Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and the Stone and Bates Children [2020] NSWChC 6 Hearing dates: 18 & 19 June 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Care and protection Before: Children's Magistrate Virgo Decision: The Carers have standing under s 90 of the Care Act Catchwords: CHILDREN – Care and protection - rescission of Care Orders – standing – authorised carers - sufficient interest in the welfare of a child – daily care and control of a child - removal of children from authorised carers - whether removal negates 'sufficient interest' – comparison of 'sufficient interest' and 'genuine concern' – delay – conduct of carers following removal Legislation Cited: Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Amendment Act 2018. Cases Cited: DCJ & the Prince children [2019] NSWChC 2 EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248 EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 Texts Cited: NSW Legislative Council Hansard, 24 October 2018 Category: Principal judgment Parties: The Carers The Secretary The Children Representation: Ms Hall, solicitor for the Carers Mr Hemsley, solicitor for the Secretary (Bates children) Ms Rowley, solicitor for the Secretary (Sienna) Ms Flynn, solicitor as the Direct Legal Representative (DLR) for Sienna Ms Flynn, solicitor as the Independent Legal Representative (ILR) for the Bates children File Number(s): 2020/00064054 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment 1. I am asked to determine a discreet issue regarding standing to bring an application under the provisions of s 90 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) before the Children's Court. 2. I provided a short extempore decision in this matter on 19 June 2020. These are my written reasons. 3. By agreement between the parties, the hearing proceeded by way of filed written submissions followed by oral submissions at the hearing. The Proceedings 1. There are two separate s 90 applications brought by Mr Gary Harrison and Mrs Harriett Harrison (the Carers) both dated 19 February 2020. For practical purposes, the two applications were heard and determined together. 2. The birth parents of the children have not participated in these proceedings. 3. I considered the following filed material: * The Secretary's written submissions for the Bates children and separate written submissions for Sienna. * The Carers' affidavits of 12 March 2020 and written submissions. * Sienna's Views & Wishes statement and written submissions from the DLR. * The ILR's written submissions for the Bates children. 1. An application under s 90 of the Care Act that seeks to rescind or vary final orders for children requires the leave of the Court to commence the proceedings. It may not be brought as of right. The Secretary opposes leave being granted to the Carers. However, as a preliminary issue, the Secretary argues that the Carers do not have standing to bring their applications. The Secretary seeks that this threshold issue be dealt with before the Court proceeds to consider the question of leave. Background 1. The Carers are authorised foster carers for Care South (Care South). Care South is an authorised funded service provider for the Department of Communities and Justice (DCJ). DCJ transferred day to day casework responsibility for the children to Care South. 2. The subject children are Sienna Stone (Sienna) and Sebastian, Henry, Matthew & Jack Bates, (together the Bates children). Sienna is 13 years old. Final orders were made on 28 April 2008 granting the Minister for Families, Communities and Disability Services (the Minister) parental responsibility for Sienna until the age of 18. Sebastian is about to turn 10 years. Henry is 9, Matthew is 7 and Jack is aged 4. Final orders were made on 20 March 2018 granting the Minister parental responsibility for each of the Bates children until the age of 18. 3. Sienna lived with the Carers from approximately September 2008 and the Bates children since approximately October 2015. On 22 May 2019 all the children were removed from the care of the Carers by Care South. Carers' Case 1. The Carers dispute the reasons given by Care South regarding the removal of the children from their care. They argue that it is in the best interests of the children that they are returned to their care. 2. The Carers seek orders that would rescind the children's final care orders. In their place, the Carers seek parental responsibility (PR) in respect of the 5 children. The Minister currently holds PR for the children. 3. The Care Act sets out a series of principles governing its administration. First and foremost is what is sometimes referred to as the paramountcy principle found in s 9(1). This principle requires that in any action or decision concerning a child or young person, the safety, welfare and well-being of the child or young person is paramount. The Carers argue that the children should be returned to their care as that is what is in the best interests of the children's safety, welfare and well-being. The position of the parties 1. The Secretary argues that the Carers have chosen an inappropriate forum to file their applications as they cannot appeal the decision to remove the children in the Children's Court. By virtue of s 245(1)(c) of the Care Act, the Carers must pursue that claim in the NSW Civil and Administrative Tribunal (NCAT). 2. The Secretary argues that the Carers have not demonstrated a sufficient interest in the welfare of the children because the Carers delayed bringing their application and have had no formal contact with the children since their removal. The Secretary also says the Carers have taken no practical steps to address the issues that caused the children to be removed from their care. 3. In addition, I note in Ms Rowley's submissions that she further submits on the part of the Secretary any interest that the Carers have had in the welfare of the children has been extinguished through the length of time they have taken to bring these proceedings. 4. The ILR argues that the Carers cannot demonstrate a sufficient interest in the welfare of the Bates children as they did not bring a timely application before the NCAT and delayed filing a s 90 application in the Children's Court. 5. The DLR for Sienna notes Sienna's wishes (to return to the Carers' care) but comments that the application for rescission is flawed as being filed in an inappropriate forum in respect of the agitation of the decision made by Care South to remove the children. Applicant's argument as to standing 1. The Carer's rely on s 90(1AA) of the Care Act that provides that the following persons have standing to bring a s 90 application: (1AA) An application may be made by— (a) the Secretary, or (b) (Repealed) (b1) the child or young person, or (c) a person having parental responsibility for the child or young person, or (d) a person from whom parental responsibility for the child or young person has been removed, or (e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person. 1. The Carers do not hold nor have they ever held PR for the children, but they argue that they have standing as persons who have a sufficient interest in the children's welfare, under (e). 2. I note there are no specific exclusions under the Care Act that prohibit the Carers from seeking standing under sub-section (e). That is to say, the Care Act does not prohibit their application as a consequence of being former carers from whom children have been removed. Jurisdiction for a review of the decision to remove – s 245 of the Care Act 1. I will deal with the jurisdiction argument advanced by the Secretary and the children's representatives first. 2. I agree that the Children's Court as an inappropriate forum for review of an administrative decision. There is no jurisdiction in this Court to review the removal of the children from the Carer's care. Section 90 applications are not a vehicle through which a review of Care South's decision to remove the children can be made. 3. Section 245(1) of the Care Act details the categories of decisions that are reviewable by NCAT. Under the heading "Decisions that are administratively reviewable by Civil and Administrative Tribunal", appears: "(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993." 1. At ss 245(1)(c) is a reference to decisions made concerning the removal of children under the care of the Minister from authorised carers. It provides: "a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person," 1. In relation to the history of this matter, the relevant decision maker (Care South) removed from the authorised carers the responsibility for the daily care and control of Sienna and the Bates children. While it is understandable that the Carers are aggrieved by that decision and clearly miss the children, any appeal of the decision to remove the children from them as authorised carers must be brought in the NCAT, not the Children's Court. Applicants' claim for parental responsibility 1. The s 90 applications filed by the Carers do not seek a review of Care South's decision to remove the children from their care. What the Carers seek is a return of the children and PR for them. 2. A claim for PR is not an appeal for review of an administrative decision and moreover is a claim that can be made by way of a s 90 application, subject to a determination of standing. Furthermore, whether the Carers are able to meet the discretionary criteria for leave to continue that claim before the Children's Court is not an issue I am asked to address today. I note that in practical effect, a review of the decision to remove is likely to be one factor that I would need to consider as part of the assessment for leave, but it does not operate to remove the Carers' standing. Applicants' claim for the return of the children 1. There is an issue with the s 90 applications in that the Carers also seek the immediate return of the children to their care on an interim basis (Order 3) and restoration of the children on a final basis (Order 4). Neither of those orders are orders this Court can make and as such the applications are defective. The Children's Court has no power to order the Minister to place children in the care of a particular carer. That is a decision that only the Minister can make in the exercise of PR through delegated powers. Moreover in respect of Order 4, restoration of children can only be ordered to applicants who previously held PR for those children. The Carers have never held PR. Orders 3 & 4 in both applications should be struck out. 2. In accordance with the spirit of the Care Act (with its necessary focus on the needs of children as paramount concerns) and in particular having regard to the requirement that proceedings are to be conducted with as little formality and legal technicality as the circumstances permit (s 93(2) of the Care Act), the s 90 applications are permitted to stand but with leave granted to amend. The legal framework 1. Section 90 of the Care Act provides the mechanism for applications to vary care orders. The Carers seek to vary the final care orders made for the subject children. Section 90(1AA)(e) of the Act provides that an application for the rescission or variation of a Care order may be made with the leave of the Children's Court "by any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person." 2. Section 90(4) provides that the Children's Court is not required to hear or determine an application pursuant to s 90(1AA)(e) unless it considers the person to have a sufficient interest in the welfare of the child or young person. 3. The issue as to standing therefore depends on a determination as to the Carers having a sufficient interest in the welfare of the children. It is a two stage consideration. Firstly, under s 90(1AA)(e), a person who considers him or herself to have a sufficient interest in the welfare of the child may bring an application. Secondly, under the provisions of s 90(4) it is the Court that must determine if it is satisfied that the person has demonstrated a sufficient interest irrespective of whether the applicant so considers him or herself to hold that sufficient interest. 4. I have not been referred to any decision that has considered the meaning of this phrase although I do note that Children's Magistrate Sheedy in her decision in the matter of DCJ and the Prince Children [2019] NSWChC 2 considered this from the perspective of a child's Independent Legal Representative's standing to bring a s 90 application and that was decided in favour of the children's representative in that matter. There was no detailed examination of the meaning of the phrase however. 5. I also note there is no guidance or definitions in the Care Act that assist in interpreting this phrase. I therefore assess the phrase and attribute to the words in that phrase, their ordinary meaning. Ordinary meaning of 'sufficient interest' 1. The Macquarie Dictionary definition of 'sufficient' as an adjective derives from the Latin 'sufficiens' and in modern use, implies 'that [which] suffices'. Sufficient means 'enough or adequate'. So, as an adjective applied to an "interest" it follows that a 'sufficient interest' is an interest that is enough or adequate, or an interest that suffices. 2. The Macquarie Dictionary definition of interest, as a noun is the "feeling of someone whose attention or curiosity is particularly engaged by something". It follows (if somewhat mechanically) that a sufficient interest could be defined as an adequate attention or curiosity that a person is particularly engaged by or with. In the context of s 90(1AA)(e), and applying the ordinary meaning, what an applicant must show is that he or she is particularly engaged with the welfare of the child and that the level of that engagement is demonstrated as 'adequate or enough'. 3. In my view that creates a relatively broad definition and moreover establishes a threshold test that is not set particularly high. Potentially, many persons with responsibilities for children in a variety of different contexts, may consider themselves as having a 'sufficient interest' in the welfare of a child. For example, a teacher of a child may say that he or she has a sufficient interest in the welfare of a child. A treating doctor would consider that he or she has a sufficient interest in the welfare of a child. However, for reasons that follow, it is unlikely that such a class of persons could demonstrate to the satisfaction of the Court under s 90(4), a subjective 'sufficient' interest' by reason only of their professional status. Comparison of 'sufficient interest' and 'genuine concern' 1. By way of comparison, I note applications for joinder under s 98 of the Care Act are assessed under a different test. Relevantly, s 98(3) states: "In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children's Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children's Court, appear in person…" [my emphasis] 1. Accordingly, a party seeking leave to be joined must prove that they hold a 'genuine concern for the safety, welfare and well-being of the child'. This phrase has been judicially considered with the result that the ultimate question for determination in a joinder application is that the Court is required to assess objectively whether the applicant has a genuine, subjective concern. I refer to EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248 per Truss DCJ. In addition, I also refer to the Supreme Court decision in EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 (EC) where it was held, after a detailed consideration of the case authorities on the meaning of "genuine concern", that "there should be both an objective and subjective element to the test" and that "the precise weight to be given to each component will vary upon each individual application". 2. In EC, Sackar J referred to the expression 'genuine concern' and noted at [65]: "The phrase 'genuine concern' is not defined in the Act. Taking its ordinary meaning, 'genuine' means 'real', 'authentic', 'true' (Macquarie Dictionary)." 1. Similarly, I have consulted the Macquarie Dictionary for the meaning of 'concern' and note one of the stated meanings of concern is "a matter that engages one's attention, interest, or care, or that affects one's welfare or happiness". So a 'concern' is different to an 'interest' in that it connotes something that could also 'affect one's welfare or happiness'. 2. Sackar J went on to consider that the word 'genuine' imported more than just a familial relationship with a child – that a mere blood relationship would not be enough. What would be required would be an assessment of the subjective 'genuine' concern held. He found that the entity seeking joinder in EC could demonstrate their genuine concern through the significant casework expended over the years with the subject children in that matter. 3. I have considered whether there is, in reality any significant difference with the test in s 90(1AA)(e) by the use of the expression 'sufficient interest' as opposed to the expression 'genuine concern' adopted in the test for joinder under s 98. I think that there is. Sufficient has a quite different meaning to 'real, authentic or true' and in my view, implies a lower threshold to be met, that is, the words 'adequate' or 'enough' imply lesser qualities than 'real, authentic or true'. I consider an applicant might demonstrate a sufficient interest in the welfare of a child more readily than a demonstration of a genuine concern for the welfare of a child. A "sufficient interest" as a threshold test is lower than the threshold test that requires an assessment of a 'genuine concern'. It is, in any event, a different concept. Threshold test for sufficient interest 1. I conclude an assessment of 'sufficient interest' in s 90(1AA)(e) requires an objective assessment as to whether the applicant has a sufficient subjective interest in the welfare of a child. Whether the removal of children negates 'sufficient interest' 1. Although I was not asked to do so, I have considered whether the children's removal from the Carers' care operates to negate the Carers' holding of a sufficient interest in the welfare of the children. I consider that it could. That is because s 90(4) provides that the Court must be satisfied the Carers 'have' [my emphasis] a sufficient interest in the welfare of a child. 'Have' is of course the present tense of the verb 'to have'. If the Carers have had the children removed, they no longer have responsibility for their daily care and control. It follows that as non-kinship carers of the children they may in fact have lost or no longer hold a 'sufficient interest' in the welfare of the children. To reach that conclusion I would need to be satisfied that the basis that non-kinship carers demonstrate a 'sufficient' interest' is through their professional status as 'authorised carers'. Clearly the Carers lost their professional status as 'authorised carers' for the subject children when they were removed. However, 'sufficient interest' is not satisfied by the identification of a professional (or any other) status alone and therefore the losing of it, cannot, without more, operate to deny the Carers from possessing a sufficient interest in the welfare of a child. Category of applicants under s 90(1AA)(e) 1. I do not know if it was intended to create a broad category of potential applicants for s 90 rescission or variation care orders by the adoption of the phrase "sufficient interest in the welfare of the child" under s 90(1AA)(e). I reflect that is was probably not the intention when one considers the recent changes to s 90 made on 4 February 2019 following the Children and Young Persons (Care and Protection) Amendment Act 2018. The second reading speech to the amendment bill contains this following explanation for the introduction of, arguably, a more restrictive test to be applied in determining section 90 leave applications: "Section 90 in the Care Act is the provision which allows care orders to be rescinded or varied. There have been times where a section 90 application has caused placement instability, uncertainty and distress for children. The child might be very well settled in a safe, loving and happy family and [a] child might have formed significant attachments with carers and their new foster siblings. Section 90 is not time limited, so an application might be brought by a parent years after final care orders have been made. In those circumstances there is genuine risk to the child of psychological harm if the present consistent care arrangements are changed." In light of that observation, it is not unreasonable to suppose that the threshold criteria enabling a person to bring a s 90 application was intended to be interpreted narrowly. Different threshold tests for standing under the Care Act 1. I note the provisions for a contact order under s 86 of the Care Act, adopt the expression 'sufficient interest' for standing in a similar fashion to applications for rescission under s 90. It is only in respect of applications for joinder under s 98 of the Care Act where the expression 'genuine concern' is used. It might be thought that the adoption of different expressions is justified because of the very different purposes of applications for rescission, applications for contact orders and of applications for joinder. Further, I note an application for joinder is made only when the care and protection proceedings have already commenced, and as such, may not lead to any additional stress and uncertainty for a subject child whereas an application for rescission is the process by which new care and protection proceedings for a child are commenced. Accordingly, in my view, that creates the potential for greater stress and uncertainty for a subject child. Bearing in mind that comparison, it does surprise me that the threshold test for rescission seems lower than that for joinder. Reasons for decision 1. For the reasons that appear below, the Carers have met the threshold test for standing under s 90(1AA)(e). Delay in filing s 90 Application 1. The Secretary argued that the Carers lost whatever interest they had in the welfare of the children because of an alleged delay in submitting their s.90 application. That is, the carers have not demonstrated a sufficient interest because they filed their application in February 2020, some 9 months after the children were removed in May 2019. 2. In respect of the alleged delay, I accept there is no time limit in the Care Act for s 90 applications and furthermore, I am unable to accept the Secretary's submission that the carers have not attended to their s 90 application in a timely manner. However, I do accept as a matter of fact that the s 90 applications could have been filed sooner than February 2020, given the children were removed in May 2019. The timeline is something that will be relevant to the substantive issue of leave under s 90. 3. It may be instructive to now analyse the review process undertaken. On 28 July 2019, the Carers were advised by Care South of the decision to end the placement of the children in their care due to substantiation of allegations of physical abuse, verbal abuse, emotional abuse, ill-treatment and neglect. That letter indicated that Care South's investigation of the allegations included interviews with the children and others and considered a collection of information from various sources. The letter also referred the Carers to their rights to contest that decision through the NCAT process. 4. There is no evidence before the court that the Carers have pursued that avenue. It is probable that they have not. In their written submissions the Carers argue that "the Secretary has a lack of appreciation of the reality faced by carers who are not familiar with the intricacies of the legal system and indeed may be bereft of the funds to seek redress when the Secretary takes action." In my view, ignorance of alternative avenues for legal redress is not a matter that greatly assists the Carers. I do not know if the Carers are privately funding these proceedings but it is obliquely referred to in written submissions. I have taken that into account. 5. I was not addressed as to whether a review before NCAT would be more difficult or more expensive than a s 90 application before the Children's Court. Be that as it may, it is not a matter that is relevant to an assessment of standing. It might serve to explain why the Carers have not pursued a review of the decision to remove the children through NCAT, but it does not assist me with a determination of standing. NCAT review and concurrent s 90 Proceedings 1. I accept there are aspects of the NCAT review process that are relevant to delay. For example, I note that an internal review must be held before an aggrieved applicant may file an appeal at the NCAT. According to s 55(3) Administrative Decisions Review Act 1997, NCAT could not process any appeal filed by the Carers until such time as an internal review had been finalised. For that reason I accept there would need to be some effluxion of time to enable that to occur. The review was undertaken during August and September 2019. The results of the review were communicated to the Carers at some stage in October 2019 which was confirmed in a letter to their solicitor dated 28 October 2019 and referred to and exhibited to Ms Harrison's affidavit of 12 March 2020 at [25] and at "HMH-5". 2. Against that backdrop and taking into account the further submissions concerning the Carers' options, I am not persuaded that the Carers have lost their standing because they did not pursue their s 90 application until sometime after the decision was made to remove the children. It might be that the Carers could have considered a concurrent s 90 application in addition to embarking on the review process at the NCAT, but again, any decision they did, or, did not make in relation to their options and the timing of those options is not one that would persuade me that they have lost their standing through an alleged delay in bringing this application. These are factors that may be relevant to the substantive question of leave. Contact with the children 1. The Secretary says that the Carers have not taken steps to contact the children since they were removed. The Carers' written submissions suggest that they have been prevented from contacting the children. I do not know if that is the case, but if so, that would explain the lack of contact they have had with the children since removal from their care. I cannot address the submission that the Carers have taken no steps to maintain contact with the subject children as neither the Carers nor the Secretary has filed evidence about this. I note that any such evidence may be relevant to the substantive question as to leave. Steps towards addressing the reasons for removal 1. The Secretary argued that the Carers have not taken any steps towards addressing the issues that led to the decision to remove the children from their care. Again, I do not know if this is so as the filed evidence does not address the point. In their written submissions, the Carers reject this submission. They say that they do not accept that the allegations made against them were substantiated, and moreover, the allegations are not proven as there is no filed evidence from which the Court could be invited to make that evidentiary finding. In effect, they go on to say that as there is no truth in the allegations, there are no practical steps they could take to address them. 2. Furthermore, they say that the Secretary has not specified the practical steps they could have taken. I also noted the Carer's written submissions in this regard are quite scathing of the Secretary's position adopting language that I find surprising. Be that as it may, I do not have to assess whether steps have, or, have not been taken as it is not relevant to the determination of standing. It is a matter that may well be relevant to the substantive question of leave. Care of the children 1. Sienna has lived most of her life with these carers. The Bates children lived with the Carers for a significant period of their lives. I accept that as the Carers have cared for the children for a lengthy period of time that they have demonstrated a sufficient interest in the welfare of the children. If one considers that Sienna has been cared for by these carers since she was a very young baby that in itself might adequately demonstrate that the carers have shown a sufficient interest in the welfare of Sienna, given that Sienna was 12 when she was removed. That is, the Carers have been responsible for the daily care and control of Sienna for approximately 12 years. Accordingly, they have been particularly engaged in the welfare of Sienna and that establishes a 'sufficient interest' under s 90(1AA)(e). 2. In relation to the Bates children I also accept that these Carers have cared for the boys for a considerable period of their lives and in respect of Jack, similarly to Sienna, they have cared for Jack since he was a very young baby. For the reasons already given, the Carers have established a sufficient interest in the welfare of the Bates children. Conclusion 1. The Carers have standing to bring this application as they have demonstrated on the balance of probabilities a sufficient interest in the welfare of the subject children to satisfy the determination I am required to make under s 90(4) of the Care Act. ********** 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: 01 July 2020