Department of Family and Community Services (DFaCS) and Leo [2019] NSWChC 3

Children's Court New South Wales

Medium Neutral Citation: Department of Family and Community Services (DFaCS) and Leo [2019] NSWChC 3 Hearing dates: 12 April 2019 Date of orders: 12 April 2019 Decision date: 26 April 2019 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: Leave granted to the Independent Legal Representative to bring an application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 for rescission or variation of a care order Catchwords: CHILDREN – Care and protection Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Amendment Act 2018 Children and Young Persons (Care and Protection) Regulation 2012 Cases Cited: Dempster v National Companies and Securities Commission (1993) 9 WAR 215 EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 In the matter of Campbell [2011] NSWSC 761 S v Department of Community Services (DoCS) [2002] NSWCA 151 Category: Procedural and other rulings Parties: The Secretary The Mother The Child Representation: Ms Wong, solicitor, for the Secretary Mr Herridge, solicitor, for the mother Mr Mara, solicitor, for the child as his Independent Legal Representative File Number(s): 2017/198946 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties

Judgment

Background 1. Leo James was born in 2015. His mother is Ms Jennifer James. Leo's father is said to be Mr Grant though he denies paternity and refuses to participate in paternity testing. Mr Mara, Leo's Independent Legal Representative ('ILR') in the Initial Care Application, is the Applicant for leave to bring an application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') for rescission or variation of the Final order made by the Children's Court on 23 January 2018. 2. The Application is brought by Mr Mara, Leo's ILR, after he was served by the Children's Court with a report prepared pursuant to s 82 of the Act ('the s 82 report') regarding Leo. It was not in dispute that Mr Mara has standing to bring this application. 3. Ms James is Leo's mother and she has, for more than two years, been in a relationship with Mr Armstrong (also known as Jerry Armstrong). They had a baby girl in 2019. The baby girl is living with her parents in Mr Armstrong's parents' home until they are able to find alternative accommodation. 4. Between June 2015 and March 2017, eight Risk of Significant Harm Reports ('ROSH reports') were received by the Secretary, Department of Family and Community Services ('Community Services') regarding the safety welfare and well-being of Leo. The reports related to: * Ms James's use of violence towards her mother and her mother's partner and allegedly breaching an apprehended violence order * Allegations of Ms James using violence towards a third party which led to Leo being injured * Allegations of drug abuse by Ms James and her partner at the time * Allegations that Ms James was engaging in criminal activity * Concerns for Ms James's mental stability and capacity to meet Leo's basic needs * Allegations that Ms James's grandfather had access to Leo and had recently been released from custody on charges relating to child sex offences. 1. Between 27 June 2015 and 18 March 2016, Community Services worked with Ms James to address the child protection concerns relating to Leo. 2. On 30 April 2016 Community Services closed Leo's case and referred the case to an agency for ongoing support and therapy. 3. Between 23 September 2016 and 20 December 2016 Community Services received three reports relating to: * Domestic violence between Ms James and her partner * Physical assault perpetrated on a third party by Ms James; and * Leo receiving a physical injury. 1. On 22 December 2016 the case was reopened by Community Services for assessment and ongoing casework. 2. Between 27 January 2017 and 7 March 2017 Community Services attempted to work with Ms James and her partner to address the child protection concerns however these measures were unable to provide adequate safety for Leo. 3. On 7 March 2017 Community Services assumed care responsibility for Leo following a risk of serious harm report regarding Ms James physically assaulting her mother. Community Services held significant concerns for Ms James's mental stability, reported drug use and use of violence and the impact these factors had on her capacity to provide safety for Leo. 4. On 7 March 2017 Leo was placed with authorised short-term foster carers managed by Wesley Dalmar. 5. On 10 March 2017 Community Services filed an Application Initiating Care Proceedings in relation to Leo. 6. On 4 July 2017 the Children's Court made a finding that there was no realistic possibility of restoration of Leo to either of his parents. 7. On 14 September 2017 case management responsibility was transferred from Community Services to Wesley Dalmar. 8. On 15 December 2017 Community Services filed a Care Plan in relation to Leo and on 4 January 2018 Community Services filed an Addendum to the Care Plan. 9. The Addendum to the Care Plan included the assessment that there was no realistic possibility of restoration to Ms James and that "Community Services had explored family carers for Leo. However there is (sic) no suitable family members to care for Leo long-term. A (sic) long-term carers has been identified by FaCS to care for Leo." 10. The Addendum to the Care Plan included, under the heading, 'What is the proposed permanent placement for Leo James' the following: "Wesley Dalmar, the agency holding case management for Leo, have located a long term placement for Leo. This long term placement is supported by Community Services. The recommended long term carers profile is attached to this care plan. The identified carers are a couple who is (sic) 53 and 49 years live an active and healthy lifestyle. The home was observed and noted to be clean, tidy and well presented. The carers have good support network, consisting of friends and family. They presented with a warm and nurturing approach to children and spoke in positive terms about children and their feelings regarding adjusting to living in a new environment." 1. On 23 January 2018, the Children's Court made a final order allocating parental responsibility to the Minister until Leo attains the age of 18 years. This order was made subsequent to: 1. A finding by the Children's Court that there was no realistic possibility of restoration of Leo to either of his parents; 2. A determination that there were no suitable family members available to provide permanent care to Leo; 3. There was an appropriate permanency plan in place, namely identified long term carers; and 4. That the proposed Plans and Order were in the best interest of Leo. 1. On 23 January 2018 the Children's Court also ordered Community Services to file a s 82 report within 11 months of the making of the Final order. The s 82 report was to address a number of issues including "the progress of Leo in his placement." 2. The Court records show that there were 13 court events between the filing of the application for a Care order and the Final orders that the mother did not attend. The mother did not file any evidence in the care proceedings. The documents filed also indicated that Ms James had failed to attend a very significant number of contact visits with Leo and had not addressed the issues contained in the Summary of Proposed Plan which had been filed shortly after the Care proceedings were instituted.

Decisions and Actions after final orders 1. The evidence from Wesley Dalmar filed in these proceedings is that the long term placement Community Services referred to in the Amended Care Plan and identified as the confirmed long-term placement for Leo was not, in fact confirmed as "the final matching assessment would need to occur after final orders were made and the care plan provided to Wesley Dalmar." 2. It is clear that Wesley Dalmar did not agree with the Court's finding that there was no realistic possibility of restoration of Leo to his mother's care. In an email from Lana Shannon, Wesley Dalmar Team Leader to Community Services she stated "we do not believe enough work was done with Jennifer to explore restoration". 3. There is no evidence filed in these proceedings that Wesley Dalmar took any steps, after the Final order was made, to undertake the "final matching assessment." Neither is there any evidence that any further steps were taken by Wesley Dalmar or Community Services to implement the Permanency Plan proposed by Community Services and approved by the Court. 4. On 20 February 2018, less than one month after the Children's Court made Final orders, Wesley Dalmar informed Community Services it was referring Leo's case to its 'Permanency Panel'. 5. In the affidavit of Ms Shannon sworn 18 March 2019, she describes the Wesley Dalmar Permanency Panel as follows: "The Permanency Panel was established in December 2017 to consider and drive permanency decisions for all children in Wesley Dalmar Out of Home Care. The purpose of the Permanency Panel is to: i. Convene a meeting of subject matter experts to discuss permanency decisions for children any young people in the care of WD out-of-home care; ii. Consider the legislative hierarchy of placement principles in the best interests of each child; iii. Oversee permanency decisions for children and young people in the care of Wesley Dalmar out-of-home care; iv. Identify matters where permanency principles are not followed and provide recommendations to case management for improved decision making; and v. Seek Principal Officer endorsement of panel recommendations" 1. On 15 March 2018 a report was prepared for the Permanency Panel and it was signed by Ms Sharon Simons, Case Manager, Wesley Dalmar and Ms Lana Shannon. The report consisted of 3.5 pages of information. The information was extremely general in nature and included that: "There was a contact schedule in place for contact to occur twice per week… between 3 April 2017 – 12 October 2017 Jennifer's attendance at contact remained inconsistent with approximately only 6 visits occurring. During this time Jennifer rarely engaged with case management and was at times uncontactable." Ms James had re-engaged with only a few contacts missed and she would like Leo to be restored to her care and she was willing to engage in anything Wesley Dalmar requested. During a discussion with Case Manager on 7 March 2018, Jennifer stated she had not used any illegal substances since prior to falling pregnant… she did not have much medical documentation to provide to support this statement however she was willing to request copies of reports… Jennifer has a copy of her mid wife log books during her recent pregnancy and was willing to provide these upon request. Jennifer informed Case Manger that she had started to participate in the Handling Strong Emotions training however she did not finish the program as she wanted to focus on improving her mental health at that time. Jennifer stated she has not engaged in any programs or counselling since then however would be willing to participate in anything asked by Wesley Dalmar." 1. The report did include that there were "permanent orders" granted by the Children's Court. The recommendation made to the Permanency Panel was that "the most appropriate permanency option for Leo is further exploration of possible restoration to Jennifer James." The authors made no reference to Ms James's history of engagement, no mention of the child protection issues, no mention of any documents or objective evidence, no mention of undertaking a proper assessment or analysis, no mention or consideration of the effect of that recommendation on Leo. In these circumstances it is difficult to understand the basis on which Wesley Dalmar considered that the Children's Court decision was wrong and should be ignored and replaced by a decision to pursue a further exploration of "possible restoration." 2. On 23 March 2018 The Permanency Panel response, after considering the 3.5 page report which included no reference to the potential impact of any decisions on Leo, was that "initial support should be given to mum to allow for an opportunity to prove significant change in order to support restoration… The Panel will require evidence that Jennifer has engaged in services prior to supporting a permanency goal of Restoration." 3. On 4 April 2018 Wesley Dalmar communicated the decision to explore restoration to Community Services and Community Services agreed with this course on 18 April 2018. Since 15 March 2018 Wesley Dalmar and Community Services have continued to explore restoration and have put in place services to support restoration. 4. By 17 May 2018 although Wesley Dalmar's stated position was that restoration was being "explored" it seems Wesley Dalmar had decided in favour of restoration. In the Case Review of that same date it states: "Permanent orders allocating Parental Responsibility to the Minister were granted in January. Wesley Dalmar is currently exploring restoration to Leo's birth mother Jennifer…as the Care Plan goal was permanent care but now that restoration is being explored, the care plan goal needs to be changed with the Court. In the meantime restoration can continue to be worked towards with Jennifer to continue to address the child protection concerns and maintain these changes… It was discussed that in order for the Court Order to be changed this needs to go back to court to have the Section 90 Supported. It was explained this would be in the future once closer to the potential restoration." 1. By 20 June 2018 a decision had been made to refer the family to Newpin, a service which supports families during a restoration process and contact between Leo and his mother had doubled. These are clearly steps taken towards a restoration. 2. On 7 July 2018 Community Services changed Leo's Case Plan Goal to restoration and provided Wesley Dalmar with funding to assess the viability of Leo being restored to the care of his mother. It is not clear why the Case Plan Goal was changed to restoration prior to any assessment of the viability of restoration. 3. Despite the involvement of Newpin and the doubling of Leo's contact with his mother in the meeting of 9 July 2018 between the mother, Mr Armstrong, Ms Shannon and Ms Simons the caseworkers kept referring to "the potential restoration." Ms James was told she would need to address the issues she was asked to address in the Summary of Proposed Plan filed in the Initial Care Proceedings. It is noted that the caseworkers would: 1. Follow up Newpin referral 2. Speak to Community Corrections to obtain information 3. Look into hair follicle testing 4. Obtain information from psychologist/counsellor/CAMS 5. Look into a potential parenting capacity assessment. 1. The caseworkers noted that Ms James "had missed a number of contacts recently." 2. On 19 September 2018 there was a meeting arranged by Wesley Dalmar to discuss restoration and current concerns. This meeting was attended by Ms James, Mr Armstrong, the Team Leader, Lana Shannon the Case Manager and Ms Simons. It was stated that the meeting was conducted to discuss the possible restoration and current concerns. "… Jennifer's psychologist told her she has a type of adjustment disorder It was identified that a current concern that may impact restoration continuing to be supported is Jennifer's attendance at contact over the past few months. Sharon identified that in the past three months Jennifer has not attended nearly half of her contacts… Sharon further stated that Leo has made comments that he doesn't think Jennifer will come to contact when he is told it is a visit day. It was discussed with Jennifer that she is struggling to meet some of the identified requirements then possibly a residential program may be beneficial however Jennifer was not willing to attend a residential program. Jennifer is currently completing an Intensive Corrective Services Order (sic). It was stressed that Jennifer needs to be attending Newpin for the programs as well as for the contacts. Jennifer stated at Newpin, May, was calling her at 7 AM and it was very annoying. Jennifer would prefer may call around 730 to 8 AM so she can show she is already up and getting ready…" 1. On 19 November 2018 a s 82 report was prepared by Wesley Dalmar and forwarded to the children's Court. The s 82 report stated; "On 7 March 2017 Leo was placed in a temporary placement with Wesley Dalmar carers where he currently remains. Leo is settled in this temporary placement and has made good progress… Leo, aged three years, appears to be progressing well and he is observed to be comfortable in living with his carers. Leo has been regularly observed by the case manager to seek affection and comfort from his carers and to have his needs met. Leo also has a positive relationship with the carers biological children and has been observed playing and interacting with them in a positive manner. The carers continue to meet all of Leo's day-to-day needs and include him in family celebrations, gatherings and holidays. Wesley Dalmar are currently supporting Leo's mother, Ms James in working towards a section 90 application to have Leo restored to her care. Wesley Dalmar have been consulting with Family and Community Services Permanency Coordinator during this process. The Permanency Coordinator will be applying for Leo's case plan goal to be formally changed to restoration to Ms James. A meeting was held on 20 November 2018 with Ms James and her partner, Mr Armstrong, Wesley Dalmar, Newpin Restoration Program and the Permanency Coordinator in which it was agreed by all parties that the section 90 application would continue to be pursued." 1. On 20 November 2018 a meeting was held which included the mother, Mr Armstrong, the family worker at Newpin, Ms Simons, Wesley Dalmar Case Manager, Ms Lana Shannon, Wesley Dalmar Case Manager and Karen Doran the FaCS Permanency Co-ordinator. "Karen explained she is involved as Wesley Dalmar are making decisions for a child in care that differ from the court order. Karen is to be consulted regarding the change in Case Plan goal. These decisions still need to have FaCS' involvement (because FaCS) hold decision making responsibility…" 1. The note states that after Wesley Dalmar notify CFDU [the branch within Community Services with carriage of this matter] that: "Although Wesley Dalmar have already been working towards restoration this has not been official with CFDU. In a couple of months we will file a section 90 application and identify the terms of the restoration.… Theoretically the hope is Leo is restored into Jennifer's care while Jennifer and Leo continue with Newpin until it is completed. Jerry won't be joining as a party but that doesn't mean he can't be included in SOPPS or minimum outcomes. For Jerry to be a party we would need to restore to both Jennifer and Jerry but we are only restoring to Jennifer. Karen suggested to file the section 90 by February 2019 and to change the case plan goal as soon as possible. Then we develop a plan for restoration. This would include PR remaining for six months, Leo can transition before the end of the six months. The transition can happen quickly if wanted. Leo has developed a stutter. Jennifer is wondering if this has resulted from Leo being told he's going home to her and will no longer see Tee [his current carer] and that he is confused about this." 1. On 16 January 2019 the ILR, who had been served with a copy of the s 82 report by the Children's Court, brought an application for rescission or variation of a care order citing the following: 1. The section 82 report indicates that Leo is still placed in his temporary placement which he entered on 7 March 2017 2. The Care Plan filed on 4 January 2018 noted that Wesley Dalmar had located a suitable long term placement for Leo 3. The s 82 report does not make any reference to why Leo has not been placed with the identified long-term carers 4. The s 82 report notes that Wesley Dalmar is supporting the mother in seeking to have Leo restored to her care.

Events after the filing of the Section 90 Application 1. In her affidavit of 14 March 2019, the Community Services Caseworker, Ms Miles, stated: "Leo has remained in a stable placement since his removal 24 months ago. Wesley Dalmar report that Leo is very settled and has developed a secure attachment to his short-term carers. Leo is in good general health, is meeting his met developmental milestones and does not have any behavioural concerns." 1. On 7 February 2019, Ms Miles, Community Services Caseworker, spoke to the Wesley Dalmar caseworker and was told that Wesley Dalmar had still not formally recommended restoration and were waiting for the results of Ms James's hair follicle test and Parenting Capacity Assessment report.

The relevant legal framework 1. The present proceedings are brought under s 90 of the Care Act. This section empowers the Children's Court to rescind or vary previous Care orders. An Application under s 90, however, may only be made pursuant to a grant of leave: s 90(1). 2. The Application pursuant to s 90 of the Act was filed prior to the amendments introduced by the Children and Young Persons (Care and Protection) Amendment Act 2018. The transitional provisions provide that the amendment to s 90 does not apply to applications for leave that were pending before commencement. 3. The objects of the Care Act are set out in s 8. The Act also sets out a number of principles according to which it is required to be administered, both administratively and judicially. 4. The overriding principle is that the safety, welfare, and well-being of children are paramount, even to the exclusion of the interests of any parent: s 9(1). 5. Leave may only be granted if it appears that there has been a significant change in any relevant circumstances since the Care order was made or last varied. 6. The relevant subsections of s 90 are as follows: "90 Rescission and variation of care orders (1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1A)... (2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. (2A) Before granting leave to vary or rescind the care order, the Children's Court must take the following matters into consideration: (a) the nature of the application, and (b) the age of the child or young person, and (c) the length of time for which the child or young person has been in the care of the present carer, and (d) the plans for the child, and (e) whether the applicant has an arguable case, and (f) matters concerning the care and protection of the child or young person that are identified in: (i) a report under section 82, or (ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150. (3)… (3A)… (4)… (5)… (6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration: (a) the age of the child or young person, (b) the wishes of the child or young person and the weight to be given to those wishes, (c) the length of time the child or young person has been in the care of the present caregivers, (d) the strength of the child's or young person's attachments to the birth parents and the present caregivers, (e) the capacity of the birth parents to provide an adequate standard of care for the child or young person, (f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded." 1. The concepts of "relevant circumstances" and "significant change" were discussed by Justice Slattery in his decision In the matter of Campbell [2011] NSWSC 761. 2. As to what constitutes a "relevant circumstance" Slattery J said at [42]: "The range of relevant circumstances will depend upon the issues presented for the Court's decision. They may not necessarily be limited to a 'snapshot' of events occurring between the time of the original order and the date the leave application is heard." 1. As to what constitutes a "significant" change in a relevant circumstance, Slattery J referred to S v Department of Community Services (DoCS) [2002] NSWCA 151 where the Court of Appeal held that the change must be "of sufficient significance to justify the consideration [by the court] of an application for rescission or variation of the order." 2. Slattery J also made it clear that the Court's discretion to grant leave is not only limited by s 90(2), but also by the requirement to take into account the s 90(2A) list of considerations. Therefore, establishing a significant change in a relevant circumstance under s 90(2) is a necessary, but not a sufficient, condition for the granting of leave. 3. As to the requirement of an "arguable case", Slattery J held that this does not relate to the application for leave, but that an arguable case must be shown for the rescission or variation sought taking into account the matters in s 90(6). Therefore, the matters in s 90(6) must be taken into account in determining whether the applicant for leave has an arguable case. 4. Slattery J agreed with the then President of the Children's Court, Judge Marien, that the interpretation of "arguable case", as expressed in Dempster v National Companies and Securities Commission (1993) 9 WAR 215, should be adopted; namely, that an arguable case is a case that is "reasonably capable of being argued" and has "some prospect of success" or "some chance of success".

Is there a significant change in a relevant circumstance? 1. The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the Care order was made or last varied. 2. Regulation 5 made under the Children and Young Persons (Care and Protection) Regulation 2012 ('the Care Regulation') is relevant to the identification of significant change in the relevant circumstances. It provides: "5 Rescission and variation of care orders – "significant change" For the purposes of section 90(2) of the Act, factors which indicate a significant changed in the relevant circumstances of a child or young person since a care orders made or last varied include (but are not limited to) the following: a)… b) a finding by the Children's Court under section 82(3) of the Act that proper arrangements have not been made for the care and protection of the child or young person c)… d)… " 1. On receipt of the s 82 report the Children's Court considered that proper arrangements had not been made for the care and protection of Leo. The Court directed that the parties to the Initial Proceedings be provided with a copy of the report and be invited to bring a s 90 Application. 2. In the Initial Care Proceedings the Children's Court made a finding that there was no realistic possibility of restoration of Leo to his mother and approved the Permanency Plan providing for Leo moving to the long term placement identified and nominated in the Care Plan. When the Court made final orders the expectation was that Leo would be swiftly transitioned into the identified family where he would remain for the whole of his childhood. Instead he has stayed with the carers who were identified as his short-term foster carers. The Children's Court has since been told that it was misled in this regard as the placement was subject to a matching assessment. 3. More than two years since the now 3 year old Leo was assumed into care, and more than 14 months after Final orders were made and despite the Court's finding of no restoration to Ms James and approving the Secretary's plan for long-term out-of-home care Leo remains in his short-term placement. For those 14 months Wesley Dalmar and Community Services have been 'exploring possible restoration' to Ms James. Not surprisingly Leo is said to have developed a strong attachment to his current carers. 4. Permanency planning has been a spectacular failure in Leo's case and proper arrangements have not been made for Leo's care and protection. The Plan approved by the Children's Court for Leo was an identified long-term out-of-home care placement for Leo. The reality for Leo is that the Court's decision and plan approved by the Court was abandoned without good cause and there is currently no identifiable long-term plan for Leo. This is a significant change in a relevant circumstance.

Section 90(2A) Factors 1. Of course a significant change to a relevant circumstance is a necessary but not a sufficient condition to grant leave and I must also consider the factors set out in s 90(2A).

(a) The nature of the application 1. The application is seeking orders that will provide for Permanent Plans to be made for Leo.

(b) The age of the child or young person 1. Leo is 3.

(c) The length of time for which the child or young person has been in the care of the present carer 1. Leo has been with his current carers since March 2017. Leo will have to move from this placement as it is not proposed as a long-term placement.

(d) The plans for the child 1. There has been an abundance of evidence filed about the plans for Leo. Wesley Dalmar and Community Services have variously expressed that restoration is being explored and is to be subject to further assessment but in other documents suggest Wesley Dalmar has already decided that restoration should proceed. There is no evidence of any efforts being made by Wesley Dalmar or Community Services to pursue a long-term out-of-home care placement. 2. The restoration process has begun. In June 2018, contact was doubled. Newpin, which is a restoration service has been engaged and Leo's understanding is that he will be going back to live with his mother. 3. The plans held by Community Services and Wesley Dalmar for Leo are unclear.

Whether the applicant has an arguable case 1. In deciding whether there is an arguable case for rescission or variation of the order I am bound to consider the matters contained in s 90(6) of the Act:

(a) The age of the child or young person 1. Leo is 3.

(b) The wishes of the child or young person and the weight to be given to those wishes 1. The reports of contact between Leo and Ms James are positive. Leo is also reported to be very settled and secure in his current placement.

(c) The length of time the child or young person has been in the care of the present caregivers 1. Leo has been with his current carers since 7 March 2017, more than 2 of his 3 years.

(d) The strength of the child's or young person's attachments to the birth parents and the present caregivers 1. The evidence is that Leo has a secure attachment to his current carers. There has been no assessment of his attachment to his mother.

(e) The capacity of the birth parents to provide an adequate standard of care for the child or young person 1. At the time of Leo's removal there was an unacceptable risk to him due to Ms James's use of violence, her drug use and Leo's exposure to domestic violence. Ms James has: * Been involved in Newpin and parenting courses * Undertaken Equips Aggressions Programme facilitated by Community Corrections as part of her sentence of an Intensive Corrections Order * Has undertaken a hair follicle test. The Hair Follicle Test Expert's report states that Ms James declared she had not use any substances but concluded that there was cannabis use from approximately 21 April 2018 to 16 January 2019 * Started drug and alcohol counselling on 21 February 2019 * Had improved in her commitment to contact with Leo. 1. There is no evidence of a formal Parenting Capacity Assessment of the mother as suggested by the caseworkers would have to be undertaken. There is no formal assessment of Mr Armstrong's parenting capacity and he will be co-parenting Leo if Leo is restored to Ms James. Although Ms James has taken some positive steps towards addressing the issues that led to Leo's removal, there would have to be further evidence filed before the Court could conclude that Ms James had the capacity to provide an adequate standard of care for Leo.

(f) The risk to the child or young person of psychological harm if present care arrangements are varied or rescinded 1. Leo's current carers are short-term carers only and he will have to move to a permanent placement. Given the length of time Leo has been in this placement, his attachment to his current carers, the security he derives from this placement and the fact that this would be the only home Leo has a significant memory of, I can infer that Leo will suffer some psychological harm when he is removed.

Conclusion as to whether there is an arguable case 1. The Application seeks leave to vary or rescind the current order so as to achieve permanency for Leo. It is clear that two years after he was removed from the care of his mother and more than a year after final orders were made Community Services and Wesley Dalmar to whom the Secretary has delegated case management have not only been unable to achieve permanency for Leo but have been unable to decide on what the permanency plan should be. 2. In most applications before the Court the Applicant sets out the order he or she proposes and the Court judges whether there is an arguable case for that order. In this case the ILR who, at the time of the filing of his Application had limited evidence, was not in a position to state which order he proposes will be in Leo's best interest, just that there is an arguable case that the Order needs to change as the current order is not in Leo's best interest as it has failed to achieve permanency for him. 3. Permanency for Leo could be achieved in one of two ways. Either he is successfully restored to his mother's care or he is placed in a long term out of home care placement (there being no suitable family members available to provide long term care). 4. There is evidence before the Court that Ms James has taken steps to address the issues that led to Leo's removal, she has been having contact at a level which is consistent with a restoration plan, she and Mr Armstrong have been co-operating with services and no alternative placement has been identified. Ms James confirmed she is seeking restoration. 5. In Re Campbell, Slattery J at [57] states: "…But when leave to bring such an application is sought under s 90(1)… The whole case for rescission or variation is not being presented now. On the leave application, the court can take into account the fact that the applicant's case is on a course which is likely to be supplemented with further evidence by the time the case gets to a hearing, once leave has been granted." 1. A case for restoration has not been established on the evidence filed however, there is evidence that Ms James is on a course towards restoration and there will be further evidence filed regarding the possibility of restoration if leave is given. In my view there is an arguable case for a rescission or variation of the Final order to reflect a decision to support restoration. 2. Given the ongoing failure of permanency planning for Leo there is also an arguable case for an order that would include the making of an order for a s 82 report which will give the Children's Court the potential to conduct a progress review in relation to the progress towards the achievement of a permanent placement.

Matters concerning the care and protection of the child or young person that are identified in the section 82 report 1. The s 82 report and the lack of permanency for Leo was the trigger for the s 90 Application.

Should leave be granted to the ILR to bring an application for rescission or variation of the care order? 1. More than fourteen months after Community Services informed the Court that there was an identified long-term placement for Leo, there being no realistic possibility of restoration of him to his mother, Community Services have no permanency plan for Leo. Community Services and Wesley Dalmar state that restoration to Ms James is still being "explored," however practical steps have been taken towards restoration, including increasing contact, engaging Newpin and letting Leo think he will be going to live with his mother. 2. Leo is 3 years old and is not able to remain permanently with the carers whom he is attached, happy and settled. Despite Community Services and Wesley Dalmar state they remain undecided about restoration, there is no alternative placement available to Leo. There is no evidence whether this is due to there being no available carers or there being no search for long-term carers. The Court can have no confidence that there will be an appropriate Permanency Plan for Leo unless leave is given to the ILR to bring a s 90 Application. The current order has not met Leo's needs and there is a strong argument that it will need to be changed.

Order Leave is granted to the ILR to bring an application pursuant to s 90 for leave to vary or rescind the order made by the Children's Court on 23 January 2018.

Concerns raised by these proceedings

Wesley Dalmar's Response to the Children's Court Decision 1. In Care proceedings in the Children's Court, Community Services, the child's parents and the child are parties to the proceedings. 2. Any person who has a genuine concern for the safety, welfare and well-being of a child can ask the Court to be joined as a party to the proceedings and be heard. Wesley Dalmar could have made an application to be joined to the proceedings (EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 confirms that Wesley Dalmar as a designated agency can have a "genuine concern for the safety, welfare and well-being of children.") 3. All parties are entitled to be legally represented and the child is always represented by an experienced legal representative. 4. The Children's Court is bound to apply the law and to make decisions and orders that are in the best interest of the child. Very often the Children's Court makes a decision and final orders after multiple days of hearing and after: 1. considering many hundreds (and sometimes thousands) of pages of documents including: * The application(s) * The Summary of Proposed Plan * Affidavits filed by each of the parties * Experts' reports * The Care Plan (including the Permanency Plan and when appropriate Cultural Plan) * Material produced under subpoena 1. Oral evidence from the parties and their witnesses 2. Oral evidence from experts 3. Submissions from the parties. 1. Any party who is dissatisfied with a Final order of the Children's Court has a right of appeal to the District Court of NSW. 2. If there is a significant change in a relevant circumstance then a party can bring an application to vary or rescind the Children's Court order pursuant to s 90 of the Act. 3. In this case the Children's Court considered Leo's case between 1 August 2017 and 23 January 2018 on at least thirteen occasions. Leo was represented by a very experienced children's lawyer. Ms James had the right to appear and be represented by a lawyer and she was given a number of opportunities to fully participate in the proceedings and file evidence. The Children's Court had hundreds of pages of evidence before it and at the end of the Court's processes decided that Leo should not be restored to his mother's care. The Children's Court made a Final order of parental responsibility to the Minister until Leo attains the age of 18 years on 23 January 2018. 4. Wesley Dalmar did not agree with the Children's Court's decision and on 15 March 2018: 1. Only 6 weeks after the Children's Court's Final orders and knowing the Children's Court had made "Permanent Orders"; 2. Without any documents or evidence that were available to the Children's Court (except for a document described by Wesley Dalmar as an unsealed Care Plan); 3. Without a comprehensive history of this matter held by Community Services including the ROSH reports, the child protection history, the history of the mother's engagement, the history of services offered to the mother; 4. Without a Parenting Capacity Assessment of Ms James; 5. Without a Parenting Capacity Assessment of Mr Armstrong; 6. Without any reference to the effect of delaying a permanent placement on Leo; 7. Without an independent voice for Leo; 8. Without an apparent understanding of permanency planning and the basis of the Court's decision; and 9. After considering a very general document which was less than 4 pages long including information that Ms James was still not consistently attending contact. 1. Wesley Dalmar decided to set aside the decision of the Children's Court and replace it with its own contrary decision. Community Services acquiesced and then supported this course. 2. In my view Wesley Dalmar and Community Services were not justified in taking this course and it has resulted in there being no permanent plan for 3 year old Leo.

Lack of clarity in decision making 1. The affidavit from Wesley Dalmar states that Wesley Dalmar was not properly consulted by Community Services prior to the Final orders being made and that Community Services had misrepresented the long term placement set out in the Care Plan as confirmed. 2. Wesley Dalmar's evidence is that they have continued to keep Community Services informed throughout the whole process and Community Services have supported the course Wesley Dalmar has taken. I accept on the evidence that this is largely the case. 3. In the Permanency Support Consultation document prepared by Ms Karen Doran, Community Services, Permanency Co-ordinator responsible for Leo's case she refers to a meeting of 20 November 2018 which involved herself, Ms James, Mr Armstrong, Ms Shannon and Ms Simons. Under the heading of 'Current Situation' it states: "Wesley went through what would be required for restoration to be considered ongoing and that Jennifer would need to show that she was committed ongoing to the work required to address the concerns that were around when Leo was brought into care." 1. Ms Doran then said that "restoration is supported as the most suitable permanency goal for Leo." Ms Doran says the Actions that have been completed are: 1. "Police records obtained and there are no additional charges for Ms James and "nothing of significant (sic) for Jerry 2. Ms James has been referred to Newpin and has begun attending. Initially there was some concerns about her attendance but this seems to have improved 3. Wesley Dalmar have had two meetings with Ms James and Ms James has been told what she would need to do for restoration to be considered." 1. Under the heading "Still to be undertaken" Ms Doran lists ten outstanding matters including: "- Hair follicle testing - Review of Ms James's Intensive Corrections Order with Community Corrections - A Restoration Assessment - Ms James to engage with Community based drug and alcohol service to review her current usage – whether rehabilitation is still recommended or counselling is sufficient will be reviewed after the results of the test - Mr Armstrong to become involved with Newpin and attend parenting groups Look at filing the section 90 in February 2019 if all goes ahead." 1. It is unclear to me how, after the Children's Court decided that restoration was not a realistic possibility that restoration can be supported prior to Community Services being satisfied that the significant issues that brought Leo into care have been addressed and the necessary assessments have been undertaken. It appears that Wesley Dalmar and Community Services have been working towards a restoration without actually having made a decision that there should be a restoration. 2. Although Community Services say that restoration is supported what is clear from a close reading of the documents is that what in fact is supported is not restoration but a continuation of what Wesley Dalmar refer to as "exploration" of whether there should be a restoration. It is abundantly clear that no decision has been made by either Wesley Dalmar or Community Services as to whether Leo should be restored to the care of his mother and Mr Armstrong. 3. There is no evidence filed in the leave Application that: 1. Any consideration has been given to the effect on Leo of the delays caused by the length of time there has been an "exploration of restoration"; 2. That there is a timeframe when "the exploration" is to conclude. From the meeting of 20 November 2019 there is reference to a s 90 Application being brought in February 2019 but only if "all goes ahead." This may mean that there will be an end to the "exploration" of restoration or it may mean that further time will be allowed; or 3. That there has been any parallel planning undertaken. 1. Setting aside whether Wesley Dalmar and Community Services should have embarked on the path it did to "explore" restoration, there has been no cogent or valid explanation provided for the delays and the ongoing failure to make appropriately informed and timely decisions.

False information provided to the Children's Court 1. Wesley Dalmar's undisputed evidence was that Community Services was informed that the long term placement referred to in the Care Plan filed with the Court was subject to a matching assessment after Final orders were made. Community Services did not include this information in the Care Plan and instead led the Court to believe that the placement was a certainty. 2. The Children's Court can make final orders without there being a placement identified (s 83(7A) of the Act). In this case had the correct information regarding the placement been included in the Care Plan it is extremely likely that the Court would have made the same order, though before doing so it may have required Community Services to include a timeframe for the matching assessment and set out what course would be taken to find another family if the matching assessment did not result in Leo's placement. 3. Notwithstanding this, placement information is of vital importance in Care proceedings and is relied upon by the Children's Court in regards to permanency planning and what order is in the best interest of the child. The Children's Court expects that the care and attention that Community Services pays to the accuracy of the information contained in the documents filed with the Court reflect the importance of the information in the proceedings and the gravity of the decisions that the Children's Court is called upon to make.

Information Sharing between Community Services and Wesley Dalmar 1. Wesley Dalmar complained that Community Services failed to obtain relevant information from them before the Final orders were made and further that Community Services provided them only with an unsealed copy of the Care Plan and as such could not be certain it was the final version. 2. All but a few cases that come before the Court now are case managed by a non-government agency ('NGO'). Community Services hold the information about the ROSH reports and the historical information about risk and removals and services and investigations etc. The Court is told that the NGO managing the case is not provided with that detailed information. The NGO's are not routinely provided with a copy of the evidence filed with the Court or the experts' reports, though in some cases leave from the Court is sought to provide some of the documents to the NGO, most commonly the Care Plan. 3. The NGO holds the detailed information regarding the child and family and the work undertaken and contact from the date case management is assumed. The NGO's files are not routinely provided to Community Services, just selected documents and case reviews. 4. If a decision maker takes into account all of the relevant information when making a decision then it can be expected that the best decision will be the result. Decisions that need to be made about children at risk or in care including whether they should be removed, whether they should be restored, whether contact with a child should be supervised and what services are required seem to be best made when all the historical material and the current material are considered and weighed. Under the current system there does not appear to be one decision maker that has all the relevant information to make a fully informed decision. 5. In Leo's case Wesley Dalmar considered that the Children's Court's decision was wrong and that Ms James should be given the opportunity to prove that she could address the issues that led to Leo's removal. Wesley Dalmar however when making that decision did not appear to know in any detail the child protection history or the history of the mother's engagement with contact and services.

Conclusion 1. Two years after Leo was removed and more than a year after the Court was told that Leo was soon to be moving into an identified long term placement his future is still unknown. 2. Leo has been waiting since 17 March 2017, at age 1, for a permanent placement. Community Services knew on 4 July 2017 when the Court made a finding that there was no realistic possibility of restoration to his parents that Leo would require a long term placement with either family or in out-of-home care. 3. Wesley Dalmar did not agree with the Secretary's plans for the child or the Court's findings and orders and Wesley Dalmar decided, within weeks of the making of the Final order for Leo, that it would review the Court's decision. The review which was conducted with extremely limited information 'overturned' the Court's decision. 4. Wesley Dalmar decided to "explore" possible restoration and not pursue the proposed long-term placement. Leo has remained with the same carers and now, at age 3, Leo has a secure attachment to these foster carers with whom he is unable to live long-term. 5. Although Wesley Dalmar did not agree with the Court's decision in January 2018, more than 14 months later Wesley Dalmar have failed to make a final decision. Wesley Dalmar have not decided whether to support Leo being restored to his mother's care, the only decision being to continue to 'explore' restoration. 6. Wesley Dalmar and Community Services have not made any alternative plans for Leo if the conclusion is that there is to be no restoration. There are currently no alternative long-term care options identified for Leo. 7. Community Services are clear that as it is the Minister for Community Services who holds parental responsibility and that it is the Minister and not Wesley Dalmar who make the decisions for Leo. It is therefore Community Services who have failed to make decisions, since the Final orders were made, which would support the appropriate and timely permanency planning this little boy deserves. 8. It seems that the time when Leo will know where he is going to live for the remainder of his childhood is still a long way off.

Amendments 06 June 2019 - reworded paragraph [119] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2019