

    Other family or friends. There is often no reason that contact needs to be supervised by a Caseworker or contact worker organised by Community Services. Grandparents, other family friends may be suitable if there is evidence that they are going to be sufficiently protective and reliable. It is more likely that timing and location of contact will be flexible and more suited to a child’s needs than if organised by Community Services. It may also mean that the contact can take place in the first language of the child and the parent if it is not English.

    (ii) 

    CS or delegate. In some situations the risk to the child will require that professional contact supervisors are involved.

  • Are written guidelines necessary eg re non-denigration of others, not being substance affected, communication in language other than English?

    For some parents it will be necessary to provide rules governing such matters as advance confirmation of attendance, the importance of not denigrating other people, that the contract may be cancelled if they attend substance affected, that they are not to communicate with the child in a language not spoken by the contact supervisor, etc. This will make it clearer that there may be consequences if the rules are broken.

  • Should contact with parents and others occur separately from each other?

    If there is a real risk of conflict between adults present at contact separate contact should be ordered, or contact rules provide for the cessation of contact if conflict arises.

Should contact be prohibited or restricted?

In some circumstances a child will experience trauma at contact because of

  • trauma that they have suffered at the hands of or with the acquiescence of a parent, or

  • distressing behaviour by a parent at contact — intoxication, verbal abuse, favouritism towards one child, denigration of carers.

As a last resort

In rare cases contact may need to be prohibited for a period of time or subject to considerable restriction. This should only be done after careful assessment of the possibility of distress or harm to the child.

[2-0150] Contact guidelines for magistrates: background paper

Prepared by Tijana Jovanovic, Research Associate to his Honour Judge M Marien SC, President Children’s Court of NSW, July 2010.

Introduction — making “contact” decisions

Making a decision regarding contact is often very challenging for any magistrate, particularly where different parties strongly disagree on the nature and frequency of contact. The Court is often caught between upholding the principle that there should be a continuance of a relationship between a child in out of home care and the child’s birth family, and ensuring that the safety, welfare and well-being of a child is a paramount consideration in any decision.

As Magistrate Crawford noted:

Even if the desirability of “ongoing contact” is a matter of common ground between the parties, the translating of this principle into the specifics of a workable arrangement that can be evidenced in terms of a court order, can be a difficult task. Similarly there can be the difficulty of integrating “contact” into the broader future planning for the child. The varying interests of the child and many other persons must be taken into account if a contact order is to work satisfactorily over the longer term as this necessarily requires the co-operation of all persons involved in the process.[1]

To make matters more complicated, his Honour pointed out that:

It is important that any decision concerning the making of a contact order be based on adequate, relevant, current and specific information. Often such information is not available.[2] (Emphasis added.)

The purpose of this paper is to enable magistrates to make better informed contact orders by highlighting the main functions and purposes of contact visits, outlining key arguments in favour and against contact between children in care and their family members, analysing specific issues which children in care may encounter as a result of contact and outlining factors which may inhibit contact and which magistrates will need to carefully consider if contact is to be fostered and encouraged.

Contact orders under the Children and Young Persons (Care and Protection) Act 1998

Currently the Children’s Court has the power to make contact orders in accordance with s 86 of the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”) which states:

1. 

If a child or young person is the subject of proceedings before the Children’s Court, the Children’s Court may, on application made by any party to the proceedings, do any one or more of the following:

(a) 

make an order stipulating minimum requirements concerning the frequency and duration of contact between the child or young person and his or her parents, relatives or other persons of significance to the child or young person,

(b) 

make an order that contact with a specified person be supervised,

(c) 

make an order denying contact with a specified person if contact with that person is not in the best interests of the child or young person.

2. 

The Children’s Court may make an order that contact be supervised by the Director-General or a person employed in that part of the Department comprising those members of staff who are principally involved in the administration of this Act only with the Director-General’s or person’s consent.

3. 

An order of the kind referred to in subsection (1)(a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.

4. 

An order of the kind referred to in subsection (1)(b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact.

Findings of the Wood Special Commission of Inquiry into the Child Protection Services in NSW regarding contact

Review of the Children’s Court’s powers under s 86

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

The Inquiry is of the view that, on balance, the Children’s Court should retain its power to make contact orders with respect to those children and young persons about whom the Court has accepted the assessment of the Director-General that there is a realistic possibility of restoration. For all other children and young persons, that is those where the Court has accepted that there is no such possibility, the Court should have no power with respect to making orders as to contact.[3]

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.

Need for contact guidelines

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:

Determining the duration, frequency and supervision needs for contact between children and young persons in care and those significant to them, is a complex matter. The Inquiry is aware of the competing views in the literature concerning the benefits which may accrue to a child or young person from contact being maintained, and balancing the need for stability, the likelihood of restoration, the developmental requirements of a child or young person as well as changes in the circumstances of birth families and the quality of the contact, all within the context of the best interests of the child or young person.[4]

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:

Evidence based guidelines for Magistrates should be prepared in relation to orders about contact made under s 86 of the Children and Young Persons (Care and Protection) Act 1998.[5]

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.

Basic arguments in favour and against contact

There are a number of recurring arguments in favour and against contact. It is important to note that as the circumstances of each case are unique, these arguments do not apply across the board, and the ultimate decision regarding contact needs to be based on the particular circumstances of the case.

  • Contact encourages reunification with the birth family

  • Contact maintains/encourages attachment to the birth family

  • Contact prevents idealisation of the birth family

  • Contact maintains links and cultural identity

  • Contact enhances the psychological well-being of the children in care

  • Contact is a means by which the quality of the relationship between the birth family and the child can be assessed.[6]

On the other hand, the following are the most cited arguments against contact:

  • Multiple attachments create confusion for children or conflict of loyalties

  • The threat of harm to the child or to the new parents may undermine the placement

  • Birth parents need to be helped towards closure as the best way of dealing with feelings of loss and guilt

  • Demands placed on new parents adversely affect the recruitment of new adopters

  • It is too risky to make such complex placements without adequate professional skills and resources which need to extend far beyond adoption

  • The push for contact arises less from the evidence on benefits than from professional desires to undo the pain of separation or because they themselves feel they have failed the birth family.[7]

In addition some studies have found that contact with birth families may lead to:

  • Continuation of unhealthy relationships, for example inappropriately dominant or bullying relationships, or controlling relationships.

  • Undermining the child’s sense of stability and continuity by deliberately or inadvertently setting different moral standards or standards of behaviour.

  • Experiences lacking in endorsement of the child as a valued individual eg where little or no interest is shown in the child himself, or contact where the parent is unable to consistently sustain the prioritisation of the child’s needs.

  • Unreliable contact in which the child is frequently let down or feels rejected, unwanted and of little importance to the failing parent.

Where a child is continuing to attend contact even though expressing a view that he doesn’t want the contact can make the child feel undermined.[8]

Different models of contact and their influence on contact orders

Before exploring specific issues which arise in relation to contact, it is useful to consider different models of contact. These models broadly demonstrate different functions of contact visits, and broadly illustrate the approach to be taken in making contact orders, depending on the function which contact is intended to serve in a particular case.

There are four basic models of contact. Namely, the rehabilitation model, the continuity model, the disruption model and the deterrence model:

  • Rehabilitation model

    Here the function of contact is to facilitate the resumption of care by a parent. When rehabilitation (restoration) occurs (as is the objective of contact), the transition from care will then be less stressful for the child. Contact allows the parent to develop caring skills gradually. Contact can be used to assess the abilities of the parent and for social workers to “teach” caring skills to the parent. Contact keeps alive the possibility of the separated parent resuming full-time care. In summary, contact under this model is a means to an end.

  • Continuity model

    Where restoration is not an objective, contact benefits the child and parent by supplying emotional security through the continuance of that relationship. Contact can help create a sense of identity for the child. As the child grows older, such contact may provide a crucial link to the past, as well as a sense of his/her own background and root. Contact is an end in itself.

  • Disruption model

    This model argues that whilst contact is desirable when restoration is an objective, if it ceases to be so then continued contact with the non-caring parent creates confusion, uncertainty and disruption for the child. Stability for the child is what is important and the social parents should replace the natural parents entirely. Non-rehabilitative contact may create confusion for the child and worry in the child’s mind of removal from the new carers.

  • Deterrence model

    This model is developed within the context of the English legislation that provides for orders “freeing” children in care for adoption. The concern that this model addresses is that potential adoptive parents will be deterred from adopting by the prospect of having to accommodate continuing contact with the natural family.

    In care proceedings both the “rehabilitation” and “continuity” models are used as a justification for the making of contact orders. The “disruption” model is sometimes used to justify the restriction or termination of contact.[9]

By adopting these models and determining which function contact visits are meant to serve in a particular case at the outset, magistrates will gain a broad idea of how frequent contact will need to be, whether any third parties will need to be involved, and whether visits need to be structured in any way. For example, if the circumstances of a case indicate that restoration is a realistic possibility, the Court will need to adopt a rehabilitation model of contact. As a result, the Court may consider making contact visits more frequent, and involving Community Services caseworkers who can teach the parent good parenting skills. If, on the other hand, there is no realistic possibility of restoration but the parent and child have a healthy and close relationship, the Court may adopt the continuance model and order regular, though not necessarily frequent contact. Regular visits would enable the child to maintain a sense of identity and learn about his or her history while not disrupting the child’s placement through overly frequent visits.

Purposes of contact

According to the literature, contact visits between a child and his or her birth family may serve a number of specific purposes.

  • Visitation can be a positive intervention for the entire family and can promote successful reunification.

  • Visits reassure children that their families are alive and well and still care about them. Frequent contact with parents can reduce children’s anxiety associated with separation. Other types of contact, including exchange of phone calls, cards, and letters, will also serve this purpose.

  • Frequent visitation reassures parents that the agency is committed to maintaining and strengthening family relationships.

  • Visits present the caseworker with a valuable opportunity to help family members identify their needs and strengths. By observing family members together, the worker can elicit important information about the quality of the parent-child relationship, as well as gain insight into the parents’ developmental needs, motivation, and capacity to resume care of their children.

  • Family visits can be used as interventions to achieve specific objectives. For example, foster or relative caregivers may use visits to model parenting skills and to share child management strategies. During visits, parents can practice newly acquired parenting strategies and can receive immediate, constructive feedback and coaching from the caseworker or caregiver.

  • Visits may help parents understand the importance of permanency for their child. The visits can help them make a final decision regarding whether they want to diligently pursue reunification or relinquish their parental rights, thereby allowing their child to achieve permanency through another plan, such as adoption or guardianship.

  • Sibling visitation allows these important relationships to be maintained, even when siblings must be placed in separate homes.

  • Visitation with extended family is encouraged whenever possible. Extended family connections are important to the child’s development and often serve as alternative permanency plans if reunification does not take place.[10]

Potential effects of contact on children in care

In order to make contact visits which promote the best interests of the child and support the goals of a care plan, magistrates need to be aware of the impact of contact on family reunification as well as the child’s psychological wellbeing.

Family reunification

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. [11]It is important to note however, that some authors argue that while contact may be associated with reunification, it may not necessarily cause it.[12] 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.

Birth/foster family attachment, loyalty conflict and the child’s psychological wellbeing

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.[13] 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.[14] 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.[15] 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.[16]

Poulin’s study concluded that frequency of contact fostered stronger biological family allegiance which in turn produced loyalty conflict.[17] 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:

Regular parental contact in contrast to no or irregular contact was shown to be related to the child’s behavioural difficulties as reported by foster parents even when behavioural differences accounted for by the duration of the children’s stay in care and the number of placements they have been in were taken into consideration. The children who were visited regularly were rated as exhibiting fewer behaviour problems, especially problems of an internalising nature (ie withdrawal, depression, anxiety) than the children who were visited irregularly or not at all.[18]

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”.[19]

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

Most children were not reported to have a high level of loyalty conflict … As expected, how often children had visited with their mothers was not related to the severity of their depression, anxiety, oppositional defiant behavior, or conduct problems.[20]

Leathers also noted:

As expected, greater loyalty conflict was associated with having a strong allegiance to both a foster family and a biological mother.

Strength of allegiance to a foster family also had a weak, negative correlation with strength of allegiance to a biological mother suggesting that maintaining strong relationships with both a biological mother and a foster family might be difficult for some children.[21]

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

Among the subsample of girls, strong biological mother allegiance was a significant predictor of weaker foster family allegiance … Among the subsample of boys, allegiance to biological mother was a nonsignificant predictor of foster family allegiance.[22]

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.[23]

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”.[24] 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”.[25]

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.

Factors which may inhibit contact

Length of stay in care

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.[26] 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.

Kinship care

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”.[27] 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.[28]

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.

Domestic violence, sexual abuse and parental imprisonment

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:

  • Permanently placed children who have suffered severe maltreatment may be re-traumatised when they have contact with the maltreating parent

  • Children may therefore experience the permanent carers as unable to protect them and keep them safe. This will interfere with the child’s ability to develop a secure attachment with their new carers

  • Severely maltreated children who feel unsafe and insecure will continue to employ extreme psychological measures of defence which may lead to a variety of aggressive, controlling and distancing behaviours. These behaviours place great strains on the carer-child relationship and increase the risk of placement breakdown

  • In contact cases where children suffer re-traumatisation, the need to make the child feel safe, protected and secure becomes the priority. Contact in the medium term would therefore not be indicated. This decision does not rule out the possibility of some form of contact at a later date, but this will depend upon whether or not the child has achieved levels of resilience … that will equip them to deal with the emotional arousal that renewed contact with a once traumatising parent will initially trigger.[29]

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.[30]

Parents’ psychiatric illnesses

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.

Supervision

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.[31]

Factors which may warrant supervision

Circumstances where it may be appropriate that the contact be supervised by another person include (but are not limited to) situations where:

  • there are allegations that the contact parent has a psychiatric disorder, or where a parent’s emotional or mental stability may be in issue;

  • there are allegations of child abuse, whether physical, sexual or psychological in nature;

  • a child may be expressing strong views that they are reluctant to see the contact parent alone;

  • a parent’s alcohol or drug consumption may be a possible threat to a child;

  • the contact parent’s conduct is anti-social and there is a risk that such behaviour may impinge upon the welfare of the child;

  • there is a history of the contact parent engaging in abusive behaviour;

  • the child has witnessed physical or verbal abuse between the parents;

  • it will help the contact parent and the child adjust to new arrangements;

  • the child is very young and the contact parent needs assistance;

  • the child has not seen the contact parent for a long time; and/or

  • the contact parent is expected to experience some parenting difficulty.[32]

Effect of supervision on contact visits — children’s experience

Children view supervised visits both positively and negatively. For example, children often viewed contact services personnel as helping them to have contact in a safe environment that is free from parental conflict.[33] A number of children indicated that attending contact services premises significantly decreased the incidence of domestic violence or conflict between their parents, which made them feel safer.[34] These children also stated that the presence of a contact services provider made them feel safer to be with parents who had substance abuse problems, as the providers would intervene as soon as the parent became agitated or abusive.[35] On the other hand some children expressed the view that the presence of a contact services provider felt like an invasion of their privacy and prohibited them from openly engaging with their parent both verbally and physically.[36] Further, some children expressed their frustration at the inflexibility of re-organising contact visits, which lead to them missing out on sporting or social events.[37] This view was most commonly held by older children, suggesting that the need for and nature of supervision may need to change as the child gets older, and that there should be more flexibility in contact visit arrangements. Finally some children expressed the desire for other family members who are related to the visiting parent (and who they rarely saw) to attend supervised contact visits.[38]

Who should supervise contact visits?

When making supervised contact orders, the court should consider who would be the most suitable supervisor in the particular circumstances of the case. Preference should be given to a family member or a family friend, unless there is a specific need for a Community Services caseworker or a delegate to supervise the visits. Experience shows that when a family member supervises visits, particularly if they do so in their own home, members of the child’s extended family often attend these contact visits. The child consequently has contact with members of the family they rarely see when contact visits occur at Community Services premises under the supervision of a caseworker, helping the child feel more as a part of his or her family despite their removal.

Resource implications of contact

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.

Aboriginal and Torres Strait Islander children — need for special consideration

When making contact decisions about Aboriginal or Torres Strait Islander (ATSI) children it is important to keep in mind principles governing care and protection orders in relation to those children, which are set out in ss 11, 12, 13 and 14 of the Care Act. Namely, contact orders should, as far as possible, encourage ATSI children to maintain links with their culture.

If a child cannot be placed with an ATSI carer, special care should be taken in placing a child in a location/community where the child may form and maintain those links with the Aboriginal culture even if it’s immediate carers are not Aboriginal. In addition, when making contact orders in relation to ATSI children and particularly when, for whatever reason, the child does not have regular contact with its birth parents, the Magistrate making those orders should determine whether there are any other family or kinship members with respect to whom contact orders should be made. Further, Magistrates should also be aware of special cultural events and should craft contact orders which take these events into account.

Some views on contact

Children in care

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 majority (47) wanted more contact and connection with their family members and other significant people in their lives. The only exceptions to this were those children and young people who had been placed in long-term care at a very early age and had remained in long-term stable placements with little or no family contact since. Even amongst this group however, there were many requests for more information about their families.[39]

The Commission also found that:

Many children and young people involved in the consultations had lost significant relationships or had these relationships seriously diminished since coming into care.[40]

In addition:

Some children and young people had lost multiple relationships while in care. For example, one young person, aged over 13 years at the time of the consultation, who had been in DoCS care since preschool age had lost contact with a grandmother, aunt and brother who lived a short distance away, both parents who lived interstate. The young person had never seen, since entering care, several siblings who lived interstate.[41]

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.[42] On the other hand a young person who was placed with her own brother indicated that that was the best aspect of foster care.[43]

Barnardos

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:

For children in permanent out of home care, contact must be set at a level, which does not interfere with the child or young person’s growing attachment to their new family. A child’s attachment to their new family and their potential for future stability can be placed at risk by too many visits. Unrealistic visitation plans can jeopardise the child’s chances of permanency as it can make finding and keeping a new family extremely difficult.[44]

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.

Children’s Court Clinic’s experience

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:

It is important for children’s identity formation and psychosocial adjustment to know their parents as they really are, rather than idealize or demonize them in fantasy. Only access can do this.

At times contact may be emotionally fraught or disappointing to the children, which makes access visits disruptive and burdensome for foster parents who may understandably wish to minimise access.

However, it should be remembered L has 2 parents and an uncle who suffer psychiatric disorders … research clearly indicates that the thinking of individuals who are prone to mood disorder is characterised by pessimism and beliefs in their own helplessness … It is very important that L does not feel helpless and hopeless in her family situation, thinking from a young age that what she wants makes no difference.

Having formed an attachment to her mother, she should be helped to sustain it. Having been disappointed by her mother, she should be given every opportunity to express her anger to her mother by rejecting her. Her mother should show she is hurt but keep coming back until she is forgiven. Keeping them apart will make L feel little and powerless.[45]

Children’s mental health professionals

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:

In our view, identity is not a static, historically based concept. We see it as a dynamic developing process, formed within the context of ongoing relationships … We think this contributes to a sense of self in terms of self-esteem and self-worth. A positive sense of identity can only be developed in a relationship that supports that identity …[46]

However, they warn that the reverse is also true:

Contact with a parent who is unable to do those things could have the opposite effect as it maintains the child’s idea of him/herself as worthless and not valued by the parent.[47]

A guide to making contact orders

Community Services’ approach

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

1. 

Is the goal reunification or not?

2. 

How strong is the attachment or relationship between children and their birth parents?

3. 

Are there real risks to the safety of the child? If a child has been abused it is necessary to ensure that there is no further abuse and that contact with an abusive parent does not compromise the child’s foster placement due to their perception that the foster parents cannot protect them from harm.

4. 

Are the children’s wishes for and reactions to contact taken into account?

5. 

How old and at what developmental stage is the child?

6. 

How supportive are the foster carers?

7. 

Are there changes in the relationships and situations since last assessment? In long-term fostering placements it is important that contact arrangements are monitored and reviewed over time.

8. 

Will the contact visits involve significant traveling and disruption to the child’s routines? It is important that the frequency of any birth family contact should not be such that it interferes with the child and new parents spending enough time together consolidating their position as a new family.

9. 

When more frequent visits are required under a reunification plan or interim orders, practical issues may need to be taken into consideration.

10. 

How have the birth parents reacted to contact arrangements? Decisions about continuing contact visits should consider the reliability of the parents’ visiting to date and the impact of missed visits on the child.

11. 

Has contact with fathers and other family members been considered?

12. 

Has indirect contact been considered?

13. 

Where are the contact visits to take place?[48]

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.

The Children’s Court’s current approach

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:

I think the best approach in a case such as this may be for the Court to identify the range of contact arrangements which will properly answer the needs of the individual child or young person, taking into account his or her age, developmental level, background, attachments, life experiences, personality, talents, emotional resilience, deficits and wishes. Then, when the appropriate range or spectrum of contact arrangements has been identified, the Court should consider the safety of the child or young person, the circumstances which brought him or her into care, the fitness and willingness of the parents to cooperate in the contact process and the degree to which the parents might support the child in the placement or act to undermine it. Those are matters which, in some cases, may impact adversely on the viability of contact. Finally, if the details of the placement are known or can be predicted with reasonable certainty, the Court should consider the circumstances of the placement and the needs of the foster carers. Clearly, there may be instances where proposed foster carers may be so unreasonable and heedless of the proper needs of a child for contact with a significant attachment figure that the contact order should be made and fresh placement arrangements then be made to accommodate the contact order. That might happen when a proposed foster carer is so bitterly opposed to contact with a particular parent that he or she simply refuses to facilitate contact which the Court has decided is necessary or where a proposed foster carer has difficulty tolerating a child’s contact with family members of a particular racial background or religious persuasion … (Emphasis added.)

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:

Sometimes, as in the present case, it will be argued that the scarcity of viable placements and the difficulty of recruitment of foster carers should influence the Court in the type of contact orders which it should make. But, that influence should apply, firstly, only where there is compelling evidence as to the unavailability of a suitable placement capable of accommodating the child’s or young person’s need for contact as determined by the Court and, secondly, only where the level of contact which the proposed placement can and will support falls within that range or spectrum of contact choices which the Court can still regard as an appropriate response to the child’s needs. As to the first, I doubt that the Court should be much influenced in its decisions as to contact by the existence of a policy maintained by the agencies or even by Community Services unless that policy has been measured against and tailored to suit the particular contact needs of the individual child or young person, the subject of the particular proceedings. Secondly, the Court is unlikely to endorse the making a long term placement without reference to the child’s or young person’s contact needs as determined by the Court and it should not be assumed that those contact needs are of less than critical importance for the welfare of the child or will be met adequately by a contact regime tailored primarily to the feelings and desires of carers or potential carers or the perceived needs of the agencies.

The need for review

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”.[49] 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”.[50] 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.

Conclusion

Decisions regarding the appropriate level, nature and frequency of contact are difficult to make since their effectiveness invariably depends on the extent to which they address the particular circumstances of the case, and there can consequently be no definitive formula which applies to all cases. Nevertheless, determination of any application under s 86 of the Care Act must always begin by establishing whether contact is in the best interests of the child. As already indicated, this decision will be based on the particular characteristics of the child and the circumstances of his or her case, while some guidance can be obtained from the general arguments in favour and against contact, and the extent to which any of these arguments apply to the particular situation. Once the court is satisfied that continued contact with the parents or other family members promotes the child’s best interests, the court should approach the task of crafting contact orders by determining what functions or purposes contact visits are intended to serve in the particular circumstances. The court should then consider adverse effects which contact may have on children in particular situations and moderate the frequency of contact in order to prevent these effects. The court must also be aware of the factors which may in some circumstances inhibit contact visits or affect their quality, and as far as possible tailor contact orders so as to overcome these factors. Finally, when making contact orders magistrates should have regard to the views expressed by children in care and about contact, and in particular their frequent desires to have more contact with their parents, siblings and other family members.

[2-0200] Guidelines for Conducting a Dispute Resolution Conference

The following model is based on the LEADR Model of Mediation*

Purpose of a Dispute Resolution Conference

The purpose of a Dispute Resolution Conference (DRC) is to provide a safe environment that promotes frank and open discussion between the parties in a structured forum to encourage the parties to agree on action that should be taken in relation to the child or young person concerned.

A DRC should aim to:

  • Identify the risks and safety concerns that have led to the intervention or involvement of Community Services

  • Identify and clarify the strengths within the family, including any progress made by family members in addressing those concerns

  • Hear and consider the views of the child(ren) either directly or indirectly through the child’s legal representative

  • Focus the parties attention on the child’s (or children’s) best interests

  • Identify and clarify disputed issues

  • Identify and clarify areas of agreement

  • Develop options and consider alternatives

  • Enhance communication between the parties

  • Reach agreement on issues of dispute between parties to avoid, or limit the scope, of any hearing

  • Formulate final or interim orders that may be made by consent.

The role of the Children’s Registrar in the Dispute Resolution Conference

The Children’s Registrar is an independent convenor acting with the authority of the Court.

In that capacity, the Children’s Registrar shall generally follow this model but can apply discretion in particular cases where the Children’s Registrar believes that certain features of the model will not promote the purpose of the particular DRC or are inconsistent with their role as an officer of the Court.

The Children’s Registrar is responsible for controlling the proceedings and ensuring that each participant has the opportunity to participate fully in a safe environment.

When conducting a DRC, the Children’s Registrars should adopt an independent and objective approach, free of bias. They should encourage the participation of the parties in shaping decisions that are fair, practical and achievable and that are made in the child’s best interests.

The Children’s Registrar should also be familiar with the facts and issues involved in the application that is the subject of the conference, prior to the commencement of the conference.

In conducting a DRC, the Children’s Registrar should:

  • Create an environment where everyone feels able to discuss and negotiate the issues in dispute and encourage parties, particularly families, to directly participate and contribute to the process

  • Clearly explain how the conference will be conducted and its purpose

  • Explain that the conference is confidential and explain the limits to the confidentiality of the process

  • Address any power imbalances that arise in the conference through appropriate strategies which allow all parties to express their views freely and without fear of intimidation

  • Intervene appropriately if a participant becomes antagonistic or aggressive

  • Confirm that legal representatives have the most up-to-date instructions from their clients

  • Clarify the risks and safety concerns that led to the intervention of Community Services

  • Lead a discussion with the participants regarding the strengths within the family

  • Assist the parties to identify/clarify the facts, views, interests and opinions of parties to the conference and to identify and clarify areas of agreement

  • Provide a “court perspective” on cases of a similar nature (whilst not providing legal advice) to help parties “reality test” their positions and provide information to assist parties to identify those matters which may be of particular concern to the Children’s Court, if it were considering the case

  • Develop options for resolution and consider alternatives to negotiation and settlement. Assist the parties to clearly understand what is likely to happen if they cannot agree to an appropriate way forward

  • Structure the process to ensure that each party understands the problems and options for settlement

  • Outline, with the assistance of the parties and/or their legal advisers, how each party’s views/options for settlement promote, or fail to promote, the best interests of the child

  • Introduce options that could be considered by parties, after they have had an opportunity to generate those options themselves

  • Endeavour to establish agreements or settlement in appropriate cases

  • Ensure that the written agreement is accurate and is understood by the parties

  • Ensure that all parties understand that in the event that agreement is reached as to any final orders the Court can only make those orders if it independently approves them and determines that they accord with the requirements of the Children and Young Persons (Care and Protection) Act 1998 (the Act) and are in the best interests of the child.

Where a Children’s Registrar has a conflict of interest or is unable to be independent and objective, they should disqualify themselves from participating in the DRC.

Pre-conference preparation

Prior to the DRC, the Children’s Registrar will familiarise themselves with allmaterial in the proceedings that has been filed to date in the Children’s Court.

The Children’s Registrar will speak with each of the parties (or their legal representative) approximately one week prior to attending the DRC to establish who will be in attendance, and of those, who is seeking to participate in the conference. The Children’s Registrar will resolve any questions that may arise regarding the appropriateness of a person’s participation in the DRC. In general, the participation of all who have an interest in the outcome of the proceedings should be encouraged.

The Children’s Registrar will also consider any issues that may affect the manner in which the conference is conducted (ie the potential need for a shuttle conference to be conducted using separate rooms, or one party attending via AVL).

Conference structure

1. Opening — by Children’s Registrar

At the commencement of a DRC, the Children’s Registrar will:

  • Explain the purpose of the DRC

  • Emphasise that the central consideration will always be the safety, welfare and wellbeing of the child

  • Explain the DRC process, including the availability of private sessions and time outs with legal representatives if required

  • Outline to the parties that the purpose of a DRC is to attempt to reach agreement about the resolution of the application through the parties discussing and negotiating about their point of view. When it is not possible or appropriate to reach a final agreement about the resolution of the application, it remains the purpose of a DRC to identify what has been agreed and what are the points of disagreement

  • Discuss the role of the Children’s Registrar, and the role of the other parties and legal representatives and the role of any support persons

  • Explain the potential for a second DRC in appropriate circumstances

  • Explain the confidentiality provisions of cl 19 Children and Young Persons (Care and Protection) Regulation 2012, including limitations to confidentiality in a way that can be understood by the parties

  • Explain the need for the parties to participate in good faith in a way that can be understood by the parties

  • Explain how the DRC fits in within the Court hearing process and the differences between a DRC and a Court hearing

  • Explain the role of the Court in independently approving any agreement reached by the parties during the DRC to ensure that any orders accord with the requirements of the Act and are consistent with the best interests of the child

  • Explain that the conference has been scheduled for a minimum of 2 hours and obtain assurances from the parties as to their availability for that period

  • Explain the contents of the report to the Children’s Court following the conclusion of the DRC

  • Ensure that the parties are aware of the location of rest rooms etc.

The Children’s Registrar will explain the following guidelines:

  • Everyone is expected to behave in a polite and considerate manner

  • When a person is talking, they must be allowed to complete what they are saying

  • If a person is talking “too much” and preventing or affecting the opportunity for others to have their say, the Children’s Registrar may intervene.

The Children’s Registrar will also explain that the conference can be terminated if in his/her opinion:

  • One or more of the participants is behaving inappropriately

  • There are particular problems affecting the operation of the conference

  • There are concerns for the safety and well-being of participants.

2. Parties’ opening comments

The Children’s Registrar will:

  • Summarise his/her understanding of:

    • the current application(s) before the court

    • the current situation regarding placement of child(ren)

    • any court orders currently in place

    • the orders sought by Community Services

    and seek confirmation from the participants.

  • Give each of the parties an opportunity to state what they hope to achieve at the DRC.

Parties will be encouraged to express their views on the current situation, and their current goal. The Children’s Registrar will encourage the parties to speak for themselves, but acknowledge that some parties may find this difficult and may prefer to have their legal representatives speak on their behalf.

Parties who present the second and subsequent opening comments will be encouraged to identify all the issues that are important to them and discouraged from limiting their comments to a response to the first party’s comments.

3. Reflection and summary

After all of the parties have spoken, the Children’s Registrar will summarise the main interests and concerns of the parties and request, if necessary, clarification of any issues.

4. Agenda setting – identifying the issues

The Children’s Registrar should, in consultation with all of the parties, develop an agenda for the conference. This agenda should include all key issues that parties raised in their opening statements.

The agenda should be both neutral and mutual. The agenda should be written down. The agenda should reflect issues that are clear from the documents that have been filed as well as issues raised by the parties in their opening statements.

5. Issue exploration

The parties should work through each of the issues identified in the agenda. The Children’s Registrar should encourage the parties to directly speak with each other as a means of clarifying their respective views.

The Children’s Registrar should ask open questions that allow the parties to fully explore each issue.

The Children’s Registrar can assist parties to identify and clarify interests that have caused the parties to feel as they do. Identifying motivating interests allows the parties to see that there may be more than one way to satisfy their interests.

The Children’s Registrar should not narrow the exploration of the issues at this time to legal issues. However, the Children’s Registrar should correct or confirm a party’s understanding of the legal issues relevant to the case when appropriate.

6. Private sessions

After each of the issues identified have been fully explored, the Children’s Registrar should conduct private sessions with each of the parties. The private session is considered to be a very valuable tool in which the Children’s Registrar can reality test the positions of the parties. The Children’s Registrar has the discretion not to conduct private sessions where they feel it is inappropriate in the particular circumstances. The following issues should be considered when deciding to hold a private session:

(a) 

Is one of the parties unrepresented?

If one of the parties is unrepresented the Children’s Registrar should consider

(i) 

whether that party may feel unfairly pressured during a private session given the authority that the Children’s Registrar holds as an officer of the court

(ii) 

whether there is a real risk that the party may misrepresent statements made by a Registrar during a private session

and whether these concerns can be remedied by

(i) 

conducting a limited private session utilising mediation techniques only rather than conciliation techniques or

(ii) 

holding a private session with another party (for example where another party’s interest are similar to those of the unrepresented party or with the child’s legal representative).

(b) 

Do you have personal safety concerns about conducting a private session with one of the parties?

If such concerns are held the Children’s Registrar should consider whether holding the private session in conjunction with another party will alleviate the concerns. If the concerns cannot be alleviated the private session should not be held.

If the Children’s Registrar decides not to hold a private session with one party, private sessions cannot be conducted with the other parties.

The Children’s Registrar also has the discretion to invite more than one party to the private session.

In conducting the private session, the Children’s Registrar should confirm the confidentiality of the session both at the beginning and at the end. This time should be used to discuss the needs of each party, and whether all issues have been adequately covered.

The Children’s Registrar should discuss options that have been identified with the party, and reality test their propositions against the alternatives available if there is no settlement.

7. Negotiation

The Children’s Registrar will facilitate direct negotiation between the parties, and assist the parties to explore options for settlement.

The Children’s Registrar will discuss the options that have been considered thus far with the parties and what each party will need to do to make the option(s) work. The parties will be asked to identify how the option(s) is/are in the best interests of the child. The Children’s Registrar will seek advice from parties about how realistic and achievable the option(s) is/are having regard to the legislative tests and caselaw.

Children’s Registrars should provide a “reality check” for the parties, encouraging them to consider the practicality of the options; implications of the options; and whether the Court is likely to find that particular option(s) is/are within the child’s best interests.

If the conference is not considering options that appropriately safeguard the best interests of the child, the Children’s Registrar may provide further options for the parties to consider. It is preferable for any options introduced by the Children’s Registrar to be so introduced during joint sessions between the parties.

8. Private sessions (optional)

The Children’s Registrar may conduct additional private sessions if necessary. This phase is optional, and is to be conducted at the Children’s Registrar’s discretion, or at the request of one of the parties.

These sessions will be used to reflect on the options generated and any issues still outstanding, in private.

9. Agreement and closure

The Children’s Registrar will seek to clarify the agreement(s) reached and strive to ensure that all parties feel and/or appreciate that the agreement is accurate, fair, realistic and appropriate to ensure the best interests of the child.

The Children’s Registrar will confirm with the parties that the Children’s Court is the final arbiter and that the Court will decide if the proposed agreement is in the best interests of the child.

If agreement has been reached with respect to any proposed order, one of the legal practitioners present at the DRC will be nominated to draft the Minute of Care order. This ideally will be done on the day of the DRC, and will be circulated to all parties present.

Where agreement has been reached, the Children’s Registrar will announce the end of the DRC and the commencement of directions. The Children’s Registrar must make it clear that the confidentiality provisions no longer apply. Where possible, an order from the Court should be sought on the same day.

Where no agreement has been reached, the Children’s Registrar will identify with the parties the issues that there is agreement on, and those that are still in dispute. Directions may also be given for the future conduct of the matter.

The Children’s Registrar will provide a report to the Children’s Court as a record of the outcome of the conference, as detailed in the form “Outcome of Dispute Resolution Conference — Report to Court”.

[2-0225] Care proceedings and appeals to the District Court

Judge Mark Marien SC, President, Children’s Court of NSW, 28 April 2011 (revised)

A paper delivered at the 2011 Annual Conference of the District Court of NSW

1 Introduction

In this paper I propose to first deal with some of the general legal principles applicable to care proceedings in the Children’s Court and the District Court (with reference both to the relevant legislation and to some authorities) and then to more specifically deal with the conduct of care appeals to the District Court.

2 The objects and principles of the Care Act

Sections 8 and 9 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) set out the objects and principles of the Act.

Section 7 provides that the objects and principles of the Act are intended:

… to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law.

Section 9(1) sets out the “paramountcy principle”. The section provides:

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.

The paramountcy principle partly reflects Article 3 of the United Nations Convention on the Rights of the Child (1989) (“the Convention”). (Article 3 of the Convention states that the best interests of the child “shall be a primary consideration”.) The paramountcy principle is to be taken into account in making all decisions and determinations under the Care Act.

Further principles for administration of the Care Act are set out in s 9(2). Of particular importance is the principle contained in s 9(2)(c) (formerly s 9(d)) which provides:

In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development. (Emphasis added.)

The least intrusive intervention principle was considered recently by the Court of Appeal in Re Tracey [2011] NSWCA 43 [(2011) 80 NSWLR 261 and [4-0150]. The court also considered the relevance of the Convention in care and protection proceedings as well as the requirements for a care plan under the Care Act. I shall return to this decision later in the paper.

3 Important legal principles under the Care Act

3.1 “Attachment theory” and the need for expedition in care proceedings

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:

Attachment behaviours are the means by which infants elicit care and even ensure their survival, and different patterns of attachment result from each individual’s adaptation to the quality of care-giving he or she has received.

Under the theory, the breaking of a positive and secure attachment between a child and their primary caregiver/s during the crucial early years of the child’s life can have a seriously detrimental effect on the child’s future social and emotional development. To break an attachment is distressing, and can potentially place a child at risk. Transient effects are expected when the first change in placement occurs before 6–9 months of age. After 9–12 months of age, there will be distress, with longer-term effects of the change increasing with the child’s age. From 1 to 3 years, separation is a traumatic loss and a developmental crisis. Even if the loss occurs after approximately 3–5 years of age, some persistent loss of security in new relationships is to be expected.

Children who have had secure attachments adapt to change more easily than children who have had anxious relationships. When the prior relationship included either abuse or neglect, then the change process is likely to be more difficult, ambivalent, and attenuated. Children can manage to believe that their current placement is permanent through one or two changes. With additional changes, it becomes increasingly difficult for children to form a committed relationship with the new caregiver, because their prior experience prepares them to expect disruption. This means that each successive placement is more likely to fail than previous placements. The changes are likely to be accompanied by an initial “honeymoon”, followed by outbursts of uncontrolled anger, fear, or desire for comfort. The last of these is sometimes displayed as inappropriate sexualized behaviour. Outcomes will vary, but effects of broken attachments may include anxiety, depression, and angry rejection of others throughout the lifespan.

[This is from the (2011) Family Forensic Court Protocol generated by The International Association for the Study of Attachment (IASA). Mr Allerton is a member of the IASA.]

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:

If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (Emphasis added.)

Further, s 94(1) provides:

All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person. (Emphasis added.)

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.

3.2 Need of care and protection — “establishment”

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:

Determination as to care and protection

(1) 

A care order in relation to a child or young person may be made only if the Children’s Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection:

(a) 

the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) 

the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

(2) 

If the Children’s Court is not so satisfied, it may make an order dismissing the proceedings.

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.

3.3 “Realistic possibility of restoration”

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:

(a) 

the circumstances of the child or young person, and

(b) 

the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

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):

The Children’s Court does not confuse realistic possibility of restoration with the mere hope that a parent’s situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of hearing by a coherent program already commenced and with some significant “runs on the board”. The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted.

What is required can be likened to a prima facie case where absent some unforeseen and unexpected circumstance a safe and appropriate restoration will be possible in the near future. (Emphasis added.)

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

This passage has elements that resonate. With respect, however, to liken the determination to the concept of a prima facie case is alien to the fact that these are civil proceedings. It is also at odds with the natural meaning of the words themselves, and in my view a purposive and beneficial construction of the legislation does not require such an onerous test.

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, needs, a safe and nurturing environment, and the like. Section 9 and other sections set out the principles to be applied. Some that are particularly apposite to the issues in this appeal include, in summary:

  • The safety, welfare and well-being of the children must be the paramount consideration, paramount even over the rights of the parents: s 9(a).

  • The views of the children are to be given due weight: s 9(b), and the interests of the siblings must be taken into account: s 103.

  • Any action to be taken must be the least intrusive intervention in the life of the children and the family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(d).

  • That the children retain relationships with people of significance: s 9(g).

  • That any out-of-home care arrangements are made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement: s 9(f) and s 78A.

  • The Department bears the burden of proof on the balance of probabilities.

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

It may be important to keep in mind, too, when considering “realistic possibility of restoration”, that section 83 is cast in the present rather than the future tense. The realistic possibility needs to be shown as existing at the time of the hearing even if the appropriate time for effecting the restoration has not yet arrived. A court is unlikely to be satisfied merely because a party is about to begin or is contemplating commencing a process from which a realistic possibility of restoration might (or might not) emerge. It is for that reason that the Children’s Court generally looks for “runs on the board” and some success, already achieved, in addressing parenting deficits. Further, even if some successes have been achieved by the parent, the Children’s Court will need to assess the likely time frame in which the restoration might be effected and may need to take into account the viability of such a restoration given the delay and the age, level of maturity, wishes and developing attachments of the child or young person. Further, the ability to predict a viable restoration may become less and less reliable as time passes. (Emphasis added.)

3.4 Care plans and permanency planning

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]:

As a matter of common sense, for compliance with s 80 the care plan presented to the Court must be a relevant care plan, proposing rules for the carer or carers under the Court’s consideration for those roles. It would be absurd if a care plan contemplating exercise of some parental responsibility by A were sufficient for an order whereby that parental responsibility was exercised by B.

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

The revised care plan may not have differed greatly from the 15 May 2009 care plan, but presentation of a care plan and its consideration by the Court is not a formality. The Court then decides the removal of the child or the allocation of parental responsibility with regard to a care plan apt to the current circumstances. The Court may not be obliged to give effect to the care plan (see George v Children’s Court of New South Wales [2003] NSWCA 389 at [58]) but that does not warrant presentation or consideration of a care plan which can not be implemented. In my opinion, there was jurisdictional error in that the judge did not consider a care plan as required by s 80 of the Care Act.

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.

3.5 The meaning of “permanency planning” under the Care Act

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:

… 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

See further in relation to these provisions: Re Hamilton [2010] CLN 2 (also at [4-0160]).

3.6 Aboriginal and Torres Strait Islander Placement principles — s 13 of the Care Act

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 [4-0190]].

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:

(i) 

the Minister has parental responsibility by virtue of an order of the Children’s Court, or

(ii) 

the child is in the care of the Director-General, or

(iii) 

it is provided pursuant to a supported out-of-home care arrangement under s 153.

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:

(a) 

is a member of the Aboriginal race of Australia, and

(b) 

identifies as an Aboriginal person, and

(c) 

is accepted by the Aboriginal community as an Aboriginal person.

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]:

I respectfully adopt the view expressed by the Law Reform Commission of NSW [Research Report 7 (1997) — The Aboriginal Child Placement Principle] that “a ‘descent’ definition, such as ‘a child of Aboriginal descent’ is a broad definition which would include all Aboriginal child under the Principle. This would ensure that issues regarding a child’s Aboriginality are considered regardless of the ‘degree’ of Aboriginal blood…” Accordingly, I have taken the view that, if there is sufficient evidence that the great great grandfather of Earl and Tahneisha was an Aboriginal person, they would be entitled to a finding of Aboriginal descent whatever one might say about the “degree”.

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:

it may be that community recognition, given the inadequacy of written records, will be the best evidence of proof of descent.

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

3.7 Contact orders

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.

4 Care appeals to the District Court

Pursuant to s 91(1) of the Care Act an appeal to the District Court may be brought against an order (other than an interim order) of the Children’s Court. As to the meaning of “order” for the purposes of s 91(1) see: S v DoCS [2002] NSWCA 151 at [52] and [53].

An appeal is to be brought within 28 days after the Children’s Court order is made. The time for bringing the appeal may be extended by the District Court: UCPR r 50.3.

District Court Practice Note DC (Civil) No 5 relates to care appeals in the District Court. An information hand-out in relation to care appeals, “Information for Parties — Appeals from the Children’s Court in Care Matters” is available on the District Court website.

The majority of appeals from the Children’s Court to the District Court are appeals:

(i) 

against final orders allocating parental responsibility

(ii) 

against refusals by the Children’s Court to grant leave under s 90(1) of the Care Act to bring an application for variation or rescission of a care order, or

(iii) 

against the Children’s Court dismissal of a substantive application under s 90 to vary or rescind a care order.

4.1 Is an appeal a re-hearing or a hearing de novo?

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:

For the efficient disposal of cases it is generally desirable to deal with appeals based on the transcript plus any new evidence. Any objection to this course should be notified to the Court well in advance of the hearing.

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

If any party to an appeal wishes to rely upon fresh evidence or evidence in addition to, or in substitution for, evidence before the Children’s Court, that party will be required to inform the Court at an early stage:

(a) 

the nature of the evidence

(b) 

to what issue it is relevant

(c) 

why the evidence was not relied on in the Children’s Court.

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.

4.2 Functions and discretions of the District Court on a care appeal

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.

4.3 Disposal of appeals

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).

4.4 Appeals and permanency planning

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.

4.5 Appeals in relation to applications under s 90 for variation or rescission of a care order

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).

4.6 Section 90 remittals to the Children’s Court

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.

4.7 Interim orders and s 90 – a source of new appeals to the District Court?

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.

4.8 The legislative scheme for interim orders under the Act

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:

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: s 69(2).

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.

4.9 Can a s 90 application be brought with respect to an interim order?

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:

It is unclear from the judgment of Re Elizabeth and Re Alan the extent to which the Court’s attention was taken and their Honours minds were turned to the question of the jurisdiction for making interim care orders under the care legislation.

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.

5 Assessment applications and the Children’s Court Clinic

The Children’s Court Clinic (the Clinic) is established under s 15B(1) of the Children’s Court Act 1987. Pursuant to s 15B(2) of that Act the Clinic has the following functions:

(a) 

making clinical assessments of children

(b) 

submitting reports to courts

(c) 

such other functions as may be prescribed by the rules.

The Clinic is provided with further powers under s 58 of the Care Act. In the event that the court makes an assessment order under s 53 and/or s 54 of the Care Act, the court is to appoint the Clinic to prepare and submit the assessment report: s 58(1). In the event that the Clinic informs the court that it is unable to prepare the assessment report or that it is of the opinion that it is more appropriate for the assessment to be prepared by another person, the court is to appoint a person whose appointment is, so far as possible, to be agreed to by all the parties: s 58(2).

Under s 53(1) of the Care Act the court may make an order for:

(a) 

the physical, psychological, psychiatric or other medical examination of a child or young person, or

(b) 

the assessment of a child or young person,

or both.

The Clinic is not presently resourced to carry out physical examinations of children (other than by way of simple observation).

Under s 54(1) the court may order the assessment of “the capacity of a person with parental responsibility, or who is seeking parental responsibility, for a child or young person to carry out that responsibility”. Such an assessment can only be carried out with the consent of the person to be assessed: s 54(2).

It is important to remember that the court has a discretion as to whether it will make an assessment order. An assessment order should not be made as a matter of course. Section 56(1) provides that in considering whether to make an assessment order, the court is to have regard to the following:

(a) 

whether the proposed assessment is likely to provide relevant information that is unlikely to be obtained elsewhere,

(b) 

whether any distress the assessment is likely to cause the child or young person will be outweighed by the value of the information that might be obtained,

(c) 

any distress already caused to the child or young person by any previous assessment undertaken for the same or another purpose,

(d) 

any other matter the Children’s Court considers relevant.

Section 56(2) provides that:

In making an assessment order, the Children’s Court must ensure that a child or young person is not subjected to unnecessary assessment.

An assessment report submitted to the court under ss 53 and/or 54 is taken to be independent from the parties as it is a report to the Children’s Court rather than evidence tendered by a party: s 59.

I will shortly be issuing a Children’s Court Practice Note in relation to the Clinic to ensure it is used more effectively. In particular, the Practice Note will deal with the procedures for the making of an Assessment Application, the forwarding of documents to the Clinic following the making of an assessment order and the procedures for requesting the attendance of the Authorised Clinician at court.

5.1 Assessment applications

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:

(i) 

consolidates multiple children in a sibling group into the one application, while allowing for separate questions for individual children, if required,

(ii) 

outlines the reasons for making an assessment order,

(iii) 

includes a brief list of issues to be addressed by the clinician,

(iv) 

states whether a clinician with specific expertise is required,

(v) 

includes contact details for all children, other parties and the legal representatives, and

(vi) 

lists all the documents upon which the assessment is to be based, including all relevant previous clinical assessments undertaken of the child, children or family.

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 gaol,

  • allegedly suffering from significant alcohol or other drug problems which are not being addressed,

  • in residential treatment for drug dependence or mental illness, or

  • about to give birth.

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.

5.2 The Authorised Clinician attending at 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.

6 New Alternate Dispute Resolution procedures in the Children’s Court

In accordance with a number of Wood recommendations, the Children’s Court has now implemented the greater use of alternative dispute resolution (ADR) procedures in care and protection proceedings. The Court is doing this in two ways — first, through dispute resolution conferences (DRCs) conducted by a Children’s Registrar under s 65 of the Care Act, and, secondly, by the Court referring cases to external mediation pursuant to s 65A of the Care Act under a pilot being conducted at the Children’s Court at Bidura. Under the pilot, cases at Bidura are referred to mediation conducted by experienced mediators from the Legal Aid Panel.

6.1 Children’s Court Practice Note 3 — “Alternative Dispute Resolution Procedures in the Children’s Court”

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 [2-0320]. 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 [2-0320]].

6.2 Dispute Resolution Conferences (DRCs) under s 65

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:

  • all parties (except children) and their legal representative (if the party is legally represented)

  • the child’s legal representative

  • the Community Services Caseworker, and Casework Manager.

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.

6.3 External mediation pilot at Bidura Children’s Court

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.

6.4 Legal practitioners’ training regarding new procedures

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).

6.5 Evaluation

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.

6.6 ADR and appeals to the District Court

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.

7 Costs orders

Under s 88 of the Care Act, an order for costs cannot be made in care proceedings “unless there are exceptional circumstances that justify the court in doing so”. The restriction on costs orders in care proceedings arises because proceedings relating to the welfare of a child are not to be regarded — at least not to be regarded for all purposes — as normal adversary litigation inter partes: S v Minister for Youth and Community Services (unrep, 3/4/86,NSWSC) per Powell J.

What constitutes “exceptional circumstances” for the purposes of s 88 has been considered in a number of Children’s Court and District Court decisions including Re Jackson [2007] CLN 2; SP v DoCS [2006] NSWDC 168; DoCS v SM and MM [2008] NSWDC 68; BS v DoCS (unrep, 26/8/09, NSWDC); Joy Alleyne as Independent Legal Representative for LC v Director-General DoCS (No 2) [2009] NSWDC 171 and XX v Nationwide News Pty Ltd [2010] NSWDC 147.

In SP v DoCS, Rein DCJ upheld an appeal from the Magistrate’s award of costs against the Department on the basis that he did not consider it an exceptional circumstance that a solicitor would be out of pocket because of the impecunosity of his client. After referring to a number of authorities, his Honour stated that some guidance can be gained from the cases as to the meaning of exceptional circumstances. His Honour summarised the points as follows:

1. 

Cases where circumstances are found or not found to be exceptional or not all turn on their own facts and circumstances (see Murray Publishers Pty Ltd v Valuer-General (1994) 84 LGERA 13).

2. 

Unusual circumstances do not make the circumstances exceptional. A council’s error, for example, in its dealings with the applicant are insufficient.

3. 

Even circumstances out of the ordinary or even appalling breakdowns or misunderstandings in communication do not, of themselves, amount to exceptional circumstances (see Australian Recyclers Pty Ltd v Environment Protection Authority of NSW (2000) 110 LGERA 171).

4. 

Refusal of counsel to act on recommendations of officers or advice of experts is not sufficient.

5. 

Acting upon a serious or fundamental error of fact, acting capriciously or deliberately attempting to frustrate or cause delay or expense to the applicant would be sufficient.

His Honour goes on at [36] to identify the following types of matters which would or at least arguably might fall within the description of exceptional circumstances for the purposes of s 88 of the Care Act:

1. 

Deliberate misleading of the court or opponents

2. 

Other misconduct or wrongful conduct

3. 

Contumelious disregard or orders of the court or the principles set out in s 93 of the Care Act (General nature of proceedings)

4. 

The raising of baseless allegations for which the party had no reasonable belief as to their existence

5. 

The raising of false issues that bear no relation to the facts or are contrary to clearly established case law

6. 

Maintenance of proceedings solely for an ulterior motive or the undue prolongation of a case by groundless contentions

7. 

Gross negligence in the conduct of a case at least where that has led to an extensive waste of the court’s time and that of other parties

8. 

Where the proceedings involve a blatant abuse of process and/or are both mischievous and misconceived.

Having identified these matters as the types of matters which may constitute exceptional circumstances, his Honour said that whilst the categories of conduct are not closed, “there is a theme or flavour about these categories that I have already outlined as falling within the ambit, in my view, of section 88”.

The “theme or flavour” of the categories of exceptional circumstances identified by his Honour clearly relates to the conduct of the parties and requires either deliberate improper/wrongful conduct, abuse of process or gross negligence or incompetence.

In DoCS v SM and MM Garling DCJ expressly approved the matters which might arguably fall within the description of exceptional circumstances as identified by Rein DCJ in SP v DoCS. Garling DCJ also referred to the decision of Campbell J in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 concerning the meaning of exceptional circumstances in r 31.18 [as in force in September 2006] of the UCPR.

In Yacoub Campbell J referred to San v Rumble (No 2) [2007] NSWCA 259 and said:

I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4) [which related to “exceptional circumstances” in September 2006])

(a) 

Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).

(b) 

Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] A All ER 907 (at 1268; 912–913).

(c) 

Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).

(d) 

In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).

(e) 

Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).

Campbell J then said:

… any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation …

In DoCS v SM and MM, in awarding costs against the Department, Garling DCJ identified the following as exceptional circumstances:

  • The appeal had no merit

  • The Magistrate made the only reasonable order available

  • There were no grounds to seek an appeal from that order nor was there additional evidence which may have caused the District Court to reach a different decision from the Magistrate.

Judge Garling found that the position the Department took on the appeal was unreasonable being a position which was not based upon the available expert evidence. Further, his Honour found that the fact that the respondent parents were not entitled to legal aid and had to pay their own legal costs as a result of the Department’s appeal, was also relevant to the consideration of exceptional circumstances.

In BS v Minister for Community Services & Ors Robison DCJ, after referring to DoCS v SM and MM and SP v DoCS, said at [4]:

Exceptional circumstances can and, indeed, in many cases include a broad variety of factors. There can be a difference of view as to what amounts to an exceptional circumstance. The judges of this court in those two decisions had indicated certain views about what are considered to be exceptional circumstances. At the end of the day each case needs to be determined in the context of the proceedings and the matters which were brought to the attention of the court during the course of the proceedings. Certainly a relevant matter is the conduct of the parties to proceedings of this nature.

His Honour stated at [5] that any order for costs under s 88 could only be made with respect to the appeal proceedings before the District Court (not to the proceedings in the Children’s Court). In finding that exceptional circumstances existed and ordering the Department to pay the mother’s legal costs, his Honour found that the Department had an “entrenched immovable view” from an early stage and rejected expert opinion which supported the mother’s case even though it had no expert evidence to contradict that expert opinion. His Honour noted that while s 94 of the Care Act requires that proceedings should proceed as expeditiously as possible, the entrenched and immovable view of the Department resulted in the proceedings not proceeding expeditiously.

In Joy Alleyne as Independent Legal Representative for LC v DG Dept Community Services Goldring DCJ, in refusing to award costs against the Department, said at [11]:

I do not regard the matters set out by Rein J in SP as an exhaustive statement of what might constitute “exceptional circumstances” for the purposes of s 88, though they give a clear indication of some matters that may constitute such circumstances. BS also indicates matters of a different type, which may give rise to such circumstances. It may be that, in some circumstances, the financial position of a party may give rise to a finding of “exceptional circumstances”. It may be that the factual situation is so complex, or the Department had taken such an unreasonable position, as Robison J found in BS v Minister for Community Services, that either would make for exceptional circumstances. The facts of this case do not.

In XX v Nationwide News Pty Ltd, the defendant, The Australian newspaper, had published a number of articles concerning certain care proceedings in the Children’s Court. Although the articles did not directly name the child the subject of the proceedings, there was evidence before the Children’s Court that facts about the case referred to in the articles had identified the child. It was clear that the contents of the articles were likely to identify the child in breach of s 105(1) of the Care Act.

In the Children’s Court the plaintiff successfully obtained a non-publication order against the newspaper defendants. However, the court refused the plaintiff’s application for costs with respect to their successful application. The Children’s Court found that the conduct of the newspaper did not fall within the categorises of exceptional circumstances referred to by Rein DCJ in SP v DoCS.

The plaintiff appealed to the District Court against the order refusing costs. Gibson DCJ held at [47] that the requirement that exceptional circumstances be established placed “a heavy burden” upon a party seeking costs in care proceedings. Her Honour re-affirmed that the list of matters set out by Rein DCJ in SP v DoCS is not exhaustive. In overturning the Magistrate’s decision and awarding costs against the newspaper, her Honour found that its conduct did fall within the kinds of conduct referred to in SP v DoCS as its breach of implied undertakings as to documents obtained in the litigation process was capable of amounting to wrongful conduct, amounted to contumelious disregard to the principles of the Care Act and that it had been guilty of gross negligence in not removing articles from its website.

Her Honour declined to award indemnity costs although she stated at [59] that while there is no provision in the Care Act for awarding indemnity costs, “that does not necessarily mean that indemnity costs cannot be awarded: see, by analogy, Vero Insurance Scriven [2010] FMCA 352 at [45]”.

7.1 Discontinuing proceedings — costs

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”.

8 Recent decision — Re Tracey [2011] NSWCA 43

This is an important recent decision of the Court of Appeal relating to the operation and applicability of the “least intrusive intervention” principle contained in s 9(2)(c) of the Care Act and the applicability of the United Nations Convention on the Rights of the Child. The case also deals with the statutory requirements for a care plan under the Care Act.

In Re Louise and Belinda [2009] NSWSC 534 Forster J at [54] said the following with respect to the operation of the least intrusive intervention principle in s 9(2)(c) of the Care Act:

In my opinion, the section is ambulatory. In the case of a care application made under section 60 of the Act, it has the effect of requiring the court to be reluctant to remove a child from its natural parents unless there is a compelling reason to do so. On the other hand, where an application is made not under section 60, but under section 90, for the rescission or variation of a care order, the sub-section has a different effect. In that case, the least intrusive form of intervention would normally mean not interfering with existing care arrangements. Needless to say, the force of the requirement imposed by section 9(d) [now s 9(2)(c)] will vary from case to case, and a court will undoubtedly have regard inter alia to the strength of the respective bonds that a child may have with his or her natural parents and his or her foster carers.

In Re Tracey Giles JA (with whom Spigelman CJ and Beazley JA agreed) said that this explanation by Forster J as to the operation of s 9(2)(c) was erroneous as the least intrusive intervention principle has no application when it is not necessary to take action to protect a child from harm. Giles JA said at [79] that the principle’s prescription is confined “to when it is necessary to take action in order to protect a child from harm, and when taking action it is necessary the course to be followed must be one of least intrusive intervention…”. Giles JA said “there must be a prospect of harm if action is not taken, and the question is then the nature of the action.”

The case is also important as the Court of Appeal found (per Spigelman CJ and Beazley JA) that the trial Judge was in error in failing to take into account as a relevant consideration, in exercising her discretion under s 90, Australia’s treaty obligations under the Convention. The case involved a mother who was to be deported to Cambodia following her conviction for drug offences. If the child remained in the care of the Minister the child would therefore have no contact with her mother as the child was to remain in Australia. In finding that the Judge was in error in not having regard to the Convention, Spigelman CJ referred particularly to Article 7.1 which provides, in part, that a child has a right “to be cared for by his or her parents”.

Although the paramountcy principle contained in s 9(1) of the Care Act partly reflects Article 3.1 of the Convention, the decision in Re Tracey means that the court will be required to take into account all relevant Articles of the Convention in determining what is in the best interests of the child; in particular, Article 3.1, Article 3.2, Article 5 together with Article 9.1, Article 8(1) and Article 29.

As stated earlier in this paper, Re Tracey also deals with the requirements of a valid care plan for the purposes of s 80 of the Care Act.

9 Local Court Bench Book

Very useful and instructive material relating to the conduct of care proceedings may also be found in the Local Court Bench Book on the JIRS website. Go to the link “Bench Books” then [“Local Court Bench Book”, followed by “Contents” then] “Children’s Court” and then to “Care and Protection Jurisdiction”.

[2-0250] Children’s Court: new arrangements for dispute resolution procedures in care and protection matters: Bulletin Number 2011/0021

Following recommendations of the Special Commission of Inquiry into Child Protection Services, a new model of alternative dispute resolution commenced operation in the Children’s Court from 7 February 2011.

Further information about the background to the changes, details on how the new model will operate generally and information about a trial of external mediation operating through Bidura Children’s Court is explained in a podcast that can be accessed by following the link below:

http://infolink/lawlink/childrens_court/ll_cc.nsf/pages/CC_adr_programs#Part1

Essentially, Children’s Registrars will now conduct dispute resolution conferences (DRCs) under s 65 Children and Young Persons (Care and Protection) Act 1998 in lieu of preliminary conferences.  DRCs will be conducted under a conciliation model in accordance with Practice Note 3 that was issued by the President of the Children’s Court on 7 February 2011 [see [2-0310].

Children’s Registrars are now based at Parramatta, Broadmeadow, Campbelltown and Port Kembla Children’s Courts and Lismore and Wagga Wagga Local Courts.  

Referrals to a DRC will be made by a Magistrate, although in some cases a Children’s Registrar will direct a DRC at courts where the Children’s Registrar conducts a regular call-over.  Magistrates have been provided specific listing dates at locations where the Children’s Registrars are based and at some other locations where there is a high demand for this service.  At all other locations a date for a DRC will be arranged by the Conference Co-ordinators located at Parramatta Children’s Court.  It is anticipated that in the ordinary course a DRC will be conducted not less than 2 weeks after referral and within 4 weeks of referral.  

The following instructions apply to registry staff once a direction for a DRC is made:

At all courts (except Parramatta Children’s Court) registry staff should complete Form K — Dispute Resolution Conference Booking Form [not reproduced] and send the form to the DRC Conference Co-ordinators by:

(a) 

facsimile to (02) 8688 1478   or    

(b) 

by email to

The Form K must indicate the date allocated by the Court for the DRC at courts where listing dates have been provided.  Where the date of the DRC is to be arranged by the Conference Co-ordinators the Court is asked to nominate three dates that are available to the parties and their legal representatives.

The DRC Conference Co-ordinators will arrange for a Children’s Registrar to be allocated the matter and will confirm the date of listing with the parties and the Registrar of the Court where the matter is listed.  Information to assist parties to prepare for a DRC will then be sent to all the parties by the conference co-ordinators.  

In cases where the Magistrate is of the view that an urgent DRC should be arranged registry staff should contact the Conference Co-ordinators by telephone to enquire whether an urgent conference can be arranged.  The conference co-ordinators can be contacted on:

(a) 

(02) 8688 1471  or

(b) 

(02) 8688 1469

The Children’s Registrar allocated the matter will contact the registry where the matter is listed to obtain access to the file.  At locations where the Children’s Registrar attends on a regular weekly or fortnightly basis the Children’s Registrar will arrange to view the file at the registry.  At other locations the Children’s Registrar will request that relevant portions of the file be photocopied and sent or scanned and emailed to the Children’s Registrar.  Registry staff are to assist with such requests as adequate time for both the Children’s Registrar and the parties to prepare for a conference is seen as essential to the success of this new model.  

The Children’s Registrar will then contact the parties approximately 1 week prior to the listing of the conference to check on the preparedness of the parties for the conference and to ensure that appropriate arrangements are in place to conduct the conference.  

Enquiries concerning arrangements for the conduct of DRCs should be directed to the Conference Co-ordinators on the above phone numbers or the Senior Children’s Registrar on (02) 8688 1465.



[1]  Magistrate Crawford, “Considerations in Making a Contact Order”, 2005(9), Children’s Law News 3.

[2]  Ibid.

[3]  New South Wales, Special Commission of Inquiry into Child Protection Services in NSW, Report of the Special Commission of Inquiry into Child Protection Services in NSW, 2008, at [11.227].

[4]  Ibid at [11.199].

[5]  Ibid, recommendation 11.6.

[6]  S Taplin, “Is all contact good contact?”, NSW Department of Community Services, Discussion Paper, 2005, p 7.

[7]  Ibid, p 12.

[8]  See Children’s Magistrate Elizabeth Ellis, “Contact Orders”, 2004, p 6.

[9]  Magistrate Crawford, above n 1, pp 8–9.

[10]  Maine Department of Health and Human Services, Child and Family Services Manual, Part V.E. accessed from http://www.maine.gov/dhhs/ocfs/cw/policy/index.html?i__d__practice_model.htm on 22/03/10.

[11]  J Richards, “Contact — it still needs to be encouraged” (1995) 19(3) Adoption and Fostering, at pp 43–45; E Farmer, “Family reunification with high risk children: lessons from research” (1996) 18 Children and Youth Services Review, pp 403–424; P Hess, “Visiting between children in care and their families: a look at current policy”, 2003, A Report for the National Resource Centre for Foster care Permanency Planning, Hunter College School of Social Work: A Service of the Children’s Bureau.

[12]  K Wilson and I Sinclair, “Foster care: policies and practice in working with foster placements” (2003) in M Bell and K Wilson (eds), The Practitioner’s Guide to Working with Families, Palgrave Macmillan, Basingstoke, 2003, pp 229-245; D Fanshel, On the road to permanency, Child Welfare League of America, New York, 1982; D Browne and A Moloney, “Contact Irregular: a qualitative analysis of the impact of visiting patterns of natural parents on foster placements” (2002) 7 Child and Family Social Work, 35.

[13]  S Leathers, “Parental visiting, conflicting allegiances and emotional and behavioural problems among foster children” (2003) 52(1) Family Relations 53, 54.

[14]  Ibid.

[15]  Ibid.

[16]  Ibid.

[17]  Ibid.

[18]  A Cantos, L Gries, and V Slis, “Behavioral correlates of parental visiting during family foster care” (1997) 76(2) Child Welfare, 309, 324.

[19]  L McWey and A Mullis, “Improving the lives of children in foster care: the impact of supervised visitation” (2004) 53(3) Family Relations 293, 298.

[20]  Leathers, above n 13, p 58.

[21]  Ibid.

[22]  Ibid.

[23]  D Scott, C O’Neil and A Minge, Contact between children in out-of-home care and their birth families — Literature review, NSW Department of Community Services, 2005, p 23.

[24]  Leathers, above n 13, p 59.

[25]  Ibid, p 61.

[26]  Scott et al, above n 23, p 14.

[27]  J Duerr Berrick, “What works in kinship care” (2000), in Scott et al, above n 22, p 17.

[28]  A Kovalesky, “Factors affecting mother-child visiting identified by women with histories of substance abuse and child custody loss” (2001) 80(6) Child Welfare p 749.

[29]  D Howe and M Steele, “Contact in cases in which children have been traumatically abused or neglected by their birth parents” in E Neil and D Howe (eds), Contact in adoption and permanent foster care: research, theory and practice, British Association for Adoption & Fostering, London, 2004.

[30]  P Hess and K Proch, Family visiting in out of home care: a guide to practice, Child Welfare League of America, Washington, 1988.

[31]  Re Liam [2005] NSWSC 75 at [48].

[32]  Redfern Legal Centre’s Lawyers Practice Manual New South Wales at [2.3.208].

[33]  G Sheehan et al, Children’s contact services: expectation and experience, Final Report, 2005, 147.

[34]  Ibid.

[35]  Sheehan, above n 34, p 148.

[36]  Sheehan, above n 34, p 153.

[37]  Sheehan, above n 34, p 154.

[38]  Sheehan, above n 34, p 158.

[39]  Community Services Commission, Voices of children and young people in foster care, Consultation Report, 2000, 84.

[40]  Ibid.

[41]  Ibid, p  85

[42]  Ibid, p 84–90.

[43]  Ibid, p  84.

[44]  Barnardos Monograph 50, Establishing permanency for children — the issue of contact between children in permanent foster care and their birth families, 2003.

[45]  Magistrate Ellis, above n 8, p 5.

[46]  R Harris and C Lindsey, “How professionals think about contact between children and their birth parents” (2002) 7 Clinical Child Psychology and Psychiatry 147, 153.

[47]  Ibid.

[48]  NSW Department of Community Services, Making decisions about contact, 2006.

[49]  P Hess, “Case and context” (1988) 67(4) Child Welfare 311.

[50]  See Scott et al, above n 23, p 12.