Department of Family and Community Services (DFaCS) and the Ali Children [2018] NSWChC 6

Children's Court New South Wales

Medium Neutral Citation: Department of Family and Community Services (DFaCS) and the Ali Children [2018] NSWChC 6 Hearing dates: 23, 24, 25 August 2017, 8 and 9 November 2017 and 5 and 6 February 2018 Date of orders: 09 February 2018 Decision date: 09 February 2018 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: There is a realistic possibility of restoration to the applicants. The s90 application is granted. Catchwords: Rescission of care application Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: M v M (1988) 166 CLR 69 In the matter of Campbell [2011] NSWSC 761 SL v The Secretary, Department of Family and Community Services [2016] NSWCA 124 Category: Principal judgment Parties: Mr and Mrs Ali, applicants Secretary, Department of Family and Community Services Aatif Ali (child) Abbad Ali (child) Sadiq Ali (child) Representation: Mr Braine for the applicants, Mr and Mrs Ali Mr Whelan for the Secretary, Department of Family and Community Services Mr Sperling instructed by the Independent Legal Representative for the children File Number(s): 2017/207634 Publication restriction: Pseudonyms have been used for the children, parents, carers and SSI employees.

This judgment was given orally and has been formatted for publication.

Judgment

Background 1. Sadiq Ali was born on [ ] 2011. Aatif Ali was born on [ ] 2012. Abbad Ali was born on [ ] 2014. 2. In 2005 Mr Ali, the father of Aatif and Abbad, moved to Sydney. In 2010 Mr Ali married Mrs Leila Ali, the mother of Aatif and Abbad, in Bangladesh. On 25 November 2011 Mr and Mrs Ali are said to have adopted Sadiq. He is the son of Mr Ali's sister. Mrs Ali immigrated to Australia with Sadiq and Aatif in March 2013 and at the time Mr and Mrs Ali represented Sadiq to authorities as their birth son. 3. On 5 July 2013 Sadiq was presented to [ ] Hospital Emergency Department with a swollen cheek, infection to his mouth, marked dental neglect with multiple black teeth from decay and vitamin D deficiency. Sadiq also had seven - which was later modified to nine - bruises of various ages and multiple injuries including a fractured forearm which was several days old. X‑rays disclosed Sadiq also had a healing fracture to his pelvis which was less than three months old. 4. Dr Fonseca, paediatrician, prepared a report on 9 July 2013 in which he provided the following conclusion: "Sadiq has multiple bruising over his body of different ages suggesting repeated trauma. The history provided was inadequate to explain his severe bruising. There was no explanation for his forearm fracture. I am extremely concerned about Sadiq's unexplained injuries and have referred the matter to DoCS…. Sadiq will need extensive dental treatment of his caries if we are to prevent recurrent hospitalisation for dental infections." 1. On 9 March 2013, Sadiq and Aatif were assumed into care and a care application was made to the Children's Court. Interim orders of parental responsibility to the Minister were subsequently made and a finding that both children were in need of care and protection was also made. The children were placed with foster‑carers, Mr Joon and Ms Hase. 2. Mr and Mrs Ali were interviewed by hospital staff, police, JIRT officers and caseworkers multiple times between July 2013 and 5 February 2014. Each time Mrs Ali denied knowing how Sadiq's injuries occurred. She also offered possible explanations which were speculative. These explanations included that the injuries were caused by accidents such as falling off the sofa and in play with other children. Mrs Ali was also pressed by Mr Ali and denied to him that she deliberately caused any injury. Mr Ali then took up his wife's position that neither of them deliberately caused any injury to Sadiq and he maintained that if he had known that Sadiq was injured he would have sought medical help. 3. The Secretary filed Care Plans in the Children's Court proceedings recommending restoration on the basis of the parents' willingness to work with services. 4. The Children's Court made an assessment order and Dr Gary Banks, a Children's Court clinician, prepared a report for the Court dated 2 December 2013. Although he considered that there was a need for consistent and positive engagement with intensive family support and close monitoring, Dr Banks assessed there was a realistic possibility of restoration. 5. In January 2014, the Secretary received a report that Sadiq was not the biological child of Mr and Mrs Ali but instead the child of Mr Ali's sister. Mr and Mrs Ali denied this and agreed to DNA testing. Mr and Mrs Ali persisted in their claim that Sadiq was their biological child until 22 January 2014 when they then claimed they had adopted Sadiq. 6. Abbad, who was born on [ ] 2014, was removed by the Secretary and placed with Sadiq and Aatif's foster-carers on [discharge from hospital]. 7. On 10 March 2014, Dr Banks provided an addendum psychological report. It seems that, at the time of the report, it was contemplated that Sadiq could return to Bangladesh to the care of his natural mother. Dr Banks concluded that the complexity of this matter should not be underestimated and in the current situation he was only able to provide the Court with a series of unpalatable options from which the Court must choose the least harmful. With that in mind he confirmed his recommendation that there was a realistic possibility of restoration of Aatif and Abbad to Mr and Mrs Ali under strict conditions and, presuming confirmation from Bangladesh, a return of Sadiq to his biological parents as a matter of priority. 8. On 10 March 2015, Dr Banks produced a third report to the Court after a referral from the Secretary. The Secretary formed the view that Sadiq's needs would not be adequately met by his parents in Bangladesh and instead would be best met by remaining in a long-term out-of-home care placement with his then current authorised carers. The Secretary expressed concern about the impact of Sadiq's removal on his emotional wellbeing and the emotional wellbeing of Aatif and Abbad and sought an assessment. Dr Banks concluded that given the strength of Sadiq and Aatif's attachment, as well as his close relationship with Abbad, all three children's emotional wellbeing would be significantly impacted if Sadiq was repatriated to Bangladesh and he found that all three children had adjusted relatively well to their placement. 9. In March 2015, the matter was listed for final hearing. 10. In his oral evidence to the Children's Court at that final hearing, Dr Fonseca said, of the injury to Sadiq's pelvis, it was the most frightening of the injuries Sadiq sustained because the pelvic injury was an injury only ever seen in car accidents and "a significant amount of force would have to have been used in order to cause such a fracture." 11. At the final hearing Mr and Mrs Ali conceded that there was no realistic possibility of restoration of the children to their care and a final order was made of all aspects of parental responsibility to the Minister to 18 save for culture and religion which was to be shared between Mr and Mrs Ali and the Minister. 12. The Secretary handed over the case management and decision making in relation to these children to a non-government agency called Settlement Services International. I will refer to this agency throughout this decision as 'SSI'. 13. In June 2015 Mr and Mrs Ali began fortnightly therapy with Ms Dianne Starkey. 14. In January 2016 the children's contact with Mr and Mrs Ali was reduced to monthly. 15. In June 2016 Mr and Mrs Ali filed this application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') seeking to have all three children restored to their care. 16. The delay in this matter being listed for final hearing was contributed to by the leave issue being contested and therefore having to be listed for hearing and there being a further contested hearing regarding whether Ms Starkey could observe one of the contact visits. 17. As a consequence of the s 90 application, Dr Banks prepared a fourth report dated 6 December 2016. He was asked to assess the nature and quality of the children's relationship with Mr and Mrs Ali and also with the foster-carers.