Children's Court New South Wales

• Medium Neutral Citation: DFaCS (NSW) re Ingrid [2012] NSWChC 19
• Hearing dates: 13 and 14 November 2012 at Parramatta
• Decision date: 22 November 2012
• Jurisdiction: Care and protection
• Before: Judge Peter Johnstone, President of the Children's Court of New South Wales

Decision

The circumstances specified in s 78A(4) of the Care Act in respect of permanent placement of an Aboriginal child with non-Aboriginal persons, through an order for sole parental responsibility, must be established before such an order can be made

• Catchwords: CHILDREN - Care and Protection - Aboriginal child in need of care and protection - no realistic possibility of restoration to the parents - permanency planning - placement with non-Aboriginal persons - whether the circumstances specified in s 78A(4) of the Care Act must be established before an order can be made for sole parental responsibility in favour of those non-Aboriginal persons
• Legislation Cited: Children and Young Persons (Care and Protection Act) 1998
• Cases Cited: Johnson v Page [2007] Fam CA 1235; M v M [1988] HCA 68; Re Tracey [2011] NSWCA 43; The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1
• Category: Interlocutory applications
• Parties: Department of Family and Community Services (NSW); The Mother; The Child; The Short-Term Carers
• Representation: Mr W Hunt, Counsel (Department); Mr R Tricca, Solicitor (Mother); Ms J Hanson, Solicitor (Child); Mr G Moore, Counsel (Short-term carers)
• File Number(s): 2012/557
• Publication restriction: Pseudonyms have been used in order to anonymise the child and parties

REASONS FOR DECISION

The proceedings

1 These proceedings concern Ingrid (the child), born 23 September 2010.

2 The child is identified as Aboriginal. Her father is Aboriginal. Her mother, however, is non-Aboriginal.

3 The child was assumed into care by the Department of Family and Community Services (DFaCS) on 18 June 2011. She was subsequently placed into short-term foster care with the short-term carers, where she has since remained.

4 On 27 July 2011, the Court made a finding that the child was in need of care and protection, and parental responsibility was allocated to the Minister on an interim basis, until further order. On 20 September 2012 the Court allocated a specific aspect of parental responsibility to the short-term carers, namely residency.

5 The proceedings are now before the Children's Court, sitting at Parramatta, for final orders. The Director-General seeks final care orders involving the permanent removal of the child, and placement of her in long-term out-of-home care till the age of 18. He seeks allocation of sole parental responsibility for the child to the Minister until the age of 18.

6 The proceedings are governed by the Children and Young Persons (Care and Protection) Act 1998 (the Care Act 1998). Decisions are to be made consistently with the objects, provisions and principles provided for in the Care Act 1998, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC).

7 The Director-General has submitted a permanency plan for the child for consideration by the Court: s 83(3). He has made an assessment that there is not a realistic possibility of restoration to the parents, or either of them: s 83(1). The parents have conceded this assessment, and that matter is not otherwise in dispute.

8 The permanency plan seeks allocation of parental responsibility to the Minister in all of its aspects, until the child turns 18: s 79.

9 The permanency plan proposes a long-term placement for the child with Ms PD, rather than with the short-term carers: s 83(3).

10 Ms PD is not Aboriginal. Nor are the short-term carers.

11 The short-term carers dispute the permanency planning proposed and seek permanent placement of the child with them through an order for sole parental responsibility.

12 The first issue for decision is whether the Court should accept the assessment of the Director-General that there is not a realistic possibility of restoration. That decision is uncontroversial, and absent any opposition, the Court now decides to accept the assessment: s 83(5).

13 The principal issues that arise for decision are:

(a) Allocation of parental responsibility: The Court must consider the Care Plan: s 80. The Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in s 9(2)(c) and is satisfied that any other order would be insufficient to meet the needs of the child: s 79(3). The principle in s 9(2)(c) of the Care Act requires that the course to be followed must be the least intrusive intervention in the life of the child and her family that is consistent with the paramount concern to protect the child from harm and promote her development.

(b) Permanency planning: The Court must not make a final care order unless it expressly finds that the permanency planning has been appropriately and adequately addressed: s 83(7)(a). The permanency planning must also address how the plan has complied with Aboriginal and Torres Strait Islander Child and young Person Placement Principles in s 13 of the Care Act: s 78A(3).

14 A preliminary issue has arisen, the determination of which may affect the course of the proceedings, or the nature of any further evidence to be called, and at the conclusion of the second day of the hearing it appeared to me that I should decide that preliminary issue before the matter proceeded any further.

The preliminary issue

15 The preliminary issue concerns the interpretation of s 78A(4) of the Care Act. The sub-section, which I set out in full below, specifies a series of circumstances to be considered in connection with the making of an order providing for permanent placement of an Aboriginal child with non-Aboriginal persons through an order for sole parental responsibility in favour of those non-Aboriginal persons.

16 Because the short-term carers are non-Aboriginal, the Director-General contends that they must positively establish those circumstances, but they have not and indeed could not do so. Accordingly, the Court is unable to grant what they seek, that is, permanent placement of the child with them through an order for sole parental responsibility. They contend, however, that the circumstances set out in s 78A(4) of are not obligatory. That is, the circumstances in s 78A(4), merely indicate "advisability', or a strong suggestion, and do "not go so far as to create a requirement or an obligation".

17 The sub-section is in the following terms:

"If a permanency plan indicates an intention to provide permanent placement through an order for sole parental responsibility or adoption of an Aboriginal or Torres Strait Islander child or young person with a non-Aboriginal or non-Torres Strait Islander person or persons, such an order should be made only:

(a) if no suitable permanent placement can be found with an Aboriginal or Torres Strait Islander person or persons in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13, and

(b) in consultation with the child or young person, where appropriate, and

(c) in consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation and the local Aboriginal or Torres Strait Islander community, and

(d) if the child or young person is able to be placed with a culturally appropriate family, and

(e) with the approval of the Minister for Community Services and the Minister for Aboriginal Affairs."

18 The preliminary issue for determination is whether the words in the sub-section that "such an order should be made only..." are obligatory, so that before an order such as is sought by the short-term carers could be made, the Court must be satisfied that the matters set out in paragraphs (a), (b), (c), (d) and (e) of s 78A(4) have been established.

19 In support of their position, they point to and rely on other provisions in the Care Act 1998 under which it is to be administered, in particular the principle that the safety, welfare, and well-being of the child is paramount (the paramountcy principle): s 9(1).

20 In addition to the paramountcy principle, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are set out in sections 9(2), 10, 11, 12 and 13.

The relevant legal framework

21 Before turning to discuss the submissions made on behalf of the short-term carers, it is appropriate, therefore, to set out the legal framework in the context of which the preliminary issue is to be decided.

22 The objects of the Care Act 1998, 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.

23 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. Most, if not all, of the provisions in CROC have been incorporated into or are reflected in the Care Act 1998. The circumstances in Re Tracey were unusual and unique. In the present case, the parties made no submissions based on the Convention. I cannot discern any provision in CROC such that there is some different requirement, some additional principle, or some gloss to which the Court is to have particular regard in determining the preliminary issue, such that I am required to go beyond the Care Act and the case law interpreting its relevant provisions.

24 Principles of particular relevance to the present matter include the following. I paraphrase the provisions concerned:

• Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10.

• Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b).

• 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 to be 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 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 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25]; see also Johnson v Page [2007] Fam CA 1235.

26 The Care Act 1998 provides that the Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in s 9(2)(c) and is satisfied that any other order would be insufficient to meet the needs of the children: s 79(3).

27 The principle in s 9(2)(c) of the Care Act is:

"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."

28 Permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security: s 78A. The plan must:

(a) have regard, in particular, to the principle that if a child 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 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(2)(e),

(b) meet the needs of the child: s 78A(1)(b), and

(c) avoid the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c).

29 The plan must also include provision for appropriate and adequate arrangements for contact between children and persons of significance.

30 Particularly relevant in the present case are the Aboriginal and Torres Straits Islander Principles set out in Part 2 of Chapter 2 of the Care Act.

31 The first such principle concerns self-determination: s 11.

"11 Aboriginal and Torres Strait Islander self-determination

(1) It is a principle to be applied in the administration of this Act that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young persons with as much self-determination as is possible.

(2) To assist in the implementation of the principle in subsection (1), the Minister may negotiate and agree with Aboriginal and Torres Strait Islander people to the implementation of programs and strategies that promote self-determination."

32 The second such principle concerns participation in decision-making:

"12 Aboriginal and Torres Strait Islander participation in decision-making

Aboriginal and Torres Strait Islander families, kinship groups, representative organisations and communities are to be given the opportunity, by means approved by the Minister, to participate in decisions made concerning the placement of their children and young persons and in other significant decisions made under this Act that concern their children and young persons."

33 Other principles concerning placement of Aboriginal or Torres Strait Islander children, including a general order for placement, are set out in

s 13:

"13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles

(1) The general order for placement

Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care is to be placed with:

(a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed-a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed-a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or

(d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed-a suitable person approved by the Director-General after consultation with:

(i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and

(ii) such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person.

(2) Relevance of self-identification and expressed wishes of child or young person

In determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person.

(3) Child or young person with parents from different Aboriginal or Torres Strait Islander communities

If a child or young person has parents from different Aboriginal or Torres Strait Islander communities, the order for placement established by paragraphs (a), (b), (c) and (d) of subsection (1) applies, but the choice of a member or person referred to in those paragraphs is to be made so that the best interests of the child or young person will be served having regard to the principles of this Act.

(4) Child or young person with one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent.

If a child or young person has one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act.

(5) If a child or young person to whom subsection (4) applies:

(a) is placed with a person who is not within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her Aboriginal or Torres Strait Islander family, community and culture, or

(b) is placed with a person who is within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her non-Aboriginal and Torres Strait Islander family, community and culture.

(6) Placement of child or young person in care of person who is not an Aboriginal or Torres Strait Islander

The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander:

(a) Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community.

(b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.

These principles are subject to subsection (2).

(7) Exceptions: emergency placements and placements of short duration

Subsection (1) does not apply to:

(a) an emergency placement made to protect a child or young person from serious risk of immediate harm, or

(b) a placement for a duration of less than 2 weeks.

(8) Where an emergency placement is made to protect an Aboriginal or Torres Strait Islander child or young person from serious risk of immediate harm, the Director-General must consult with the appropriate Aboriginal or Torres Strait Islander community as soon as practicable after the safety of the child or young person has been secured.

Note. In the course of any consultation under this Part, the Director-General must have regard to the right of Aboriginal or Torres Strait Islander children and young persons and their families to confidentiality."

34 Thus, s 78A(3) provides:

"A permanency plan for an Aboriginal or Torres Strait Islander child or young person must address how the plan has complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13."

35 And, to repeat the subsection in context, s 78A(4) provides:

"If a permanency plan indicates an intention to provide permanent placement through an order for sole parental responsibility or adoption of an Aboriginal or Torres Strait Islander child or young person with a non-Aboriginal or non-Torres Strait Islander person or persons, such an order should be made only:

(a) if no suitable permanent placement can be found with an Aboriginal or Torres Strait Islander person or persons in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13, and

(b) in consultation with the child or young person, where appropriate, and

(c) in consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation and the local Aboriginal or Torres Strait Islander community, and

(d) if the child or young person is able to be placed with a culturally appropriate family, and

(e) with the approval of the Minister for Community Services and the Minister for Aboriginal Affairs."

The submissions made on behalf of the short-term carers

36 The submissions made on behalf of the short-term carers appear in 8 pages of written submissions signed by Mr Luke Adamson, solicitor.

37 The following is my summary of the relevant submissions.

38 Section 78A(4) should be interpreted in a way that allows the Court to have a discretion to permanently place the child in the care of the short-term carers and for them to have sole responsibility if it is found that it would be in the child's best interest to do so.

39 The word 'should' and the phrase 'should be made only...', as they appear in s 78A(4), are capable of more than one definition, and as such they are to be interpreted by reference to their context and legislative purpose. The submissions go on to set out the definitions of the word 'should' in the Macquarie Dictionary, showing that it is a word that indicates both obligation and advisability. The submission is that the Court should adopt the second meaning, namely advisability. Thus, the word creates a degree of flexibility, and introduces into s 78A(4) an element of discretion. Such a meaning is consistent with a purposive interpretation of the section, and with the objects and principles of the Care Act.

40 The next argument concerns the construction of "privative" provisions, such that Parliament is presumed not to intend to cut down the jurisdiction of the Court unless that is expressly stated or is to be necessarily implied. Here, Parliament has not evinced an intention to restrict the Court's ability to place children, in their best interests, with carers not approved by the Department.

41 It was next submitted that the word 'should' introduces an element of discretion, and the phrase 'should be made only...' does not limit that discretion. To construe the phrase otherwise would be to "usurp" the power of the Court to determine whom best to place a child with. If the Parliament intended otherwise, it would have used words such as 'shall' or 'must'. Finally, it was submitted that even if the use of the word 'should' does not import an element of discretion, some alternative, less prescriptive meaning not involving an obligation or requirement should be ascribed by the Court, such an interpretation being opposite to the paramountcy principle fundamental to the application of the Act.

The submissions made on behalf of the Director-General

42 The submissions made on behalf of the Director-General appear in written submissions prepared by Mr J Meehan, solicitor, as amended on behalf of the Crown Solicitor and settled by Mr W Hunt of counsel.

43 The following is my summary of the relevant submissions.

44 The submissions address the meaning of the words 'should' and 'only' in the phrase 'such an order should be made only...' in the context of s 78A(4). It is conceded that the modal verb 'should' expresses both necessity or possibility, but when used in conjunction with the word 'only', any 'margin of flexibility is removed'. The use of the word 'only' is an "intensifier" that strengthens the verb, thus removing any discretion. The submission suggests therefore, that the most appropriate interpretation of the words in the context of s 78A(4) is 'not until'.

45 This construction of the words is consistent with the purpose of the provision in circumstances involving the care and protection of an Aboriginal child, and with the purpose to be evinced from the second reading speech in relation to the amendment by which the sub-section was introduced into the Care Act.

46 Finally, it was submitted, the provisions of s 8 and s 9 do not override those in s 78A(4), but rather they work in conjunction, for the purpose of attaining the type of outcomes envisaged by the Aboriginal and Torres Strait Islander Principles set out in s 11 and s 12.

47 Accordingly, the Court cannot make the order sought by the short-term carers until each and every matter in s 78A(4) has been established.

48 I agree with the general thrust of the submissions of the Director-General.

Discussion and ruling

49 In my view the interpretation of s 78A(4) is relatively straightforward. The juxtaposition of the word 'only' with the word 'should' in the phrase 'such an order should be made only...' clearly indicates the mandatory nature of the requirements in the sub-section.

50 The Court is not compelled to make an order providing for permanent placement of an Aboriginal child with non-Aboriginal persons through an order for sole parental responsibility merely because the circumstances specified in the sub-section are satisfied. The Court retains an overriding discretion to accept or reject any permanency plan proposed, in accordance with the various principles set out in the Care Act, not the least being the principle that the safety, welfare and well-being of the child is paramount, the test being whether there is an unacceptable risk of harm to the child.

51 What the Court cannot do, however, is provide for the permanent placement of an Aboriginal child with non-Aboriginal persons through an order for sole parental responsibility in their favour unless and until the circumstances specified in s 78A(4) are established to the Court's satisfaction. In this sense, the matters set out in s 78A(4) are obligatory pre-conditions to the making of the type of order contemplated by the sub-section. The Court does not have a discretion to dispense with any of the pre-conditions specified, and each and every one of them must first be established before an order can be made.

52 Such a construction is in my view the only appropriate way in which to interpret the sub-section. It is the purposive construction that is clearly consistent with the objects and principles of the Care Act, in particular the Aboriginal and Torres Strait Islander Principles set out in Part 2 of Chapter 2. The Court's discretion is not usurped, in that the Court retains an overriding discretion to reject a proposed placement.

53 The Court is, however, expressly precluded from placing an Aboriginal child with non-Aboriginal carers, through an order for sole parental responsibility in favour of those carers, unless and until the required pre-conditions set out in s 78A(4) have been established.

Disposition

54 It follows that before the Court could make the order sought by the short-term carers, it would have to be satisfied that each of the matters set out in s 78A(4) had been established.

55 The preliminary issue is, therefore, decided in favour of the Director-General.

56 Unless evidence can be led seeking to satisfy the obligatory pre-conditions set out in s 78A(4), the application made by the short-term carers must necessarily fail, and should be dismissed, and their joinder as parties and the allocation of the residency aspect of parental responsibility to them reviewed.

Amendments

06 March 2013 - corrected Medium Neutral Citation
Amended paragraphs: coversheet

Decision last updated: 06 March 2013