Children’s Court of New South Wales
LEGAL AID CARE AND PROTECTION CONFERENCE
Friday 7th August 2015
JUDGE PETER JOHNSTONE
PRESIDENT OF THE CHILDREN’S COURT OF NSW
“THE IMPACT OF THE CARE AND PROTECTION REFORMS ON THE
CHILDREN’S COURT OF NSW”
INTRODUCTION:
1. This paper has been prepared for the 2015 Legal Aid Care and
Protection Conference on Friday 7 August 2015, and will address
current issues in the Children’s Court with a focus on developments
following the introduction of the child protection reforms on 29 October
2014.
2. First, I wish to acknowledge the traditional occupiers of the land on
which we meet and pay my respects to their Elders past and present.
3. Secondly, I wish to acknowledge the help and assistance of my
Executive staff: the Court’s Executive Officer, Rosemary Davidson, the
Listing Director, Sara Kamel, and my Associates: Vicki Bethel, Court
Associate and Paloma Mackay-Sim, my Research Associate, in
particular for her work in the preparation of this paper.
4. Thirdly, I acknowledge the hard work and dedication of the various
Children’s Court Magistrates presiding in this specialist jurisdiction.
5. Fourthly, I acknowledge and thank sincerely the frontline operators in
the field of child protection, in particular the caseworkers who have the
direct responsibility for dealing with children at risk and their families,
often in circumstances of confrontation or sullen resistance. The work
that these caseworkers, clinicians, counsellors and other support
workers do with these children on a daily basis is to be admired.
6. Fifthly, I wish to acknowledge the fantastic work that the lawyers who
appear in the Children’s Court do on a daily basis. We are heavily
dependent on the assistance that you provide for the efficient disposal
of our case load, and I am grateful for the high quality of skill and
dedication, the common sense, the integrity, and the courtesy that the
vast majority of the regular practitioners in the Court bring to their work
in this jurisdiction.
7. What I propose to do in the half hour allocated for this “President’s
Address” is to bring you all up to date with recent appointments made
by the Chief Magistrate to the Children’s Court and how I propose to
deploy the specialist Children’s Court Magistrates in 2016, and to
inform you about our sitting and circuit arrangements going forward.
8. I will the give you a brief overview on the “5 Current Big Care Issues” in
the Children’s Court. These are my take on the main areas of concern
that will command my focus and attention over the next year.
9. Finally, I will discuss some other issues that are of topical currency or
otherwise of concern.
10. I have now been in the role of President for three years and I can
honestly say that I am still learning about the jurisdiction. There are,
however, some things about which I have formed some firm views.
First and foremost is my conviction about the role of the jurisdiction
exercised by the Court. I am strongly of the position that we need to
protect and maintain the discrete, separate and specialised nature of
the work in this Court.
11. The informality of proceedings, the absence of technical form and
arcane rules of evidence, the transparency of the process and the
disdain for traditional adversarial, antagonistic conduct of proceedings,
are all critical concepts that further our overriding goal: the safety,
welfare and well-being of the children and young people in this state.
12. The Big 5 themes I wish to discuss in today’s address are:
(1)
Expanding the coverage of specialist Children’s Court
Magistrates across the whole state in Care matters.
(2)
Problems arising from the ongoing transfer of case-management
to the NGO sector.
(3)
Early intervention with families with children at risk.
(4)
The continuing over-representation of Aboriginal families in the
Children’s Court.
(5)
Restoration as the first priority in the hierarchy.
13. The other topical issues about which I want to make some comments
are the following:
(6)
Guardianship
(7)
Interim Orders
(8)
Contact
(9)
Attacking and denigrating caseworkers/clinicians etc
(10)
Joinder of parties
1. STATEWIDE COVERAGE OF THE SPECIALIST COURT
14. I turn now to address my first big theme, that of the desirability of
expanding the coverage of specialist Children’s Court Magistrates
across the whole of the state, particularly in Care matters.
15. This is not an exercise in empire building. Rather it is recognition that
cases involving children are different from the general run of
adversarial disputes in other jurisdictions. It has taken me some time
to comprehend the importance of specialist experience, expertise and
understanding that is required for the jurisdiction. This is not the time
to go into the detail of the rationale, but a simple example is that of
brain development. Our magistrates are well-versed in the
developments in the last 15 years in brain science and how that plays
out in the decision-making that confronts our Court.
16. Secondly, there is a value in having a consistency of approach and of
outcomes across the whole state, in the way evidence is presented, in
the practices and procedures applied, and in the decisions made in the
cases that come before the Court.
17. I am very pleased, therefore, that we have been provided with two
additional Children’s Magistrates, who commenced this week.
18. Within a few weeks we will have a specialist Children’s Magistrate
based permanently at Lismore, presiding over the Northern Rivers
Circuit (NRR), extending from Tweed Heads south to Port Macquarie.
Magistrate MacMahon will move to Lismore later this month and
commence sitting from 1 September 2015. This Circuit will encompass
all aspects of Children’s Court jurisdiction, including Care, Crime and
Education matters.
19. The extension of the NRR has enabled us to extend the Mid-North
Coast circuit south. This circuit is a Care circuit only, but it will now
cover Kempsey, Port Macquarie and Taree. I will continue to sit on that
circuit one week each month.
20. That means we now have specialist Children’s Court Magistrates
dealing with Care cases from the Queensland border south to Nowra.
Our next objective will be to look at extending the Illawarra Circuit
further west and south, depending on demand.
21. Magistrate Sheedy has also been appointed to the Children’s Court,
and she will preside over the new Hunter Circuit, incorporating
Cessnock, Muswellbrook, Maitland and Raymond Terrace. The circuit
will operate 2 weeks per month for Care, Crime and Education matters.
22. We have also made some changes to the Riverina Circuit and the
Western Circuit.
23. More information on the new Circuits for 2015 can be found on the
Children’s Court website:
www.childrenscourt.justice.nsw.gov.au.
24. Another new Children’s Court Magistrate will be joining the Court from
28 August 2015. She will be based at Parramatta. This will enable us
to look at restoring Bidura to a full complement of 2 permanent
Magistrates. Whilst on the topic of Bidura, you are no doubt aware that
the building has been sold by the government, which is planning to
build a new Children’s Court complex at Surrey Hills.
25. Turning then, to the deployment of Children’s Court Magistrates from
2016, the following will be the situation:
Bidura: Children’s Court Magistrates Hogg and Duncombe
Campbelltown: Children’s Court Magistrate Blewitt
Broadmeadow: Children’s Court Magistrate Robinson
Illawarra: Children’s Court Magistrate D Williams
Northern Rivers: Children’s Court Magistrate MacMahon
Hunter: Children’s Court Magistrate Sheedy
Woy Woy: Children’s Court Magistrates McManus and Stubbs
Parramatta: Children’s Court Magistrates Murphy, Carney, Ellis,
Sbrizzi, E Ryan and Haskett
26. Returning to the Local Court are Magistrates Russell, Feather and
Hawdon.
27. The allocation to the Children's Court of additional Magistrate capacity
to service the Riverina and Western Circuits is a work in progress.
Similarly, at this point, we are not guaranteed any rotating Magistrates
in 2016, unless new Local Court appointments eventuate in the next 6
months. The Chief Magistrate has advised that he will raise these
resourcing issues with the Attorney at his next meeting with her.
28. Finally, I can advise you that Rebecca Kang has been appointed as the
Senior Children’s Registrar, succeeding Juliette Northcote who recently
stepped down from that position.
2. TRANSFER OF CASEWORK TO THE NGO SECTOR
29. I am informed that nearly 50% of casework for children in the care of
the Minister has now been transferred to NGO’s.
30. This change is giving rise to the emergence of new issues and
problems. NGO caseworkers are becoming increasingly involved in
Children’s Court proceedings, preparing Care Plans, s 82 Reports and
the preparation of other documents for the Court process such as
affidavits.
31. You, as the lawyers, need to remember that the Secretary remains the
party to the proceedings in the Children’s Court, and retains the
primary duty to the Court. The NGO is not a party. For example, it is
not appropriate for the NGO to prepare and submit a s 82 report
without the Secretary or his delegate separately indicating that he
agrees with the report. Similarly, where the Minister has been
allocated parental responsibility, his delegate, the Secretary, retains a
non-delegable responsibility for that child.
32. Where the interests of DFaCS and the NGO diverge, it will be
necessary for a common position to be presented to the Court.
Desirably, casework tensions should not be played out in Court or in
the DRC. I consider below the situation where it might be thought
appropriate to entertain any application by an NGO to be joined as a
party. It is difficult, however, to envisage a situation where the legal
interest of the Secretary will be different to that of the NGO, because
theoretically, they do not have separate interests in a dispute.
33. In the meantime, however, where there is a divergence of view that
cannot be resolved, the Secretary, as a model litigant, is duty bound to
produce any evidence given by the NGO or an NGO caseworker, even
where that evidence is inconsistent with the Secretary’s case or tends
to undermine the Secretary’s stated position.
3. EARLY INTERVENTION
34. The legislative reforms to the Care Act that commenced on 29 October
2014 create an increased focus on early intervention and capacity
building. They highlight the need for Community Services, parents,
carers, children and young people to collaborate to resolve disputes
before they reach the Court. To facilitate early intervention, provisions
were included in the amendments to ensure that alternative dispute
resolution mechanisms are utilised to the fullest extent.
35. The reforms were driven by a shared goal: to ensure that the least
amount of children are removed from their parents.
36. Or, in circumstances where a child has been removed, that full
consideration be given to providing the necessary supports to facilitate
restoration.
37. A key area of reform is the alteration to the significance of Parent
Responsibility Contracts (PRCs): s 38A, removing the presumption that
a child is in need of protection if the contract is breached, and including
expectant parents: s 38A (1)(b).
38. Despite this, it appears that PRCs are still being underutilised. It is
understandable that practitioners may have previously been reluctant
to advise their clients to enter into a PRC, however, it is important to
remember that PRCs are an available option in the suite of early
intervention and pre-removal options.
39. PRCs are a useful way of involving parties in decision making and care
planning prior to removal. Using this option may increase the party’s
understanding, confidence, engagement with and commitment to the
process.
40. Another key reform was the power given to the Children’s Court to
make Parent Capacity Orders to require parents to address
deficiencies in parenting capacity: s 91.
41. The PCO can be used as a stand-alone provision, consistent with the
early intervention aims of the reforms. Additionally, a PCO can be
issued during proceedings or as a result of a breach of prohibition
order.
42. The take-up of this new tool has, however, been slow. We have so far
not seen very many applications for a PCO, but I want to encourage
the practitioners in this jurisdiction to consider their use, as an
alternative to the trauma of removal.
4. THE OVER-REPRESENTATION OF ABORIGINALS
43. In my view, it is vitally important to examine the issue of culture when
making decisions about a child or young person’s care.
44. It is critical that we understand and appreciate the role culture plays in
the identity formation and socialisation of a child.
45. As I stated in DFaCS v Gail and Grace [2013] NSWChC 4:
“The Aboriginal and Torres Strait Islander Principles are in the Care Act
1998 for good and well-documented reasons that do not need to be
traversed anew in these reasons. They are to be properly and
adequately addressed in all permanency planning and other decisions
to be made under the Act and in matters coming before the Children’s
Court.”
46. The need for appropriate cultural planning is linked to the need to
ensure that early intervention and pre-removal options are explored to
their fullest extent. I have made numerous comments in past cases in
relation to the inadequacy of cultural planning, particularly with respect
to Aboriginal children.
47. Aboriginal cultural identity centres on an appreciation of the
significance of culture, land/country, historical exclusion in decisionmaking and reconnection with family.
48. In the past year, a small working group has been developing a template
for a cultural action planning section in the Care Plan. The idea behind
this template is to ensure that adequate casework is undertaken to
appropriately identify a child’s cultural origins, and to put in place fully
developed plans for the child to be educated, and to fully immerse him
or her in their culture; including family, wider kinship connections,
totems, language and the like.
49. I strongly believe that if an Aboriginal child understands where they
came from, they have a better chance of fitting into the present,
progressing and developing personally in our modern, complex,
multicultural society.
50. There has, for reasons that are unclear to me, been some resistance to
the template in parts of the Department. In the past week I have had
discussions with the new General Counsel, Alana Starke, and the
Minister, Brad Hazzard, and I believe that the template will become a
mandatory, integral part of every Care Plan developed for Aboriginal
children.
5. RESTORATION
51. My fifth and final “Big” issue is restoration.
52. I believe that we are at a cross-road in the evolution of the care and
protection of children in New South Wales. From my observations over
the last 3 years, I believe the system has been overly focussed on
removal and the placement of children into foster care.
53. I want to see a change in direction that sees a greater emphasis on the
provision of support for families in distress and an increased effort to
restore children to their families.
54. To this end, the Court will be looking very hard at the hierarchy
established by the new permanent placement principles, and
questioning whether adequate and appropriate attempts to restore
children have been undertaken before embarking down the path of
adoption, kinship placements or permanent foster care.
55. I come now to the 5 topical subjects that I wish to flag: Guardianship,
Interim Orders, Contact, Joinder, and the inappropriate denigration of
caseworkers by lawyers.
6. GUARDIANSHIP
56. The first of these topics is Guardianship. A major reform resulting from
the amendments to the Care Act was the jurisdiction to make
Guardianship orders. The Children’s Court now has the power to make
a Guardianship order allocating to a suitable person all aspects of
parental responsibility until the child attains the age of 18 years: s 79A.
57. This power is a significant area of reform for the Children’s Court. I will
not address this topic in detail here, given that there will be a full
presentation later today by Children’s Magistrate Feather.
7. INTERIM ORDERS
58. I next want to deal with the topic of interim orders, and to remind you all
of the decision of Blewitt ChM in Re Mary [2014] NSWChC 7. In this
matter, Blewitt ChM considered whether the decision of Rein J in Re
Timothy [2010] NSWSC 324 was conclusive. Specifically, Blewitt ChM
considered whether the Children’s Court could amend an interim order
without the need for an application to be made under s 90 of the Care
Act.
59. Blewitt ChM concluded that interim orders can be amended without the
need for a s 90 application. Whilst a party is not precluded from
making a s 90 application, it is not an essential requirement:
“In the absence of express provisions in the Care Act that require the
application of the provisions of s 90 to vary an existing interim order,
and having regard to the inconclusive remarks of Rein J in Re Timothy,
I find that the Court does have the power to entertain an oral
application for varying of an existing interim order without the need for
the moving party to file an application pursuant to s 90.”1
1
Re Mary [2014] NSWChC 7 at [33].
60. What this means, in practical terms, is that the Children’s Court will be
less likely in the future to make time limited orders for the allocation of
parental responsibility to the Minister.
8. CONTACT
61. The Care Act reforms have limited the Court’s power to make contact
orders to a period of 12 months on the initial care application: s 86 (6).
However, the amendments also created new processes for varying
contact orders and making applications for contact orders following the
conclusion of the initial proceedings.
62. The question of what contact is sufficient and appropriate remains a
vexed one. On the one hand, there are advocates for minimal contact
limited to the need to establish the identity of the birth family. On the
other hand, others believe that children in permanent foster care
benefit from more frequent contact, provided that it is not undermining
the placement.
63. We take guidance from some of the recent pronouncements of Justice
Brereton in Adoption cases in the protective jurisdiction of the Supreme
Court, and the comments on this issue in his presentation today are
noted with interest.
64. There are underway a number of studies into this issue, and the
Department has also established a Common Contact Framework
designed to provide guidance. There is to be a detailed presentation
on this project today by Pauline O’Neill from DFaCS and I look forward
to that.
65. In the meantime, I remind you that the Children’s Court has established
a set of Contact Guidelines. I commend these to you for re-reading as
for the time being, these will inform and guide the Court’s decisionmaking.
9. DENIGRATION OF CASEWORKERS
66. The next point I want to make is the Court’s disdain for unnecessary
and gratuitous attacks on caseworkers.
67. At best it is in my view just dumb advocacy as it tends to confirm a
party’s continuing lack of insight. It also tends to get the Judicial Officer
off side.
68. At worst, it is rude and discourteous, and inconsistent with the Court’s
culture of courtesy and its non-adversarial approach.
10. JOINDER
69. Finally, I want to say something about joinder of parties.
70. There has been something of a change in approach on this topic in
recent times, partly driven by the transfer of casework to the NGO
sector, but also as a result of some recent pronouncements by superior
courts. The Court is now increasingly receptive to joinder applications
and more likely to make orders than in the past..
71. In Re June (No 2) [2013] NSWSC 1111 (hereinafter referred to as Re
June) McDougall J clarified the distinction between s 87 and s 98(3) of
the Care Act:
“The second point to note is that the opportunity to be heard is not the
opportunity to participate in the proceedings either as a party as of right
(s 98(1)) or as someone given leave (s 98(3)). Thus it does not follow
that the opportunity to be heard includes the right to examine or crossexamine witnesses at least generally.
However, if the question of significant impact is one that is the subject
of evidence, and if there are direct conflicts in that evidence, then in a
particular case, the opportunity to be heard may extend to permitting
cross-examination on that particular point.”2
72. The more recent decision in Bell-Collins v Secretary, Department of
Family and Community Services [2015] NSWSC 701, provides further
clarification.
73. During case management, the Magistrate had refused the application
of the grandparents to be joined as a party. At the hearing, which
came before me in the Children’s Court at Woy Woy3, I gave the
grandparents an extensive opportunity to be heard, under s 87(1).
74. In the de novo appeal to the Supreme Court, the grandparents
renewed their application for joinder, and the matter was considered by
Justice Slattery. The significant aspect of Slattery J’s decision was his
distillation of the distinction between the opportunity to be heard under
s 87(1) and the granting of leave to appear under s 98(3):
“In s 87(1) the threshold is one to ensure that non-parties who may
suffer adverse impacts from Care Act orders will receive procedural
fairness before such orders are made. The focus is on ‘impact on a
person.4
“But the threshold for s 98(3) is more child-centred. The s 98(3) right is
only available to a person who in the Court’s opinion “has a genuine
concern for the safety, welfare and wellbeing of the child”. It is perhaps
because the s 98(3) threshold is more altruistic than that under s 87
that the Care Act afford a wider scope to participate to those who
receive a grant of s 98(3) leave.
2
Re June (No 2) [2013] NSWSC 1111 at [186]-[187]
Department of Family and Community Services (NSW) and the Bell-Collins Children [2014]
NSWChC 5
4
Bell-Collins v Secretary, Department of Family and Community Services [2015] NSWSC at [33]
3
Persons meeting s 98(3) leave will sometimes be, as the great
grandparents are in this case, people who can by their participation fill
an evidentiary gap in the proceedings that it may be in the best
interests of the child to see filled in the proceedings. In my view that is
the case here.”5
75. Accordingly, Slattery J granted the grandparents leave on terms under
s 98(3). The grandparents were only granted leave to cross-examine
and adduce evidence about their own suitability as alternative carers
for the children.
76. Finally, I wish to remind you of a decision by Magistrate Schurr in 2003
in which an NGO, Anglicare, was joined as a party to Care
proceedings: In the matter of ‘Pamela’ 2003 CLN 3
77. In that case the Department of Community Services (as it was then
designated) sought an order from the Court revoking the leave of
Anglicare to appear as a party. The Secretary argued that the NGO
had insufficient interest in the proceedings and that it was probable that
the positions taken by the parties would be duplicated.
78. Magistrate Schurr outlined Anglicare’s involvement in the proceedings
as follows:
“In late 1998 the Department of Community Services delegated to
Anglicare the role of foster care agency, a role it continues to date.
Anglicare does not exercise any powers of parental responsibility for
this child, and these powers remain with the Minister.”6 “Anglicare
workers do, however, supervise the foster carers, coordinate access by
the birth family and liaise with the Department of Community Services
through case conferences.”7
5
Above n 5- Bell-Collins at [34]
In the matter of ‘Pamela’ 2003 CLN 3 at p.4
7
Above n 7 – ‘Pamela’ at p.4
6
79. Anglicare had originally sought leave to be joined as a party to argue
for an “independent assessment of the child and family members.”
Anglicare argued that once leave was granted there was no limit on
their role in the proceedings.
80. The Department argued that leave should only be granted to those
persons with rights, powers and duties relating to children, by reference
to the objects in s 8(a) of the Care Act. It was argued that Anglicare
had neither parental responsibility nor the day to day care of the child
and could not be granted leave.
81. Magistrate Schurr concluded that Anglicare’s involvement with the child
was sufficient to bring it within the scope of s 98(3).
CONCLUSION
82. Ten months on from the commencement of the reforms, it is clear that
the Court, practitioners, NGO’s and caseworkers are still developing
and applying an understanding of the changes. Given that the reforms
are in their infancy, their impact on the Children’s Court may be more
thoroughly canvassed after the passage of more time.