Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Ryan Masters [2020] NSWChC 7 Hearing dates: 22 & 23 June 2020 Date of orders: 23 June 2020 Decision date: 17 July 2020 Jurisdiction: Care and protection Before: Children's Magistrate Virgo Decision: Application for leave under s 90 of the Care Act is granted Catchwords: CHILDREN – Care and protection - rescission of Care Orders – standing - shared parental responsibility with Minister for cultural up-bringing - sufficient interest in the welfare of a child – subsequent s 90 applications – meaning of series of applications for leave – self-placement – significant change in relevant circumstances – arguable case – working with children check – applicable factors for s 90 leave following amendment of Care Act Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 C v The Secretary, Family and Community Services [2016] NSWDC 103 Darren, James & Tenille's Case [2006] CLN 7 Department of Communities and Justice (DCJ) and the Stone and Bates Children [2020] NSWChC 6 In the matter of Campbell [2011] NSWSC 761 S v Department of Community Services [2002] NSWCA 151 Category: Principal judgment Parties: The Aunt The Secretary The young person Representation: Ms Fuller, solicitor for the Aunt Ms Raines, solicitor for the Secretary Ms Green, solicitor as Direct Legal Representative (DLR) for the young person File Number(s): 2019/00027288 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment The Proceedings 1. I am asked to determine whether the applicant, should be granted leave under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). 2. I provided a short extempore decision in this matter on 23 June 2020. These are my written reasons. 3. By agreement between the parties, this matter proceeded by way of filed affidavits and written submissions followed by oral submissions on the day of hearing. 4. The applicant is the Great Aunt and cultural mother (Aunt) of Ryan Masters (Ryan), the young person in these proceedings. They are both aboriginal. 5. Ryan is 14 years old and is the eldest of 5 children born to the birth parents in these proceedings. Ryan's siblings are not the subject of the Aunt's application and they do not live with her. 6. Ryan's birth parents did not participate in these proceedings. Positions of the parties 1. Ryan is currently in the care of the Minister for Families, Communities and Disability Services (the Minister). Case management for Ryan has been transferred to an authorised funded service provider called Life Without Barriers (LWB). Ryan recently absconded from his group care home managed by LWB and self-placed with his Aunt. 2. The Aunt seeks rescission of Final Orders made by the Children's Court on 23 January 2018. Those orders gave the Minister parental responsibility (PR) for all aspects of Ryan's care except for cultural up-bringing. The Aunt and the Minister currently share PR for cultural up-bringing. The Aunt now seeks leave to bring her application for sole PR for Ryan. I note that in her application dated 27 March 2020, she originally sought PR for residency (in addition to cultural up-bringing) only and that the Aunt proposed that the Minister retain PR for all other aspects of Ryan's care. However, in submissions filed by the Aunt's legal representative, that has now been clarified and in fact the Aunt is seeking sole PR for all aspects of Ryan's care. I grant leave for the filed application to be amended to reflect the orders the Aunt is now seeking. 3. The Secretary opposes leave being granted to the Aunt. The reasons for this include an inability for the Department of Communities and Justice (DCJ) to approve the Aunt as an authorised carer because of a current bar to a Working With Children Check (WWCC) and also concerns as to the Aunt's capacity to provide adequate care for Ryan. Background 1. Ryan was removed from the care of his parents in April 2006 because of exposure to parental domestic violence, drug use and neglect. Ryan was placed with the Aunt in an authorised kinship placement in 2006 when he was a baby. Subsequently, his sister Naomi was placed with the Aunt in 2008. The Aunt's nephew is the father of both Ryan and Naomi. Ryan and Naomi were removed from the Aunt's care in 2013. Allegations of neglect and inadequate supervision were substantiated leading to the decision to remove the children. The Aunt was de-authorised as a carer in June 2014. Since that time, Ryan has had a number of different placements in residential care homes and has experienced instability as a consequence. Other family members have been considered as placement options for Ryan over recent years but either those options have not progressed or they have been deemed as unsuitable. Throughout his placement changes, Ryan has however, maintained a close connection with his Aunt and also to his sister Naomi. 2. The Secretary relied on two affidavits affirmed by Ms Donna Hornery, Senior Caseworker with the DCJ on 25 May 2020 and on 16 June 2020. Ms Hornery's 25 May 2020 affidavit provides a detailed history of the care and protection concerns for Ryan and his other siblings and also details Ryan's placement with the Aunt. I accept that history and note that much of that history was not disputed by the Aunt in either of the two affidavits she relied on in these proceedings. Issues to be determined 1. Does the Aunt have standing to bring this application? 2. Has there been a significant change in relevant circumstances since the care orders were made (or last varied) of sufficient significance to justify the Court's consideration of an application for rescission or variation? 3. If so, should the Court exercise its discretion to grant leave (after considering the matters in s 90(2A) and s 90(6)? Standing 1. Section 90(1AA) Care Act provides that the following persons have standing to bring a rescission or variation 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 Care Act in s 3 defines PR as follows: parental responsibility, in relation to a child or young person, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. 1. The Aunt shares a limited category of PR (cultural up-bringing) jointly with the Minister. Nonetheless, she does qualify as a person holding PR in accordance with sub-section (c), as 'a person having parental responsibility' for Ryan. I could find no relevant exemption or other qualification in the Care Act to indicate that an applicant must hold all aspects of parental responsibility [my emphasis] to have standing under sub-section (c), or for that matter under sub-section (d). Therefore, an applicant such as the Aunt with only limited PR has standing. 2. Should I be mistaken as to my wide interpretation of standing under sub-section (c), then in the alternative, it appears that the Aunt qualifies under subsection (e) as having a 'sufficient interest in the welfare' of the young person as previously having had responsibility for the daily care and control for Ryan while he was placed with her in an authorised kinship placement from 2008 to 2013. I do not consider that the decision to remove the children from the Aunt's care has negated her standing as a person with 'sufficient interest in the welfare' of Ryan - Department of Communities and Justice (DCJ) and the Stone and Bates Children [2020] NSWChC 6 at [31] to [46]. 3. I have considered the reasons put forward by the Secretary as to why Ryan and Naomi were removed from the daily care and control of the Aunt. While those reasons as set out in Ms Hornery's 25 May 2020 affidavit raise a number of significant concerns, I consider that the combination of the effluxion of time since their removal and the fact of the removal itself are insufficient reasons for me to find that the Aunt now no longer holds 'a sufficient interest' in Ryan's welfare. 4. I determine that as threshold issue, the Aunt has demonstrated that she has standing to bring this application. Previous Section 90 applications and Section 90(2E) 1. I have considered whether the Aunt's previous s 90 application made in respect of Ryan in 2016 may have an impact under the provisions of s 90(2E) of the Care Act. Sub sections (2D) and (2E) are as follows: (2D) The Children's Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process. (2E) Without limiting subsection (2D), the Children's Court may dismiss an application for leave under this section if it is satisfied that: (a) the application has no reasonable prospect of success, and (b) the applicant has previously made a series of applications for leave under this section that the Court has dismissed. Meaning of 'series of applications for leave' 1. For the Court to dismiss the Aunt's application under s 90(2E) I would need to find that her application had no reasonable prospect of success and [my emphasis] that it formed part of a series of applications previously made and dismissed by the Court. There is no definition in the Care Act of the word 'series', nor the expression 'series of applications'. The Macquarie dictionary defines 'series' as follows: "a number of things, events, etc., ranged or occurring in spatial, temporal, or other succession; a sequence." 1. This is the Aunt's second application. The Aunt filed her first application for s 90 leave in 2016 which was ultimately granted for contact and culture only. It was not granted in respect of the parental responsibility order she also sought at that time. This second application was filed four years after the first. It does not form part of a sequence or constitute a succession, nor, do the two applications easily fall under the description of 'a number of things'. While there was another s 90 application filed on 25 January 2019 in respect of Ryan that was not brought by the Aunt, but brought by Ryan's previous Direct Legal Representative. The Aunt was not considered as a placement option for Ryan during the DLR's s 90 proceedings, but that s 90 application is not one I need to take into account for the purposes s 90(2E). 2. I have determined the Aunt's application, it is not caught by (2E) because it cannot be said to form part of a 'series of applications' previously made and dismissed by the Court. More importantly, I have determined that this application cannot be held to be without a reasonable prospect of success for the reasons that appear below. Significant change in relevant circumstances 1. Sub-section 90(2) of the Care Act provides as follows: 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. 1. This has been held to mean "a change … of sufficient significance to justify the court's consideration of an application for rescission or variation of the existing order", and I refer the Court of Appeal decision in S v Department of Community Services [2002] NSWCA 151. That implies that not every change will amount to a significant change and moreover not every significant change will justify the court's consideration of a s 90 application. To be able to assess a 'significant change' in a 'relevant circumstance' I need to have an understanding of not just Ryan's circumstances but also the Aunt's circumstances as they were when care orders were last made. As already stated care orders for Ryan were first made in 2006 when all aspects of PR for Ryan was granted to the Minister until he reached the age of 18. That order was varied on 23 January 2018. Under the terms of the varied order, the Minister retained PR for all aspects of Ryan's care except cultural up-bringing. As already mentioned, the Children's Court did not dismiss the Aunt's earlier s 90 application for leave in its entirety, but the reasoning provided for the limited grant focussed on her de-authorisation as a carer, her WWCC bar and her diminished health as a consequence of a partial leg amputation following diabetes complications all of which militated against consideration of the Aunt being granted PR for all aspects of Ryan's care in 2018. 2. The Aunt's affidavit of 27 March 2020 at [33] addresses her current health status and at (c) appears the following: 'my health is the best I [sic] have been for a long time. I have had a lot of care from hospitals …….. and my health is stable. I was last hospitalised about 3 years ago.' 1. While there was no documentary evidence attached to the Aunt's affidavit in support of these claims, I accept at face value her claims with regard to improved health. That is to say, for the purposes of leave, I accept the Aunt's health is improved from that which it was in 2013 when the children were removed, and likely has improved since care orders for Ryan were last made in 2018. In addition, the Aunt also attests that she has National Disability Insurance Scheme (NDIS) support in the form of regular house cleaning and that she has her adult son to support her in her home. It is my view that this matter would need to be clarified and further documentary evidence filed by treating doctors along with a copy of the NDIS support plan to properly assess the Aunt's capacity but I accept the Aunt's improved health may amount to a significant change in a relevant circumstance. 2. In Ms Hornery's 25 May 2020 affidavit at [22] through to [25] the Secretary's position is set out. The Secretary will not approve the Aunt as a carer without WWCC clearance. The Aunt raised her WWCC status directly with DCJ on a number of occasions and I accept that caseworkers have attempted to clarify and assist the Aunt in relation to her achieving a review and that they have offered her support with contact through the Office of the Children's Guardian (OCG) in this respect. I cannot ascertain what precisely the Aunt has done since the interim bar was put in place in 2014, but I do accept that with the assistance of Ms Katie Burchett (Ms Burchett), Ryan's caseworker at LWB, the Aunt has recently made an application to obtain a new WWCC certificate. I note from [36] of the Aunt's 27 March 2020 affidavit the outcome of that application was not known then and that no further update was provided in the Aunt's second affidavit of 18 June 2020. I would expect that this will be something the Aunt can provide detailed evidence about at any substantive hearing but at this stage, accepting the filed evidence at its highest, it is at least arguable that should the Aunt have obtained WWCC clearance then that would amount to a significant change in a relevant circumstance. I further address the issue of WWCC in relation to the Aunt's prospects of arguable case under the heading 'Working With Children Check' at [49] below. Self-placement 1. The Secretary argues that the change in Ryan's placement does not demonstrate a significant change in relevant circumstances. The Aunt and the DLR argue that Ryan's self-placement does demonstrate a significant change. I accept that where (as is the case here) the Minister holds PR for Ryan's day to day needs including placement, it is the Minister through delegated authority who has power to decide where Ryan should be placed and whether that placement meets Ryan's needs. I therefore accept that acting in accordance with accepted principles under the Care Act, any decision made resulting in a change of a child's placement would not of itself, demonstrate a significant change in circumstances – AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028. 2. The Secretary argued that Ryan's self-placement is an 'improper act' and as such the Aunt could not rely on that improper act to demonstrate a significant change in relevant circumstances. I was referred to the decision in Darren, James & Tenille's case of 18 May 2006 by Senior Children's Magistrate Mitchell (as he then was) and published in the Children's Law News in [2006] at CLN 7, (Darren's Case). In that matter, Darren, when aged 14 self-placed back to his parent's care. Mitchell SCM said that the act of self-placement was improper and held at [11] that neither Darren nor his parents 'can gain benefit from the fact of self-placement.' I do not cavil with that decision but I note that the issues raised in this s 90 leave application can be differentiated from the issues in Darren's case. In Darren's Case, the children had been made the subject of final orders in the District Court just one month before their parents filed their s 90 application in the Children's Court. I understand that Darren's decision to self-place was therefore a recent event and moreover, the significant reasons why Darren and his siblings had been removed had not markedly changed at the time the parents filed their s 90 application. The fact is, self-placement may or may not demonstrate a significant change in relevant circumstances but in order to determine whether it could, there is a need to consider all the relevant factual circumstances and not just look at the act of self-placement itself. Ryan's self-placement 1. I consider that there might be any number of reasons that led to Ryan leaving his group home placement in Western NSW to make his way to the Aunt's home town to live with her. I take into account that Ryan's behaviour in a number of his placements had been difficult and he has expressed unhappiness in more than one of those placements. Indeed, that was the very reason his then DLR filed her own s 90 Application on 25 January 2019 citing that no long term placement had been identified for Ryan and that he was deeply unhappy in his short term placement at a group home in the Sydney area. In addition, Ryan's DLR argued that Ryan had only recently been transferred to that placement. Prior to that Ryan had been at a different group home where he had experienced great difficulties with another resident. Ryan has been vocal about his wishes and has frequently expressed unhappiness and dissatisfaction to his carers about his plight and consistently maintained a desire to return to his Aunt's care. Conversely, however, he has also expressed satisfaction with remaining under the Minister's care too. I note that Ryan was happy with his placement in the group-home in Western NSW in July 2019. I further note that his placement in there was with 3 other boys of similar age and that detailed casework was undertaken to ensure that Ryan was enrolled at the right school to suit his needs to ensure he had access to other services such as the Academy where Ryan would also receive targeted education and counselling to support and improve employment opportunities and life skills. That Ryan was happy in the new placement in Western NSW was demonstrated by his DLR withdrawing her s 90 application in July 2019. Ryan's Statement of Views & Wishes filed at the time, set out that he was much happier in Western NSW with LWB and that he liked 'being back on country'. I note in passing, that the Aunt says in her affidavit of 27 March 2020 at [7] that the Court refused the DLR's s 90 application and that is clearly incorrect. The application was withdrawn (and then, as a consequence, dismissed by the Court) on 23 July 2019 because the DLR was satisfied that the change to the care home was suitable and that Ryan was happy there. 2. In December 2019, only a few months after the DLR's application was withdrawn, Ryan absconded from his care home. Ms Hornery's 25 May 2020 affidavit at [59] to [106] sets out a detailed history of Ryan's behaviour during October through to December 2019 while still in Western NSW. It is clear from this narrative that Ryan's behaviour had become a significant issue. He was refusing to go to school. He was involved in a number of incidents including the unauthorised use of staff phones, unauthorised use of staff vehicles (which resulted in police involvement) and he was suspected of marijuana misuse, and given to outbursts of anger resulting in damage to the care home when requests made of LWB staff were refused. I also note that Ryan appears to have been in regular contact with his father during this period and that his father lives in the area as do some of Ryan's cousins. From all of this, I infer that Ryan's decision to abscond may also have been as a consequence of the decline in his behaviour and as a result of the increase of suspected criminal activity that was drawing him to the attention of the local police. Ryan's decision to return to his Aunt must be viewed in light of all the circumstances. It is difficult to conclude that his decision to self-place is entirely because of his desire to return to country and be with his extended family. But I do accept that he has a genuinely close bond with his Aunt and that his desire to return to her and to the home where he spent a considerable number of his early years is a strong motivating factor and moreover, it is entirely understandable that a young person would crave the affection that the Aunt clearly has for him. Lack of effective casework 1. The Aunt argues, as does Ryan's DLR, that there has been limited effective casework for Ryan while he has self-placed and that his ongoing refusal to return to Western NSW frustrates the objects of his Care Plan. Ryan himself complains that the caseworkers do not listen to him and act on his needs. I do not accept that Ryan is correct about that. I think there is ample evidence from which I can determine that caseworkers have listened to him and indeed the DLR's s 90 proceedings in 2019 shows that the caseworkers not only listened but acted on his concerns. After consideration of the difficulties Ryan was facing in his care home in Sydney, case work responsibility was transferred from Lifestyle Solutions to LWB to enable Ryan to move from a different care home in Sydney to a more appropriate care home in Western NSW. 2. Furthermore, the Aunt acknowledges the support and care of his current LWB caseworker, Ms Burchett. It is noted that while Ms Burchett has tried to talk Ryan into returning to Western NSW, she has acted appropriately given his continued refusal to do so. There has been no withdrawal of support for Ryan as seems to have been implied. 3. I accept that Ryan was placed in group homes as short term accommodation options while DCJ and LWB where concurrently assessing other family members for more suitable long term placements but I am not persuaded by the submissions made to me that the caseworkers were not listening to Ryan's needs while that was occurring and have provided ineffective casework. On the contrary, it seems to me that the caseworkers were, and still are, attuned to his needs and continue to act on them. Ryan is still being case managed by LWB based in Western NSW notwithstanding he resides over 500kms away in the Aunt's home town. That has led to difficulties with access to schooling for Ryan as the Aunt is unable to enrol Ryan in a local school without parental responsibility, or authority from DCJ. I refer to Ms Hornery's 16 June 2020 affidavit and also to the Permanency Goal Review Outcome Report completed by DCJ Permanency Coordinator, Ms Stacey Baird on 20 May 2020 annexed at 'A' and referred to [20] and [21]. I am satisfied that his needs are being taken seriously and that the casework delivered to Ryan is appropriate. I pay particular attention to the following extract from Ms Baird's report at page 2: "Safe and authorised placement - Ryan remains living with [his Aunt]. A section 232 notice was issued to [his Aunt] on 17 March 2020 requesting she provide information about Ryan and present him to the Communities and Justice office at 10 AM on 19 March 2020 in the Aunt's home town. This request was not met. Ryan is resistant to return to his placement at the intensive therapeutic care home managed by LWB. It was agreed that discussions should be held with Ryan to identify other family or suitable people who could he could live with who are close to the area. The Aunt is unable to be authorised as a carer for Ryan. Ryan has engaged in antisocial and criminal behaviour whilst living with [the Aunt]. DCJ and LWB are not supportive of Ryan remaining in his arm authorised placement with [the Aunt]. Education - Ryan is not attending school, he remains enrolled at [the] High School in Western NSW. Ryan had poor school attendance when he lived there. Enrolment at [local] high School was not progressed as he is in an unauthorised placement and efforts have been focused on returning Ryan to Western NSW. It was agreed schoolwork be requested from [the] High School and sent to him whilst enrolment at [local] high School is arranged. Ryan has not attended school during 2020. It is essential that Ryan be connected to education. Case management - LWB continue to provide case management support to Ryan. It is acknowledged the geographical distance between LWB's staff and the Aunt's home town, 522 km makes this challenging. LWB have visited Ryan twice since he moved to the Aunt's home town. LWB have also connected Ryan to youth coordinator, James Moore and provided some practical assistance such as Ryan's personal belongings and a food voucher. Suitable placement permanency planning - Ryan has experienced significant placement instability since entering care is a 2 ½ year old. Ryan is refusing to leave the home of his [aunt]. [The Aunt] did not meet the request to relinquish Ryan's care in the section 232 notice and lodged a new section 90 application seeking care for him. The current order of the Children's Court places Ryan in the care of the Minister which requires him to be in an authorised placement. Placement with his Aunt is not considered safe or appropriate for the reasons stated above. Consideration is being given to exploring an alternate care option for Ryan as it will allow him to remain in where he is or the surrounding area and ensure his safety. This process will require further conversations with Ryan about possible options and ensuring he understands that it is not possible for him to remain with [his Aunt]." 1. It is clear that while DCJ and LWB do not support Ryan's continued placement with the Aunt, they have not abandoned him but continue to provide on-going and significant support albeit they would ideally prefer him to return to Western NSW while they continue to seek out and assess long term placements for him. 2. The casework that LWB has provided has been more than adequate in difficult circumstances and neither DCJ nor LWB could be subject to criticism for any failing to properly care for Ryan notwithstanding his repeated refusal to return to his placement in Western NSW. But the fact is, while he remains in the Aunt's home town and LWB in Western NSW there is a practical limit to the amount of 'hands on' casework that DCJ and or LWB can deliver to Ryan and that does have the potential to negatively impact on the ongoing ability of LWB to deliver the services and goals set out in Ryan's recent Case Plan, dated 26 September 2019 annexed at 'I' to Ms Hornery's 25 May 2020 affidavit and referred to at [55]. These are all factors I have taken into account in assessing a significant change in relevant circumstances. Decision to abscond and comparison with Darren's case 1. I take into account Ryan's increasing maturity, independence and the number of years that have passed since he last lived with his Aunt. He had not previously absconded from a placement before he did so in December 2019. There is every possibility that he has given thought to his future and decided that he wants to be with his extended family and return to the place in which he spent his formative years. I note that Ryan has spent a significant proportion of his life away from her but has consistently maintained contact, returning for family visits at the Aunt's home town facilitated by DCJ over a number of years. This is, in my view, very different to the factual circumstances in Darren's Case both in terms of geographical distance and also length of time apart. Darren may not have formed a close bond with his carers in the short time that he was apart from his parents and I do not know if he was living in close proximity to his parents when he self-placed, but I suspect that Darren did not undertake a journey of over 500kms in order to return to his parents as Ryan has done. Moreover, Darren self-placed within a very short time of his removal from his parents, again in sharp contrast to Ryan's decision to self-place. I further note that Darren's Case was decided in 2006 and well before the recent changes to s 90 of the Care Act following the Children and Young Persons (Care and Protection) Amendment Act 2018 the consequence of which is that greater weight must now be afforded to the views of a subject child or young person under s 90(2B)(a) than was the case in 2006. Ryan's self-placement is a significant change in relevant circumstances 1. For all the above reasons including taking into account that it is now some 6 months that Ryan has remained in the unauthorised placement with his Aunt, (which shows some indication of the strength of Ryan's resolve) this has led me to accept that Ryan's self-placement while an 'improper act' is a significant change in relevant circumstances. I also take into account considerable casework involvement with Ryan that the caseworkers at LWB have expended that has not resulted in the return to Ryan's placement in Western NSW and the fact that he continues to refuse to do so again suggests a significant change in circumstances, and a change that may not be resolved by on-going casework remaining as it currently is. Primary considerations 1. Having found that there has been a significant change in relevant circumstances, I must now go on to consider the criteria set out in s 90(2B) and (2C). This is a two tiered approach requiring an assessment of two categories; firstly 'primary' considerations under s (2B) and then 'additional' considerations under s (2C). It is my view that I must place more weight on any relevant primary considerations than on any relevant additional considerations. The primary considerations are as follows: (a) the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views, (b) the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements, (c) if the Children's Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person. Ryan's views - Section 90(2B)(a) 1. Primacy must be given to the views of a young person. This requires a court to consider and give appropriate weight to those views having regard to 'maturity' and the 'young person's capacity to express his … views.' I consider that Ryan is of an age where he can demonstrate a level of maturity. He is 14 years and 5 months old and has identified that he wishes to return to an area where his extended family lives and to return to the household that he grew up in. He is of an age to consider what might be best for him and has an ability to express his views clearly and has done so with some consistency. 2. It seems to me that Ryan's wishes, whatever their foundation and whether they are reasonably or unreasonably held, cannot be ignored and I place considerable weight on them. Stable care arrangements and length of time with current carer - Section 90(2B)(b) 1. Ryan has experienced instability in his placement since he was removed from his Aunt in 2013. He was only living in the LWB care home in Western NSW for 6 months before he absconded. There is a risk that if he was to be returned to Western NSW that he would abscond again and place himself at considerable risk of harm. I do accept that there is no intention indicated on the material before me that the Secretary would require nor support a forcible return to the care home in Western NSW and moreover, it is clear that current caseworker Ms Burchett is supportive and considerate of Ryan's plight having visited him in the Aunt's home town twice and assisted the Aunt. The Aunt acknowledges the respect and caring manner in which LWB have treated Ryan since he self-placed. I note that Ryan is currently in an unauthorised placement which is by its unauthorised status, therefore unstable. Least intrusive intervention into Ryan's life – Section 90(2B)(c) 1. The third primary consideration requires me to assess a plan for Ryan's care that would lead to the least intrusive intervention into his life. This is not a consideration that would seem to be relevant as it is clear that the present care arrangements are not stable and secure. Ryan's care arrangements over the last 2 years have not been stable or secure as I note that he has experienced at least 3 changes of placement within this timeframe and that the last two placements were of short duration. Against that back-drop his continued placement with the Aunt since 8 December 2019 would seem to be at least as secure as the previous two that preceded it. It therefore is at least arguable that consideration of a care proposal that would lead to Ryan remaining in the care of his extended family may indeed lead to the least intrusive intervention in his life. However, the better view in light of the wording of s 90(2B)(c) is to hold (as I do) that Ryan's current care arrangements are not stable and secure and for that reason I do not need to consider arguments for and against a course of action that would lead to the least intrusive intervention into his life. Additional considerations 1. I am required to assess the additional considerations set out under s 90(2C). These are as follows: (a) the age of the child or young person, (b) the nature of the application, (c) the plans for the child or young person, (d) whether the applicant has an arguable case, (e) 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. I have already dealt with (a) and (b) above. Plans for Ryan – Section 90(2C)(c) of the Care Act 1. In relation to the Aunt's plans for Ryan I note that she addresses this in her affidavits and at this stage those plans are lacking in detail but she does say that she will continue to provide accommodation for him, care for him and help him to return to school and support him with his extra-curricular activities and attend to his medical appointments. In addition, the Aunt also indicates that she will support and guide Ryan through his remaining adolescent years. I note that the Secretary's' view as to her ability to do this is not positive. The Secretary indicates that there were substantial reasons that led to Ryan and his sister being removed from her care in 2013 that included neglect and lack of supervision. Those allegations were substantiated and upheld following an internal review and then commented on unfavourably in a carer assessment review conducted in January 2014. The Secretary also indicates that there is recent evidence that Ryan is not being supervised in the Aunt's home as Ryan has come to the attention of the police for anti-social and or criminal behaviour on the streets of the Aunt's home town. This is concerning and will need to be addressed as the Court will need further evidence as to how the Aunt will manage Ryan's behaviour if he was to be placed with her. Arguable case – Section 90(2C)(d) of the Care Act 1. I turn to the mandatory consideration as to whether the Aunt has an "arguable case" for rescission or variation of the current orders. This concept involves a determination as to whether the Aunt can establish that her argument for PR can reasonably be argued and has some prospect of success. 2. The Secretary argues that the Aunt would not be able to pass probity checks that are required for her to be reinstated as an authorised relative kinship and foster carer in New South Wales. It is for this reason that the Secretary is unable to support the Aunt as a placement option for Ryan leading to the assessment that the Aunt's argument for PR is unarguable. Working with Children Check 1. A significant factor that would weigh against the Aunt having an arguable case for PR is her current lack of WWCC clearance. 2. The DLR raised the decision of Levy J in C v The Secretary, Family and Community Services [2016] NSWDC 103 (C's Case). The issue in that matter was whether the grandmother could be allocated parental responsibility for the subject child notwithstanding the OCG had refused the grandmother's WWCC clearance. It is accepted that currently, the Secretary would not be able to approve the Aunt as a placement option for Ryan without a WWCC. What was determined in C's Case is that the Court itself should be able to assess the witnesses before it to evaluate the factual circumstances that led the OCG refusal to issue a WWCC for the grandmother. Part of the reasoning given in C's Case was the fact that the Court was in a better position than the NCAT to assess whether the result or effect of the decision reached by the OCG is one that truly serves the paramount best interests of the subject child. I accept that by corollary, the Children's Court may also be placed in a better position than the NCAT in this regard. 3. It is not disputed that the Aunt does not have a WWCC. The OCG wrote to the Aunt in July 2015 informing her that she is subject to an interim bar. However, while it is not clear from the filed evidence what steps the Aunt has previously taken with regard to a review of the interim WWCC bar, I do note that in her affidavit dated 27 March 2020, at [34] and [35] with Ms Burchett's assistance, the Aunt has submitted a new application for WWCC clearance. There was no evidence filed before me regarding a final review of the interim bar issued to the Aunt in 2015 but there is an available inference that it occurred. I also note, that another organisation called Family Law Early Intervention Unit wrote to Ms Burchett asking for her assistance regarding a WWCC clearance for the Aunt on 28 February 2020 (annexure 'R' and [153] and [154] of Ms Hornery's 25 May 2020 affidavit). 4. I am not in the same position of advantage as his Honour, Levy J was in C's Case as the Aunt's leave application was determined on the papers and not by a full hearing with oral testimony that would be subject to cross-examination. However, it is possible that the OCG may now consider additional evidence that it did not have in 2015 in order to evaluate the Aunt's current application. Until the decision is known, it is at least arguable that the Aunt may obtain her WWCC. 5. It is also likely that after the grant of leave, and on the filing of further evidence to determine the merits of the Aunt's application, the Children's Court will be in a better position to consider all the relevant factual circumstances and this will assist the Court in determining whether placing Ryan with his Aunt would serve his best interests. Aunt's health and 'arguable case' 1. In 2013, the Aunt was hospitalised due to an infection in her toe and following complications from diabetes had a number of toes amputated. In addition to which, the Aunt has since had an amputation below the left knee because of diabetes. 2. Ryan was removed from his placement with the Aunt due in part to her health concerns and the impact her health would have on her ability to care for Ryan and ensure adequate supervision. As noted above, there is some prospect that the Aunt's health and mobility has improved and that maybe further explored at a substantive hearing. Previous neglect and lack of supervision and 'arguable case' 1. The Secretary argues that the Aunt's previous neglect and lack of supervision of children in her care has again been demonstrated in recent months while Ryan has been living with her. I accept the Secretary's valid concerns in this respect. I have considered the evidence before me that addresses the reasons that led to the removal of Ryan and Naomi from which I note that DCJ initiated a Reportable Conduct Unit Investigation in November 2013 which was finalised in December 2014. The investigation sustained the allegations as follows: "1. In 2013 the Aunt neglected the care of Ryan when aged seven in that she allowed him to be unsupervised for extended periods of time and is left to roam the streets during the day and night on a regular basis. 2. The Aunt did not ensure adequate school attendance and did not provide him with adequate food. 3. In addition it is said the Aunt hit Ryan while he was in her care." 1. A carer review was conducted by Assessments Australia in January 2014 which recommended that the Aunt not continue to be an authorised carer for Ryan and Naomi due to ongoing concerns about the Aunt's ability to care for the children. Following an internal review of this decision which was finalised in May 2014, that decision was upheld. The Aunt was then de-authorised as a relative kinship carer in June 2014. The Aunt appealed to NCAT against that decision. On 28 October 2015 the NCAT dismissed the appeal and upheld the decision to remove the children and also the de-authorisation of the Aunt as an authorised carer. 2. In addressing these concerns, the Aunt has accepted her part in these substantiated allegations at [33] in her affidavit of 27 March 2020. It is to her credit that she has not sought to deny nor deflect blame and that she has offered further evidence that she may now be in a position to overcome the factors that led to the removal of the two children from her care. 3. I accept that these findings were made some time ago when Ryan was much younger. It is therefore arguable that the Aunt's circumstances have changed, that her health and mobility may have improved and she may be able to better supervise Ryan given his maturity and increased independence. It remains to be seen through the filing of further evidence, but it is at least arguable. 4. I note a further obstacle to placement with the Aunt is in relation to her adult son who has also been issued with an interim WWCC bar as a result of criminal activity and violence and that it is thought that he resides with the Aunt. I refer to [30] and [31] of Ms Hornery's 25 May 2020 affidavit, noting that the Aunt had sought police assistance hoping that her son would move out of her home. It is of concern to me that her son may be her current carer as she refers to this in her affidavit of 18 June 2020 at [12]. The Court may need further evidence that her son has left her home or that any risk he may pose to Ryan may be ameliorated in some other way. Filing of further evidence and future conduct of the application 1. I take into account the decision in In the matter of Campbell [2011] NSWSC 761 and the observations made by Slattery J at [57]: "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. The Aunt may be able to supplement her position with further evidence that address the short-comings that I have identified in her application. If so, a residential placement with the Aunt might be considered to be in Ryan's best interests. It is possible that after a review and an assessment of suitable supports and other protective factors, the placement of Ryan with his Aunt may not pose an unacceptable risk of harm. Given Ryan's strong views and of his clear connection to her, it is at least arguable. 2. The Aunt may not ultimately succeed in her argument for PR and her prior history is admittedly, unfavourable. But I take into account that the Aunt may now have greater capacity to properly manage Ryan's care and can support him in a manner that leads to a reduction in his behaviours as she will only have one child to look after (where previously she also had Ryan's sister, Naomi to care for) and that Ryan is now much older and can more adequately care for himself and hopefully steer himself away from anti-social peers and engage more positively at school and busy himself with out of school, pro-social activities such as PCYC. Considerations identified in Section 90(6) after the Children and Young Persons (Care and Protection) Amendment Act 2018. 1. Prior to amendment of the Care Act, the factors listed in s 90(6) were taken into account on a question of leave. Since the amendments made to s 90 on 4 February 2019 under the Children and Young Persons (Care and Protection) Amendment Act 2018 (Amendment Act), it is not clear whether they should still be considered. I say this because if it was Parliament's intention to retain the s 90(6) factors as mandatory considerations on an application for leave they would have been referred to in s 90(2A). Section 90(2A) makes no reference to s 90(6). It provides: (2A) Before granting leave to make an application to vary or rescind the care order, the Children's Court must consider the matters set out in subsections (2B) and (2C). The preamble in s 90(6) suggests that s 90(6) applies when the Court is being asked to make substantive orders to rescind or vary previous care orders rather than on the prior determination of granting leave. Section 90(6) provides as follows: 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 views of the child or young person and the weight to be given to those views, (c) the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements, (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. Subsection 6 is clearly a mandatory provision – it must be taken into account before [my emphasis] the Court makes the orders that rescind or vary the previous care orders for a child. On one interpretation it might mean that the factors listed in s 90(6) are only relevant on the occasion the Court considers making final orders that vary or rescind previous care orders, not on the earlier occasion the Court considers whether to grant leave. My view is that some of the factors set out in s 90(6) are relevant on a question of leave but only in respect of the consideration the Court is required to undertake in assessing an applicant's 'arguable case' under s 90(2C)(d). And this is so, notwithstanding the seeming overlap and repetition between the factors listed in subsections (2B) and (2C) with the factors listed in subsection (6). 2. I observe, the factors at s 90(6)(a), (b) & (c) are the same as the factors set out in s 90(2B)(a), s 90(2B)(b) and s 90(2C)(a). It is only the factors at s 90(6)(d), (e) and (f) that are not dealt with or repeated under s 90(2B) & (2C). Those appear to be the factors that are relevant on the question of leave. I find that the wording and layout throughout the provisions contained in s 90, is not as clear, nor as helpful as they could be. It is my respectful view that s 90 would benefit from further amendment to clarify the intention behind the overlap and repetition of the various factors I have commented on. Attachment to carer and risk of psychological harm 1. The s 90(6) factors that are relevant to the Aunt's arguable case that I have not already assessed under s 90(2B) and (2C) are those under s 90(6)(d) and (f). Ryan's attachment to his Aunt is a strong attachment and one that has endured for most, if not all of Ryan's life. There is no evidence before me that addresses Ryan's attachment to his birth parents, but my view is s 90(6)(e) is not relevant to this application. In relation to the risk of psychological harm if Ryan's current care arrangements are rescinded or varied under (f) I would assess that as not high. This is because while I accept that the therapeutic features of the home in Western NSW could have been very beneficial to Ryan had he engaged with them, the fact is, he has not so engaged. The result is, that his removal to the Aunt's home town and the prospect of a continuing placement with his Aunt or another family member in that area (if one can be found) is unlikely to result in psychological harm to Ryan. It may not be successful and may not meet all of his needs but there is in all probability, the same level of risk to Ryan if he were to stay under the care of the Minister and placed accordingly, as there is if he were to be placed with a family member and for a family member to exercise PR for him. Conclusion 1. I should say in conclusion, that I remain concerned that if Ryan were to prove to be resistant to adequate adult supervision and continue to adopt anti-social behaviour, he may once again vote with his feet and leave any future placement. There remains a risk that after a period of time, he could simply chose to leave the Aunt's home town as he has similarly indicated a desire to do so while placed in Sydney and in fact, did so, while living in Western NSW under the care of the Minister. 2. However, on the balance of probabilities accepting there are some difficulties with the Aunt's case, I have come to the conclusion that her argument for PR is arguable and for that reason I grant leave. ********** 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: 03 August 2020