District Court New South Wales

• Medium Neutral Citation: MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63
• Hearing dates: 5, 6, 7, 8, 9, 12 and 14 March 2012
• Decision date: 23 March 2012
• Before: Judge Peter Johnstone

Decision

Appeals dismissed and all other applications refused. The orders of the Children's Court are confirmed

• Catchwords: CHILDREN - Care Appeals - plaintiffs seeking restoration of two children to their care - whether children in need of care and protection - whether there is a realistic prospect of restoration - if not, with whom should each child be placed
• Legislation Cited: Children and Young Persons (Care and Protection Act) 1998
• Cases Cited: Allesch v Maunz (2000) 203 CLR 172; Briginshaw v Briginshaw [1938] HCA 34; Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250; Druett v Director-General of Community Services [2001] NSWCA 126; Gianoutsos v Glykis [2006] NSWCCA 137; In the matter of Campbell [2011] NSWSC 761; Johnson v Page [2007] Fam CA 1235; M v M [1988] HCA 68; Re Alistair [2006] NSWSC 411; Re Louise and Belinda [2009] NSWSC 534; Re Tracey [2011] NSWCA 43; SB v Parramatta Children's Court [2007] NSWSC 1297; SS v Department of Human Services (NSW) [2010] NSWDC 279; T v H [1985] NSWSC Unreported, 19/12/1985, per Hodgson J; The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1
• Category: Principal judgment
• Parties: Katie Smith (Independent Legal Representative for the children, RL and WB); MXS (Mother); MS (Father of WB); JK (Father of RL); Department of Family and Human Services (NSW); SS (Maternal Grandmother); JH (Maternal Grandfather)
• Representation: Ms Katie Smith, Solicitor (Children); Mr M Anderson of counsel (Department); Mrs I Ryan of counsel (Mother); Mr MS (Self-represented); Mr Chapman, solicitor (Mr JK); Mr D Barry of counsel (Maternal Grandparents); Mr Paul Grant, Solicitor (Mother); Crown Solicitor's Office (Department)
• File Number(s): 2011/ 86120 and 2012/50644
• Publication restriction: No

REASONS FOR Judgment

The proceedings and the issues

1 This appeal concerns two young children, RL (aged 3) and WB (aged 1). MXS is the mother of both children.

2 RL is the natural daughter of MXS and JK.

3 WB is the natural son of MXS and MS.

4 In 2006, MXS (aged 18) commenced a relationship with JK (aged 17). In 2007, JK moved out of his parents' home and began living with MXS. In early 2008, MXS fell pregnant to JK. In November 2008, when MXS was eight months pregnant, the relationship broke up after an episode of domestic violence in which JK struck MXS. RL was born a few weeks later, on 8 December 2008.

5 In January 2009, MXS commenced a relationship with MS. He did not move in with MXS at that stage but regularly spent time together with MXS and RL at their home, including overnight stays on an increasingly frequent basis.

6 On 21 September 2009, when RL was 9 months old, it was discovered that she had suffered serious injuries to her ribs, for which there was no satisfactory explanation. As a result, RL was removed from MXS's care.

7 Three months later, MXS married MS, on 13 December 2009. During 2010, MXS fell pregnant to MS. Their son WB was born on 6 November 2010, when he was also removed from their care.

8 Following proceedings in the Children's Court, the Minister has sole parental responsibility for both children.

9 The Minister has placed each child into the care of its respective paternal grandparents. RL is in the care of SK and PW. WB is in the care of JS and GS.

10 Currently there is a regime of contact in place that involves:

• MXS and MS have supervised contact with RL and WB at their home three times a week for 2 hours.

• JK has supervised contact with RL at his mother's home for 6 hours a week.

• The maternal grandparents have supervised contact with RL and WB at their home for 2 hours a week.

• The paternal grandparents of each child arrange occasional ad hoc sibling contact between RL and WB.

11 MXS and MS seek immediate restoration of both children to them. Alternatively, they seek orders that the children be placed into the care of MXS's parents, SS and JH.

12 JK seeks a staged restoration of RL to him.

13 The Department opposes restoration to MXS and MS of either child, and opposes placement of either child with the maternal grandparents. Its position is that the children should continue in their current placements with their respective paternal grandparents, and any further steps to be taken should be at the discretion of the Minister. In effect, the Department asks that the orders of Children's Court be confirmed.

14 The Independent Legal Representative for the children supports the Department's position.

The applicable legal framework

15 There are two appeals before the court, one in respect of each child, from final orders made in the Children's Court. The appeals are brought pursuant to s 91 of Children and Young Persons (Care and Protection) Act 1998 (the Care Act): Exhibit 2. The appeals were heard together and these Reasons relate to both appeals, in relation to which there will be a single set of orders.

16 The final orders of the Children's Court remain in force and are to be given full effect, subject to any orders made by the District Court: section 91(7). This appeal may result in the court confirming, varying, or setting aside the final orders: sub sections 91(4), 91(5) of the Act.

17 The statutory jurisdiction conferred on the District Court by section 91 of the Care Act is a special appellate jurisdiction, different to the usual civil jurisdiction: Druett v Director-General of Community Services [2001] NSWCA 126.

18 The nature of the appeal is that it involves a new hearing with fresh evidence, or evidence in addition to or in substitution for the evidence in the Children's Court: s 91(2). There is no necessity for the appellant to establish an error in the court below: Gianoutsos v Glykis [2006] NSWCCA 137 at [27] and [37]; Allesch v Maunz (2000) 203 CLR 172. In addition to any functions and discretions that the District Court has, it has all the functions and discretions of the Children's Court: s 91(4). The District Court may confirm, vary, or set aside the decision of the Children's Court: s 91(5). The decision of the District Court is taken to be the decision of the Children's Court and has effect accordingly: s 91(6).

19 Decisions of the court are to be made consistently with the objects, provisions and principles provided for in the Care Act.

20 The objects of the Act, as set out in s 8, are to provide:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

21 The provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) are capable of being relevant to the exercise of discretions under the Care Act: Re Tracey [2011] NSWCA 43.

22 It was not suggested in this case, however, that the relevance of the provisions of CROC had any additional or different effect on the decisions required here to those set out in the Care Act, most of them having been incorporated into the objects and principles of the Care Act. The parties made no submissions based on the Convention, and it was agreed that I should proceed to determine these appeal by reference, principally, to the provisions of the Care Act.

23 The Care Act is to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1) of the Care Act.

24 Other principles in the Care Act of particular relevance to the present appeals include the following:

• Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c).

• 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 s 9(2)(e) and (f). This includes the retention of relationships with people significant to the children.

25 The court is not bound by the rules of evidence. The proceedings are not to be conducted in an adversarial manner, and are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93.

26 The standard of proof is on the balance of probabilities: s 93(4) of the Care Act. It is accepted by the parties that the High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250.

27 In the context of the present appeal, the Department will not fail to satisfy the burden of proof on the balance of probabilities simply because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable: Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 at [67] - [68].

28 In that case, it was said by Sackville AJA:

"The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was highly improbable. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father": [67]. (Emphasis added)

"As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities": [68].

29 There are two fundamental concepts in the Care Act that are central to the Department's position and which it is required to establish for it to successfully oppose these appeals:

(a) That the children are in need of care and protection.

(b) That there is no realistic possibility of restoration of the children.

30 Section 71(c) of the Care Act provides:

"The Children's 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 for any reason including, without limitation, any of the following:

(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated..."

31 It is now well settled law that in all decisions under the Care Act involving the paramount concern of safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1. It was there held by the President of the Children's Court, Judge Marien at [61]:

"Because in all decisions made under the Act concerning a particular child, the safety, welfare and well-being of the child must be "the paramount consideration" an order removing a child from the care of his or her parents should be made if there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25]."

32 Section 106A of the Care Act provides:

"(1) The Children's Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child or young person the subject of a care application:

(a) is a person:

(i) from whose care and protection a child or young person was previously removed by a court under this Act or the.Children (Care and Protection) Act 1987

(2) Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection.

(3) A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children's Court that, on the balance of probabilities:

(a) the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist..."

33 Section 83(7)(b) of the Care Act provides:

"The Children's Court must not make a final care order unless it expressly finds:

(a) that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:

(i) the circumstances of the child or young person, and

(ii) 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."

34 Until recently, there had been no consideration by a superior court of the concept of "a realistic possibility of restoration". Then came the decision of Slattery J in Campbell [2011] NSWSC 761.

35 In the matter of Campbell [2011] NSWSC 761, Slattery J discusses the concept of "a realistic possibility of restoration" as follows at [55]:

"The expression "realistic possibility of restoration" has often been interpreted by the Children's Court and on appeal to the District Court. I was not referred in argument to particular judicial pronouncements on the meaning of "realistic possibility of restoration". But when Johnstone J considered this same matter in December 2008 [Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008, NSWDC, Unreported, Judge Johnstone], he drew upon a summary of Children's Courts practice given by Senior Children's Magistrate Ms. Johnstone J accepted the practical wisdom of Senior Children's Magistrate Ms's summary but found the words "realistic possibility" to set a somewhat less onerous test than Senior Magistrate Ms had set."

36 Slattery J then cited with approval the following paragraphs from Re Saunders and Morgan v Department of Community Services ([2008]NSWDC, Unreported, Judge Johnstone 12/12/2008) at [11] - [14]:

"[11] I was unable to discover any judicial pronunciation on the meaning of a 'realistic possibility' of restoration. I was directed to the following passage in the submissions of Senior Children's Magistrate Ms to the Special Commission of Enquiry into child protection services in NSW:

'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'.

[12] 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 themxselves, and in my view a purposive and beneficial construction of the legislation does not require such an onerous test.

[13] 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.

[14] 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 synonymxs in the various dictionaries I consulted, the most apt in the context of the section were the words 'sensible' and 'commonsensical'."

37 Slattery J then continued, at [56] - [57]:

"Marien J referred to this passage with apparent approval in this decision on 20 September 2010 in this matter.

What Johnstone J says in paragraphs [13] and [14] is, in my view, with respect to his Honour, correct and is about all that can usefully be said about the expression "realistic possibility".

It is going too far to read into the expression a requirement that an applicant must always at the time of hearing of the application for rescission or variation have demonstrated participation in a program with some significant "runs on the board". That in my view is to put a gloss on the words which are not in the legislation.

The Care Act, s 83(1) makes clear at what time the "realistic possibility" of restoration should be assessed. When the application for rescission or variation of a care order is before the Court, it is at that time the Court must assess "whether there is a realistic possibility" [Emphasis added]. It must not at the time of the rescission or variation application be merely a future possibility. It must at that time be a realistic possibility. But when leave to bring such an application is sought under s 90(1), as counsel for KC pointed out, the whole case for rescission or variation is not being presented now..."

38 There are two limbs to s 83(7) of the Care Act, to each of which regard must be had. The first limb is the "circumstances of the child", and the second limb is "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".

39 The removal of any child from the care and protection of his or her parent is not something the court undertakes lightly or easily. But at the end of the day, a risk assessment is required, in accordance with the principle that the safety, welfare, and well-being of the children are paramount. Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed above: see Johnson v Page [2007] Fam CA 1235.

40 I turn then to consider the issues against the background of this legal framework.

The Department's case

41 In the present case, the Department contends that the children are in need of care and protection. It submits there is an unacceptable risk of abuse or ill-treatment if the children were to be placed back into the care of MXS and MS.

42 The Department relies upon the medical evidence relating to the injuries caused to RL, which is uncontested:

"There is no more recent evidence relied upon by the parent(s) to create sufficient reason to re-open establishment, essentially because it is submitted that the evidence leading to the findings is appropriate and sufficient, and the finding is not incorrectly made: see Re Alistair [2006] NSWSC 411 at [78] and [86]."

43 An "unacceptable risk of harm" may be sufficiently established without necessarily finding the exact mechanism of the harm, for example not necessarily identifying perpetrators of sexual or physical abuse; see SS v Department of Human Services (NSW) [2010] NSWDC 279; T v H [1985] NSWSC Unreported, 19/12/1985, per Hodgson J. Thus, it was submitted:

"It is apparent that MXS and MS do not accept that they were responsible for ensuring the proper care of RL. In those circumstances, it is not possible to properly safeguard the children's care if the children spend extensive time solely in their care."

44 The Department also relies upon s 106A of the Care Act in relation to WB. It submits that the presumption created by that section has not been rebutted. Therefore, the finding in relation to WB is that he is a child in need of care and protection: SB v Parramatta Children's Court [2007] NSWSC 1297 at [52].

45 The Department submits that, the fact of abuse having been established, the case for intervention by the court is made out. Unless there is an acceptance and acknowledgement by the carers, proper safeguarding of the children is impossible.

The need for care and protection

46 The threshold, or establishment issue is whether the children are in need of care and protection, such as to justify a care order.

47 The medical evidence relied upon concerning the unexplained injuries to RL was unchallenged.

48 On 21 September 2009 RL, aged 9 months, was taken to Gosford Hospital where x-rays were taken. The radiographer noticed fractures on some ribs and a bruise on her thigh. Further investigations were carried out by the Child Protection Unit (CPU) at Westmead Hospital, including a skeletal survey and bone scan. The skeletal survey revealed two posterior right-sided rib fractures of ribs 7 and 11 with callus formation noted around the fracture sites, indicating the fractures had occurred from 10 days to 3 months earlier. The bone scan showed osteoblastic foci at the right 7th rib, right 11th rib and left 7th rib, consistent with fractures of an indeterminate age. The medical opinion was that the fractures were such that they were highly likely to be non-accidental.

49 The CPU Assessment Report dated 26 October 2009 concluded:

"In summary RL presented with several posterior rib fractures that were unexplained. Significant force is required to cause fractures of ribs in infants and posterior rib fractures, in particular, have a high correlation with inflicted injury. RL's presentation is highly suspicious for inflicted injury."

50 The force required to inflict the particular injury sustained by RL was considerable. Dr Susan Marks, the Staff Specialist at the CPU, explained:

"In infants and young children the rib cage is elastic and pliable. Because of this flexibility of the thorax, significant forces are required to cause rib fractures. Posterior rib fractures typically occur as a result of anterior-posterior compression (forceful squeezing of the thorax), levering the ribs over the transverse processes of the adjacent vertebrae. Occasionally posterior rib fractures could be caused by direct trauma. Examples of accidental injuries that may cause rib fractures in infants include motor vehicle crashes, heavy objects falling or pressing on the chest or falls from a significant height. In the absence of a history of significant trauma, posterior rib fractures have a high correlation with inflicted injury."

"On physical examination RL also had a 1cm x 3cm yellow bruise over her left lower flank that was unexplained... Studies have shown that young infants who are not yet cruising around the furniture typically do not have bruises and in particular they do not have bruises on relatively protected parts of the body such as the flank region, and they do not have bruises greater than 1cm in diameter. Normal handling of an infant would not be expected to be associated with any bruising."

51 In a subsequent report dated 9 December 2010, Dr Susan Marks, provided the following further opinion:

"Rib fractures are seldom accompanied by any external evidence of trauma and are clinically unsuspected in about 80% of cases i.e. there is no chest wall bruising or other visible injury noted. Typically, symptoms such as pain on examination are not reported. (This does not mean that they are not painful at the time they occur, but rather that they may not appear to be painful during subsequent normal handling of the infant)."

52 Other potential causes were excluded. The CPU Assessment Report dated 26 October 2009 noted:

"Alternative diagnoses were considered. There was callus formation present on x-ray indicating that the fractures had occurred 10 days to 3 months previously. This time frame was not consistent with birth injury. There was no evidence of osteopenia or bone disease on medical imaging, clinical assessment or on laboratory investigations."

53 A JIRT investigation was carried out, but no person has been identified as responsible for the injury sustained by RL. The time frame established for the infliction of the injury excluded the father, JK, as a possible perpetrator, and the maternal grandparents. But MXS and MS, together with a number of other people, remained in the pool of possible perpetrators.

54 The position was summarised in the CPU Assessment Report dated 26 October 2009:

"There was no history provided of RL experiencing any major (significant) trauma. The possible explanations offered by RL's mother of RL sitting in a shopping trolley and having a tantrum and throwing herself backwards, jumping in her bouncer and throwing herself backwards and bouncing hard and pulling herself up from the ground to the high chair and falling would all be considered part of typical infant activity and would not generate sufficient force to cause rib fractures.

The other explanations offered by RL's mother involve carers holding RL, including HL picking her up not realising her own strength with her arms around her ribs, mother's knee giving way once coming up the concrete stairs out the front of the house with RL in my arms but sure she never touched the stairs, throwing RL up in the air lightly and catching her playing and jiggling RL playing.

These explanations do not suggest the use of the significant compressive force to RL's chest that would be required to cause rib fractures."

55 It was on the basis of these opinions that RL was removed from the care of MXS, and that WB was subsequently removed from the care of MXS and MS.

56 The position has not changed. The medical opinion of the CPU, as summarised by Dr Marks, remains unchallenged. Nor has any further evidence emerged to alter the situation. Accordingly, MXS and MS, together with a number of other people, remain in the pool of possible perpetrators.

57 It was contended by counsel for MXS, supported by counsel for the maternal grandparents, that it is open to this court to revisit the issue of the removal of RL and come to the view that she should be returned; and, similarly, that WB be returned. It was submitted:

• JIRT made thorough investigations and came to no conclusive view as to who was responsible for RL's injuries.

• No adverse findings could be made against MXS given the expert evidence of Dr Marks and in particular her views expressed at number 3 of her second report. It would have been difficult for MXS to know that the injuries had taken place, unless she had been there when it happened. MXS's evidence also supports that both in the witness box and in her material. The only time that RL was unhappy and showing signs of discomfort was during the teething periods.

• Logic would have it that if MXS was responsible then she would not have insisted on further investigations, and more thorough investigations than recommended by her GP.

58 These themes were developed in oral submissions, for example:

"Section 83 (of the Care Act) puts my client into a difficult position. It requires the parents to address the cause of the removal. It's a catch 22 situation she is in. She's incapable of disproving what she is being accused of. It has a nasty edge this suggestion that's been put before your Honour, all her explanations are rejected, all of them. Breaking hard in the car, bouncing around, toppling over, there's a very large time span, according to Dr Marks, and because she is unable to come up with an explanation that the department will accept, the responsibility of the injury is laid at her feet. What that means is that any child... that is injured in New South Wales whose mother can't prove that she didn't do it then should have the child removed...(T 617) So by default they've managed to reverse the standard of proof...(T 618) What your Honour does have is indications to the contrary which are indicative of matters to the contrary. It's never been suggested by anyone that the child was neglected at the time of the removal and god knows she was certainly assessed often enough, over and over... (618)

None of the insupportable preposterous suggestions such as my client ran her over with a car or dropped her from three floors were ever put to her... Had she been aware of what had happened to her child, that her child was suffering, in all likelihood it would have been that she would immediately have taken the child to have medical assistance at the very least. It was at her insistence, as your Honour has often reminded, that the baby was Xrayed. But for her insistence we wouldn't be here... (T 618-9)

Dr Banks...assessed her as being 'low risk of engaging in behaviours that may lead to future abuse'...an important finding and an unchallenged finding by him was that she was at low risk of engaging in behaviours leading to future abuse, in fact out of all the parties involved, she has no history of engaging in any physical violence, in fact she was the victim rather than the perpetrator... (T 619)

There is no evidence before the Court that either MS or MXS are capable of physical violence or abuse... (T 620)

It seems an onerous task before your Honour... But the ultimate question is, would your Honour be setting a precedent for any other child that MS or MXS would have? Would that child then have to be removed because there is that suspicion which was never proven?" (T 620)

59 Counsel for MXS cited passages from Re Louise and Belinda [2009] NSWSC 534 at [53] -[54] as to the desirability of children being with their parents:

"While in an ideal world it may well be best for a child to be cared for by his or her natural parents, in my opinion, that submission states the role of s 9(d) too broadly...In my opinion, the section is ambulatory...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."

60 These considerations are undoubted, indeed they reflect the provisions of CROC. I am reluctant in this or in any case to make any determination the consequence of which is the removal of a child from the care of his or her natural parents. They are, however, secondary to the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern).

61 In the present case there is clear evidence of serious injuries having been occasioned to RL during the period in which she was in the care of MXS and MS, which involved significant trauma and had a high correlation with inflicted injury. Although the specific cause of the injuries and the identity of the perpetrator remain unknown, MXS and MS remain in the group of possible perpetrators. The explanations provided by MXS did not and do not explain adequately, or at all, how RL came to be so seriously injured.

62 For these reasons I am comfortably satisfied that RL was the subject of unexplained serious inflicted injuries, which circumstance gives rise to a high level of future risk of physical abuse or ill-treatment of both children.

63 MXS and MS both deny having been the perpetrator, deny that the other was the perpetrator, and maintain that the other was not and is not capable of occasioning the sort of harm caused to RL that involved the application of significant force. Absent an acknowledgement, or an acceptance of the potential for further harm by the carers, proper safeguarding of the children is impossible. The refusal, or failure, to acknowledge the issue further indicates and exacerbates the continuing risk of future physical abuse or ill-treatment of both children.

64 In these circumstances, I am comfortably satisfied that restoration of RL would involve unacceptable risk of harm to her. Similarly, and consistent with s 106A of the Care Act, I am comfortably satisfied that restoration of WB would involve unacceptable risk of harm to him.

65 I find, therefore, that RL and WB are in need of care and protection. Accordingly, the Department's case for intervention by the court is made out, and the orders made by the Children's Court placing the children into the care of the Minister are confirmed.

66 This threshold or establishment issue having been determined in favour of the Department, the next set of issues to be determined concern the placement of the children. I propose to consider firstly whether care orders should be made in respect of MXS and MS, that is, whether there is a realistic possibility of restoration of either RL or WB to their care. Failing that, I will turn to consider the consequential issues arising in these appeals.

Restoration

67 I turn therefore to consider whether there is a realistic possibility of restoration of either RL or WB to MXS and MS.

68 It is not my role to consider any potential for restoration of the children to MXS and MS sometime in the future. But having regard to their present circumstances and the present unlikelihood of them being able to address the issues that have led to the removal of the children from their care, there is not, at this time, a realistic possibility of restoration to them.

69 The Department has, for the reasons already expressed, comfortably satisfied me in terms of the second limb of s 83(7)(b) of the Care Act, which requires me to have regard to the evidence, if any, that MXS and MS are likely to be able to satisfactorily address the issues that have led to the removal of the children.

70 But even if I had come to a different view on that limb, I would still be satisfied that there is not, at this time, a realistic possibility of restoration to them by reason of the second limb of s 83(7)(b), which requires me to have regard to the circumstances of the children.

71 In simple terms, in their present circumstances, MXS and MS are unable to provide adequate care for these children.

72 Firstly, they have neither the financial means to support themselves, let alone two children in addition, nor do they have the necessary level of financial understanding to run a household. Secondly, they currently lack the necessary parenting skills to properly care for the children.

73 That is the overwhelming opinion of the experts: Sheila Gray, Jillian Murray, and Dr Banks (the Children's Court clinician).

74 It will be sufficient for me to quote relevant passages from the report of Dr Banks, who succinctly states views representative of the conclusions I formed:

"MXS was deemed to lack the capacity to care for RL's needs at an emotional and psychological level...RL is in urgent need of a stable and trusting environment. It is not considered likely that MXS will be able to provide this relationship for her daughter in the near future.

Similarly, MS was deemed to lack the capacity to care for RL's immediate needs. He was noted to repeatedly defer to MXS and it is believed that it would be likely to continue to behave in this manner in the future."

75 Of particular concern is the failure of MXS and MS to have made any demonstrable effort to prepare themselves for parenthood. They have made no real effort to undertake the sort of goal-oriented counselling it was recommended they undertake. MS even told the Children's Court he didn't see any need for it. He has not obtained employment, nor does it seem he has made any particular effort to do so. It was my assessment of him that he has no insight at all into the realities of participating in the running of a household and raising children, and has not given much thought to it. There are similar question marks over the insight of MXS. She lacks insight into the impact of the relationship between her domineering father and her partners. Both JK and MS experienced similar difficulties with JH, and made complaints about it, but MXS has consistently refused to acknowledge there was a problem.

76 Nor has MXS distinguished herself in her handling of relationships with the mothers of either of her partners, and has been in frequent conflict with both SK and SS.

77 I was also disturbed at the selective supply of material by MXS to her current counsellor, and that she appeared to me to have concerned herself more with attacking others than attempting to demonstrate her own suitability to parent. For example, her alliance with Ms S and reliance on her unsubstantiated complaints made against JK with a view to discrediting him, and her petty complaints about RL's clothing and the state of her hair on some contact visits. Nor was I impressed by the research, or lack of research, into the requirements to qualify her for a career in child-care. Similarly, I was concerned by the view she expressed that it would have been better for the children to have gone into foster care, with strangers, over Christmas, rather than WB going on holidays with JS and GS: T 545.

78 It was also clear to me that MXS remains more concerned with her own interests and needs than those of her children.

79 For the purposes of the present appeals, therefore, I find there is no present realistic possibility of restoration of RL or WB to MXS and MS.

80 The appeals will, therefore, be dismissed insofar as they seek restoration of RL or WB to MXS and MS.

81 It remains to consider the other issues raised by the parties concerning placement, in particular the position of JK and the submission that the children should be moved from their current placements into the care of the maternal grandparents, SS and JH.

Placement

82 There were no formal cross-summonses, but I gave leave to the other interested parties to make applications in the appeals for relevant orders without the need for the filing of formal documentation, to minimise expense.

83 JK sought orders in his favour for a six-month placement of RL under the parental responsibility of the paternal grandparents and thereafter a placement under his sole parental responsibility.

84 MXS, as an alternative to restoration, sought a short-term order for all aspects of parental responsibility to be allocated for 2 years to the Minister leading to placement of the children in her care. Alternatively, she sought an order that the children be placed with her parents after a period of six months with a parental responsibility order in favour of the Minister for that period of time, on the basis that the Minister share parental responsibility for contact with the maternal grandparents.

85 The maternal grandmother sought an order for all aspects of parental responsibility in relation to the children in favour of herself and the maternal grandfather (except in relation to contact, which would be shared with the Minister).

86 These proposed alternative orders were all opposed by the Department, which contended that the Children's Court Orders be confirmed such that the status quo is affirmed.

87 I was not persuaded that this court should vary or set aside the decision of the Children's Court or any of the orders made by the Children's Court in respect of these two children.

88 In considering the issues raised by the applications for alternative orders in relation to placement, I accept and substantially rely upon the expert opinion of Dr Banks, the clinician from the Children's Court Clinic, as set out in his report of 15 August 2011 and supplemented by the oral evidence he gave before me, in respect of all the persons assessed by him for the purposes of these appeals. His report is thorough, comprehensive, well reasoned and compelling, and substantially accords with the views formed by me concerning those persons.

89 I also accept and adopt the submissions of the Independent Legal Representative of the children, Ms Smith, whose assistance and submissions in this case have been most insightful and of great assistance to me.

90 I do not propose to dwell over-long on these issues as it seems to me, having regard to the decisions I have made, and the need in future for all the protagonists to positively co-operate with each other, in the best interests of the children, in matters of contact and the like, that the less said, the better.

91 Dealing first with JK, the evidence demonstrates that he has made significant positive progress. The counselling he has undertaken has been productive and he has gained insight into the destructive nature of domestic violence. He has obtained full-time employment and has made a determined effort to advance his knowledge and skills for parenting.

92 He is clearly in the process of learning and maturing. There are, however, features of his presentation consistent with an insufficient progression at this point of time to justify the sort of orders he seeks.

93 There are also the various allegations made against him in connection with Ms S. I agree with the opinion of the caseworker, Mr Pulsford, and Dr Banks (as moderated in his oral evidence) that having regard to the nature of the allegations, they require further investigation and consideration in the light of such investigation before further assessments can be made as to whether, and when, amelioration of JK's contact arrangements with RL should be effected, and when advancement of the proposal for him to gradually take over the care of RL from his mother should occur.

94 In short, as Ms Smith submitted, in the case of JK, not yet. In the meantime, decisions concerning JK are best left to the Minister to make in the fullness of time in the light of developments and evolving circumstances.

95 Dealing finally with the proposition that the two children should be placed with the maternal grandparents in preference to their existing placements, the short answer is no. In balancing the competing considerations, I can see only a single positive coming out of such an alternative, and that would be that the two children would be together. Against that, however, every other consideration is negative. Every assessment made of the maternal grandparents as suitable carers has been negative. Dr Banks was strongly of the view that they are unacceptable to be carers of these children, and that was before the other evidence emerged before me concerning the history of child abuse and domestic violence in that family.

96 For the reasons I have already expressed I am not going to go into these matters chapter and verse. Suffice it to say that what emerged clearly indicated the unsuitability of the maternal grandparents to be carers of the children, most particularly their failure to disclose important historical material to all concerned, including Mr Pulsford and Dr Banks, on occasions that required candour.

Disposition of the appeal

97 I therefore dismiss the appeals and refuse all other applications.

98 I confirm the orders of the Children's Court.

Amendments

07 June 2012 - Typographical errors
Amended paragraphs: 33 and 36

15 October 2014 - speling error
Amended paragraphs: 32 - 3(a)

Decision last updated: 15 October 2014