Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and the Anderson Children [2019] NSWChC 12 Hearing dates: 20, 21, 22, 23 and 24 May 2019, 26, 28 and 29 August 2019 and 6 September 2019 Decision date: 02 October 2019 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: An order of parental responsibility to the Minister to 18 is the order that is in the best interests of the children Catchwords: Best interests of the child Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC5 Category: Principal judgment Parties: The Secretary, Department of Communities and Justice Ms Chloe Brown (the children's mother) Mr Daniel Anderson (the children's father) Mrs Hazel Musa (the children's great aunt and current carer) Noah Anderson Ellie Anderson Representation: Ms Broomfield for the Secretary Mr Mara for Ms Brown Dr Ginges for Mr Anderson Mr Attia for Mrs Musa Mr A. Nasti as the Independent Legal Representative for Noah and Ellie File Number(s): 17/348116 Publication restriction: Pseudonyms are used for the children and their family and identifying information has been removed. Judgment 1. On 16 November 2017 the Secretary, of the then Department of Family and Community Services (now the Department of Communities and Justice)('the Secretary') filed an application for a care order for Noah Anderson who was born on [ ] 2015 and Ellie Anderson who was born on [ ] 2017 ('the children'). 2. Noah and Ellie are the children of Ms Chloe Brown and Mr Daniel Anderson. Noah and Ellie have two siblings, Violet (born in 2010) and Elena (born in 2012). Violet and Elena live in a kinship placement with Mr Nigel Johnstone and Ms Hannah Hunter. Mr Nigel Johnstone and Ms Hunter have a guardianship order for Elena and Violet is placed in their care by the Minister who holds parental responsibility for her until she is 18. Violet was placed with Mr Johnstone and Mr Hunter before she was one and Elena was placed with them at birth. 3. The children have four half siblings, children of their father, Timothy (born 2009 who lives with his mother in Canberra), Amanda (born 2005 who lives with her mother in W.A), Lee (born 2016 who lives with her mother in Cranebrook) and another child whose name and whereabouts are unknown to the Secretary but whom the Secretary considers would be approximately 14 years old. The children also have two half siblings, children of their mother. Those children are Laurence Smith (born 2007) and Lucas Donnehy (born 2009). Lucas is subject to an order of parental responsibility to the Minister until 18. Laurence is under the parental responsibility of his paternal grandparents until 18. 4. Between 13 February 2015 and 7 November 2017 the Secretary received 20 Risk of Serious Harm ('ROSH') reports for the children. It is noted that both parents suffered significant abuse and neglect in their own childhoods. 5. On 13 November 2017 the Secretary decided to assume the care of the children due to his assessment of the ongoing and cumulative risk of harm as follows: 1. The parents' inability to meet the children's day to day needs and the inconsistent care arrangements that were made for the children 2. Ms Brown' mental health 3. Parents' lack of parenting capacity 4. The inconsistency of care of the children given their being continuously left with other people 5. Domestic Violence between the parents 6. The children being placed in environments which exposed them to risk of significant harm 7. Risk of sexual harm (arising from Mr Anderson's being found guilty of aggravated sexual assault of a child under 16 in 2005 and charges namely two counts of indecent assault with a child under 10) 1. At the time the Secretary assumed the care of the children in November 2017 the children were being looked after by Mrs Hazel Musa and her husband Mr Abeo Musa. It is clear that Mrs Musa had been providing significant levels of care for Noah over his lifetime and had been caring for Ellie almost since her birth. The Secretary decided to leave the children with the Musas in the short term and assess other family options. 2. Mrs Musa is the children's great aunt, being the sister of the children's maternal grandmother, Ms Edith McCallum. Mrs Musa is also the sister of Mr Nigel Johnstone, the carer of the children's siblings, Violet and Elena. Mrs Musa has five of her own children, all of whom are adults, except for 15 year old Leon. 3. Mr and Mrs Musa have remained caring for the children since the application for care order was lodged, almost two years ago. Mr and Mrs Musa met on a train in February 2016 and were married in early December 2016. Mr Musa works full time and sometimes even 6 days per week. He also attends college one night per week. When he and Mrs Musa met he was in Australia on a student visa. Soon after he and Mrs Musa were married Mr Musa lodged an application with the Australian government for permanent residency. Mr Musa was subsequently granted a bridging visa which allows him to work, but his application for permanent residency is yet to be determined. 4. Mrs Musa is confident that Mr Musa's application will be successful. If it is not and he has to leave Australia then he does not wish to return to Nigeria and will go and live in Canada. Mrs Musa told the Court she will not go with Mr Musa. 5. The children are subject to an interim order of parental responsibility to the Minister. The Court made a finding that the children were in need of care and protection pursuant to s71 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') on 19 December 2017. On 5 June 2018 the Court made a finding, on the concession of the parents, that there was no realistic possibility of restoration of the children to their care. 6. The Secretary filed the most recent Care Plan in September 2018 seeking an order for each of the children of parental responsibility to the Minister until 18. The Care Plan proposes that the children be removed from their current placement with Mr and Mrs Musa and placed with their siblings Violet and Elena in the long term care of Mr Nigel Johnstone and Ms Hannah Hunter. 7. On 10 May 2019 Mrs Musa filed an application to be joined as a party to the proceedings, seeking an order that she have sole parental responsibility for the children as she wanted the children to remain living with herself and her husband. Mrs Musa's application for party status was granted on 5 June 2018. 8. The matter was listed for hearing and heard over five days from 20 May 2019. When the matter did not conclude, five further hearing days were allocated however due to the illness of the Independent Legal Representative ('the ILR') the hearing could not proceed. The next available dates for hearing were then allocated. 9. The Secretary filed assessment reports by Ms Zhofova, psychologist, and the Court had the benefit of the Children's Court Clinic reports of Ms Phillips. The issue in the proceedings 1. The issue in the proceedings is what permanency plan and final orders are in the best interest of the children, specifically whether the children should be placed in the parental responsibility of Mrs Musa allowing them therefore to remain in their current placement or whether the Minister should be allocated parental responsibility, allowing the Secretary to execute his plan to place the children with Mr Nigel Johnstone and Ms Hunter. 2. The Secretary, represented by Ms Broomfield seeks an order of parental responsibility to the Minister until the children attain the age of 18 years. The ILR supports the making of the order as sought by the Secretary. 3. Mrs Musa, represented by Mr Attia, seeks an order of sole parental responsibility in her favour until the children attain 18. As I understand her case Mrs Musa would not be opposed to any order the Court saw fit to make, providing the children remained living with her on a long term basis. Ms Brown, represented by Mr Mara, supports the orders sought by Mrs Musa. Dr Ginges, who represented Mr Anderson told the Court that Mr Anderson will accept the Court's findings and orders as being in the best interest of the children. Submissions The Secretary 1. The Secretary has serious concerns that Mrs Musa will not be able to safely care for the children because she is: * Unable to identify unsafe situations * Does not have the capacity to make safe choices * Does not have capacity to manage challenging behaviour * Lacks the ability to set appropriate boundaries with her extended family * Lacks insight * Is not able to act in the best interest of the children 1. There was evidence that the children will be able to attach to their new carers and there are significant benefits to a placement with their siblings. 2. The Secretary acknowledges that Mrs Musa is meeting the children's basic needs however submits that Mrs Musa does not have the ability to meet the children's needs as they age, maintain routine and structure, maintain family relationships and protect the children. 3. Both experts in the case recognised that Mr Nigel Johnstone and Ms Hunter have provided very good care to the children's siblings and that the attachments can be transferred, the sibling relationships developed and recommended the children should be moved. 4. In her oral evidence, Ms Phillips stated that the benefits of being placed with full siblings will be appreciated more when the children are older and that placement with Mr Nigel Johnstone and Ms Hunter would be a more stimulating environment for the children. 5. Recent contact records disclose an increasing closeness of the children to their siblings. Mrs Musa does not believe in overnight sibling contact. She does not understand why sibling contact is important and from her own experience concluded that re-connecting with siblings at 18 is fine. This raises concerns about how much contact Mrs Musa will provide to Violet and Elena and the Court could not be confident Mrs Musa will encourage and maintain the relationship. 6. Mrs Musa continues to struggle to make appropriate decisions for the children, for example allowing Ms McCallum to ask Noah inappropriate questions in the car. 7. Mrs Musa continues to have challenging relationships with the parents, particularly the father and the paternal grandparents. Mrs Musa said she thought it was best if the Secretary was to organise contact. Ms Brown 1. Ms Brown supports placement with Mrs Musa over Mr Nigel Johnstone and Ms Hunter, not because she believes they will provide more contact with the children but because, knowing both sets of carers and knowing the level of care each gives children, she prefers Mrs Musa. 2. Ms Brown has been in court every day and despite her own issues, she cares for her children and wants what is in their best interests. Ms Brown has been firm in her commitment to placement with Mrs Musa, even after hearing the evidence Mrs Musa gave about her. 3. By March 2018 when the Secretary received Ms Zhofova's report the Secretary was supporting placement with their proposed carers. Despite the length of time that has passed and the additional information they have there has not, in September 2019, been a re-assessment of that position. Mrs Musa has been the carer for these children; has addressed some of the concerns; the Secretary has not had any meetings with Mrs Musa; and instead has only sought to gather and present evidence to bolster his position. This is not the way in which the model litigant should conduct litigation. 4. Further evidence of the Secretary's failure to act as the model litigant is that the Secretary did not investigate Mr Nigel Johnstone's issues with alcohol. Ms Zhofova reported his drinking until he blacked out but her opinion was that it was no longer an issue. Mr Mara said this was not tested by the Secretary as it should have been. Nor did the Secretary, as he should have, conducted a proper investigation of the issues raised by Ms Hunter having to take over the family finances or the reasons why he had to leave his previous employment. Mr Mara submitted that any issues with Mr Nigel Johnstone and Ms Hunter have been ignored yet the issues with Mrs Musa's care have been examined in detail. 5. Mr Mara submitted that the Court would find that Mr and Mrs Musa are the best parents for the children. Ellie has a very strong bond with them and Noah's strongest male relationship is with Mr Musa. The evidence of the Clinician regarding the attachment and bonding is now 9 months old and the children are even more closely attached to the Musa's. Any deficits in attachment with Noah were as a result of his experiences before his placement with her. 6. The sibling relationship with the children's sisters was non-existent before these proceedings and the Court should keep in mind that they are of significantly different ages and upbringings and the positives from enhancing that relationship would not be greater than the detriment to the children from breaking the attachment to Mrs Musa. 7. If the concerns the Secretary had regarding the placement with Mrs Musa were serious he would have removed the children. Although it is acknowledged that there may be some concerns, a Care Plan can be formulated to exploit Mrs Musa's strengths and provide assistance for weaknesses. The Court could find that the best placement for the children is with Mrs Musa and could allocate other aspects of parental responsibility to the Minister. 8. In relation to the incident involving Mrs Musa's sister and her ex-partner, Azi, this incident is concerning. However this happened nearly a full year before the children coming in to her care. She was involved because she wanted to help her sister. Mrs Musa, on Mr Mara's submissions, was too agreeable and too affable. She gave evidence that she is now more assertive. The risk of a re-occurrence of an event like this is very remote given she is now married and has had more counselling. 9. Although on behalf of the mother Mr Mara accepted the placement with the Musa's is not perfect, it is certainly adequate. The children are taken to medical appointments, taken to day care and have all their needs met. There would never be a care application in circumstances such as these. 10. In summary Mrs Musa is providing adequate parenting there is a strong bonding and attachment and the Court would be loath to remove the children. Mr Anderson 1. Mr Anderson has not been present for much of the hearing as he is the primary carer for his ailing grandfather. 2. Early on his position was to support the Secretary's case to place the children with Mr Nigel Johnstone and Ms Hunter. Mr Anderson's position was largely informed by his belief that Mrs Musa had disseminated defamatory material about him and these actions were not in the best interests of the children. 3. In the period since March 2019, he reflected more on the welfare of the children and less on his hurt and formed the view it would be preferable for the children to stay in their current placement because they had spent so much time there and there was a strong bond between Mr Musa and Noah. 4. Mr Anderson also sees the benefit of the children living with their two older sisters and acknowledged the reports of the higher level of care the girls receive in their placement. 5. Mr Anderson has been apprised of the evidence and has concerns about Mrs Musa's insight and the consequence this may have in relation to the children's future care. 6. Mr Anderson has decided that he will not support or oppose either option but will leave the decision to the Court to decide which placement is in the best interests of the children. Mrs Musa 1. Mrs Musa acknowledges that Ms Hunter would make an excellent carer. However the proposal from the Secretary is that Ms Hunter and Mr Johnstone jointly care for the children yet Mr Nigel Johnstone is largely absent from the communication with the Secretary and there have been important concerns raised in relation to Mr Johnstone which remain unanswered. 2. One of the difficulties in this case started very early when the Secretary engaged Ms Zhofova. It was a comparative exercise, a comparison between Mr Nigel Johnstone and Ms Hunter and Mrs Musa. Mrs Musa conceded that, on paper, Mr Nigel Johnstone and Ms Hunter looked better. They had a proven record as the girls' carers. Ms Hunter although had to address Mr Johnstone's problems with alcohol, work and finances. 3. However relying on Ms Zhofova's report is difficult when it is not known what she was asked to do or what information she was given. Indeed there were not even any file notes, yet it is clear from early on that Mr Nigel Johnstone and Ms Hunter were the preferred option. 4. At the time of Ms Zhofova's report in November 2017 a number of things have changed. The medical issue facing Ms Hunter has resolved. Mr Nigel Johnstone and Ms Hunter's move to New Zealand, which was apparently "set in concrete" is now not going ahead. 5. Mr Attia submitted that the Court should also look at what else has happened since November 2017 in relation to the risks identified by Ms Zhofova. 6. Ms Zhofova states that Mrs Musa does not appreciate the risk posed to the children by certain of her family members. The Court knows however from the evidence that this has not been borne out. Mrs Musa has never allowed any unauthorised contact to any family member. 7. Mr Attia asked the Court to consider Ms Zhofova's critical comments about Mrs Musa and her attitude to contact between the children and Mr Anderson, yet it was the Secretary who arranged for weekend contact to suit him and indeed the Secretary knew he was on the Sex Offenders' Register but allowed him to look after his son. Mrs Musa has never allowed Mr Anderson to have any unauthorised contact and was clear in her evidence that she will only ever allow him to have supervised contact. 8. The same criticism was made by Ms Zhofova in relation to the mother. However this has never happened either. Mrs Musa has never allowed any unauthorised contact between the children and their mother. 9. Mr Attia submitted that no matter what Mrs Musa says she is not believed by the Secretary's caseworkers. * The Secretary alleged medical neglect because Mrs Musa did not attend the doctor. Mrs Musa was expected to take Noah back to the doctor to receive the results of tests on Monday 8 July 2019 and she was criticised by the Secretary for not doing so. However Mrs Musa said in her evidence that she had rung the surgery and was told both test results were not back yet and to wait until they arrived before attending. Mrs Musa's evidence is corroborated by the Test Result which was tendered into evidence which is dated 10 July 2019. Despite this, Mrs Musa was not believed by the Secretary's caseworkers. * Mrs Musa saw the redness on Noah's penis however she didn't consider it serious and made a judgment call. That judgment call was corroborated by the doctor who did not see a problem in Noah's presentation. Again the caseworker did not believe her. * In relation to the sexualised behaviours reports there was, of course, another child involved. No consideration has been given as to whether it was the other child who instigated the behaviour. This is particularly relevant given that this kind of behaviour in Noah has never been reported by anyone else, not the caseworkers, the experts or the contact supervisors. But when Mrs Musa says Noah is a "good kid", she is not believed. 1. The Court must consider what the Child Care Centre states about Ellie, that is, she is developing her social skills, responds positively to peers and is developing her language skills. This positive development is attributable to the care given to her by Mr and Mrs Musa. 2. There is an unfair focus on single instances and not the whole: * The regression of Noah in the evidence is isolated only to the Child Care Centre. The other reports of his behaviour are positive. * There is focus in the evidence about an instance of where he is said to have dirty underwear. However the evidence is that he is usually clean and well cared for. * The Secretary focussed on the on 20% non-attendance at speech therapy (which can be explained by illness) instead of the 80% attendance. 1. These are instances of the failure of the Secretary to give Mrs Musa credit for anything she has done. Mr Attia submitted that the blaming of Mrs Musa extended to contact with Violet and Elena. The Secretary was critical of her for not saying hello to them in contact however no account was taken of the fact that she sought and was promised ongoing contact with the girls but that contact was not forthcoming. 2. Mr Musa gave evidence about his visa as did Mrs Musa. Although the outcome is not known there is every indication that it will be successful. 3. Mr Musa has been unjustly criticised in these proceedings. The Court may consider his relationship with Mrs Musa unconventional, however he spent a whole day giving evidence and during that evidence he was very clear as to his role as a father figure for the children, especially Noah. 4. The Secretary in the latest affidavit of the caseworker sets out the difficulties organising family contact. The Secretary has failed to acknowledge the efforts Mrs Musa made contacting her brother regarding contact and failed to acknowledge that her representations regarding contact on behalf of the children were not taken into proper consideration. The age and experiences of the children are very relevant in any determination about overnight contact yet Mrs Musa's concerns were not listed to. 5. Early on in the case Ms Zhofova, said there was a problem with the attachment between Mrs Musa and Noah. Ms Phillips, the Children's Court Clinic Clinician brings this up in her report, but not from her own observation, but relying on Ms Zhofova's report. 6. Noah is a boy with global developmental delay, expressive and receptive delay, struggling with speech, with behavioural difficulties. The Clinician states he would have less capacity than other children his age to understand, manage, communicate and problem solve. He had a difficult early childhood and had these problems when he was placed with Mrs Musa. The Court could not say, with any confidence, that there is an issue with bonding and attachment between Mrs Musa and Noah. 7. The submissions made by the Secretary in relation to Mrs Musa's engagement with the speech therapy for Noah is unfair. The need for timely speech therapy for Noah was identified early on; however the Secretary would not fund the speech therapy and instead made Noah wait for the Commonwealth to fund it through the NDIS. 8. These children have not been exposed to any risks whilst they have been with Mr and Mrs Musa. There has been no medical neglect. Any unacceptable risks are capable of being mitigated by orders and/or undertakings. 9. It was submitted that Mrs Musa presented as unsophisticated however she was truthful. 10. The Court cannot ignore considering the effect on the children, particularly Noah, if the proposed placement does not succeed. The effect is likely to be lifelong complications, particularly because of Noah's experiences to date and of course for Ellie, being removed from the only home she has ever known and a home where she is doing well. 11. The fact that Ellie is doing so well must be attributable to the care she is receiving in her current placement, as this is the only placement she has ever had. 12. Mrs Musa was very honest, even about sibling contact. She obviously formed this view on the basis of her own lived experience. 13. Finally it was submitted that the least intrusive intervention in the life of these children is to leave them in their current placement with Mrs Musa. The Independent Legal Representative 1. At the beginning of these proceedings the ILR expressed his preliminary view as being in favour of placement with Mrs Musa as he saw that, on balance, to be the preferable outcome given the length of time the children had remained in that placement. 2. The ILR stated in his submission that, after hearing the evidence, particularly the evidence from Mrs Musa, regrettably he no longer supported that placement and he broadly adopted the Secretary's submission in relation to the allocation of parental responsibility and placement of the children. 3. The ILR submits that the Court would consider Mrs Musa's evidence as critical in assessing whether the children would be at an unacceptable risk if they remained in their current placement. In the ILR's submission, the length of placement is not, in and of itself, determinative in this case. 4. The ILR expressed that his concerns primarily were the lack of protective capacity and lack of acknowledgment of significant risk factors that pervaded Mrs Musa evidence, factors that are important in the Court's determination. 5. The ILR agreed with Mr Attia's submission that Mrs Musa was an open and honest witness and this reinforced his concerns in relation to the answers she gave. 6. As this is not a case involving parents the Court is not looking at the test whether restoration is a realistic possibility. The Court instead has to consider s8 and s9, and the overriding test is one of unacceptable risk. 7. The ILR was concerned that in her evidence Mrs Musa gave evidence apologising for her role in the domestic violence event when it is clear she was the victim. Further, in her second marriage where she was the victim of multiple rapes perpetrated by her husband, she did not characterise this as physical violence or domestic violence. 8. The ILR considered that the fact that Mrs Musa had been a victim of sexual violence made it more concerning that Mrs Musa was not then able to reflect on her sister's experience of sexual assault at the hands of Azi or Lionel or an earlier individual. The ILR submitted that the way in which Mrs Musa framed the events of November 2016 would be of significant concern to the Court. Those concerns would centre on the choices Mrs Musa made on that night and her involvement during those events. Of real concern to the ILR is how Mrs Musa dealt with her sister's experience of that evening. She had not believed her sister or given her sister the benefit of the doubt, claiming instead her sister was making the allegations for money. Neither did she believe her sister about the earlier rape allegation. The whole incident gave the ILR real concerns regarding Mrs Musa's ability to recognise risky and unsafe situations and to recognise when individuals say "something has happened" and "I feel hurt" or "I'm scared". This raises concerns as to how Mrs Musa will, longitudinally be able to respond to events when they arise in relation to these children. 9. Mrs Musa's responses around what the Child Care Centre has reported, leaving aside that there are concerns around Noah's sexualised behaviour and medical neglect, was of concern because she jumped to the immediate conclusion that somehow the educator was responsible for touching Noah as the only explanation or that somehow the Department and the Child Care Centre were in cahoots to frame the situation to make her look bad as a carer. Mrs Musa's response raised the question as to how she would respond to situations that demand her to reflect on situations where the children are experiencing distress or harm, be it psychological or physical. 10. Mrs Musa conceded her brother William, with whom Leon stays a few nights per week, has an unaddressed drinking problem, drinking every day. She knows this to be the case because Leon tells her so. Leon returns home and tells her he is not happy about William's drinking. William has been violent, including to her, when drinking. It is not entirely clear why Leon stays so much with William and why this has been in place since Leon was 8 years old. Mrs Musa has not stopped Leon from staying there. If Noah remains with Mrs Musa, he will be a teenager one day and the choices she has made in relation to Leon spending time with her brother William raises issues of unacceptable risk. She said she could not stop Leon from going there. This is a worry for Noah and Ellie as Mrs Musa has resigned herself, in a parenting context, to say "there is nothing I can do." 11. All of these issues, regarding Leon, the domestic violence history, the framing of the November 2016 incident and her response to what has happened at the Child Care Centre are an indication as to how Mrs Musa would respond to future risk issues for Noah and Ellie and the conclusion to be drawn is that Mrs Musa's response will be poor. 12. The ILR accepted that the Musas are looking after the children's day to day needs well. They have a roof over their heads; they are fed, albeit there being a struggle around Noah's eating. It is the big picture issues that are of concern. The questions for the ILR are whether Mrs Musa has the ability to respond appropriately as these children get older and their needs change, whether she will be able to respond in a sensitive, child focussed and protective way, not doubting events that are said to have occurred. Will she be able to recognise dangerous situations? The ILR noted that Mrs Musa's history is a sad one. In order to decide whether Mrs Musa should look after these two children long term, the Court needs to consider Mrs Musa's past choices and how she views them now. She has minimised the domestic violence she suffered. There were children in her care at the time and whilst she did take steps to remove herself, ultimately her views now are of significant concern. 13. The most protective and strongest witness was Mr Musa. He made concessions against his own interest. He recognised that if Mrs Musa was to parent these children herself she would struggle. He held concerns around what they would eat if he was not there. Whilst he is present at home the day to day issues can be ameliorated. It must be accepted that Mr Musa's presence in home is not certain, leaving aside the genuineness of the relationship; it is not known whether he will remain in the country. There is clear evidence from Mrs Musa that if Mr Musa goes to live in another country, she will not follow him and she would therefore be in the position of having to parent alone and Mr Musa expressed concern about this. 14. There is arguably a higher standard of care than there is when the issue in the case is whether there is a realistic possibility of restoration to a birth parent. A more rigorous standard must be applied to carers. 15. The ILR accepted there was a "real asymmetry" in proceedings which was highlighted by Mrs Musa. The Court does not have evidence from Mr Nigel Johnstone and Ms Hunter, and must consider only the Secretary's assessment of them. The ILR accepts that there are some questions around Mr Nigel Johnstone which need to be followed up but there is a lot to be commended in his and Ms Hunter's care of the girls. The Legal Framework 1. The President of the Children's Court, Judge Peter Johnstone, has very recently published a decision which sets out a comprehensive summary of the legal principles to be applied in care proceedings. In that case, The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC5, the President was deciding whether restoration was a realistic possibility. Although that is not the question to be decided in this case, the following principles from that decision are relevant to my consideration. Proceedings relating to the care and protection of children and young persons in NSW, including first instance matters before the Children's Court, and appeals from its decisions, are public law proceedings, governed, both substantively and procedurally, by the Care Act. Care proceedings involve discrete, distinct and specialised principles, practices and procedures which have regard to their fundamental purpose, namely the safety, welfare and well-being of children in need of care and protection: s 60 of the Care Act. The rules of evidence do not apply, the proceedings are non-adversarial and they are required to be conducted with as little formality and legal technicality and form as the circumstances permit. Decisions in Care proceedings are to be made consistently with the objects, provisions and principles provided for in the Care Act, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC). The objects of the Care Act, are to provide: s 8 • that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and • that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that McCallum their health, developmental needs, spirituality, self-respect and dignity, and • that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. The Care Act sets out a series of principles governing its administration. These principles are largely contained in s 9, but also appear in other parts of the Act. First and foremost is what is sometimes referred to as the paramountcy principle: 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 are paramount. This principle, therefore, is the underpinning philosophy by which all relevant decisions are to be made. It operates, expressly, to the exclusion of the parents, the safety, welfare and well-being of a child or young person removed from the parents being paramount over the rights of those parents. Secondary to the paramount concern, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are set out in ss 9(2) and 10 and include the following: • Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10. • Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b). • Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c). • If children are temporarily or permanently deprived of their family environment, or cannot be allowed to remain in that environment in their own best interests, they are entitled to special protection and assistance from the State, and their name, identity, language, cultural and religious ties should, as far as possible, be preserved. • Any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e). • If placed in out-of-home care, a child is entitled to a safe, nurturing, stable, and secure environment. Unless contrary to the child's best interests, and taking into account the wishes of the child, this will include the retention of relationships with people significant to the children: s 9(2)(f). If the Secretary forms the opinion that a child is in need of care and protection, he or she may take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child: s 34(1). The Secretary is required to consider what permanent placement is required to provide a safe, nurturing, stable and secure environment for the child: s 10A of the Care Act. Permanent placement is to be made in accordance with the permanent placement principles prescribed: s 10A(3) of the Care Act. The 'placement hierarchy' established might be summarised as follows: If it is practicable and in the best interests of the child, the first preference for permanent placement is for the child to be restored to the parent(s). The second preference for permanent placement is guardianship of a relative, kin or other suitable person. The next preference (except in the case of an Aboriginal or Torres Strait Islander child) is for the child to be adopted. The last preference is for the child to be placed under the parental responsibility of the Minister. Permanency planning means the making of a plan that aims to provide a child with a stable, preferably permanent, placement that offers long-term security and meets their needs: s 78A(1). The Court must not make a final Care order unless it expressly finds that permanency planning has been appropriately and adequately addressed: s 83(7). The permanency plan must have regard to the principle of the need for timely arrangements, the younger the child, the greater the need for early decisions, and must avoid the instability and uncertainty that can occur through a succession of different placements or temporary care arrangements. The planning must also make provision for the allocation of parental responsibility, the kind of placement proposed, the arrangements for contact, and the services that need to be provided: s 78. If the Children's Court finds that a child is in need of care and protection, it may make a variety of orders allocating parental responsibility, or specific aspects of parental responsibility: s 79(1). Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children: s 3. The primary care-giver is the person primarily responsible for the care and control of a child, including day-to-day care and responsibility. When allocating parental responsibility, the Court is required to give particular consideration to the principle of the least intrusive intervention, and be satisfied that any other order would be insufficient to meet the needs of the child: s 79(3). Care and protection proceedings are not to be conducted in an adversarial manner: s 93(1). The proceedings are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93(2). The Children's Court is not bound by the rules of evidence, unless it so determines: s 93(3). Nevertheless, the Court must draw its conclusions from material that is satisfactory, in the probative sense, so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary, Department of family and Community Services [2015] NSWCA 88 at [148]; Sudath v Health Care Complaints Commission [2012] NSWCA 171. The standard of proof in Care proceedings is on the balance of probabilities: s 93(4) of the Care Act. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Secretary of Department of Community Services; Re "Sophie" [2008] NSWCA 250. The Care Act provides that all care matters are to proceed as expeditiously as possible: s 94(1). The Court is required to avoid adjournments, which should only be granted where it is in the best interests of the child or there is some other cogent or substantial reason: s 94(4). 1. I accept the ILR's submission that this is not a case where the Court is applying the test of whether there is a realistic possibility of restoration. The Court must decide which order is in the best interests of the children. This will involve the weighing up of the risks and benefits of the children remaining in their current placement with an order of parental responsibility to Mrs Musa with the risks and benefits of an order of parental responsibility to the Minister with placement with Mr Nigel Johnstone and Ms Hunter. The Court is not limited to making the orders proposed by the parties but can also consider whether any other order, for example an order that may share parental responsibility or allocate certain aspects of parental responsibility, is the order which is in the children's best interest. Ability to meet the children's needs 1. On 8 April 2019 the speech therapist reported that Noah had a Mild Receptive Language Delay/Disorder and Low Average Expressive Language skills as well as a Moderate Speech Sound Delay. The speech therapist reported the following: * Since Noah started speech therapy in February 2019 he had attended every session * Mrs Musa was consistently told that Noah is expected to complete 5-10 minutes of therapy practice at home each day * The goals and activities for home practice are outlined in a communication book and there is a requirement that this book be brought to each session. The book had been taken to approximately 70% of the sessions * Mrs Musa reported that Noah completes home practice 3 times per week at most because it is difficult to engage Noah in doing so * Due to the frequency of home practice completion (that is no more than 3 times per week instead of daily) it is recommended that Noah receives speech therapy more than weekly to ensure that he is receiving the intensity of therapy required to improve his speech and language development * Noah has made some pleasing gains in therapy to date 1. In the speech therapist report of 24 July 2019 the therapist reported that; * Difficulties with speech may impact Noah's ability to develop and maintain friendships at preschool and in the community and may impact self-esteem and mental health * Noah has attended 13/16 appointments since 8 April 2019 and brings his homework book 80% of the time. 1. Mrs Musa's evidence was that: * She does not agree that she has a hard time engaging Noah in his homework and there had only been one time when she did not have time to do Noah's practice as she had been at Court * The missed appointments were due to illness * It was not essential to take the Homework Book as the exercises could be written on a piece of paper and glued in 1. I cannot accept Mrs Musa's evidence in relation to the homework over the information contained in the speech therapist's report. The speech therapist is an independent professional. The statement she ascribes to Mrs Musa in relation to the difficulty engaging Noah is consistent with evidence about Noah's behaviour and concentration at the time. 2. I conclude that speech therapy is critical for Noah's positive development and that Mrs Musa has not consistently provided the necessary support for Noah's speech therapy. She has failed to consistently ensure the home practice is done or consistently follow through with the "requirement" to take the Homework Book to therapy raising concerns about Mrs Musa's understanding of the importance of the speech therapy and her commitment to it. 3. Noah is a child with significant special needs including global developmental delay. The following evidence leads me to conclude that Mrs Musa does not understand the extent of Noah's developmental needs, does not make the necessary inquiries to educate herself about those needs and is not proactive in pursuing the necessary support for him: 1. Ms Zhofova reported that when she interviewed Mrs Musa she told her she was experiencing major difficulties with Noah's behaviours and she wanted him urgently assessed. Mrs Musa described Noah having bad behaviours at child care including biting, hitting and spitting and that he had been suspended once due to his behaviours. Mrs Musa told Ms Zhofova that she was not sure how the teachers managed Noah's challenging behaviour because she had never asked. 2. Mrs Musa is also said by Ms Zhofova in her report to have told her that Noah did not know how to interact with other children and does not know how to share. Mrs Musa said she knew the Child Care Centre was doing something about this but she did not know what it was that was being done. 3. Mrs Musa agreed that the Child Care Centre staff mentioned some time ago that Noah was receiving "one on one" assistance or support. Mrs Musa did not know what this was for or whether it was ongoing. Mrs Musa never asked any questions about it. 4. Mrs Musa gave evidence that she has been told that Noah needs OT. Mrs Musa was not sure what OT is or why he needs it. 5. The speech therapist thought it was important that the Child Care Centre be aware of the work that was being undertaken with Noah because their involvement could assist. The speech therapist was going to contact the Child Care Centre. Mrs Musa told the Court she did not discuss or even mention the speech therapy to the staff at the Child Care Centre. She does not speak to Christine, the main Educator responsible for Noah because Christine ignores her and gives her "dirty looks". She could speak to Veronica, the Director; however Veronica is difficult to get hold of. 6. Mrs Musa has not discussed the recent reports of Noah's reported increased aggression at the Child Care Centre as she does not accept that the reports of his aggression are true because he is not like that at home. Mrs Musa describes Noah as "placid". 1. The only matter that Mrs Musa was prepared to accept was an ongoing concern in relation to the care of the children was Noah's unwillingness to eat food other than African food and sandwiches (though he was always willing to eat junk food). When Mrs Musa was informed that the Child Care Centre reported Noah ate a variety of foods there, her response was not that she could talk to the staff there about his diet and what he liked to eat, instead she did not accept that the staff from the Child Care Centre were telling the truth. 2. In his evidence Mr Musa was asked whether, if he was not living with Mrs Musa, he would be worried about the children. He said he would because: * Both of the children might demand attention at the same time and Mrs Musa cannot handle that * She worries too much about the children when they are sick and she overreacts, is oversensitive and she requires reassurance * If he was not cooking then the children would eat too much fast food 1. Noah is a child with significant special needs. Mrs Musa has not been pro-active in attempting to understand these needs and has shown limited initiative in addressing these needs. Mrs Musa has failed to pursue opportunities to address Noah's special needs on occasions because she has an irrational mistrust of the staff reports from the Child Care Centre. The examples of this are when Mrs Musa did not follow up about Noah's diet and she did not follow up on the reports of aggression, without making any inquiry or investigation, simply because she did not believe what she was being told. If Mrs Musa had parental responsibility I could not be confident that she would be able to appropriately identify the children's needs, explore avenues to deal with those needs then to fully commit to meeting the identified needs. 2. As a result of my findings about Mrs Musa's failure to identify needs and pursue appropriate solutions, I agree with Ms Phillips conclusion that Mrs Musa has limited capacity to promote the development of the children: 16.3 ….Hazel is loving and takes good physical care of the children but is not very thoughtful or energetic about how she goes about providing for their overall development. From my observations, Hazel is very willing to utilise advice but I am of the opinion Hazel has limited capacity to promote the development of the children…. Decision Making Mr William Johnstone 1. Mr William Johnstone is Mrs Musa's brother and a regular visitor to Mrs Musa's home. Mrs Musa's youngest son, 15 year old Leon, spends a great deal of time with Mr William Johnstone, including staying at his home several nights every week. 2. In her interview with Ms Zhofova Mrs Musa described William as "very racist" She said she knows that William talks negatively about Mr Musa behind his back and considers this has an impact on Leon and Leon "has decided to be racist". [61]….. William is 'very racist'. She was of the view that Leon has been influenced by her brother William and 'has decided to be racist.' She continued to say that when William and her husband are together they seem to get on well, and everything is 'all right'. However, she also knows that William talks negatively about her husband behind his back and she felt that this must have impacted on her son Leon as well. 1. In oral evidence Mrs Musa agreed this was the case when she spoke to Ms Zhofova however she says they are no longer racist as they both like Mr Musa. This simplistic explanation does not give me confidence that Mrs Musa has an understanding of racism or is able to address it with Leon, Noah or Ellie. 2. Mrs Musa gave evidence about the ongoing problem of Mr William Johnstone's daily excessive consumption of alcohol and his propensity for violence when drunk. Mrs Musa said the last time William became aggressive to her was about 5 or 6 years ago when he was drunk and he pushed and slapped her. The violence she says has reduced in the last few years but violence still worries her. She has, even a couple of years ago, rung AA and talked to Mr William Johnstone about going into rehabilitation. He refuses and says he will not give up alcohol. 3. Mrs Musa's evidence was that since Leon was 8 or 9 years old he has stayed a few nights per week with William. The reason for this ongoing arrangement is because Leon wants to stayover as he is spoilt there, has Foxtel, X-box and is closer to his friends and transport. She does not worry about him being with William because: * Leon stays in his room on his X-box * If something happened Leon would ring her * Leon is more mature than William and is like the adult in the relationship. Leon can tell William to stop drinking (Leon does not like William drinking), Leon knows how to handle him and indeed Leon is the only one who can handle him. Leon knows when William has had enough * William no longer gets aggressive and he would never be aggressive to Leon * Even if she wanted to she could not stop Leon from seeing William because Leon loves him 1. Mrs Musa's evidence raises significant concerns about her understanding of risk and her capacity to make decisions to protect children from risk of harm. On Mrs Musa's own evidence she was allowing her 8 year old son to stay several nights every week with an alcoholic uncle, whom she knew to be significantly affected by alcohol when caring for him and whom she knew to be violent when drunk. Mrs Musa also knew that Leon does not like his Uncle drinking. In allowing her son to have this contact Mrs Musa was placing Leon at risk of significant harm. In addition it is clear from Mrs Musa's evidence that whilst he is with his Uncle, whose drinking has not abated, Leon is responsible for his own safety and welfare and he is placed in the position where he has the responsibility for containing his Uncle's drinking and behaviour. Mrs Musa did not identify any issues of risk or concern in her decision making regarding Leon's contact with Mr William Johnstone. In evidence when the risks were pointed out to Mrs Musa she declared that she had no ability to influence or change the situation. The July 2019 reports 1. On 3 July 2019, the Secretary received a Risk of Serious Harm ('ROSH') report that, on 2 July 2019 when Noah's pants were changed there was an offensive odour – there were "old dried poo marks" on Noah's underwear, there was "dried yellow/green discharge." His genitals and anus were "red raw" and he kept saying "sore." 2. On 4 July 2019 DCJ received another ROSH report in the same terms as the information reported the previous day. The ROSH report also included that: * When Mrs Musa dropped Noah off at Child Care that day she did not speak or give a handover * Mrs Musa does a quick drop off with no handover * The same underwear with the same marking was worn by Noah that day as worn on 2 July 2019 * The underneath of Noah's penis was still very red and sore but did look slightly better but there was still a yellow/green discharge and Noah still reported it was sore 1. On 4 July 2019 the caseworker deposed that she had a meeting with Mrs Musa regarding the ROSH reports. Mrs Musa denied that Noah had soiled underwear – she had applied cream – though she noticed Noah was reluctant to wash his penis she was not overly concerned as the swelling was not large. Although Mrs Musa did not consider that Noah needed to see a doctor she agreed to take him after child care that afternoon. 2. In that meeting Mrs Musa informed the caseworker that the Child Care Centre staff had made the report due to their dislike of her, two staff members in particular, whose names she was unable to recall. 3. Mrs Musa did not take Noah to the doctor as requested. She told the caseworker it was because the night had been too cold and the rash had gone. Mrs Musa was then directed to take Noah to the doctor and she did so. 4. On 9 July 2019 there was a ROSH report received by the Secretary pertaining to Noah. The ROSH report included that at the Child Care Centre Noah and another child were observed behind a bookshelf, appearing to be hiding. The other child's pants were around the child's knees and underwear pulled down below the buttocks. Noah's hand was placed on the child's bum cheek. When they were noticed the other child pulled up his/her pants and Noah was observed to be laughing. The reporter stated she telephoned and spoke with Mrs Musa about the incident. 5. On 9 July 2019, Ms Musa told Ms Helmore the caseworker that: * She had received a phone call from Christine the educator at the Child Care Centre informing her Noah had been involved in an incident touching another child's bottom * Whilst driving home from child care Ms Edith McCallum called her and the phone was connected to the loud speaker in the car resulting in Noah and Ellie who were in the car being able to hear the conversation * Ms McCallum asked Noah "has someone touched your private parts" and Noah replied that Ava touched him. Ms McCallum then asked Noah what Ava looked like and Noah said she had pink and brown hair. 1. When Ms Helmore asked Mrs Musa why she thought it was okay for Ms McCallum to ask Noah these questions and why she did not stop the phone call, Ms Musa replied She is the grandmother, what could I do and I didn't think there was anything wrong with the questions. 1. In her conversation with Ms Helmore in response to the question as to how Ms McCallum knew about the incident where Noah was alleged to have touched the other child's bottom Mrs Musa said Ms McCallum and Ms Brown "knew people." In her oral evidence Mrs Musa denied telling Ms McCallum about the incident. 2. On 9 July 2019 DCJ recorded another report regarding Noah. This reporter stated that Ms Edith McCallum, the children's grandmother has regular phone contact with Mrs Musa and was informed that Noah had a red rash on his penis last Tuesday. The report then relayed a conversation whereby Ms McCallum asked Noah about school and he said it was "not good." Ms McCallum then asked him "if it was because of the teachers" and Noah replied the teachers were not nice and they hit and bully him. Ms McCallum then asked him "if he got touched on the penis by a teacher". He replied "yes" and then he identified the teacher as having pink and brown hair and being called "Ava". 3. The reporter also said Ms McCallum asked him whether he wanted to go to a new school and he said "yes" The reporter stated that the caseworker told Mrs Musa to keep sending him to child care. Finally the reporter stated that Mrs Musa does a great job. 4. In a meeting on 18 July 2019 between the caseworker and Mr and Mrs Musa, Mrs Musa stated she wanted Noah to go to a different child care centre because some of the childcare workers do not like her. She said Christine targets Noah and she gave an example. She stated she does not believe that Noah touched the child in the way reported and was critical of staff for not supervising. She also criticised the Centre for allowing the girls and boys to be in the toilet area together. 5. Mr Musa stated that he would like the children to change child care centres to be closer to home and to make drop-off and collection easier. He did not have any concerns about the current child care centre or the care they give to the children. Mr Musa said he considered the touching incident behind the bookshelf to be "normal for kids." 6. In answers to questions from Mr Nasti, Mrs Musa told the Court: * In the last 4 or 5 months something has happened and Noah no longer wants to go to the Child Care Centre. She suspects it is because the staff and the children there are bullying him and targeting him * Noah reported on 4 different occasions (including to Ms McCallum) that Christine touched his penis * Noah reported to her that Christine yells at him and has hit him and that he does not like Christine * Mrs Musa told the Court that although she believed that Christine touched Noah's penis four times and hit him, she did not report this to the Secretary's caseworkers, despite understanding that the Minister had interim parental responsibility. Neither did Mrs Musa report the incidents to the Police. She did not report it to the Secretary because: ○ She believed that the Secretary's caseworkers and the Child Care Centre were conspiring together against her, ○ The Secretary's caseworkers have been paying the Child Care Centre "to dig up dirt on me" ○ The Child Care Centre is making things up to make her look like she was doing the wrong thing * Mrs Musa does not accept that the Child Care Centre staff were telling the truth about the bookshelf incident not just because she believes the workers are trying to make her look bad but also because Noah is not "rude" at home and therefore would not be "rude" at school and he is a private person – he always closes the door when he goes to the toilet. 1. Mrs Musa was not willing to talk to the Child Care Centre staff because of this conspiracy. Mrs Musa was asked by Mr Nasti whether she could have sent an email the Child Care Centre. She agreed she could have if she had an email address. She conceded that she could have communicated with them via the Child Care App as well. 2. Mrs Musa's evidence was that she was not going to report her concerns that Christine had sexually and physically abused Noah until she had proof. When asked what proof she was looking for she replied she may need to start photographing Noah's penis before and after he went to Child Care. 3. I conclude that the contents of the ROSH reports do not warrant a finding that Noah has been sexually abused nor that Mrs Musa's failure to take Noah to the doctor as requested amounts to medical negligence. It is Mrs Musa's responses to the ROSH reports that raise significant concerns in relation to Mrs Musa's ability to safely care for the children in the long term: 1. Although Mrs Musa believed that Christine had sexually and physically abused Noah she took no action except to mention it to Mr Musa. Mrs Musa's evidence was that she did not raise her concerns with the Secretary's caseworkers or with the Director of the Child Care Centre or the Police. This action contradicts the evidence she included in her affidavit of 27 June 2018 under a heading "understanding of child protection concerns" which was that: If I had any concerns that the children were at risk of harm I would report this to FACS and to the Police. 1. Mrs Musa had concerns that Noah was being bullied and sexually abused and targeted by staff yet she did not raise those concerns with the Centre Director and had no sensible strategy to deal with those concerns. If those concerns were founded then she was exposing Noah to ongoing risk 2. The strategy Mrs Musa had for dealing with her concerns, that is taking photos of Noah's penis before and after Child Care each day to collect evidence regarding sexual abuse was unlikely to assist and was potentially harmful to Noah 3. When the issue of Noah touching the other child's bottom was raised with Mrs Musa she immediately concluded that the staff were making it up because of their dislike of her or Noah or because they had been paid to do so by the Secretary's caseworkers. Mrs Musa was not even willing to explore the issues further to satisfy herself that they were not true or to explore the reasons for the behaviour. If the report is true then there may be serious issues to address or there may not, but unless there is a discussion and exploration of events then any assistance or support or changes that may need to be made for Noah's ongoing safety and welfare will not be addressed by Mrs Musa 4. Mrs Musa did not understand that allowing Ms McCallum to ask questions of Noah in the car, over the phone and within hearing of Ellie, about sexual abuse was not appropriate 5. Mrs Musa did not believe that she had the right to stop Ms McCallum from asking Noah the questions because Ms McCallum is Noah's grandmother 6. Mrs Musa did not perceive that there was anything she could do to stop Ms McCallum from asking Noah the questions in the car 1. Mrs Musa does not enter into any discussion with Noah's Child Care Centre workers when she drops or picks up the children because of her perception that they do not like her or Noah. The result is that there is no discussion or handover about important issues such as when Noah had a sore penis or to discuss the Child Care Centre's reports of Noah's aggressive behaviour. Additionally there is no discussion as to how home and the Child Care Centre can work together to address Noah's significant issues. 2. Mrs Musa indicated she wanted to change the Child Care Centre because the workers do not like her and Noah and he is targeted. She has not raised this with the Director of the Centre. Mr Musa however raised no concerns about the Child Care (except for the distance from their home). The concern that flows from this set of circumstances is that Mrs Musa, if she could, would change child care centres for the children based on her perception that she and Noah are not liked. She has decided on the most radical solution to the perceived problem without first trying to solve the problem she perceives in a way that will not have such a huge impact on the children. Bonding and attachment 1. Both Ms Zhofova and Ms Phillips report concern regarding the relationship between Mrs Musa and Noah. 2. Ms Phillips stated that Ellie seeks out both Mr and Mrs Musa to attend to her and each responds appropriately. Noah seems to prefer Mr Musa. She considered it significant that some of Mrs Musa's interactions with Noah were observed to be "somewhat cool." In her recommendations Ms Phillips states that "the strength and nature of [Mrs Musa's] connection to Noah is a concern." 3. Ms Zhofova stated that Mrs Musa was not as positive about Noah as she was about Ellie "and did not display warmth towards him" and is not bonded to her rather, rather that he has been bonding to Mr Musa. 4. In her oral evidence Mrs Musa strenuously denied not having a good relationship with Noah. When asked in cross-examination about this issue which has been raised by three different caseworkers and the two experts, she replied that they would not know given the shortness of their visits. She says she and Noah get on well, there are no bonding and attachment issues and she does not favour either of the children. 5. Mrs Musa's oral evidence is in contrast to what is recorded she told the Clinician, Ms Zhofova during the assessment. 247 Mrs Musa was not as positive about Noah and did not display warmth towards him. She also said that he is not bonded to her, rather that he has been bonding to her husband. 1. Time has passed since the experts' reports. It is possible of course that there were bonding and attachment issues then but these issues have resolved. It is also possible that the observations of the relationship between Noah and Mrs Musa on which the experts' conclusions about bonding and attachment were based, could more properly attributed to Noah's disability rather than bonding and attachment issues. I am unable to determine this issue on the current state of the evidence. 2. Mrs Musa is currently attending counselling with LINKS which has been arranged by the Secretary to address the relationship issues. Mrs Musa said, in her oral evidence that she did not need this although she was willing to continue as it was nice to have just one on one time with Noah. There was no evidence in the proceedings from LINKS as to the progress of the therapy. Given Mrs Musa does not see the need for the counselling, there is of course the risk that she will discontinue it if she is the decision maker pursuant to an order in her favour of parental responsibility. The incident in November 2016 1. On the evening of 28 November 2016 Mrs Musa and her sister Ms Edith McCallum went to Mrs Musa's ex-partner Azi's house for coffee. A friend of Azi's who was staying with him, Lionel, was also a part of the gathering. This was approximately a week before Mrs Musa's wedding to Mr Musa. 2. At the time of the coffee date Mrs Musa and Azi had been split up for about a year, though they remained friends. 3. During the evening Ms McCallum told Mrs Musa that she had a sexual interest in Azi and because Mrs Musa had been in an intimate relationship with him and not wishing to upset or offend her, Ms McCallum sought Mrs Musa's thoughts about her interest. 4. Mrs Musa and Ms McCallum missed the last train home and Mrs Musa said that they were therefore in the position of having to stay overnight at Azi's home. Ms Musa could not explain why she didn't contact Mr Musa to assist (it was approximately a week before their wedding). She said it may have been because it was late and he had to work the next day. Mrs Musa said if it had have been an urgent situation she could have rung Mr Musa and he would have come and picked them up in the car. 5. That night Mrs Musa slept in Azi's bed with Azi and Ms McCallum, all of them naked whilst knowing that Ms McCallum and Azi intended to have sexual intercourse. She gave the following explanation for doing so in her evidence: * When you were at Azi's house you had to follow Azi's rules * It was a rule of Azi's that if you slept in his bed you had to be naked * Azi would not allow her to sleep in the bed with Lionel * Azi would not allow her to sleep anywhere else in the house 1. Whilst Mrs Musa, Ms McCallum and Azi were naked in the bed together Ms McCallum and Azi had sexual intercourse. Following this Azi's friend Lionel then came into the room, got on top of Ms McCallum and they started having sexual intercourse. 2. On 28 December 2016 Ms McCallum reported to the police that she had been raped by Azi and by Lionel. 3. Mrs Musa was adamant that Ms McCallum's claim that she was raped by Azi and Lionel was false. She said Ms McCallum had consensual sex with Azi and she heard a lot of noises which were consistent with Ms McCallum enjoying the sex. Mrs Musa's evidence was that after Lionel started having sex with Ms McCallum, Ms McCallum told him to stop. Azi then told Lionel to stop and he did. Lionel then got off the bed and left the room. Mrs Musa said, so as to corroborate her opinion that the sexual intercourse was consensual, that the following morning the men cooked them breakfast and walked them to the station and Ms McCallum appeared fine. 4. Mrs Musa believes that Ms McCallum made the rape allegations: 1. to target her [Mrs Musa] because she knew Mrs Musa still had some feelings for Azi and because, at the time Ms McCallum made the allegations to the Police, she and Ms McCallum were not on speaking terms 2. for money as Ms McCallum knew Azi had money 3. because Ms McCallum is a liar and an attention seeker. Ms McCallum, she said, has tried to get several black men into trouble by alleging they raped her, including another of Mrs Musa's ex-boyfriend's, Christian. None of these rape allegations are true. 1. Although Ms Musa was not entirely sure of dates, to the best of her ability she estimated she went out with Azi for two years from about February 2013 to February 2015. They never lived together. She remained friends with him until shortly after Easter 2019. 2. In her evidence Mrs Musa stated that when she was in a relationship with Azi he would not allow her to mix with his friends as he thought she may like one of his friends better than she liked him. 3. Mrs Musa when being asked about her perception of the events of that night thought that the arrangement "was a bit funny because I was his ex." She was not worried about sleeping naked in Azi's bed as she knew the rules and they had slept naked together when they were a going out with one another. She said however she was not comfortable sleeping naked in the same bed as Azi and her sister whilst they were having sex. 4. It is not in dispute in these proceedings that there is significant history of intergenerational sexual abuse and incest within these children's birth family and kinship group. 5. Ms Zhofova expressed in her report that Mrs Musa is drawn to her family and she likes to socialise with them. "Of concern is that she seemingly tends to accept and normalise their behaviours, such as domestic violence, or lack of boundaries around sexual behaviours…. " 6. Mrs Musa's evidence surrounding the events at Azi's house bears out the concern Ms Zhofova expressed. Despite Ms McCallum's character flaws as described by Mrs Musa; that she is a liar and an attention seeker; she is someone who makes false rape allegations against African men, including two of Mrs Musa's ex-partners, for money and/or for 'payback' against Mrs Musa, Mrs Musa still remains in close contact with Ms McCallum. Also the events of that night raise concerns regarding lack of boundaries around sexual behaviours. 7. The events at Azi's house also raise the following concerns: * Mrs Musa did not consider that she had any choice but to do what Azi told her to do, that is to sleep in his bed and to sleep naked * Mrs Musa, despite not wanting to sleep naked with her sister and ex-partner in the same bed as they had sexual intercourse, could not assert herself and refuse * Mrs Musa, though uncomfortable with the situation was unable to develop a strategy or plan to avoid being in that situation Domestic Violence 1. Mrs Musa was married twice before she married Mr Musa. Her first husband was Mr Peter Linton. Her second husband was Mr Vincent Smitt. 2. In her report Ms Zhofova reported that Mrs Musa told her that she had left the relationship with Mr Peter Linton: "[49] ….when Isaac was a baby because of serious domestic violence and added that her husband continued to terrorise her and the children and threatened her with violence for years after their separation. Therefore, and in order to protect the family, she obtained a housing transfer to Nowra and later on, when she felt safer, she moved back to Sydney. [50]….. Mrs Musa stated that all her children have been impacted by their experiences of domestic violence. [51] Mrs Musa said that at about 33 years of age she met her second husband Vincent. They then married and separated after two years of marriage. Mrs Musa said that Vincent was a mentally ill man with a diagnosed bipolar disorder who was not medicated. She said that he was a difficult man to live with and that he sometimes pushed or hit her but in comparison to her first husband, the physical abuse was insignificant. She also said that Vincent used to force himself on her sexually but overall the abuse was more mental than physical. For example, she said that he used to threaten to kill himself if she were to leave him. It seems that the eventual separation was traumatic in that Mrs Musa fled to a women's refuge with the children. 1. The following information is also recorded by Ms Zhofova as information she was given by Mrs Musa in interview: * She had been exposed to domestic violence 'all her life' * Her husbands were controlling and while her first husband Peter was primarily physically abusive, her second husband was mostly abusive mentally * The violence in her relationship with Vincent was very serious …he whacked her now and then and his problems was that he did not know when to stop when he started to hit her * After she completed domestic violence counselling she gained insight about domestic violence and did not need any further input, particularly because her current relationship is violence free. 1. Mrs Musa's oral evidence was that her first husband Peter Linton was physically violent to her once only and there was never any other violence towards her or the children. Mrs Musa said, of that single incident of domestic violence, that Mr Linton had cooked dinner whilst looking after the children. She came in and was critical about the messy state of the kitchen. She is very fussy about having a clean and tidy kitchen. It was in response to this criticism that she made of Mr Linton that the domestic violence occurred. Mrs Musa said she should not have reacted in the way she did, she should have dealt with the situation differently, should have just kept quiet. She gave evidence that she should have appreciated the cooking Mr Linton had done and understood the stress he was under. She said that she and Mr Linton had a "really good marriage" one which was not characterised by domestic violence and the violence was a one-time thing. 2. In her evidence Mrs Musa also said there was no controlling behaviour or emotional abuse from Peter Linton but then said that he blamed her for losing his firearms licence because there was an Apprehended Violence Order in place and shooting was his hobby. 3. Mrs Musa said her second husband's abuse was mental or emotional not physical though he would sometimes poke her with a broom. In cross-examination Mrs Musa accepted that his rape of her was physical abuse. She said he told her that rape doesn't exist in marriage and at the time she did not know whether that was correct. 4. I conclude from Mrs Musa's evidence that she was: 1. taking responsibility for the very serious abuse Mr Linton perpetrated on her; and 2. significantly minimising the violence in both relationships 3. not able to identify all the forms of violence to which she was subjected 1. Mrs Musa's evidence suggests that she does not have an understanding of domestic violence. This is particularly concerning given she has had domestic violence counselling and she believes that she now has insight into domestic violence and does not require any further input in this regard. 2. Mrs Musa's lack of understanding of domestic violence is also evident from her testimony regarding her relationship with Azi. Mrs Musa expressed a preference for dating African men because they are not violent. She dated Azi for approximately two years between 2013 and February 2015. They remained friends after breaking up until about five months ago. Mrs Musa did not identify any issues of abuse in her relationship with Azi yet when describing the events in November 2016 she stated he would not allow her to sleep anywhere but with him and she had to follow his rules by sleeping naked in his bed. She also gave evidence that when she and Azi were together Azi would not allow her to be with his friends as he thought she may prefer his friends to him. This evidence is highly suggestive of controlling behaviour, a form of domestic violence, yet Mrs Musa did not identify his actions as controlling. 3. Mrs Musa has undertaken counselling or courses regarding domestic violence and considers she understands domestic violence and is not in need of any further input. It is of concern to me that despite this counselling/courses Mrs Musa: * does not acknowledge the significant and ongoing violence perpetrated by her first husband, and minimised it to an alarming extent, that is to a single incident and describing the relationship as "a happy marriage" * blamed herself for the Mr Linton's violence when that violence caused injuries so serious she could not eat and had to drink through a straw for some weeks * did not, at the outset of her evidence, include rape as a form of domestic violence * did not recognise Azi's not allowing her to spend time with his friends in their two year relationship out of jealousy and in order to control her as a form of domestic violence 1. There is no violence in Mrs Musa's marriage. There is however a lengthy history of domestic violence, which is not either fully understood by or acknowledged by Mrs Musa. Mrs Musa's lack of understanding or insight into domestic violence, despite the counselling she has had, poses a risk to the children in the event that Mrs Musa has future relationships. Mrs Musa's lack of understanding of domestic violence will hamper her ability to give guidance, advice, assistance and support to Noah and Ellie when they are teenagers and forming romantic and sexual relationships. Assertiveness 1. One of the risks to the children of being in Mrs Musa's care, identified by Ms Zhofova was her inability to withstand pressure from her family. Mrs Musa clearly accepts the dysfunction of her birth family and the risks they pose and she never shied away from that in her evidence. She also accepted that she did have difficulty in withstanding pressure from them. Her case at hearing was that she is now more assertive than she once was. 2. Mrs Musa was not able to assert herself in order to refuse to sleep naked in Azi's bed with him and her sister whilst they engaged in sexual intercourse. 3. Neither was assertiveness evident when, some four or five months ago, Azi took the car that, although registered in his name or his business's name, she had made all the payments on. These payments were made over several years and amount to many thousands of dollars, with the car almost being fully paid off. Mrs Musa could not prevent Azi from taking the car; has not taken any steps to recover the car or the payments she made and neither has she been able to identify a plan or developed a strategy to remedy that injustice. 4. Mrs Musa said in her evidence when talking about the relationships with her family and the children's parents "I don't like confrontation – I just put up with things to keep the peace." 5. A recent instance when Mrs Musa expressed her inability to assert herself was when Mrs McCallum asked questions of Noah in the car about who was touching his private parts and she did not stop the phone call and told the caseworker: She is the grandmother, what could I do…….. 1. Ms Phillips in her report referred to the times when the paternal grandparents violated their role in what Mr and Mrs Musa perceived to be to the detriment of the children (as set out in the 12 March 2019 affidavit of the caseworker Ms Julie Harris), yet Mr and Mrs Musa felt impotent to protest. 2. When Mrs Musa was being asked questions in relation to the safeguarding of Leon in the care of Mr William Johnstone, her response was that there was nothing she could do to prevent Leon from staying with Mr William Johnstone, no matter what risk he posed. 3. On the basis of the evidence, involving vastly different scenarios I cannot have confidence that Mrs Musa would be able to be sufficiently assertive to make and implement decisions that put the interests of the children first. Family Contact 1. One of the children's ongoing needs is the need for contact with their parents, siblings and extended family. The holder of parental responsibility will have significant challenges in relation to organising contact given the number of siblings and the complex relationships between the adults in the family. The steps the caseworker Ms Helmore had to take and the difficulties she encountered when trying to set up a family contact visit for the benefit of the children is comprehensively outlined in her August 2019 affidavit. 2. It is clear that Mrs Musa has complied with the Secretary's directions relating to face to face contact with the children and has never allowed any unauthorised contact. 3. Mrs Musa has indicated throughout these proceedings that she may need the assistance of the Secretary in relation to contact generally but particularly with the supervision of Mr Anderson's contact. However in oral evidence considered that she would be able to manage contact and specifically in relation to Mr Anderson, Mr Musa would be able to supervise that contact. 4. Mr Musa gave evidence before me and he was extensively cross-examined on a wide range of topics. Mr Musa was a very impressive witness. He impressed as an intelligent, sensitive and sensible man. It is clear to me that he loves Noah and Ellie and would be able to protect them in a contact session and prioritise their interests. I am confident that he could be an appropriate contact supervisor. Of course, despite the expectation Mrs Musa has that Mr Musa will be granted permanent residency in Australia, that outcome is not a certainty. 5. The more concerning issue is whether Mrs Musa will be able to make decisions regarding contact that are in the best interest of the children on an ongoing basis. Mrs Musa would, of course, with parental responsibility be responsible for making decisions about who the children should see, when and whether that contact should be supervised. 6. Mrs Musa and the paternal grandmother had a falling out some months ago. Mrs Musa believes that the paternal grandmother found out that, although she was happy for her to come to the Musa's home for contact with the children at pre-arranged times, she stayed for too long. Mrs Musa apologised via text message to the paternal grandmother and received a short reply however there is still no contact between them. 7. Mrs Musa said in her evidence that despite this she would, if holding parental responsibility, be able to organise contact with the paternal grandmother as she did not have a problem with her. This evidence was however at odds with her evidence that the paternal grandmother was the one behind the having the children's recent proposed contact organised for the Sunday not the Saturday as Mrs Musa wanted. She also said she had information that the paternal grandmother was sly; talked behind your back and that one needs to exercise caution when having dealings with her. It was not made clear by Mrs Musa in her evidence how she would go about organising contact. 8. The paternal grandparents currently have supervised contact. Mrs Musa said she had not been told why their contact had to be supervised and had not asked why because "everyone was getting supervised." 9. Mrs Musa was asked how she would go about making a decision as to whether supervision was necessary for their contact if she had parental responsibility. Mrs Musa stated she had observed them to be "good with the kids" and said she would supervise them a few times and see how they went. 10. Mrs Musa made no mention of speaking to the paternal grandparents about their understanding or perception of the risk that their son poses to the children and their attitude in relation to allowing the children to have contact with him. This is despite Mrs Musa including in her affidavit "I understand the risk posed by Mr Anderson ….I understand that Mr Anderson had sexually abused several young people and that his offending behaviour was described as "chronic" involving both male and female victims…." 11. It is known that Mrs Musa has allowed her own son, from aged 8 years, to stay with Mr William Johnstone who drinks to excess daily and who can be violent when he has been drinking and that she considers there is nothing she can do about it. It is known that Mrs Musa has allowed Mrs McCallum to inappropriately question Noah, in Ellie's presence, and not only did she not understand the questioning was inappropriate, she did not believe she could stop it. 12. Mrs Musa has limited understanding of Noah's special needs, has limited insight into risks posed to the children, has difficulties in making properly informed decisions and formulating plans and difficulties asserting herself. These findings lead me to conclude that Mrs Musa, if holding parental responsibility, will not be able to consistently make informed decisions in relation to family contact in the best interests of the children. Although Mrs Musa has been willing and able to follow the rules for contact set by the Secretary, I am not persuaded that she would be able to assess the contact and supervision needs for the children, and then implement and enforce decisions in the context of this complex family. 13. Ms Helmore, in her affidavit sworn 9 August 2019 details the extensive efforts she went to in attempting organise contact for a sibling visit. 14. Mrs Musa's responses to these extensive attempts made by the caseworker did not indicate her support of the contact nor her willingness to compromise or engage meaningfully to make it work: * Mrs Musa did not respond to the email sent on 9 July 2019 by the caseworker regarding organising sibling contact. * Mrs Musa did not respond to the follow up email on 12 July 2019. Both emails were very friendly in tone, made it clear that it was sibling contact that was being organised and sought ideas and input from Mrs Musa. * On 25 July 2019, after receiving no response from Mrs Musa to the previous emails the caseworker sent Mrs Musa an email containing a contact proposal. Again the email was friendly in tone and clearly the focus was on sibling visits. * The caseworker sent Mrs Musa a text on 25 July 2019 alerting her to the email and seeking a response to it. * Mrs Musa replied that she had read the email, she did not agree and further that the contact should wait till after the court. The caseworker responded that "sibling contact is a huge concern for the court. What don't you agree with?" Ms Musa then replied "U trying to transition the kids already." The caseworker replied "No this is definitely not the plan. This is solely to support the sibling relationships." * Ms Musa followed these messages up with "still not agreeing to it until all court procedings (sic) r over" and then "They don't need overnight stay for sibling contact anyway." 1. Despite Mrs Musa's opposition, overnight contact was held on 26 August 2019. Mr Nigel Johnstone and Ms Hunter reported that the contact went well. Mrs Musa reported that the overnight contact did not go well. Ellie was very clingy afterwards and did not sleep well and Noah said he did not want to go again. 2. Mrs Musa stated that, in her opinion, overnight contact was not necessary or even desirable for children who had never lived together. The children are little and do not recognise the girls as their siblings so it is not important. Mrs Musa's says her opinion about this is from lived experience, not from books. In her own experience, and she sees from Ms Brown' experience too, contact with siblings is not always positive. The children can, when they are adults, make their own decisions about what relationship they want to have with their siblings. 3. In her opinion, overnight contact is not beneficial for the children and if contact was her decision she would probably decide that contact should be monthly, though not overnight. 4. Mrs Musa was clear that this decision was not about the quality of care that Mr Bob Johnstone and Ms Hunter could provide but was from the perspective of what is the best contact for the children. 5. Ms Philips considered the sibling relationship with Violet and Ellie to be important. 16.1 ....being placed with siblings identified as such by the children themselves, is a key protective factor when children are or have been in care …… 16.2 In the case of the subject children there is some recognition of the younger siblings by Violet and Elena because of what they have been told but not through shared experience. There is no awareness by Noah and Ellie of any siblings but each other with whom they have always lived. ….Since Noah and Ellie are still so young, there is time for them to develop close ties with their older siblings and to readily recognise them as such in the future. There is also time for Violet and Elena to be coached in being more responsive to and interested in their younger siblings." 1. Mrs Musa is clear that she will not support any overnight contact of the children with their siblings. She considers it unnecessary and sufficient that they will be able to develop a relationship when they are adults. This is contrary to the expert opinion of Dr Phillips, which was not challenged, and which I accept. 2. Mrs Musa has read the expert's reports and the other documents filed in these proceedings. She knows that both experts and the Secretary consider that the sibling relationships are very important and weigh heavily in favour of the change to the placement. I accept that the sibling relationship is very important to these children and should be appropriately nurtured and developed. 3. It is clear from the evidence that Mrs Musa is suspicious of Ms Hunter's intentions in relation to the children's care. She has formed the view from information she has received that it is Ms Hunter and not Mr Johnstone who want the children and when they are placed with her she is going to "dump" Mr Johnstone and move with the 4 children to New Zealand. The Secretary acknowledges that although there was a plan some time ago for the whole family to move to New Zealand, this is definitely no longer the case. 4. Mrs Musa made a number of allegations and disparaging remarks regarding Mr Nigel Johnstone and Ms Hunter throughout these proceedings. Although Mrs Musa and Mr Nigel Johnstone have been able to communicate to organise contact, given the history of the relationship and the allegations and disparaging remarks made, I cannot be satisfied that she will be consistently able to do that. 5. The relationships between the adults in the family are complex and fraught. During Mrs Musa's evidence she made negative remarks about, and/or described relationship difficulties with Ms Brown, Mr Anderson, Mr Nigel Johnstone, Ms Hunter, the paternal grandmother and Ms McCallum. I note also that Mrs Musa is very closely aligned with Mr William Johnstone. Mr William Johnstone, in the context of the attempts to organise family contact, recently sent Mr Nigel Johnstone texts which were somewhat threatening and entirely unwarranted and improper. Given these fraught relationships and Mrs Musa having shown in these proceedings that she can sometimes draw irrational conclusions from information she has received, (for example that Ms McCallum made up rape allegations because she and Mrs Musa were not speaking and the Secretary's caseworkers paid the Child Care Centre to make up allegations to disparage her) I have little confidence that Mrs Musa will be able to make safe, rational, well-informed decisions about the children's contact with their family. 6. If Mrs Musa had parental responsibility, she would rely on her own experience, and would not allow overnight contact between the children and Violet and Elena. I find that monthly contact, which does not involve overnight contact, is the type of contact sometimes described as 'identity contact.' It is not the type of contact which would allow the children to develop strong and lifelong bonds through shared experiences. I am not satisfied that Mrs Musa's proposal for contact between the children and Violet and Elena would be in the children's best interests. Positive aspects to parenting 1. There can be no question that Mrs Musa loves Noah and Ellie very much and that she genuinely and sincerely believes that it is in the children's best interests that they continue to live with her and Mr Musa. 2. There is also no question that there are many positive aspects to Mrs Musa's parenting, including: * Mr and Mrs Musa's home has always been observed to be tidy and hygienic * Mr and Mrs Musa have stable and suitable accommodation * Mr and Mrs Musa have established appropriate and predictable routines for the children and have been meeting their basic needs consistently * Mrs Musa is loving and takes good physical care of the children * Mr and Mrs Musa obviously love the children and there is strong bonding and attachment reported between Mrs Musa and Ellie and Mr Musa and Noah * The relationship between Mr and Mrs Musa is free of any violence * Mrs Musa has indicated a willingness to maintain the children's contact with their parents and extended family * Mrs Musa has resisted all pressure to allow unauthorised face to face contact with the children * Mrs Musa has attended a number of parenting courses * Mrs Musa is often willing to accept advise and support * Mrs Musa has ongoing support and assistance from a psychologist * Mrs Musa has ongoing support from her own mother Conclusion 1. After considering the evidence, I am comfortably satisfied that Mrs Musa will not be able to consistently make and enforce decisions to keep the children safe, promote their development and optimise the children's relationships with their siblings Violet and Elena until they are 18. Mrs Musa: * Lacks the necessary understanding of Noah's special needs, either lacking the instinct or willingness to gain the necessary understanding and has shown a lack of ability or willingness to actively pursue the services to promote Noah's development * Lacks an understanding of domestic violence * Is not able to appropriately identify situations that may pose a risk to the children * Cannot be relied upon to consistently make cogent decisions relating to the safety, welfare and wellbeing of the children, including decisions regarding contact * Does not demonstrate an ability to plan or develop strategies or problem solve 1. The Secretary has undertaken an assessment of Mr Nigel Johnstone and Ms Hunter as carers and that assessment has been positive. Both Ms Zhofova and Ms Phillips also assessed them and concluded that Mr Nigel Johnstone and Ms Hunter provide a very high standard of care to Violet and Elena and both recommended the children be placed with them and their siblings. The parties had an opportunity to ask questions about the assessment and suitability of Mr Nigel Johnstone and Ms Hunter to the caseworker and to the experts. 2. Mrs Musa complained that she was being subject to close scrutiny under cross-examination, yet the concerns she holds about Mr Johnstone and Ms Hunter as carers has not been examined. Mrs Musa however did accept, as did all the parties, that they have provided excellent care to Violet and Elena and have been able to address the girls' special needs. 3. The children have been with Mr and Mrs Musa since early 2017. I must and I do place considerable weight on the fact that the placement with Mr and Mrs Musa is the only home Ellie has known and it is the only stable home that Noah has known. I must also factor into my consideration the risk of moving the children. This risk is explained by Ms Phillips in her report of 14 January 2019. She acknowledges the potential trauma to the children of disrupting their attachment relationship with the Musas and she articulates the risk to the children if a move is unsuccessful. Her opinion is that placing the children with their siblings can only be justified if their current placement does not meet their needs. If there is a move to another household and that move unsuccessful, there is great risk of trauma for both children. Ellie is young enough to make a transition if the move happens smoothly and Hazel is able to support it. Noah has less investment in relationships within the current placement because his little life has had so many changes already. That also means he has fewer established strengths or positive coping strategies. He is likely to show more behavioural disturbance at the change. His behaviour may pose a risk to the new placement if the carers find themselves disliking him or unable to manage his behaviour. 1. Ms Phillips notes that Noah already has had the relationship with his parents severed and that he appeared to have lodged little dependence in the relationship with Mrs Musa. Ellie's bond with the Musas is much stronger, according to Ms Phillips and with the "appropriate timetable, she will be able to transfer her attachment seeking behaviours" to Mr Nigel Johnstone and Ms Hunter. 2. I agree with Ms Phillips that the argument for Noah and Ellie to be moved to be with their siblings has to be weighed against the strength of their connection with Mr and Mrs Musa and the potential trauma of disrupted attachments and the risks to the children in the event of a placement breakdown. 3. It has been argued that leaving the children with Mrs Musa (and giving her parental responsibility) is the least intrusive intervention in these children's lives. I am bound, of course, to apply the principle set out in section 9. The principle however is expressed to be however that "any action to be taken to protect the child from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development." As I have decided that Mrs Musa will not be able to protect them from harm and appropriately promote their development this principle does not support placement with Mrs Musa. 4. It was also argued that there could be some sharing of parental responsibility or allocation of parental responsibility to the Minister which would serve to address the risks identified. I cannot accept this argument. In order to properly safeguard the children, the person with day to day care and control of the children needs to be able to make decisions that are consistent with the child's safety, welfare and well-being and competently carry through the decisions that are made. I am not satisfied that Mrs Musa could do this. 5. Mrs Musa has very many positive attributes. Mr Musa is a sensible and intelligent man who has shown love and care for these children. There is evidence of strong attachments of the children to either or both Mr and Mrs Musa. There will be harm caused to these children in breaking those attachments. There is a risk of significant emotional or psychological harm to the children if the placement proposed by the Secretary fails. I am satisfied however that the children will be at risk if they remain with Mrs Musa in the long term and she will not be able to comprehensively meet their needs as they grow into adulthood. I am satisfied that the positive and stimulating environment of Mr Nigel Johnstone and Ms Hunter and the benefits of growing up with their siblings is the placement which is in the best interests of the children. 6. I am bound to make my decision based on what is in the best interest of the children. I acknowledge however that Mr and Mrs Musa will undoubtedly suffer from grief and loss from this decision as they obviously love the children very dearly and have put an enormous amount of effort and love into caring for the children over a long period of time. Ms Phillips considered that after a period of time to allow the children to settle into their new placement regular overnight contact would be appropriate. 7. The Secretary needs to develop, in consultation with Mr and Mrs Musa and Mr Nigel Johnstone and Ms Hunter and importantly with the advice and assistance of experienced and fully informed experts, an appropriate and flexible transition plan and an appropriate and flexible contact plan, one which takes into account the children's attachment to Mr and Mrs Musa. 8. I accept that the permanency plan filed by the Secretary, that the children be placed, under an order of parental responsibility to the Minister, with Mr Nigel Johnstone and Ms Hunter and their siblings, Violet and Elena, is in their best interests. I am not however satisfied that the Care Plan/Permanency Plan is adequate in relation to ongoing contact, particularly with Mr and Mrs Musa, and I will therefore adjourn the matter and make directions for the filing of amended Plans and for the filing of responses to the amended Plans. ********** 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: 11 October 2021