Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Cara (a pseudonym) [2021] NSWChC 3 Hearing dates: 5 July 2021 Date of orders: 5 July 2021 Decision date: 20 July 2021 Jurisdiction: Care and protection Before: Children's Magistrate Virgo Decision: Application dismissed Catchwords: Care and protection – prohibition orders – s 90A – categories of persons against whom orders can be made – history of amendments - prohibition order to prevent child residing with mother – impact on Minister's interim order for parental responsibility – consideration of Re Josie [2004] NSWSC 642 Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (Care Act) Child Protection Legislation Amendment Act of 2014 Children and Young Persons (Care and Protection) Amendment Act 2006 Cases Cited: Re Josie [2004] NSWSC 642 LZ and QJ v FACS [2017] NSWDC 414 Re Hilary & Ors (2008) 9 CLN DFaCS (NSW) and Abbey [2013] NSWChC 3 George v Children's Court of New South Wales (2003) 31 Fam LR 218 Category: Principal judgment Parties: The Secretary The Mother The Father Cara, the Child Cara's Independent Legal Representative (ILR) Representation: Mr Clarke, solicitor for the Secretary Mr Cavanagh, solicitor for the Mother Mr Attia, solicitor for the Father Ms Hall, solicitor, as ILR for the child File Number(s): 2021/00073002 Publication restriction: A pseudonym has been used and other non-identifying expressions have been adopted in this decision in accordance with section 105, of the Care Act Judgment Preliminary 1. I gave a short extempore judgment dismissing the ILR's application for a prohibition order against the Mother on 5 July 2021. By agreement between the parties, the matter proceeded by way of oral and written submissions and on consideration of the filed material. 2. This written judgment that provides detailed reasons for my decision. Issue: 1. Does a prohibition order made against a parent without parental responsibility indirectly fetter the power of the Minister with interim parental responsibility? Background 1. The child, Cara is a very young baby removed from her Mother's care and now in the interim parental responsibility of the Minister. The Mother has undertaken residential rehabilitation for her substance and alcohol addiction problems. The Mother has accepted a place at a new residential rehabilitation facility where Cara would be permitted to join her. 2. The Secretary proposes to move Cara to join the Mother but has not as yet determined the viability of restoration to the Mother. The Secretary advises he wishes to evaluate the Mother's prospects of restoration while the Mother is in a supportive environment while Cara is living with her under the supervision of counsellors and caseworkers working at the rehabilitation facility. 3. The ILR opposes placement of the child with the Mother. 4. The ILR filed an application seeking a prohibition order under s 90A of the Care Act against the Mother to prevent her living with the subject child. The Application 1. The ILR applies for a prohibition order to prevent the Mother from living with Cara while care and protection proceedings continue. The ILR argues that the evidence that discloses the benefit to Cara in leaving her current foster care placement to live with the Mother has not been put before the Court. The ILR is concerned that it is too soon to safely place Cara with her Mother and wants to ensure that this does not occur until there is at least a care plan filed in the Court that indicates the Secretary's position regarding prospects of restoration. 2. In written submissions to the Court, the ILR argues: 17. It is not known how the Mother will cope in the new residential rehabilitation nor how long it will go for. 18. It is too early to assess if the Mother can be stable enough to properly parent such a young baby who has already been exposed to significant trauma in her own short life. It is submitted that it is not known what steps will be taken if the Mother's mental health declines when in rehabilitation undergoing therapy for past trauma to protect the baby. If the Mother declines in her mental health it would likely mean Cara would have to be moved again back to her carer - providing the same carer would be available. The Secretary's position 1. The Secretary argues that in exercising its interim order for parental responsibility, it is up to the Minister, through delegated authority, (not the Court) where Cara is placed and that any order made prohibiting the Mother from living with Cara will effectively frustrate its exercise of parental responsibility with regard to placement. The Secretary relies on the judgment of Justice Levine in the matter of Re Josie [2004] NSWSC 642 (Re Josie). In written submissions the Secretary argues that the effect of the prohibition order would be to deprive the Secretary from a placement option for Cara: The Secretary asserts that the Court does not have power to make the order pursuant to section 90A, as to do so would effectively fetter the decision-making power of the Minister under his parental responsibility. By making the order as sought by the ILR, an option for placement is taken away from the Secretary/Minister, in circumstances where the first placement option the Secretary is obliged to consider is potential or possible restoration to a parent. Relevant provisions of the Care Act 1. Definitions of parent, parental responsibility and prohibition order under s3 of the Care Act provide as follows: * parent of a child or young person means a person having parental responsibility for the child or young person. * parental responsibility, in relation to a child or young person, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. * prohibition order—see section 90A (1) 1. Section 90A (Prohibition orders) of the Care Act provides as follows: (1) The Children's Court may, at any stage in care proceedings, make an order (a prohibition order) prohibiting any person, including a parent of a child or young person or any person who is not a party to the care proceedings, in accordance with such terms as are specified in the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility. (2) A party to care proceedings during which a prohibition order is made may notify the Children's Court of an alleged breach of the prohibition order. (3) The Children's Court, on being notified of an alleged breach of a prohibition order: (a) must give notice of its intention to consider the alleged breach to the person alleged to have breached the prohibition order, and (b) must give that person an opportunity to be heard concerning the allegation before it determines whether or not the order has been breached, and (c) is to determine whether or not the order has been breached, and (d) if it determines that the order has been breached—may make such orders (including a parent capacity order) as it considers appropriate in all the circumstances. (4) The person who is alleged to have breached the prohibition order is entitled to be heard, and may be legally represented, at the hearing of the matter. Competing arguments 1. The Mother argued that prohibition orders under s90A cannot be made against her as she no longer has parental responsibility. 2. I do not accept that limitation noting that the Court can and does make s90A orders against parents who do not hold parental responsibility for their children. For example, see LZ and QJ v FACS [2017] NSWDC 414 and the decision of Knox SC, ADCJ in which the following orders were made 1. That, except as provided for in Order 4, all aspects of parental responsibility for Y be allocated to the Secretary; 2. Pursuant to s. 90A of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the parents, LZ and QJ, are prohibited from discussing the effect of these orders with the children, A and Y (collectively referred to as "the Children"), other than in the company of a counsellor nominated by the Department of Family and Community Services. 3. Pursuant to s. 90A of the Act, the parents, LZ and QJ, are prohibited from denigrating the Children's carers or A in the presence of Y. 4. Pursuant to s. 90A of the Act, the parents, LZ and QJ, are prohibited from removing the Children from the Commonwealth of Australia without the prior written consent of the Secretary, Department of Family and Community Services. 1. The Mother submits that a prohibition order under s90A cannot be made against her in the terms the ILR seeks because the provision is directed at stopping a person from doing things that "that could be done by the parent in carrying out his or her parental responsibility". The Mother argues that as she does not have parental responsibility for Cara, any ability to live with her child is wholly subject to the discretion of the Minister, and that ability does not arise out of her carrying out her parental responsibility, being a responsibility she no longer has. Further, that s90A has no part to play in prohibiting persons from carrying out aspects of parental responsibility (such as caring for their child, even under the supervision of a residential rehabilitation program) where all aspects of parental responsibility are allocated to the Minister. 2. The Mother relies on decisions such as Re Hilary & Ors (2008) 9 CLN and DFaCS (NSW) and Abbey [2013] NSWChC 3. Those cases dealt with contact where the Minister held all aspects of parental responsibility and in which the Court declined to make prohibition orders. Re Josie [2004] NSWSC 642 1. In Josie's case the Magistrate made an order in the following terms: I order that there be no change in the placement of the young person until further order. 1. On appeal to the Supreme Court, it was held that it was not possible to prevent the Secretary from moving the subject child, where the Minister held all aspects of parental responsibility, including that of residence and placement. There was therefore no jurisdiction to make the order that fettered the Minister's exercise of parental responsibility in that way. 2. Levine J at [38] said: When one considers s79(2) and s81 and the order I have found in fact to have been made, namely that parental responsibility has been allocated to the Minister without qualification, exception or joint responsibility, then that parental responsibility solely to be exercised by the Minister includes residence, and the Children's Court has no jurisdiction to interfere with the exercise by the Minister of that sole parental responsibility in any way, let alone by the constraint sought to be imposed by the order under challenge. 1. Levine J went on to say at [39], referring to the decision of George v Children's Court of New South Wales (2003) 31 Fam LR 218: On my construction of the legislation and taking into account what I will describe as the important policy matters dealt with in George, the Children's Court, having even on an interim basis allocated sole parental responsibility to the Minister, cannot derogate in any way from the Minister's power to exercise it. 1. On the face of it, there is not a similar difficulty with the granting of the order the ILR seeks in this matter, given that it is a prohibition order directed at the Mother and not at the Secretary or Minister as it was in Re Josie. Does Re Josie still apply? 1. Josie's case concerned the interpretation of section 47 of the Care Act as it then stood in 2004. Section 47 has since been repealed and is now replaced with s90A. This occurred after the passing of the Children and Young Persons (Care and Protection) Amendment Act 2006. The wording of the two sections is different. The now repealed section 47 provided: The Children's Court may, at any stage in the proceedings, make an order prohibiting any person, including a parent of a child or young person, in accordance with such terms as are specified in the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility. 1. The Secretary's written submissions compared former section 47 with section 90A: 73. It is the submission of the Secretary that the only substantial difference between the wording of section 47 as referred to by Levine J in Re Josie and the current wording of section 90A is the inclusion of the expression 'or any person who is not a party to the care proceedings'. 74. It is therefore the submission of the Secretary that section 90A should be read in the same way that section 47 was read by His Honour in Re Josie. 75. The conclusion of the Secretary in this case is that section 90A does not confer power on the Children's Court of New South Wales to make orders that either directly or indirectly fetter or limit the minister in his/her exercise of parental responsibility as ordered by the Court. 1. I accept that the s90A is not dissimilar to s47 and that Re Josie applies to prohibition orders under s90A equally as it did to s47 orders. To whom does a prohibition order apply? 1. Section 90A(1) applies to "any person, including a parent of a child or young person or any person who is not a party to the care proceedings". It is therefore a relatively broad category of persons against whom a prohibition order may be made. 2. The Court has jurisdiction to make a prohibition order against the Mother, under s90A, in her capacity as Cara's parent notwithstanding the definition of 'parent' in s3 which says that a parent is 'a person with parental responsibility'. It is not disputed that the Mother does not have parental responsibility for Cara. However, s90A is not limited to parents to whom that narrow definition would apply. Section 90A applies to a broad category of persons, including a person from whom parental responsibility has been removed. 3. I therefore accept that the Court does have jurisdiction to make a prohibition order against the Mother, and specifically, I accept that a prohibition order such as that sought by the ILR could be made under the terms of s90A(1). What does the phrase "that could be done by the parent in carrying out his or her parental responsibility" mean? 1. I had some difficulty in interpreting the meaning of s90A because of the manner in which the provision defines the things that a person can be prohibiting from doing. The phrase "prohibiting any person…from doing anything that could be done by the parent in carrying out his or her parental responsibility" [my emphasis] is difficult to reconcile given the broad category of persons that prohibition orders may be made against. Section 90A(1) applies to 'other persons', and even to persons who are not parties to the care proceedings, not just to parents, but the types of things a person can be stopped from doing is addressed in more restrictive language and seems to imply that only a parent can be prohibited from doing something in respect of carrying out his or her parental responsibility. However, I take the phrase to imply that the 'type' of things any person can be stopped from doing are akin to the types of things a parent could do in carrying out his or her parental responsibility. It cannot mean that a person can only be prohibited from doing something if that person has parental responsibility for a subject child, such that if that person no longer has parental responsibility, they cannot be made the subject of a prohibition order. Amendments to section 90A - Child Protection Legislation Amendment Act 2014 1. I am strengthened in this view from an examination of the explanatory notes (Child Protection Legislation Amendment Bill 2013 – Explanatory Notes) and also the Legislative Digest Review (Digest NO. 50/55 – 25 February 2014) relating to the Child Protection Legislation Amendment Act 2014 that introduced the changes to s90A by the inclusion of the expression 'any person who is not a party to the care proceedings' to s90A(1) so that the amended provision became: (1) The Children's Court may, at any stage in care proceedings, make an order (a prohibition order) prohibiting any person, including a parent of a child or young person or any person who is not a party to the care proceedings, in accordance with such terms as are specified in the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility 1. The explanation for the addition of the words 'any person who is not a party to the care proceedings' to the section reads as follows: Schedule 1 [63] amends section 90A of the Principal Act to enable the Children's Court to make prohibition orders during care proceedings prohibiting any persons, including persons who are not parties to the proceedings, from doing anything that could be done by a parent in carrying out his or her parental responsibility. [my emphasis] 1. It seems that is was intended that the expression 'anything that can be done by the parent' was in fact meant to be ''anything that can be done by a parent' as that would make sense of the purpose behind the expanded category of persons against whom a prohibition order may be made. There does not seem to be any other way to reconcile the first part of sub-section 90A(1) with the second part of that provision without reading it as 'a parent'. 2. Be that as it may, I do not accept that the section is restricted in its application to only persons that hold parental responsibility such that the provision cannot apply to persons who no longer do. 3. It is my view, that if the subject child is to be placed with the Mother, the Mother will be carrying out limited aspects of parental responsibility in caring for Cara's day to day needs, albeit that it will only occur if and when the Secretary places Cara with her while she resides at the rehabilitation facility, and that the Minister will still retain full parental responsibility for Cara under the interim order. Definition of 'parent' and jurisdiction to make a prohibition order 1. The Court has jurisdiction to make a prohibition order against the Mother, under s90A, in her capacity as Cara's parent notwithstanding the definition of 'parent' in s3 of the Care Act which says that a parent is 'a person with parental responsibility'. It is not disputed that the Mother does not have parental responsibility for Cara. However, s90A is not limited to parents to whom that narrow definition would apply. Section 90A applies to a broad category of persons, which would include a person from whom parental responsibility has been removed, such as the Mother in this case. 2. I therefore accept that this Court does have jurisdiction to make a prohibition order against the Mother, and specifically, I accept that a prohibition order such as that sought by the ILR could be made under the terms of s90A. Is placing Cara with the Mother a 'backdoor' or 'trial' restoration? 1. The ILR submitted that by placing the child with the Mother at the rehabilitation facility would amount to a 'trial' restoration and would pre-empt the Court's ability to assess any future recommendation of the Secretary regarding restoration, as the child would already in effect, be restored. I do not accept that submission. 2. Whether restoration to the Mother is viable would depend on there being compelling evidence that the Mother would be able to safely care for Cara once the Mother had left the rehabilitation facility. While there is a risk that restoration may not be assessed as realistic even after a period of time together at the rehabilitation facility and Cara will have left her current foster placement in which she appears to be doing well, that risk is outweighed by the necessity of properly evaluating the prospects of restoration to her Mother. The proposed placement is not a backdoor restoration but it nevertheless does carry a risk that Cara may be removed from the Mother once more, if the Secretary ultimately, does not recommend restoration to the Mother. 3. I note the ILR's observation that the proposal to transition Cara to her Mother while she undertakes rehabilitation has seemingly been addressed from the benefit that it would have in relation to the Mother's rehabilitation rather than as a benefit to Cara's care. I share that concern too. However, I also note that the Mother has already undertaken a number of steps towards restoration and has shown motivation to keep going. The Mother has successfully completed a full rehabilitation program at a different facility and is ready to move onto the new rehabilitation facility and by all accounts is committed to that particular residential program in which Cara may accompany her. 4. I further note that the transition of Cara may need to be re-evaluated given that new rehabilitation facility has waived the usual 4 week settling-in period before Cara could join her Mother. The Secretary's representative advises that there is to be a psychological assessment undertaken before Cara is moved from her current foster carer and that at this point in time, given the sudden impact of the lockdown in the Greater Sydney region, that the Mother may not be able to take up her place as quickly as was previously indicated. In the meantime the Mother has indicated that she will remain at her current rehabilitation facility until such time as she can take up the place at the new rehabilitation facility. It is to her credit that she has volunteered to remain where she is and not return to her own accommodation while she waits to move onto the next phase of her rehabilitation. 5. I am not aware of any case law that considers the particular issue this application raises and note that the current relevant circumstances are factually different to Josie's case. However the prohibition order, if made, raises a clear insuperable difficulty - it would have the practical effect of preventing Cara being placed with her Mother while she undertakes rehabilitation at the proposed facility. While the order is an order that would prevent the Mother from residing with Cara (not an order made against the Minister) the practical effect of such an order will derogate from the Minister's exercise of parental responsibility in respect of residence. Cara could not be placed with the Mother if such a prohibition order was made. That will have the effect of removing from the Secretary a placement option for Cara. Such an order is impermissible because it would interfere with the Minister's powers. Conclusion 1. I would hope that the Secretary will administer its casework obligations appropriately and in Cara's best interests. Whether it is in Cara's best interests to join the Mother in the immediate short-term will be evaluated once a psychological assessment has taken place. I accept that the Court is unable to prevent the transition of Cara to the rehabilitation facility and that if it were to grant the order the ILR seeks, that would interfere with the Secretary's proposals for placement of Cara. 2. On that basis, and applying Re Josie, it is my view that the prohibition order, if made, would have the practical effect of fettering the Minister's parental responsibility and therefore I have no power to make it. 3. The ILR's application is dismissed. ********** 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: 12 October 2021