Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Murphy [2020] NSWChC 12 Hearing dates: 11, 12 and 13 December 2019 Decision date: 03 February 2020 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: (1) There is no realistic possibility of restoration of Jay to Ms Murphy (2) Permanency Planning has not been appropriately and adequately addressed Catchwords: Restoration, Permanency Planning, short-term orders Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Mental Health Act 2007 Cases Cited: The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC5 The Stonsky Children [2019] NSWCHC 8 Category: Principal judgment Parties: The Secretary, Department of Communities and Justice Ms Zala Murphy (mother) Jay Murphy (child) Representation: Ms Millers for the Secretary, Department of Communities and Justice Mr Herridge for Ms Murphy Ms Rowley as the Independent Legal Representative File Number(s): 2018/00032567 Publication restriction: Pseudonyms have been used for the child and his family Judgment Background 1. Jay Murphy was born on [ ] 2018. His mother is Zala Murphy. 2. Ms Murphy reports that she does not know the full name of Jay's father nor does she have any way of contacting him. He is of West African descent. 3. Ms Murphy was born in Ethiopia and came to Australia for medical treatment and was then adopted by an Anglo-Australian couple when she was 3 or 4. Ms Murphy left the home of her adoptive family when she was 16 due to a deterioration in her home life. She does not have contact with her adoptive family and her adoptive parents have not expressed any wish to have any contact with Jay. 4. Jay was assumed into care from hospital on 25 January 2018. The Secretary of the Department of Family and Community Services (now the Department of Communities and Justice) ('the Secretary') made that decision having assessed that Jay would be at risk of serious harm if he were discharged from hospital into the care of his mother. The Secretary's assessment at that time was that Ms Murphy was unable to demonstrate capacity to meet Jay's basic care needs as a newborn infant. It was alleged that Ms Murphy was refusing to engage in the feeding process and general care of Jay while in hospital and was having difficulty articulating her care of Jay and what preparations she had made for his care after discharge. 5. The Secretary, shortly thereafter, lodged a care application and then on 11 October 2018, filed a Care Plan recommending restoration of Jay to Ms Murphy's care. 6. On 31 October 2018 the Children's Court found that there was a realistic possibility of restoration of Jay to Ms Murphy. The Court made an order of parental responsibility to the Minister for a period of 6 months and then jointly to the Minister and Ms Murphy for 6 months, and thereafter to Ms Murphy. 7. The Children's Court also accepted undertakings from Ms Murphy which included that she: * not use illicit substances or expose Jay to any persons affected by illicit substances * undergo drug testing for a period of two years * engage with a restoration service * attend and engage with Newpin * continue to engage with Headspace * engage with Flourish Australia as directed by Community Services (It is noted that the placement with Flourish was not arranged by Community Services) 1. On 18 April 2019 the Secretary lodged an application pursuant to section 90 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') to vary the order of 31 October 2018 with an order of parental responsibility to the Minister to 18. 2. In support of the s90 application the Secretary stated that Ms Murphy had not met the minimum outcomes outlined in the Care Plan for Jay to be restored to her care. 3. On 23 April 2019 the Children's Court made an interim order of parental responsibility to the Minister and then on, 31 May 2019, granted the Secretary leave to bring the s90 application. 4. Jay was placed with his current carers on 29 January 2018, just days after his birth, and he has remained in this placement. The placement, case managed by MacKillop Family Services, is not a culturally appropriate placement. 5. On 29 March 2019 until 1 April 2019 and then again on 2 April 2019 to 4 April 2019 Ms Murphy was admitted to the mental health unit at Campbelltown Hospital. 6. On 31 October 2019/1 November 2019 and 2 November 2019 Ms Murphy was admitted as an inpatient to a mental health unit. On 4 November 2019 Ms Murphy was re-admitted and remained at Banks House, the Mental Health Unit at Bankstown Hospital until discharged on 26 November 2019. 7. The Secretary filed a Care Plan and Permanency Plan for Jay on 8 November 2019. The Secretary assessed there was no realistic possibility of restoration of Jay to Ms Murphy and proposed that Jay remain in his current placement permanently. The Secretary seeks an order of parental responsibility to the Minister for 2 years because the Secretary's states that his plan is for Jay's current carers to become his guardians within that time. 8. On 28 November 2019 the Secretary filed a single page Addendum to Care Plan stating that: Prior to the expiration of the two year order the Secretary will file a Section 90 application including a guardianship application in relation to Jay. Should anything arise during the two year period that contraindicates guardianship or should an unfavourable assessment be received, the Secretary will file a Section 90 Application prior to the expiration of the two year order seeking an alternate long term order in respect of Jay. Issues to be determined 1. Is there is a realistic possibility of restoration of Jay to Ms Murphy? 2. If there is found to be a realistic possibility of restoration then what final orders should be made? 3. If there is a finding that there is no realistic possibility of restoration, then should the Court make an order of parental responsibility to the Minister for 2 years, and if not what order should be made? 1. The Secretary's assessed there was no realistic possibility of restoration to Ms Murphy. The reasons for that assessment were was set out in the caseworker's affidavit of 18 April 2019. The Secretary's assessment was based on Ms Murphy: * having had two involuntary admissions to mental health units * having not demonstrated abstinence from drug use * having only intermittently engaged with Newpin * failing to continue her positive engagement with Headspace * failing to engage positively and appropriately with Jay at all contact visits * stating to the caseworker on 19 March 2019 and 11 April 2019 that she no longer wanted to pursue restoration (though she changed her mind on both occasions shortly after giving these indications) 1. Jay's Independent Legal Representative, ('the ILR') agreed with the Secretary's assessment that there was no realistic possibility of restoration due to: * Ms Murphy's unstable mental health and refusal to seek treatment * Ms Murphy's physical health issues and her failure to seek treatment * Ms Murphy's continuing drug use * Ms Murphy's failure to positively engage with Jay 1. Ms Murphy's view is that she has fully engaged as far as has been possible and there is no impediment to the restoration process. She said in her affidavit evidence that; * she was not given the opportunity to meet the minimum outcomes of the care plan * the mental health difficulties were due to the stress of having Jay away from her * she does not take any drugs * she was engaging with Newpin unless she was sick * she engaged with Headspace until she was sick * she engaged appropriately with Jay and attended contact * she stated she no longer wished to pursue restoration not because it was true but because she was so disheartened by the lack of progress and she had lost hope 1. The Secretary submits that permanency planning has been appropriately and adequately addressed and seeks an order of parental responsibility to the Minister for two years, during which time it will bring a guardianship application in favour of Jay's current foster carers. 2. Ms Murphy submits that if the Children's Court finds no realistic possibility of restoration of Jay to her care, then permanency planning has not been adequately and appropriately addressed. Ms Murphy argues that Jay should be removed from his current carers and placed with culturally appropriate carers. Ms Murphy's second alternative submission is that if Jay is not to be moved then permanency planning has not been adequately addressed by a two year order as proposed by the Secretary. 3. The ILR agrees with Ms Murphy that permanency planning has not been adequately and appropriately addressed and further that Jay's cultural needs have not been addressed. PART 1 - IS RESTORATION TO MS MURPHY A REALISTIC POSSIBILITY The Secretary's evidence regarding Ms Murphy's Mental Health and Drug Use 1. Dr Miah is a consultant psychiatrist who provided a report to the Court on Ms Murphy's mental health and psychiatric history at the request of the Secretary. His report was dated 14 September 2019. 2. In his oral evidence Dr Miah stated that he had read additional material filed since writing his report including a range of affidavits and contact reports, but nothing he had read changed his opinion. His oral evidence was consistent with his written report. 3. Dr Miah reported that Ms Murphy: * Did not believe she had any serious psychiatric problems and gave a vague account of her psychiatric history * Described two recent psychiatric admissions and attributed these to experiencing "breakdown" following unfavourable developments in her efforts at restoration of Jay * Was vague about the circumstances of these recent admissions and seemed to minimise their seriousness * Denied that there was any substance abuse, self-harm ideation or suicidality * Was not aware of having ever been prescribed any psychiatric medication (except for Valium prescribed when she was in hospital) * Denied any substance abuse or medication abuse past or present, except the use of cannabis once at age 16 years 1. Dr Miah wrote that: Ms Murphy attributes her repeated psychiatric admissions in 2019 to "stress attack". She implausibly refutes a number of the well-established circumstances of her admissions, including her involuntary status. She asserts that she was assessed as "mentally stable" in hospital. I suspect she came to this misguided impression from being discharged without treatment once her symptoms resolved to the point of her being no longer Act detainable (despite her serious presenting symptoms which were medically attributed to psychosis and personality disorder). 1. Dr Miah, referencing Ms Murphy's affidavit of 28 May 2019 refuting a history of drug use, stated: This seems completely implausible, being in stark contradiction to her extensive documented history of polysubstance abuse, particularly her own prior documented admissions of polysubstance abuse to Dr Josephine Anderson, child and adolescent psychiatrist. Ms Murphy has a convincing documented history of polysubstance abuse, contrary to the account she gave me. Beyond the cannabis positive hair follicle test in February 2019 however, I have no means of objectively implicating or excluding ongoing substance abuse. I am of the opinion, that the documented nature and rapidly remitting course of Ms Murphy's symptoms during recent psychiatric admissions in 2019, is highly suggestive of drug induced mood states and psychosis. Considering the weight of clinical history and evidence, I maintain a high index of suspicion for ongoing substance use disorder. 1. Dr Miah concluded that Ms Murphy's mental health is best treated by intensive psychotherapy and that such treatment will need to be long-term, likely years. 2. Records from Ms Murphy's contact with agencies relating to her mental health were available to Dr Miah and to the Court. Dr Miah noted from a Discharge Summary from Hornsby Hospital dated 3 February 2015 that, although the timing and sequence of events is not entirely clear from the documents, it seems that in mid-January 2015 Ms Murphy was admitted to Cumberland Hospital for three days with "disorganised behaviour and psychotic symptoms,? Substance induced" and then transferred to the psychiatric unit at Hornsby Hospital and detained under the Mental Health Act 2007. She was diagnosed there with "disruptive attachment disorder" and "substance misuse" 3. Notes from NSW Health suggest that 10 days after discharge from Hornsby Hospital Ms Murphy, on 1 February 2015, presented to Manly Hospital threatening suicide by overdose and violence towards her parents. Her urine screen was positive for THC (cannabis). She was briefly admitted to the psychiatric unit, detained under the Mental Health Act. She was then transferred back to the psychiatric unit at Hornsby Hospital for further assessment. Within a day, her symptoms resolved spontaneously and were attributed to "disrupted attachment" and "evolving cluster B personality traits" on a background of "early childhood trauma". It was also suggested that "ongoing substance abuse had contributed heavily to her current symptoms" 4. In reports from Manly Hospital, referred to by Dr Miah in his report, Ms Murphy was detained under the Mental Health Act in Manly Hospital in June 2016. She had presented intoxicated and threatening self-harm. She reported having recently smoked cannabis and taken LSD as well as binge drinking. She was assessed by the psychiatrist as showing "depressive features and disordered conduct complicated by substance misuse". She was prescribed the antidepressant Fluoxetine and on discharge referred to the Community Mental Health Team and the Drug and Alcohol Team for outpatient follow-up. 5. A report by Dr Josephine Anderson, Child and Adolescent Psychiatrist dated 29 May 2017 was tendered in these proceedings. Dr Anderson includes the following regarding Ms Murphy: * possible suicide attempt by drug overdose at age 12 years * onset of anxiety and depression around 14 years * traumatic anxiety around 15 years * paranoid ideation regarding flatmates stalking her belongings going missing * in 2015 a psychiatric admission of two weeks duration in New York after travelling there with grandiose ideas of going to Hollywood and signing a contract * illicit substance abuse admitted by Ms Murphy including regular cannabis use a few times weekly and prior use of ecstasy, LSD, cocaine and methamphetamine 1. In the COPS record of 2 April 2019 tendered, the following entry, referring to Ms Murphy as the patient, states: …about 7:40 AM on Tuesday, 2 April 2019 police responded to… Call upon arrival police observed the patient sitting on an awning covering the footpath, she was only wearing underwear and a black T-shirt. Police approach the patient from inside the hotel before walking out onto the awning and assisting the patient back inside. The patient was freezing to touch and was softly spoken, as a result an ambulance was called. Was waiting for the ambulance the patient stated to police several male POIs had tried to rape her at a home in [ ]. When police questioned the patient about these allegations she continually changed her story.….Ambulance personnel arrived and asked the patient why she was out on the awning in only her underwear and T-shirt to which the patient said a man had called her out there. When pressed on who the man was she said he was a random and he was the man who was on the ground when police arrived. Police establish the man the patient was referring to was the informant who contacted the police about her being on the awning.… Whilst at the RPA hospital police scheduled the patient under section 22 of the Mental Health Act… 1. A hospital Triage Report noted: BIBA – taking meth for 3/7 – worried has taken too much – stating at triage that she wants help 1. A hospital Triage Report of 1 November 2019 noted: BIBA brought from Police Station, turned up to police station in sheet, has taken ICE, stating about being with God 1. A Progress Note in the hospital records of 2 November 2019 stated: Patient now engaging in conversation, patient stating that she wants to go home and that she had kids to care for and she had appointments. Advised patient that she is admitted under the Mental Health Act and she is not allowed to leave. 1. In the hospital Progress Note of 3 November 2019 it is stated that: Female sectioned 19 for bizarre behaviour in waiting room – Patient was discharged this mane and while waiting for taxi to arrive, observed by staff displaying very bizarre behaviour. [Ms Murphy] was whispering incomprehensively to [a co-patient]…..When engaging with nursing staff she was noted to be tangential and illogical in thought form. Having religious delusions, Believed that the patient she was following in the waiting room came to her at night and forgave her for her sins. Stated that he gave her the knowledge to understand him. Stated that God was with her all the time. Difficult to follow in conversation and often did not make sense… 1. The Progress Note Clinical Nurse Consultant Horne dated 4 November 2019 stated: Reviewed Patient with Dr Drake This is her 3rd presentation in 3 days. She was discharged yesterday morning but brought back again under the schedule due to bizarre behaviour. She continues to present as guarded and suspicious with limited engagement….Detained as mentally ill. 1. In the hospital Progress Note RN Bains of 4 November 2019 it stated: Pt advised that she took ICE 3 days ago and because of that and the current psychotic sx she is sceptical to take drugs 1. A Progress Note from Trainee Specialist Peake is also included in the hospital notes as follows: Zala reporting that she took something on Friday and made her paranoid for the preceding few days. Reporting that she smoked the ICE. Reporting that admission to RPA was because of stress….. Zala reporting worries that she isn't feeling completely normal. Reporting has used ICE "once, two, three times." Peer pressure driving factor for drug use…" 1. The hospital Progress Notes from Social Worker of 4 November 2019 stated: Patient reports she had taken ICE prior to her admission. Claims this was due to peer pressure by a male friend, someone other than the person she resides with, and has no plans to continue use of same. Denies substance use history. Expressed remorse for using ICE and showed insight into her drug induced psychosis. 1. The hospital Progress notes of 4 November 2019 stated: Continue to manage as involuntary 1. The hospital Progress Notes of Ms Chami, Occupational Therapist, 8 November 2019 state: Pt reported being admitted to hospital due to taking drugs and needing to 'get better' Pt reported that she is not a drug user but had been forced to take drugs by a male friend on this occasion Ms Murphy's evidence regarding her mental health 1. Ms Murphy states in her affidavit of 28 May 2019 that she went to Liverpool Hospital in March 2019 because of a stress attack and that this was a voluntary admission. A couple of nights later she stated she was staying in the city and had another stress attack and asked a man for help. She denies being on an awning at the time. The police took her to Prince Alfred Hospital where she stayed for two nights, again as a voluntary patient. 2. In her affidavit of 6 December 2019 Ms Murphy set out her evidence in relation to the hospital admissions in October and November 2019. She stated the first admission on 31 October 2019 was due to a panic attack, and it is not true she was found only wearing a sheet. She stated she was discharged the next day, though still felt fragile and on 3 November she called an ambulance from near Liverpool station and was admitted to the Mental Health Unit where she remained, always as a voluntary patient, until she discharged herself on 26 November 2019. Ms Murphy stated she remained in the Mental Health Unit as she was comforted by the support of the nurses, having very little support in the community. 3. In her oral evidence Ms Murphy maintained that many of the facts recorded by police, ambulance and hospital staff in their records regarding the circumstances surrounding her admissions were incorrect. Ms Murphy was adamant that she was always a voluntary patient. Ms Murphy stated that she understood the difference between a voluntary and involuntary patient. Even when confronted with documentary evidence that she was an involuntary patient during her admissions in 2019, Ms Murphy remained firm in her evidence that all admissions to the mental health units were instigated by her, were voluntary and resulted from stress or panic attacks due to feelings of isolation and separation from Jay. 4. Ms Murphy's evidence was that, in addition to the stress caused by the separation from Jay, a lack of support also contributed to her admissions to the mental health units. Ms Murphy did not consider this would be an ongoing problem if Jay was in her care because she would have services at the beginning of the restoration process and she would be in touch more often with her family in Ethiopia and she would have support from friends. 5. Ms Murphy's evidence was that stress will not impact her ability to care for Jay because the stress she has suffered has been caused by her separation from Jay and will resolve when Jay is restored to her care. Ms Murphy was firm in her view that if Jay were to be restored to her care she will no longer have any need for assistance in mental health units and the stressors of looking after a young child will not be such to initiate any mental health concerns. 6. Ms Murphy has not followed up on any treatment after discharge from hospital nor has she taken medication after discharge. Ms Murphy states she was not given any recommendations for follow up treatment. She denies that she was told she would benefit from psychotherapy and does not agree that this would be of any benefit to her. 7. Ms Murphy acknowledged that, when final orders were made for Jay in October 2018 she signed an undertaking to engage with Headspace. Ms Murphy acknowledged that there was no engagement after only one week of the date of the undertakings. Ms Murphy further acknowledged that Headspace sent her a message or email on 30 October 2018 and 5 November 2018 and Headspace therefore closed their file. 8. Ms Murphy agreed that she went for four months without seeing anyone from Headspace but said this was because of miscommunication. She had lost her phone, she was trying to contact Headspace to get an appointment, the psychologist she was seeing was no longer available and it took her a while to get the new referral she required. 9. When Ms Murphy was asked why, on 11 April of 2019 when Headspace called her " today to see if she would like more support from us and she has declined for now" Ms Murphy stated in evidence "I don't know why I would have done that." The Secretary's evidence regarding drug testing 1. Between 25 July 2017 and 7 August 2019 Ms Murphy missed 4 out of 4 urinalysis appointments. Ms Murphy agreed she only went to one urinalysis appointment. She denied in her oral evidence that it was because she had fears they would not be negative. She said it was because she was suffering from heartburn each time. 2. Ms Murphy agreed that on 18 February 2019 she received a request to undertake a hair follicle test. She gave evidence that refused the initial request because she did not want to cut her hair. 3. She did agree to undertake a hair follicle test on 25 February 2019. The result of the test was contained in a report stating that: ….. This test reflects the period from approximately late October/early November 2018 through two late January/early February 2019. ….This finding is indicative of relatively frequent use of THC during the time line although it is also possible that this small amount has arisen due to external contamination of the head. There is no indication of use of any of the other substances which we include in our testing panel. 1. Clarification of the result was sought by the caseworker and in an email dated 29 May 2019 the doctor replied as follows: It is not possible to be absolute when relating hair levels to amount used but this level of 77 PG/MG care would typically be seen in subjects who use a "standard" dose of cannabis once or twice a day each day for the three months represented by the hair sample tested. This equates to say 90 to 200 "standard uses". Of course the THC would not have to be used in this fashion, that is on a daily basis. If the same number of uses occurred in several episodes lasting a week or so with many used per day, episodes which were temporally separated from each other by periods of infrequent use or abstinence, the same head THC level could be achieved…. In this case, there was no THC detected in the wash solution. This strengthens the likelihood of direct use by the subject such that direct use is highly probable although there is a small possibility that even this hair finding has resulted from environmental exposure and passive inhalation rather than direct to use. The latter aetiology is however, as stated highly improbable. With respect to the nature of passive exposure which would produce this pattern of findings if passive exposure is indeed the aetiology of the findings, in my opinion, the frequency of exposure and the amount present around the subject would have to be very high. A possible scenario would be if the subject lived in an environment shared by one or more heavy users who used within the confines of the shared accommodation. 1. On 3 and 4 November 2019 urine drug tests were performed on collections taken from Ms Murphy whilst she was a patient at the mental health unit. On 8 November 2019 the notes contain confirmation that methamphetamine was detected in both of these collections. These collections also detected olanzapine, an antipsychotic medication. Ms Murphy's evidence regarding drug use 1. Ms Murphy accepted the result from the hair follicle test but stated that it must have been because she lived in shared accommodation where her housemates were heavy cannabis users and/or due to her using cannabis oil for medicinal purposes for an ulcer. 2. Ms Rowley sought to clarify this evidence in her cross-examination of Ms Murphy. Q. Just to confirm my understanding of your evidence, this person with whom you're currently sharing is the person who you say is a cannabis smoker or a cannabis user? A. Yeah Q. What sort of frequency does he smoke cannabis in your presence A. I'm not always there so I would say just like night-time and stuff Q. But if you're not there, how do you know to give that answer? I asked if he smokes in your presence, that means does he smoke in front of you? A. Sometimes Q. When you say "sometimes" is that on a frequent basis or.. A. I guess yeah 1. Ms Murphy agreed that in April 2019 she may have told the caseworker she had a joint but that was not true, she had been on Valium at the time. 2. In her oral evidence Ms Murphy was adamant that she does not use drugs, and that save for one time when she smoked cannabis at age 16, she has never used drugs. She denies ever stating to any mental health professional or medical professional that she took drugs. 3. Ms Murphy stated in her oral evidence, that if it was written in her affidavit that she had used any drugs (besides the single time at age 16 when she smoked cannabis) then that information in the affidavit is wrong. 4. Ms Murphy agreed she missed urinalysis appointments but explained that this was at first because she had no identification and also because her ill-health from ulcers and heartburn prevented her from doing so. 5. Ms Murphy agreed that she sent the following text message to the caseworker on 5 August 2019 regarding non-attendance at urinalysis: Because you won't give me another contact. Why should I co-operate when you won't? 1. Ms Murphy's evidence was that it wasn't the real reason she didn't go, she just said it was because she was "emotional." The real reason, she stated in her evidence, was heartburn. Ms Murphy's evidence regarding her physical health 1. In her oral evidence Ms Murphy reported a history of heartburn since 2016. She says she has it daily and sometimes she cannot even walk because of the pain. The heartburn was the reason her attendance at Newpin was not as expected. Ms Murphy agreed, when giving evidence, that she has been late for contact but says this is due to her illness. 2. Ms Murphy's explanation as to why she did not undertake all the tasks required of her in the prior restoration plan was that she was unable to do so because of the debilitating effect of her heartburn/ulcers. She was asked why she did not have treatment for her illness. Ms Murphy replied: Mainly because I didn't – I was hesitant about taking medication and I was hesitant about getting an…endoscopy. I didn't want to get an endoscopy… 1. Ms Murphy stated she is now willing to have an endoscopy and changed her mind: Because I understand that if Jay does come back I don't want it to affect anything, I don't want to miss any more appointments and continue missing appointments 1. Ms Murphy stated that she would accept the minimum outcomes set by the Secretary for restoration to occur and enter into similar undertakings as she did when the matter was finalised in October 2018. Ms Murphy stated she would be willing to work with services and the Secretary's caseworkers. 2. Ms Murphy's evidence was that she would be able to attend all these services and she would be able to do so now because "hopefully gotten my endoscopy and more medication for my heartburn." 3. Ms Murphy was asked in cross-examination what changes she would need to make in order to meet the minimum outcomes if restoration was ordered when she failed to meet those requirements last time. Ms Murphy replied the only things that would need to change are that she would need to not be so sick and she would need to be more punctual. 4. Ms Murphy gave evidence that although it was stress that caused her admissions to the mental health units in 2019 the stressors of caring for Jay would not result in any deterioration of her mental health as it is a different type of stress and one which she knows definitely will not require any treatment. 5. Ms Murphy stated that isolation and lack of support also contributed to her admissions to the mental health unit. She stated that having Jay with her means she will no longer be isolated as she will have Jay with her, making her feel less isolated. She also says she has friends who can support her. 6. Ms Rowley asked Ms Murphy the following: Q. if you're feeling unwell for medical reasons ….who will you ring? A. I wouldn't feel unwell for medical reasons because he'd be back in my care 1. Ms Murphy agreed to accept any services that the Secretary considered appropriate and agreed to work co-operatively with the Secretary for Jay to be restored to her care. Although she stated she will accept services and work co-operatively to have Jay restored, Ms Murphy gave evidence that: No I don't think I need to rely on support. I support myself and I don't think I need it, But I'm not, I'm not resisting it. The Legal Framework - Restoration 1. The President of the Children's Court, Judge Peter Johnstone, has 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. 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 foster 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. It is now well settled law that the proper test to be applied in care proceedings in respect of final orders is that of "unacceptable risk to the child": M v M [1988] HCA 68 at [25]. That case dealt with past sexual abuse of a child but the principles there set out apply to other forms of harm, such as physical and emotional harm. A positive finding of an allegation of harm having been caused to a child should only be made where the Court is so satisfied according to the relevant standard of proof, with due regard to the matters set out in Briginshaw. Nevertheless, an unexcluded possibility of past harm to a child is capable of supporting a conclusion that the child will be exposed to unacceptable risk in the future from the person concerned: at [26]. Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This is an exercise in foresight. The Court must examine what the future might hold for the child, and if a risk exists, assess the seriousness of the risk and consider whether that risk might be satisfactorily managed or otherwise ameliorated… Thus, one needs to examine the likelihood of the feared outcome occurring, and secondly, the severity of any possible consequences. The risk of detriment must be balanced against the possibility of benefit to the child…. 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 submissions of the Secretary 1. The Secretary submitted that there was no realistic possibility of restoration of Jay to Ms Murphy. 2. All the child protection concerns put to Ms Murphy during the evidence have been denied by her, including drug use and mental health concerns. Without an acknowledgment of the concerns there can be no confidence that Ms Murphy will take any steps to address those concerns and if Jay is placed with his mother he would be at risk of harm. 3. Ms Murphy has failed to meet the minimum requirements for restoration to her and she has breached her undertakings, including failing at times to engage with Community Services, failure to engage with Newpin and not remaining drug free. 4. Additionally the several recent hospital admissions could not give the Court any confidence that the mental health concerns sparked by those recent hospital admissions have been addressed. The submissions of Ms Murphy 1. Ms Murphy concedes that to make a finding that there is a realistic possibility of restoration, the Court would need to see at least some "green shoots of promise" or, in other words her being on a trajectory of improvement. 2. Ms Murphy has taken significant steps towards achieving the minimum outcomes. Ms Murphy's case is that she tried to engage with Headspace although it was conceded that she could have taken additional steps towards engagement she had gone to Newpin and developed a therapeutic rapport with the worker there. 3. The weightiest minimum outcome in the restoration plan was that Ms Murphy be able to demonstrate an ability to care for Jay on a 24 hour basis. She has not been able to do that because the referral to Flourish, the residential unit, was effectively withdrawn. The mother's case is that between the last proceedings and these proceedings her progress plateaued because she couldn't go to Flourish. The only opportunity she has therefore had to show she can physically care for Jay is during supervised contact. There have been no serious concerns raised about her parent craft and certainly nothing that could not be remedied by a service such as Flourish, particularly given she is a young mother and Jay is her first child. 4. It was conceded that the hospital admissions during 2019 would be a source of concern to the Court but submitted that the Court could take comfort from the fact that all the admissions were due to the mother herself identifying she was unwell and seeking appropriate help. Although Ms Murphy disputes how she was processed whilst she was at the hospital it is clear she initiated the admissions. 5. Mr Herridge submitted, on behalf of Ms Murphy that I could place little weight on the opinion of Dr Miah. Dr Miah provided no diagnosis, he only saw Ms Murphy for an hour and relied to a great extent on collateral history. Mr Herridge asked me not to treat Dr Miah's evidence as decisive as Dr Miah took a flawed approach to the assessment, not reading all the documents before the assessment and therefore failing to be able to put Jay, during the assessment, the historical concerns. 6. It was submitted on behalf of Ms Murphy that the result of the Hair Follicle Test could be explained as environmental. The evidence from the Secretary is that although this is unlikely, it cannot be ruled out. In relation to the references to ICE use in the hospital notes Ms Murphy submits that the reports are anecdotal and denied by Ms Murphy. The mother denies all drug use and is willing to undertake random testing into the future. 7. If the Court takes the hospital records on their face and Ms Murphy did in fact tell the treating professionals at the time of the admission that she had taken ICE the Court could consider this as a source of comfort because it shows Ms Murphy is forthcoming at the time of crisis which is exactly what the Court would want to hear from a parent entrusted with a restoration. Although the Court may consider her subsequent denial of any drug use tempers that submission to a certain extent, it is clear that when Ms Murphy is distressed or frightened she can be forthcoming and frank and seek help. 8. Ms Murphy is seeking a finding that there is a realistic possibility of Jay being restored to her care and asks that a further Care Plan containing a Restoration Plan be filed. 9. Ms Murphy is on a trajectory towards being able to care for Jay. She has tried to engage with Headspace, has established a therapeutic rapport with Newpin. It must be acknowledged that Ms Murphy has never had the opportunity to care for Jay as the proposal that she and Jay go to Flourish was withdrawn. The only opportunity she has had to show she can care for Jay has been in contact. There have been no serious concerns raised about Ms Murphy's parent craft in contact. 10. In summary Ms Murphy asks the Court to recognise what she has done, that there were limits placed on what she could do (Flourish not made available), she is a first time mother who has her shortcomings but they are not shortcomings that cannot be overcome by an understanding of how her past has defined her present. This need not define her future. Submissions of the Independent Legal Representative 1. The ILR supported the Secretary's assessment that there is no realistic possibility of restoration of Jay to Ms Murphy, whilst acknowledging that Ms Murphy cares very deeply for her son and that she has had an extremely difficult and traumatic past. 2. Ms Murphy, in the ILR's submission, maintains unrealistic and immature expectations of what it would be like to parent Jay and she has no realistic understanding of the day to day stressors and obligations parenting brings with it. 3. Ms Murphy's evidence demonstrated that she was not accepting of the stressors parenting brings and took the view that having Jay in her care would alleviate the stressors and the sadness she has experienced. The ILR submitted that the Court could not be satisfied that if the stressors overwhelmed her, and they probably will, Ms Murphy will not get the necessary help. 4. The ILR submitted that the Court must have regard to the debilitating physical health the mother described in her evidence. The ILR considered that Ms Murphy's physical health looms large in Ms Murphy's life and impacts her daily functioning. Despite this Ms Murphy was not able to provide a cohesive plan to resolve the illness so the debilitating effects she described will not impact her parenting. 5. The hospital admissions since final orders have eroded any gains Ms Murphy made early after the orders were made in relation to the attendance at Newpin. Ms Murphy's does not accept any mental health issues and maintains the admissions were voluntary. Unless and until Ms Murphy accepts that there are mental health issues she will not be able to address them. 6. Drug use will remain an issue until Ms Murphy effectively engages with urinalysis. Contrary to Ms Murphy's evidence regarding the hair follicle testing, Ms Murphy did not pass that test. There was evidence of cannabis use and no reasonable explanation for the mother's failure to attend urinalysis. Drug use by Ms Murphy therefore remains a risk for Jay. 7. The ILR submitted that it is not in Jay's best interest to make another attempt at restoration as Ms Murphy believes that everything will be alright if he is restored to her care. This attitude puts Jay at an even higher risk than if she did recognise that there will be stressors and she will need assistance. Conclusion 1. I do not accept the criticism of Dr Miah's opinion on the basis of the way in which he went about formulating it. Dr Miah read all the documents provided and interviewed Ms Murphy before completing his report. Dr Miah is a highly qualified and experienced expert. His report was comprehensive and well- reasoned and his oral evidence was measured and considered and I accept his evidence. 2. Although I accept that the notes from the hospital and emergency services are not always wholly accurate, in this case the combined weight of the records from hospitals, medical professionals and police is compelling. On the other hand, Ms Murphy's version of the circumstances of admission to hospital during 2019, her evidence she was a voluntary patient and her admissions being solely due to lack of support and stress is rejected. The evidence was not only contrary to the weight of evidence from a multitude of services but was often implausible. 3. I find that Ms Murphy has been admitted as an involuntary patient to mental health units in 2019 and several times prior to 2019. Ms Murphy has suffered from symptoms of psychosis. Throughout the hospital notes there has been a suggestion or suspicion or expression of drug use. There were also multiple notes whereby Ms Murphy disclosed drug use both during 2019 and historically. I agree with Dr Miah's description that "Ms Murphy has a convincing documented history of polysubstance abuse." 4. Ms Murphy's evidence that the hair follicle positive test was due to environmental use was vague and unconvincing and in light of her own multiple admissions to drug use and the uncontested expert opinion that the environmental use as the cause of the positive result was "highly improbable," I reject her evidence. 5. The positive drug tests, Ms Murphy's admission to drug use to multiple professionals over time and the opinion of Dr Miah that "the documented nature and rapidly remitting course of …symptoms during recent psychiatric admissions in 2019 is highly suggestive of drug induced mood states and psychosis" leads me to conclude that drug use is an ongoing issue for Ms Murphy. 6. I conclude that Ms Murphy has both mental health issues and issues with drug use which, if Jay was in her care, would put him at an unacceptable risk of significant harm. 7. Ms Murphy has failed to access ongoing treatment for her mental health in the community and is adamant that she does not have any mental health issues that require treatment. 8. If Ms Murphy was sincere when she was giving her evidence regarding her mental health, including her insistence she was a voluntary patient, despite clear and cogent evidence to the contrary, this shows an almost total lack of insight into her mental state. This lack of insight, combined with her history of not accessing support and treatment in the community, including with Headspace after giving the Court an undertaking to do so, could not lead me to conclude that that Ms Murphy would reliably engage, on an ongoing basis, with services to support her mental health. 9. Ms Murphy does not acknowledge that her mental health or drug use is an issue for her. She has a history of failure to engage appropriately with services, even after making an undertaking to do so to the Court. In these circumstances, the unacceptable risk cannot be ameliorated or managed. 10. Ms Murphy's own evidence was that for some years she has suffered from debilitating physical illness, heartburn and ulcers, and this is the main reason why she was not able to engage with the services the Secretary arranged to facilitate restoration of Jay to her care. She said she does not like to take medication and in the past she was not willing to have an endoscopy, though this has changed and she is now willing to have the necessary tests and treatments because she understands now how important it is do so. Ms Murphy did not provide an explanation as to how it is only now that she appears to have developed an insight into the importance of seeking treatment for an illness that has, on her case, halted the restoration of her son and prevented her from attending all the contact sessions that have been offered to her. Ms Murphy gave no explanation as to when she made this decision to seek tests and treatment or why she hasn't already started the tests or treatment, and only indicated a willingness to do so. 11. I accept the ILR's submission that Ms Murphy maintains an unrealistic and immature expectation of parenting and has limited insight into the stressors she would face if Jay was in her care. Although it may be possible to provide services to alleviate or address those concerns, due to Ms Murphy's limited insight she does not accept that she needs supports. This lack of insight combined with her previous failure to sufficiently engage with services gives me little confidence that Ms Murphy would positively engage with the support that would be necessary to safely care for Jay. 12. Ms Murphy's mental health and drug taking and her inability to reliably attend necessary appointments lead me to conclude that there is an unacceptable risk to Jay if placed with Ms Murphy and there is therefore no realistic possibility of restoration of Jay to Ms Murphy's care. PART 2 – PERMANENCY PLANNING The Legal Framework 1. In the case of The Secretary of the Department of Communities and Justice and Fiona Farmer [2019] NSWChC5, the President of the Children's Court summarised the permanency planning provisions of the Act. 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. 1. Amendments to the Act which contained in s79(9) and 79(10) of the Act provide that the maximum period for which an order of parental responsibility to the Minister can be made is 24 months following the Court's approval of a permanency plan involving restoration, guardianship or adoption unless the Children's Court is satisfied that there are special circumstances that warrant the allocation being for a longer period. 2. Recently in the case of the Secretary, Department of Communities and Justice and the Stonsky Children [2019] NSWCHC 8, Children's Magistrate Hayes was asked to consider what final orders should be made for three boys Anthony (3), Issac (3) and Stephan (1). 3. In that case a finding was made that there was no realistic possibility of restoration to either parent. 4. The Secretary proposed short term care orders of parental responsibility to the Minister for two years with a view to adoption by the carers of the children, the placement of the children with those carers being "recent". The short term order was opposed by the parents and the ILR, who all sought an order of parental responsibility to the Minister to 18. 5. The father argued any consideration as to adoption was premature therefore the Court could not be satisfied that the plans met the needs of the children and consequently planning had not been appropriately and adequately addressed. 6. The ILR argued that permanency planning had not been achieved as the plan for adoption was aspirational as it was what was hoped would occur within the next two years. It was argued that a mere intention for adoption to take place does not meet the permanency planning principles and further the Children's Court has little recourse to ensure that the adoption aspirations are met. 7. The ILR argued that a two year parental responsibility order to the Minister is likely to result in further proceedings because of the timeframes for adoption generally, and particularly in this matter because of the complexities where placement is at an early stage with limited information as to how the children are progressing, carers not being duly authorised, the medical needs of children, contact issues, capacity issues, case management issues; and a possible s 90 application from the father. 8. The ILR submitted that there were so many areas where the outcome is unknown that special circumstances could be found. This finding then, would not limit the court in making an order of parental responsibility for a period of not more than two years. 9. His Honour found that there were good reasons for placing adoption as a preferred outcome in order to achieve permanency and that the current carers had been assessed regarding their viability as carers for the three children, had the children in their care, were highly regarded and experienced foster carers, had already adopted three children who were thriving, had these boys placed with them with a view to adoption and wished to adopt them. The children were settled and happy in their placement in a home large enough to accommodate them. 10. His Honour concluded on the basis of these findings that the adoption plan was real and not simply aspirational. However he found that it was unlikely that the adoption process would finalise within two years and there was no allowance in the proposed plan of what was to happen after the two years lapsed, for example, if the adoption process broke down within that two year period. 11. His Honour concluded that the way the Care Plan read would not prevent the Secretary making an arbitrary decision as to placement of the children if adoption did not proceed. 12. His Honour considered that any proposed Care Plan should place an onus on the Secretary to bring an application for rescission under s 90 of the Act in the event that the adoption was delayed or did not proceed. Otherwise, the concern was that if two years pass parental responsibility would revert to unsuitable parents. His Honour found that without a mechanism in the Care Plan to ensure a s 90 application is made if the adoption did not proceed, permanency planning had not been appropriately and adequately addressed. The Secretary's submissions re permanency planning 1. The Secretary submits that as there is a plan for guardianship the Court is bound, by the terms of s79(9) to make an order of parental responsibility to the Minister of no more than 24 months (referred to as a short term care order.) There is a plan, contained in the Addendum to the Care Plan, in the event the Secretary decides not to pursue guardianship. Ms Murphy's submissions re permanency planning 1. It was acknowledged that the Court may consider that the already established attachment and quality of care provided by the current carers trumps other considerations and the placement should be maintained as a long term placement. Ms Murphy submits that even if the Court is willing to agree a permanency plan involving the non-culturally appropriate placement for Jay the Court would not approve the completely inadequate Cultural Plan filed by the Secretary. 2. Neither could the Court accept that permanency planning has been addressed in relation to the making of a short term order. A plan to formulate a plan is not an adequate or acceptable permanency plan and does not comply with the permanency planning provisions of the Act. 3. If the Court was to find that there was no realistic possibility of restoration then Ms Murphy submits Jay should be placed in a culturally appropriate placement. She does not want the feelings/problems she had to endure being in a non-culturally appropriate placement replicated in her son. It is a source of huge regret to the mother that she did not grow up engaged in any Ethiopian traditions. She does not want Jay to grow up to feel the sadness and the loss she feels. 4. It was submitted that there has been an abject disregard for cultural traditions by the carers and this is highlighted in the failure of the carers to care for Jay's afro-textured hair. It was further submitted that the carers shaving of Jay's hair is a concern in that it provides an early glimpse of the autonomy these carers feel and the way they will act if they have a guardianship order. 5. It was submitted that the Permanency Plan submitted by the Secretary is not in fact a permanency plan but is actually just a "job list" and, as such, it should not be accepted by the Court. 6. The Care Plan/Permanency Plan provided for Jay is effectively "give us the order and then we will make a plan." This approach however is not permissible as it is inconsistent with the legislation. 7. AIthough the recent amendments inserted s 79(9) and (10) of the Act there was no amendment to s78A of the Act. Permanency planning means that the making of a plan that provides the child with long term security and S78A(2A) is highly relevant. 8. Also crucial to the consideration of permanency is s83(7A). Ms Murphy submits that s83(7A) requires that, prior to final orders being made, the Court needs to have a reasonably clear picture as to the childs needs and how they are going to be met. 9. Ms Murphy further submits that, as a result of these provisions, the Secretary cannot say to the Court "you give us the order and then we will make the plan." Submissions of the ILR re permanency planning 1. The ILR submits that another permanency plan is necessary. She is not advocating Jay be moved from his current placement as she could not be confident culturally appropriate carers will be able to be found however there is insufficient evidence regarding the understanding of the carers of Jay's cultural needs and the capacity of the current carers to meet his cultural needs. The permanency plan fell way short of what the Court would expect from the Secretary and the ILR submitted that in such circumstances she cannot endorse or support the permanency plan presented to the Court. Has permanency planning for Jay been appropriately and adequately addressed? 1. Permanency planning means the making of a plan that aims to provide a child with a stable placement that, inter alia, meets the needs of the child (s78A(1(b)). 2. Section 78A(2A) of the Act provides that, although a permanency plan need not provide details of the exact long term placement of a child, the plan must be sufficiently clear and particularised so as to provide the Court with a reasonably clear picture as to the way in which the child's needs, welfare and well-being will be met in the foreseeable future. 3. Section 83(7A) only permits a finding that permanency planning has been appropriately and adequately addressed if the Court finds that the plan has provided further and better particulars which are sufficiently identified and addressed so the Court can have a reasonably clear plan as to the child's needs and how those needs are going to be met. 4. Only a plan that is realistic, reasonable and achievable and not one which is underdeveloped, vague or aspirational is a plan that would satisfy the requirements of s78A(1)(b), s78A(2A) and s83(7A). Permanency planning – cultural needs 1. The Secretary filed a Multicultural Plan which stated: Ms Murphy will be able to provide cultural support to Jay during family time vistis that she shares with him as well as continue an open dialogue with carers…. The carers, with the assistance of MacKillop Family Services, have made their best efforts to expose Jay to Ethiopian culture such as making age-appropriate Ethiopian types of foods and listening to Ethiopian music. [Foster carer]== has also been attempting to learn how to care for Jay's hair in order to allow it to grow out in a natural style. A multicultural consultation has been sought within DCJ's multicultural support team…this has not yet occurred but this will continue to be sought to explore further support options available to support Jay's maternal Ethiopian culture and paternal West African culture. 1. Ms Murphy has complained that Jay's hair is being shaved because the carers do not know how to care for it. Ms Murphy said she had offered to assist or to take Jay to a hairdresser however these offers were not taken up. 2. The caseworker stated in evidence that the carers had been told not to have Jay's head shaved. Ms Murphy's uncontested evidence was that, despite this, Jay's hair continues to be shaved by the carers. 3. In oral evidence the caseworker told the Court that that the learning how to care for Jay's hair as referred to in the Multicultural Plan was by way of the MacKillop Caseworker and the carer looking up on Google how to look after the hair. 4. The Multicultural Plan nominated a culturally specific organisation to obtain specific information regarding education and services that can be provided to Jay and his carers to support his culture. In oral evidence the caseworker told the Court that the organisation is no longer operating, though an ex member of the organisation may be able to help. 5. The caseworker has also made two attempts to get advice from the Department's own African specialists, noting that they are not Ethiopian, but he had no success in eliciting a response. 6. Ms Murphy has taken steps to re-engage with her birth family in Ethiopia, including travelling to Ethiopia on two occasions. The caseworker agreed that it is in Jay's best interest that a connection be made for Jay with his family in Ethiopia. No attempts have been made by the Secretary to contact Jay's extended family in Ethiopia or develop a connection and there is no evidence whether this will be pursued by the Secretary. 7. The caseworker gave evidence that Life Story work is an ongoing process and is very important for a child's well-being, particularly so for a child who is not in a culturally appropriate placement. There is no evidence about whether any Life Story Work has been undertaken for Jay or what Life Story Work is proposed. It follows that there is no evidence as to the capacity of the carers to undertake this very important task. 8. The s9 principles for administration of the Act, places an obligation on a decision maker to take into account a child's culture in all actions and decisions (s9(2)(b)). 9. Ms Murphy also asks the Court to place significant importance on Jay's cultural needs due to her own experience of suffering the loss of her culture. In her affidavit of 6 December 2019 Ms Murphy stated I also do not agree that Jay should stay in his current placement. I would prefer him to be in a culturally appropriate placement. His current carers cut his hair because they do not know what to do with his hair. I don't want him to grow up feeling lost. I don't feel that I am from Africa because I did not grow up that way. That makes me sad and I don't want Jay to feel like that. 1. If Jay is to remain in his current placement, which is not a culturally appropriate placement, supporting his cultural identity throughout his childhood and adolescence will be an essential component to ensure his best interests. 2. The Secretary clearly has decided to place minimal emphasis on the issue of the meeting of Jay's cultural needs as the Permanency Plan concentrates on the ability of the current carers to facilitate and supervise contact. The permanency plan states: Orders allocating parental responsibility solely to the Minister for 24 months will allow DCJ to continue to work with Ms Murphy and Jay's current foster carers in order to assist the carers to facilitate contact between Jay and Ms Murphy as this is currently the only aspect of parental responsibility that that (sic) have not been able to demonstrate an ability to exercise. 1. The current plan regarding Jay's cultural needs and how those needs are to be met is vague and underdeveloped. The plan does not sufficiently identify Jay's cultural needs or provide a reasonably clear plan as to how those needs are to be met. In such circumstances I cannot be satisfied that permanency planning has been appropriately and adequately addressed in respect of Jay's cultural needs. Permanency planning – the plan for guardianship 1. The Secretary filed a permanency plan for Jay on 8 November 2019 seeking a two year order with "a plan for guardianship" to his current carers. 2. The Secretary, in seeking this order, relies on s79(9) of the Act: 79(9) The maximum period for which an order under subsection (1)(b) may allocate all aspects of parental responsibility to the Minister following the Court's approval of a permanency plan involving restoration, guardianship or adoption is 24 months. 1. The Secretary has not undertaken an assessment of the current carers' suitability as guardians. The Secretary's argument, in seeking this order, must therefore be that it is not necessary to have assessed the carers as suitable for guardianship, all that is required is a plan to undertake an assessment. 2. The counter argument is that a permanency plan "involving guardianship" is one where the necessary guardianship assessments have been undertaken and are positive but there is a reason why a guardianship application is not being brought at this particular time. An example may be that, after a positive guardianship assessment, the Secretary may have identified the father of a child and determined that further family finding should be conducted before making a guardianship application. 3. In Jay's case the Secretary cannot succeed, no matter which argument is accepted because: 1. There is no assessment that the current carers would be suitable guardians; or 2. The current 'plan for guardianship' does not support a finding that permanency planning has been appropriately and adequately addressed. 1. In considering the Secretary's case the only document the Court was directed to by the Secretary, to support his permanency plan contained the following: Community Services have been unable to identify a suitable relative/kinship care placement for Jay. MacKillop Family Services have advised Jay's current carers are willing and able to continue caring for Jay until he attains 18 years of age. Jay has been placed with his carers since he entered care. MacKillop Family Services have observed the carers to be adequately meeting the day-to-day needs of Jay and are capable of providing him with stable and secure care long-term. DCJ is of the view that a short-term order should be made with the view of a guardianship order being made to Jay's current carers in future. Jay remaining in this placement with the addition of a case plan goal for guardianship will provide Jay with stability, safety and security throughout his life while ensuring that his mother is able to continue to play a positive role in his life and development of identity. DCJ are requesting parental responsibility orders for 24 months in order to provide a time to fully ensure a long term placement of Jay with his current carers with a guardianship order. At present time the carers have been able to demonstrate that they are able to independently manage all aspects of Jays care aside from family time as this has been managed and supervised by MacKillop Family Services. Therefore for the first 12 months of the short-term order, MacKillop Family Services will work with the current carers in order to ensure that they have the capacity to supervise family time for Jay. This will involve a current contact worker and caseworker explaining to the carers what things to be mindful of during family time in terms of Jay's safety and well-being, and then being present during family time visits to provide guidance and feedback through regular meetings and phone call updates. During this time, MacKillop Family Services and DCJ will also work with Ms Murphy and the carers to build lines of communication in order to facilitate family time visits. After this time the carers will be given the opportunity (sic) demonstrate their ability to supervise family time visits with Ms Murphy. The second 12 months will involve a guardianship assessment once the carers are able to demonstrate this requirement of facilitating family time. The guardianship assessment will either be completed by the MacKillop Family Services Care and Recruitment Team or MacKillop Family Services will arrange for an independent guardianship assessor to complete the assessment depending on worker availability in-house. 1. In summary then, the information put to the Court to justify a finding that guardianship is a realistic, reasonable plan and achievable within two years is: 1. Mackillop Family Service have observed the carers to be adequately meeting Jay's day to day needs and are capable of providing him with stable and secure long term care and report the carers are willing to do so as guardians 2. The Secretary is of the view that a short term order should be made with a view to an assessment of suitability of the current carers for a guardianship order in the future. 3. remaining in this placement with the addition of a case plan goal for guardianship if the current carers are assessed as suitable to become guardians will provide Jay with stability, safety and security throughout his life while ensuring that his mother is able to continue to play a positive role in his life and development of identity 4. the carers have been able to demonstrate that they are able to independently manage all aspects of Jay's care aside from family time as this has been managed and supervised by MacKillop Family Services. 5. the single outstanding matter for guardianship which will be worked on and assessed during the twenty four months of the order will be the carers ability to facilitate and supervise contact with Ms Murphy 1. It is instructive to examine each of the above points in turn. (i) Mackillop Family Service have observed the carers to be adequately meeting Jay's day to day needs and are capable of providing him with stable and secure long term care and report the carers are willing to do so as guardians * There is no dispute that Jay has been with his carers almost since his birth, that the carers are meeting Jay's day to day needs, that they have been approved as long-term carers and are committed to caring for Jay in the long term and able to provide him with a stable and secure placement. * The carers have reported their willingness to become guardians however the Court has not been directed to any evidence that the carers understand the nature of guardianship. (ii) The Secretary is of the view that a short term order should be made with a view to a guardianship order in the future * The Secretary's view is of course, not evidence that the plan for guardianship is realistic, reasonable or achievable. It is however a conclusion which warrants some examination. * The Secretary has not conducted his own assessment of the carers. It must therefore be presumed that the Secretary has formed his view on the basis of the advice, assessments, conclusions and/or opinions of MacKillop Family Services. No evidence as at the date of hearing has been filed that the current carers would be assessed as suitable guardians. * The Secretary's delegate, who expressed the view that the plan should be a plan for guardianship, is the Secretary's casework manager. The casework manager, who has not met the carers, gave evidence that she has not read the carers' assessment or profile and nor does she know whether there was any matching process undertaken. It seems therefore that the Secretary has formed the view that it is realistic to expect that the current carers could be guardians within 2 years, without any knowledge of the quality or content of the assessment by another agency. * The Secretary chose not to file in these proceedings any affidavits from the caseworker or assessors from MacKillop Family Services. The Secretary chose not to file the carers' assessment with the Court and the Secretary decided not to make the records of MacKillop Family Services available to the Court. * The Court is being asked to accept the view of the Secretary that the current carers could be guardians within 2 years based on assessments of another Agency which neither the Secretary's delegated decision maker or the Court has seen. (iii) remaining in this placement with the addition of a case plan goal for guardianship will provide Jay with stability, safety and security throughout his life while ensuring that his mother is able to continue to play a positive role in his life and development of identity * Of course merely stating a goal for guardianship does not provide the desired outcome and does not provide added stability, safety and security. It is not clear to me how, if the carers were to be assessed in the future to be suitable guardians, guardianship will ensure that Ms Murphy will play a positive role in Jay's life. (iv) the carers have been able to demonstrate that they are able to independently manage all aspects of Jay's care aside from family time as this has been managed and supervised by MacKillop Family Services * The statement that the carers can independently manage all aspects of Jay's "care" is vague. If care is day to day care, then that statement is accepted. However an ability to be able to manage day to day care is not evidence that the carers have or can, within two years, develop the capacity to be decision makers or that they have the capacity to manage without ongoing support from the Secretary. If "care" means meet all of his needs, then this conclusion is not supported by evidence and indeed is contrary to some of the evidence in relation to Jay's cultural needs. (v) The Care Plan states that the single outstanding matter for guardianship is the carers' ability to facilitate and supervise contact with Ms Murphy but that 24 months will be sufficient to "fully ensure" a Long term placement of Jay with a guardianship order." * The Secretary says in his current plan that an assessment is required to assess whether the carers will be able to facilitate and supervise contact. There is however a significant difference being able to facilitate and supervise contact and make decisions about what contact is in Jay's best interest. In order to make a guardianship order, the Court would need to be satisfied that the prospective guardian would be able to make decisions about what contact was in Jay's best interest throughout the course of his childhood and into his adolescence. This goes beyond skills required to facilitate and supervise contact. It is unreasonable to expect that the Court would make a guardianship order unless satisfied that the proposed guardians could make decisions regarding Jay's contact with his mother, in his best interests on an ongoing basis. It is likely too, particularly given his cultural needs, that the Court would want to ensure that guardians would be able to make appropriate decisions regarding, as well as facilitating, contact with extended family in Ethiopia. * In this case the Secretary argues that Ms Murphy cannot have Jay in her care because of her significant and ongoing mental health and drug issues, her lack of insight into these issues and a questionable commitment to Jay. There is no evidence filed to support a finding that the carers, armed with knowledge of potential challenges and complexities regarding contact would be willing or able to be guardians within two years. 1. Under the heading 'How will a Guardianship Order meet the identified long term needs of CYP' the Secretary identifies the issue of cultural support as one of the outstanding issues that the carers have not yet demonstrated. Other than the aspects of family time and cultural support, the current carers have been able to demonstrate an ability to care for Jay and ensure that all of his needs are met and ensure his health and well-being. A guardianship order once the remaining aspects are addressed will provide a permanent placement for Jay to continue to develop and thrive in a stable and nurturing environment. A guardianship order will ensure that there will be no further loss of identity for Jay as a focus will be on maintaining a relationship between Jay and his mother Ms Murphy. 1. It is not clear from the document how a guardianship order will ensure that there will be no further loss of identity for Jay. I do not accept that an ability to "facilitate and supervise" visits between Jay and his mother amounts to a focus on maintaining a relationship between Jay and his mother. 2. The Secretary's case is that the only matter outstanding in relation to a positive guardianship assessment and guardianship order is an assessment of the ability of the carers to facilitate contact between Jay and his mother, yet the Secretary has not filed evidence to support this contention. 3. Jay is a child placed in a non-kinship, non-culturally appropriate placement. I am not satisfied that the permanency plan which the Secretary has put before the Court is a plan which provides a reasonably clear picture as to how Jay's needs will be met. I am not satisfied on the evidence that guardianship in this case is reasonable or realistic or achievable within two years and therefore do not approve the permanency plan relied on by the Secretary. Summary, Findings and Directions 1. The Secretary has not filed a permanency plan which sufficiently identifies or addresses Jay's cultural needs. 2. There is no plan for guardianship as contemplated by s79(9) of the Act. It is not necessary to decide whether, in order to satisfy s79(9) of the Act, a plan for guardianship requires the Secretary to provide a positive guardianship assessment or whether proving a plan which is realistic, reasonable and achievable for guardianship will suffice, because, in Jay's case, there is neither. The Secretary's plan for guardianship is aspirational. 3. I make the following findings: 1. There is no realistic possibility of restoration of Jay to Ms Murphy 2. Permanency Planning has not been appropriately and adequately addressed 3. The Secretary is directed to file a permanency plan which: • identifies Jay's cultural needs and how those needs are to be met so that the Court can have a reasonably clear idea of such needs and how they are going to be met • provides for an order of parental responsibility to the Minister to 18, as there is no permanency plan involving restoration, guardianship or adoption 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 July 2022