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.
  1. 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.
  1. 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.
  1. Thirdly, I acknowledge the hard work and dedication of the various Children’s Court Magistrates presiding in this specialist jurisdiction.
  1. 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.
  2. 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.
  1. 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.
  1. 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.
  1. Finally, I will discuss some other issues that are of topical currency or otherwise of concern.
  1. 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.
  1. 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.
  2. 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.
  1. 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
  1. 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.
  1. 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.
  1. 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.
  1. I am very pleased, therefore, that we have been provided with two additional Children’s Magistrates, who commenced this week.
  1. 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.
  1. 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.
  1. 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.
  1. 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 monthfor Care, Crime and Education matters.
  2. We have also made some changes to the Riverina Circuit and the Western Circuit.
  3. More information on the new Circuits for 2015 can be found on the Children’s Court website:

  4. 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.
  5. 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
  6. Returning to the Local Court are Magistrates Russell, Feather and Hawdon.
  7. 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.
  8. 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.
  1. TRANSFER OF CASEWORK TO THE NGO SECTOR
  1. I am informed that nearly 50% of casework for children in the care of the Minister has now been transferred to NGO’s.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  1. EARLY INTERVENTION
  1. 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.
  2. The reforms were driven by a shared goal: to ensure that the least amount of children are removed from their parents.
  3. Or, in circumstances where a child has been removed, that full consideration be given to providing the necessary supports to facilitate restoration.
  4. 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).
  5. 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.
  6. 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.
  1. 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.
  1. 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.
  1. 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.
  1. THE OVER-REPRESENTATION OF ABORIGINALS
  1. In my view, it is vitally important to examine the issue of culture when making decisions about a child or young person’s care.
  2. It is critical that we understand and appreciate the role culture plays in the identity formation and socialisation of a child.
  3. 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.”

  1. 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.
  1. Aboriginal cultural identity centres on an appreciation of the significance of culture, land/country, historical exclusion in decision-making and reconnection with family.
  1. 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.
  1. 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.
  1. 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.
  1. RESTORATION
  1. My fifth and final “Big” issue is restoration.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  1. GUARDIANSHIP
  1. 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.
  1. 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.
  1. INTERIM ORDERS
  1. 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.
  2. 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. 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.
  1. CONTACT
  1. The Care Actreforms 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.
  1. 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.
  1. 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.
  1. 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.
  2. 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 decision-making.
  1. DENIGRATION OF CASEWORKERS
  1. The next point I want to make is the Court’s disdain for unnecessary and gratuitous attacks on caseworkers.
  2. 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.
  3. At worst, it is rude and discourteous, and inconsistent with the Court’s culture of courtesy and its non-adversarial approach.
  1. JOINDER
  1. Finally, I want to say something about joinder of parties.
  2. 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..
  3. 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 cross- examine witnesses at least generally.