Re: Elizabeth [2011] NSWDC 245

Re: Elizabeth [2011] NSWDC 245

Although the mother had substantially improved her life and was likely able to provide an adequate standard of care, Elizabeth had spent almost all her conscious life with the foster mother, who was her primary attachment figure, and was emotionally stable in that placement. The court accepted the expert evidence that removal from the placement, even with transition, would cause shock, distress and psychological harm. Giving paramount weight to Elizabeth's safety, welfare and wellbeing under s 9(1), those risks outweighed the benefits of restoration to her mother and culture, so the mother's summons was dismissed.

Jurisdiction
Australia
Judgment Date
21 September 2011
Procedural Posture
Appeal Pursuant to S 91 of the Children and Young Persons (care and Protection) Act 1998 From Refusal of a S 90 Application to Rescind or Vary Care Orders / Principal Judgment After Remittal by the Court of Appeal; Summons Dismissed
Outcome
Summons dismissed; leave granted to vary the Children's Court orders to remove reference to the foster mother's mother; subject to that variation the decision of the Children's Court was confirmed.
Legal Topics
['parental Responsibility' 'restoration to Parent' 'variation or Rescission of Care Orders' 'paramountcy of Safety, Welfare and Wellbeing' 'attachment and Psychological Harm' 'united Nations Convention on the Rights of the Child' 'permanency Planning']
['children and Young Persons' 'care and Protection'] ['parental Responsibility' 'restoration to Parent' 'variation or Rescission of Care Orders' 'paramountcy of Safety, Welfare and Wellbeing' 'attachment and Psychological Harm' 'united Nations Convention on the Rights of the Child' 'permanency Planning']

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Procedural Posture

Appeal Pursuant to S 91 of the Children and Young Persons (care and Protection) Act 1998 From Refusal of a S 90 Application to Rescind or Vary Care Orders / Principal Judgment After Remittal by the Court of Appeal; Summons Dismissed

Legal Issues

  1. 1 ['Whether the mother should be granted relief placing Elizabeth under her parental responsibility.' 'Whether any party bore an onus in the s 91 appeal and whether it was necessary to determine that issue.' 'Whether the Act is premised on a goal or aim of keeping families together.' 'Whether s 83 and the concept of a realistic possibility of restoration are part of the evaluative process on a s 90 application or s 91 appeal from such an application.' 'What use should be made of the United Nations Convention on the Rights of the Child in exercising the discretion.' 'Whether the s 90(6) considerations favoured varying or rescinding the existing care order.' "Whether leave should be granted to vary the existing order to remove reference to the foster mother's mother."]

Ratio Decidendi

Although the mother had substantially improved her life and was likely able to provide an adequate standard of care, Elizabeth had spent almost all her conscious life with the foster mother, who was her primary attachment figure, and was emotionally stable in that placement. The court accepted the expert evidence that removal from the placement, even with transition, would cause shock, distress and psychological harm. Giving paramount weight to Elizabeth's safety, welfare and wellbeing under s 9(1), those risks outweighed the benefits of restoration to her mother and culture, so the mother's summons was dismissed.

Court Disposition

Summons dismissed; leave granted to vary the Children's Court orders to remove reference to the foster mother's mother; subject to that variation the decision of the Children's Court was confirmed.

Orders

  • ["Leave is granted to vary the orders of the Children's Court to remove reference to the foster mother's mother." "Subject to order (i) the decision of the Children's Court is confirmed." "The plaintiff's summons is dismissed."]